United States v. Jdt, Juvenile Male

Act, Clean Air plain language why applicant overlook the reason must newly and

comply stringent with revised is, “to protect and en-

standards—that

hance the quality of Nation’s air re- promote public

sources so as to health productive capacity

and welfare and the 7401(b)(1). population.”

its U.S.C.

Honoring plain language the statute’s

overriding purpose, we must send EPA Avenal Power back the drawing

board.

CONCLUSION reasons,

For the foregoing we GRANT review,

the Petition for VACATE the deci- Permit,

sion issue the and REMAND proceedings opin- consistent this Petitioners,

ion. prevailing parties, as the

may recover the costs fees incurred in litigation from EPA. U.S.C. 7607(f); 39(a)-(b). P. R.App. Fed. America,

UNITED STATES of

Plaintiff-Appellee,

JDT, Male, Juvenile Defendant-

Appellant.

No. 12-10005.

United Appeals, States Court

Ninth Circuit.

Argued Sept. and Submitted 2013. Aug.

Filed 2014. Hilzendeger, Federal Public

Keith J. AZ, Office, Phoenix, for Defen- Defender’s dant-Appellant. United States Ferg,

Bruce M. Assistant At- of the United States Attorney, Office Tucson, AZ, Plaintiff-Appellee. torney, L. ingly Before: ARTHUR ALARCÓN and vacate the district disposition court’s BERZON, Judges, MARSHA S. Circuit decision and remand for further proceed- ZOUHARY, Judge.* District ings. JACK affirm We in all other respects. Opinion by Judge ALARCÓN. I by Judge

Concurrence BERZON. charged by the Government OPINION (E.F. sexually abusing boys five (age 5), 7), ALARCÓN, (age 5), C.T. (age 6), C.M. Judge: (age N.S. Circuit 6)) (age C.B. in and around Mott JDT, juvenile, appeals from the dis- Circle, a neighborhood residential for mili- adjudication trict court’s delinquency tary Huachuca, Arizona, families Fort abuse, six aggravated counts of between June and December 2241(c), violation of 18 U.S.C. for inci- 2010. housing units Mott Circle occurring dents boys with four between park surround a with a playground. A ages of five and seven Fort Huachu- large drainage ditch with a cement tunnel ca, Arizona. We first review whether the part perimeter forms of the neigh- subject jurisdic- court had matter years borhood. JDT was ten old at the tion over JDT’s delinquency pro- time of alleged federal crimes. ceedings pursuant to 18 U.S.C. 2241(c) § and whether 18 U.S.C. is uncon- 10, 2011, February On the Government stitutionally vague because it provides for filed an Information charging JDT with six arbitrary discriminatory and enforcement 2241(c) § counts of violating and a certifi- when both the victim and the perpetrator cation to proceed against juvenile JDT as a are under the of twelve. We conclude in federal pursuant court to 18 U.S.C. that the jurisdiction district court had and 5032, § required under the Juvenile 2241(c) § that is not unconstitutionally Justice and Delinquency Prevention Act of vague. 1974, §§ seq., 5031 et referred to herein as JDT further appeal contends on that the the Federal Delinquency Juvenile Act (1) (“FJDA”).1 district applying court erred the mens The Government filed a Su- (2) 2241(c); § rea element of denying the perseding 1, Information on March Rule judgment 29 motion for acquittal charging JDT with two additional counts. as to Counts 3 and 5 because there was JDT was thus charged with four counts of insufficient evidence of anal penetration; 2241(c) violating 2246(2)(B) § § and (ag- (3) admitting hearsay statements of a gravated sexual abuse of a minor involving victim through testimony aof social contact between the penis and mouth 803(4) pursuant (Counts worker to Rule 1, 2, 4, 6)); and three counts of Federal Rules of Evidence for medical violating 2246(2)(A) § di- § and (ag- (4) agnosis treatment; and and denying gravated sexual abuse of a minor involving JDT’s requests suspend his status as a contact between penis and anus juvenile (Counts delinquent. We only find error 7)); and one count of with respect 2244(a)(5) to the district handling court’s violating 2246(3) (abu- of JDT’s suspension request, (Count 8)). and aceord- sive sexual contact The Gov- *The Zouhary, noted, Honorable Judge Jack District 1. Unless otherwise statutory all federal for the U.S. District Court for the Northern are references to Title 18 United States Ohio, sitting by designation. District of Code. just I any time. be raised could against proceed certification ernment’s at this raised it moment. pursuant court federal juvenile as a JDT that stated 5032, filed March §to the record That’s fine and The Court: objected. you have will reflect does state juvenile my recollection it turns And if out juvenile with over the jurisdiction have incorrect, guess you’ll I be able then is act of alleged respect I that. But think move forward on charged the offense delinquency; information, I look signed I since violence; is a that there a crime I it. I believe that did see for that and case in the interest Federal substantial the exercise warrant or the offense copy, handing I’m him a Government: jurisdiction. Federal Judge. March challenges court on further hearing any in district

At a did not raise counsel, Raynor, general- Richard jurisdiction court’s JDT’s to the federal Information Superseding validity the Government’s objected to or the ly, proceedings while specifically, as follows: certification in the court. pending were Honor, supersed- Your Raynor: Mr. object to be- I would

ing information trial, testimo- three-day bench During jurisdiction lacks cause ei- occurred that the offenses ny revealed the addi- no certification (Counts 1, 2, “ditch,” there’s in and around ther added. are charges (Counts 5), tional 4 & 6), house in a vacant & or for the no new certification There’s the vic- JDT and Mott Circle where near are added. charges that additional resided. tims by the certification no new There’s 5) trial, testified (age 1: At E.F. Count delegat- who is Attorney himself U.S. 14, 2010, he “sucked on December ing— said” [JDT] pee-pee” “[b]ecause [JDT’s] just sorry. probably I I’m

Government: and he contin- to; stop” “not JDT said paper. of piece him give that didn’t home, ued; go JDT he wanted although know, signed I this You Court: The hit with a [E.F.] going he “was said my recollection and it’s information that C.T. testified stopped. E.F. if stick” but— and that JDT the incident witnessed he that penis”; [JDT’s] to suck in “told know, just [E.F.] have it I You Government: to leave the if tried him that C.T. told it wasn’t at- I have JDT copies and ditch, to throw little was going “he sign. Burke did but Dennis tached at someone’s sharp” thing that’s square believe, I looked because I Court: die”; and C.T. head, “they and would that there was that, and I believe at if actually die hit would thought someone counsel can perhaps and certification object. with if that. And somehow get copy incorrect, your file 7) be turns out to (age testified 2 and 3: C.T. Counts and revisit back and we’ll come motion alone with JDT was time when he one I is—because My recollection that. ditch, penis, his me suck JDT “made in I and be- thing for that sort of look my in parts private then he sticked his and awas certification. lieve there in penis his behind”; put and when JDT like when it butt, soft” “pretty it was you, Your C.T.’s Okay. Raynor: Thank Mr. asked, “Where mouth. in his When Honor, And, was You Honor. answered penis?,” C.T. put his [JDT] as an issue did knows, jurisdiction Court “[l]ike, ultimately straight in this case.” The district court penis his in put JDT hearsay objection. overruled the hole of it.” testimony Counts and 8: The Gov- 5) (age 5: C.M. testified Counts and elicited from and ernment N.S. C.B. empty him an house on took JDT respect charges apparently to these was him, worry”; “Don’t and told Mott Circle counts, prove insufficient to these “mouth,” in put “pee-pee” his C.M.’s JDT the conclusion of the Government’s “butt”; pants he took his off and and his case-in-chief, Counts and 8 Su- “lying facing down” on his stomach was perseding Information were dismissed on wall, “right top on JDT the Government’s motion. [him],” off; pants JDT also with his Guevara, MD, a JDT called Alfredo doing it.” stopped he was done “[b]ecause urologist, board-certified who testified asked, you ever afraid of When “Were performed complete he examination of [JDT]?,” replied, “No.” C.M. JDT, and JDT’s lab revealed “[z]ero tests 6) (age meaning 6: N.S. was asked three an Count level unde- testosterone”-— penis in put times if JDT ever his his tectable level testosterone-—-in JDT’s mouth, bloodstream. The called he answered “No.” Government Dale and each time MD, Woolridge, professor associate hurt him when “[h]e He testified JDT pediatrics emergency medicine at the put he pulled my pants[, down didn’t but] University of Arizona. Both doctors testi- penis my point mouth.” At no did his possible prepubescent fied that it was say put penis N.S. that JDT his N.S.’s boys get an erection. mouth mother testified or anus. N.S.’s disappeared that her son with JDT and view, In Dr. Guevara’s the “erections of happened, when she asked him what N.S. gone a child that ... has not through pull told had him down his her puberty only can occur aas reflex.” When pants on the and touched N.S. butt. She impossible asked if it was for a reflex asked him to show her what JDT did and activity, erection to be used for sexual he bed, up top he “crawled on to the testified, “I think In don’t so. order for in a lap jumped up and down perform act, [her] one to a sexual a reflex erec- Pike, missionary a social position.” Judy nature, tion has to be maintained. And Huachuca Medi- ... a services counselor at Fort reflex erection is nonmaintainable.” Clinic, They “usually cal occur sleep testified that she met with N.S. under REM boys.” older and he told her that him into an JDT led empty house and told N.S. to touch JDT’s Woolridge Dr. that prepubes- testified

privates, put “to his mouth on [JDT’s] boys cent experienced both reflex erec- private.” objected JDT’s counsel to the “voluntary tions and erections that are hearsay introduction of these statements pleasure.” based on explained He that to argued Pike. Defense counsel that the “routinely]” infants during have erections testimony hearsay” “doesn’t fit within the examinations, medical and that “it’s not exception diagnosis for medical or treat- uncommon” to examine the testicular size ment, but instead for law enforcement was an infant prepubescent boy or and “ac- concluded, purposes. court “I The district tually stimulate an erection.” He did not going conditionally am to allow Ms. Pike to characterize these erections as “reflex” but testify, my and I will make ultimate deci- “spontaneous” instead as results of stimu- sion I from really once hear her what was Woolridge “disagree[d] lation. Dr. whole- going really on and got heartedly” how she involved with Dr. Guevara’s view that a boy only get prior disposition. can a cian to On December eleven-year-old or ten- Dr. Wool- court a during sleep. disposition reflex erection the district held that “an awake child is ridge hearing. requested testified The Government during an erection” a medi- develop placement facility able to in a called Casa de Tuc- He added “it’s being [] cal examination. because “is not son monitored pedia- knowledge throughout school, common he if at properly which would be prepubescent children tric literature and that Casa de Tucson” JDT “committed erections,” get they hap- can and that can living these crimes while home []his “spontaneously children pen such environment, which fostered this child’s with stimulation.” behavior.” JDT asked the district court to impose years’ probation three to allow for that testoster- agreed

Both doctors also continuing treatment of JDT in his home. male required postpubescent one was guardian opined place- ad litem through an erec- to manifest sexual intent facility ment at a like the Casa de Tucson “a Dr. stated that was tion. Guevara facility inappropriate treatment for a impossibility for physical, [JDT] scientific child like JDT. Dr. an for sexual intent.” to will erection pointed out that serum testoster- Guevara The district stated: urge required experience is one (cid:127) “I grew up system progres- in a called However, act. perform and to a sexual sively increasing consequences. If I ag- Woolridge Dr. testified “[a]cts Tuscon, no got start with Casa de I’ve of domination are essen- gression and acts place go.” else to

tially t]hey behaviors.... [and learned (cid:127) “I’m going leaving to start out may have a sexual form or a sexual outlet.” house, in the and I want [JDT] that, before the Woolridge Dr. asserted explain you why going I’m to do it.” not neces- puberty, onset of testosterone is (cid:127) I think it’s in best inter- [JDT’s] “So erection, an an sary boy get for a even give him a shot at with ests home one, prepubescent intentional major probation doing supervi- some boy get can an erection “with stimulation” sion, major counseling being some tickling.” “akin to done.” impos- Dr. Guevara testified “[i]t (cid:127) “My goal right now is not to make penetrate sible to an anus with unerect are. things they already than worse and, penis soft is not erect penis.... [A] chronologically, going He’s 11 therefore, penetrate.” unable to Dr. Wool- eight or but he’s closer to seven ridge “impossible testified that it was not status, his mental at least educational- penetrated for the anus of a child be [to] ly testing.” flaccid.” asked if by penis that is When (cid:127) fact that he’d be the “Besides the type there is a different of erection be- there, speak- youngest generally one pre- post-pubes- tween someone who is facility to a such ing, taking someone cent, said, say “I would no. I would he inpatient or [other as Casa de Tucson is an erection. It’s the say erection facilities], way surefire there is no the tu- engorged penis. shaft of the It’s result, and some- getting the desired penis.” state of the mescent things times we make worse.” The court found JDT to be a district proba- on placed The district court JDT delinquent provided based on the evidence and, by recommended years 1-6. It tion for five as by the Government on Counts litem, him to remanded physi- guardian the ad by ordered that JDT be evaluated custody parents. the of his The district basic statute, research of the the term imposed court a number of restrictions as “suspend” is not defined or explained part of JDT’s probation as also recom- and due to the gravity of the nature of by litem, mended the guardian ad includ- charges, these the Court declines to ing restrictions on internet access and grant the Motion to Correct Sentence. carrying movies an MPAA rating of PG-13 JDT a timely filed appeal. notice of greater, or p.m. curfew, a 6:00 that he be supervised by an adult at II all times when children, around medication, take his JDT argues appeal the participate in weekly individual and family district court jurisdiction lacked over these therapy. delinquency proceedings because the Gov JDT asked the district court to suspend ernment present did not a valid certifica finding the delinquency tion the de- as to the need for juvenile these pro termination would “brand ceedings for [JDT] the place take in federal court. rest of his life offender, sex ... The Government [and] maintains that a facially would be contrary to the purposes of reha- valid certification is subject to review bilitation.” The district by court asked de- this Court and must be held sufficient. counsel fense “[w]hat state law It you are further contends that even if the certifi aware right now require cation would be Court, him can reviewed by this to register [as sex for the offender] rest certification at issue here was correct. of his life?” Defense responded: counsel government “Whether the complied with “I’m (One not aware any right juvenile now.” [the delinquency certification re 35(a) week later his Motion, Rule quirements of] U.S.C. anis issue identified thirty-four states juve- in which of statutory interpretation which this court adjudicated niles delinquent may be sub- reviews de novo.” United States v. Juve ject registration certain Male, requirements (9th nile Cir.2001). time.) for periods certain Later in A certification filed in the district court by disposition hearing, defense again counsel a United States Attorney is presumed to inquired suspension, about asking accurate, be whether absent calling circumstances the district court “has made question a decision into accuracy its or validity. See suspend not-to finding of delinquency.” Labs., Pasadena Research Inc. v. United stated, States, court “I haven’t decid- Cir.1948) 381-82 F.2d ed whether to make that (holding decision or generally, not. “presumes[] the law He’s definitely delinquent. I suspend man, can’t that every private his and official the fact that he’s delinquent. character, He’s the duty, does his until the contrary poster child being delinquent. is proved; We’ll presume will things all talk legal about the niceties later.” are rightly done, unless the circumstances of the case overturn this presumption”).

JDT filed a motion to correct the sen- pursuant 35(a) tence to Rule of the Feder- A al Rules of Criminal Procedure. The dis- trict court denied the motion to correct provides Section 5032 part: relevant sentence explaining: juvenile A alleged to have committed an

The Court has reviewed pleadings act of juvenile delinquency ... shall not filed parties with regard to proceeded be against any request by to “suspend” his United States the Attorney unless Gen- Court, conviction. The doing eral, after some investigation, after certifies correctly “that court of the United stated the Arizona courts appropriate district (1) jurisdiction” or oth- juvenile that court lacked since no state court States a does not appropriate proceedings against er court of State had been initiated Furthermore, jurisdiction or refuses to assume have JDT. the Government ar- “ jurisdiction juvenile over said with re- that gues Congress ‘specified where has juvenile alleged act of de- spect to such government what the must do to establish (2) the State does not have linquency, jurisdictional preconditions,’ prop- and the programs available and services ade- certified, government er official has so (3) juveniles, or quate for the needs of Court ‘should not read into the statute ” charged the offense is a crime of vio- an unwritten additional hurdle.’ felony that of several [one lence is This Court addressed similar certifica that there is a enumerated crimes] challenge tion in United States v. Gonza in ... substantial Federal interest lez-Cervantes, 668 F.2d 1073 Cir. to warrant the exercise of feder- offense 1981). There, Attorney States United jurisdiction. al timely filed certification that stated that “Regulations promul- 18 U.S.C. 5032. juvenile Diego County court of San gated by Department of Justice dele- jurisdiction refused to assume over Gonza gate authority sign need certifications to lez-Cervantes, juvenile rather than the Attorney the Assistant General for the Imperial County-where court of the under Deputy Criminal Division and his Assis- lying attempt crimes occurred. “In an General, may in turn Attorneys tant who error, remedy any government, as an Attorneys.” delegate to the U.S. Juvenile briefs, appendix to its filed a certification Male, (citing 241 F.3d at 686 28 C.F.R. County stating Imperial courts 0.57). regula- The statute and related jurisdiction refused to assume over Doe.” require tions therefore the United Id. at 1077 n. This 6. Court “note[d] Attorney, Attorney as the General’s States objection the defendant made no to the delegated representative, investigate and level,” certification at the trial court and in certify to the district court that federal fact, “stated to the district court: ‘the jurisdiction appropriate based on one of stating certification was filed appropriate §in the enumerated reasons listed 5032. jurisdic that the court not wish State did requirements “Because certification ” (Doe).’ “The tion over Mr. Id. 1078. disjunctive, single are basis for certifica party object that a must general rule is jurisdiction.” tion establishes United opportunity, an error at the first or that Juvenile, v. Male States (citing Fed. error is waived.” Id. (9th Cir.2002). 51). R.Crim.P.

B This Court noted that counsel “[d]efense stated ] was aware that JDT contends that Govern certification Diego County courts refused to San legally ment’s certification was incorrect jurisdiction ... had access to [and] assume juvenile that “the court stated activity showing that the criminal the facts jurisdiction or the state does not have over Thus, Imperial County. any occurred act juvenile respect alleged to the objection to the error in the certification juvenile delinquency,” when in fact “Ari should have been made to the district ju zona’s courts assert concurrent opportunity.” judge at the earliest risdiction in cases like this one.” The Id. argues the certification Government rejected jurisdiction ground on the that the Govern- this Court Gonza-

Accordingly, and held that to file a certification argument ment failed lez-Cervantes’s Infor- corresponding Superseding with its require not the trial does the statute 1, 2011, mation filed on March the record determine, sponte, if the sua judge to provided copy reflects that JDT was with the appropriate filed refers to certificate objection, dropped despite and then the instituting binding court before state express the district court’s invitation to file against juvenile. proceedings here, objecting a motion certification. Where, timely a certificate was as filed, again JDT did not raise the issue and at no appeared regu- that certificate face, objections judge point specific the trial has no articulated lar on its investigate being certification that are now raised duty independently appeal. if the certificate refers to the for the first time on determine Moreover, only not court. proper state Moreover, only requires the statute object counsel fail to to the did defense Attorney certify the United States certification, agreed “ap- she that it was juvenile appropriate “the court or other believe that the trial propriate.” We court of a ... or State does have judge rely representations by can on the jurisdiction refuses to assume over [the Attorney, particularly States the United juvenile].” acts of a 5032. Black’s Law acquiescence by face of defense Dictionary as “1. “certify” defines follows: counsel, that the certification is accurate. verify in writing. To authenticate or 2. To judge is then free to The district being meeting attest as true or as certain juvenile. against the proceed Dictionary criteria.” Black’s Law (footnote omitted). at Id. 1077-78 ed.2009). Here, the States Attor- United argues that unlike Gonzalez- ney certified to the district court that “the Cervantes, present- where Government juvenile court or the state does not have its briefs on that it appeal ed evidence with jurisdiction over respect investigated proper with the state authori- alleged juvenile delinquency to the act of they ties to determine whether intended to jurisdiction.” no state court had This prosecute, here Government “makes Court has held that “there are certain investigation no effort address the re- [to presumptions regarding well-established quirement] this before Court.” JDT’s at- regularity public of the acts of tempt distinguish case from Gonza- Labs., Inc., servants.” Pasadena Res. persuasive. lez-Cervantes is not (“The presumption F.2d at 381-82 of regu- supports larity supports record JDT’s assertion the official of public acts officers, provided any that the has not Government the absence of clear evi- support beyond contrary, additional the certifica- dence to the presume courts — they tion it in the district court—demon- properly discharged filed have their official strating investigated whether the (quoting duties.” United States v. Chem. Found., jurisdiction Inc., state intended to assume over 272 U.S. 47 S.Ct. (1926))). JDT’s offenses. As this Court held in L.Ed. 131 Accordingly, the fact Gonzalez-Ceruantes, however, “any objec- that the record is bare to whether tion to the error in the certification should “requisite investiga- Government made the judge county have been made to the district court tion” with or state law enforcement opportunity.” the earliest Gonzalez- authorities to determine whether the state Cervantes, 668 F.2d at 1078. coun- him prosecute While would before it certified objected sel for JDT position compel to the district court’s does not the conclu- jurisdic- presumption turn the of its correctness at court lacked that the district sion Accordingly, the district level. we tion. jurisdiction hold that the district court had with decisions holding is consistent This juvenile delinquency proceed- over JDT’s For exam- certification contexts. other ings. that the certifica- this Court has held ple, single Because a basis for certification § which tion in 18 U.S.C. provision jurisdiction, establishes we do not reach conveys jurisdiction over certain appellate any of argu- the merits of JDT’s other interlocutory requires and that the matters concerning validity ments of the Gov- Attorney certify “to the dis- United States Juvenile, ernment’s certification. Male for appeal trict court that the is taken F.3d at 1013. delay of and that the evidence is purpose material,” by ... is satisfied “mere certifi- III delay materiality and regarding cation 2241(c) prerequisites.” § United States W.R. argues appeal that JDT is Cir.2008) (en Grace, unconstitutionally vague within the mean- banc). specified Congress Where has ing of the Due of the Four- Process Clause must do to establish government “what the teenth Amendment because it fails to clari- jurisdictional preconditions.... we those fy contemplated what is cases where all ... into the statute an should not read participants charged in the sexual acts are hurdle, even if well unwritten additional age argues under the of twelve. He 2241(c) intentioned.” Id. This Court held that “the statutory § operates as federal of the statute shows that plain language rape provision, under which adult or that, Congress long intended as the in a act teenager engages who requirements present, of 3731 are other is the person age under of twelve regarding delay mere certification and “natural target prosecution” and the however, is all the statute materiality prerequisites argues, child is the victim. He jurisdic- requires appellate to invoke our age that “when two children under the “The itself is a tion.” Id. certification engage together, in a sexual act ‘each victim, Attor- representation the United States is an offender and a and child both court, that ney, terms[, as an officer of the between those two distinction ” appeal purposes delay victim,] not for is Ac- offender and breaks down.’ is ma- suppressed that the evidence indeed cordingly, he contends that is “[Sjhould at 507. we find the “encourages terial.” Id. vagueness void for frivo- government’s appeal patently to be arbitrary discriminatory enforcement” its certifica- lous or have reason believe child under prosecute when used to one false, directly tion is we could sanction per- for sexual acts age twelve misconduct, surely potent ‘check’on age such formed with another child under the prosecutorial pro- abuse of the certification twelve.

cess.” Id. argues also that the statute did not him that he could be representation pre- adequately is inform

The Government’s in a accurate, knowingly engaging for contrary prosecuted “until the sumed to be under the person sexual act with a proved unless the circumstances [or] per- into the class of because he falls presumption.” of the case overturn Labs., protect. intended to F.2d at 381-82. sons that the statute is Pasadena Res. “Congress did not intend representation He contends challenge JDT did not statutory-rape provision to be used any that would over- for the present evidence guidelines, may permit a criminal 10-year-old prepubescent statute prosecute conduct, sweep police and that the trial ‘a boy knowing standardless allows arbitrarily disregarded men, Con- prosecutor prosecutors, juries pursue ” Kolender, intention.” gress’s personal predilections.’ their (quoting 461 U.S. 103 S.Ct. 1855 maintains JDT’s The Government , Goguen Smith v. 415 U.S. claim is barred “unguided enforcement” “ (1974)). S.Ct. 39 L.Ed.2d 605 “[T]he ‘clearly come with- because JDT’s actions ” Government retains ‘broad discretion’ as to Alternatively, the in the statute.’ Govern- prosecute.” Wayte whom to v. United challenge if argues ment that even JDT’s States, 607, 1524, 598, 470 U.S. 105 S.Ct. that only statutes “invite” permissible, is (1985) (quoting 84 L.Ed.2d 547 United arbitrary unacceptably are enforcement Goodwin, 368, 11, States v. 457 U.S. 380 n. asserts that vague. The Government (1982)). 2485, 102 S.Ct. 73 L.Ed.2d 74 “So potential clear notice to provides long prosecutor probable as the has cause is forbidden offenders as what conduct constitutionally sufficient to believe that the accused committed an provides also and statute, guidance The Gov- for law enforcement. offense defined decision however, concedes, ernment there are or prosecute, that whether not to and what reported delinquency proceed- no charge cases to file a bring grand jury, before ings having brought against been other generally entirely rests his discretion.” juveniles age under the of twelve for vio- (citing Hayes, Id. v. Bordenkircher 434 2241(c), noting that lating “young while 357, 364, 663, U.S. 98 S.Ct. 54 L.Ed.2d 604 juveniles subject proceedings.” (brackets are to such (1978)) omitted). In Wayte the Supreme explained: Court claim not vagueness JDT’s largely This broad discretion rests raised in the district court. This Court recognition the decision to challenge de novo a defendant’s “review[s] prosecute particularly ju- is ill-suited to unconstitutionally vague.” that a statute is dicial review. Such factors as the Lee, 1029, United F.3d States case, strength prosecution’s of the (9th Cir.1999) (citing States v. Iver United value, general deterrence the Govern- (9th Cir.1998)). son, 1015, F.3d people can prohibited statute encourage arbitrary sufficient definiteness that must define the To understand satisfy ^[2] in a due criminal manner that does process, and discriminato what conduct is offense [1] “a ordinary penal Wayte, 470 ment’s enforcement susceptible case’s overall enforcement courts are relationship atU.S. competent to the kind of 607, 105 to the Government’s plan priorities, to undertake. S.Ct. 1524. are not analysis and the readily ry enforcement.” Skilling v. United A States, 358, 402-03, 561 U.S. 130 S.Ct. (2010)

2896, light JDT contends “[i]n (quoting 177 L.Ed.2d 619 Ko Lawson, undisputed testimony delinquency at the lender v. 461 U.S. (1983)) (brack hearing body yet begun had not [his] S.Ct. 75 L.Ed.2d 903 omitted). testosterone,” produce “vague there ets “The is void-for-vagueness doc ness a prosecuting 10-year-old trine inherent requirements.” embraces these Id. boy at a 130 S.Ct. 2896. The under” statute identifies chil legislature must provide guidelines gov “protected party.” “minimal dren of his In statute, light vagueness ern law enforcement” “the “[w]here legislature provide delinquency proceedings fails to such minimal in this case ” arbitrary prose- place apparent purpose.’ exercise of with no Id. at amount to (brackets omitted). power.” cutorial 119 S.Ct. 1849 Court noted that apparent pur- ‘no “[t]he assessing a statute allows Cases whether pose’ inherently subjective standard is arbitrary discriminatory enforcement application its depends on whether unguided enforcement based on consider purpose ‘apparent’ some to the officer on text of the statute. In vagueness the scene.” at Id. 119 S.Ct. 1849. Kolender, Supreme reviewed a Court “Presumably an officer have would discre- criminal “require[d] California statute tion to treat purposes-perhaps pur- some persons who loiter or wander on pose engage in idle conversation or sim- provide streets to a ‘credible and reliable’ ply enjoy a cool breeze on a warm pres identification and to account for their evening-as too apparent frivolous to be if requested by peace when officer ence suspected he a different ulterior motive.” justify under that would circumstances Id. The statute was held to be unconstitu- [Terry stop.” 461 U.S. 103 S.Ct. ] tional it because too much dis- “afford[ed] challenged 1855. The statute was because 64, police.” cretion to the at Id. 119 S.Ct. virtually complete it in discretion “vest[ed] 1849. police the hands determine suspect the ha[d]

whether satisfied D.B., JDT relies on In re 129 Ohio St.3d 358, The statute.” Id. at 103 S.Ct. 1855. 104, (2011), 950 N.E.2d 528 cert. denied presently Court noted “as drafted and — nom., D.B., U.S. -, sub v. Ohio 132 ..., no construed contains [the statute] 846, (2011), sup S.Ct. 181 L.Ed.2d 563 in determining suspect what a standard port argument of his au satisfy in require has to do order to thorizes encourages arbitrary and and dis provide ment to a ‘credible and reliable’ criminatory enforcement when applied to At it argument, identification.” Id. oral There, under 12. age offenders suspect was conceded that “a violates [the [age testified that he had 12] “A.W. ob unless ‘the officer is satisfied statute] [age [age served D.B. and M.G. 12] 11] ” 360, at identification is reliable.’ Id. engage in anal sex.” Id. at 530. “A.W. (brackets omitted). The S.Ct. testified that D.B. with video ‘bribed’ M.G. Court reasoned the statute “furnish[ed] games engage in sexual conduct. Both convenient tool for harsh and discriminato and stated that the sexual con A.W. M.G. ry by prosecuting local offi enforcement always duct was initiated D.B. and that cials, against particular groups deemed to with, bargain D.B. would either or use (internal displeasure.” merit their Id. on, physical force to convince M.G. to M.G. omitted). quotation marks The Court held in engage sexual conduct.” Id. D.B. was “unconstitutionally vague the statute was adjudicated delinquent to be and commit eneourage[d] arbitrary because it en Department ted “to the of Youth Services 361, forcement.” Id. at 103 S.Ct. 1855. years minimum of five to the maxi for a Morales, Similarly, City in Chicago period birthday.” mum of his 21st Id. The 41, 119 144 L.Ed.2d 67 U.S. S.Ct. commitment, “suspended (1999), the Court examined an ordinance D.B. for an indefinite placed probation “ prohibited gang ‘criminal street dispo of time.” Id. at 530-31. The period ‘loitering’ members’ from with one another appeal. sition was affirmed on Id. at 531. in persons any public place.” or with other Court, 45-46, however, Loitering Supreme Id. at The held S.Ct. 1849. Ohio “ “criminaliz[ing] what is ‘remaining any was defined as in one that a state statute ” id,., very discriminatory en- ‘statutory rape,’ is the definition of known as commonly in “unconstitutional[ly vague] applied engaged as forcement. D.B. and M.G. sex- was circumstances,” other, only id. at 529. D.B. yet in ual conduct each these under review offenders “h[e]ld statute “The case charged.” Id. facts con- strictly engaging liable for statutory rape that [the law] demonstrate age with children under duct encourages arbitrary authorizes and force element of [was] [and] discriminatory applied enforcement when age under the of 13 because child offense age are under the [who both] to offenders presumed incapable to be of con- legally is of 13. The statute is thus unconstitution- at senting to sexual conduct.” Id. 531. ally vague the Due Process [in violation of that the was “uncon- argued D.B. statute Constitution] of the United States Clause him applied as stitutional applied to this situation.” Id. guidelines desig- provide fail[ed] argues The Government that In re D.B. actor is the victim and which is nate which “is a meritless But see In re aberration.” offender, resulting arbitrary D.R., No. 12 MA 2012 WL at discriminatory enforcement.” Id. 532. (Ohio 2012) Ct.App. (affirming *6 Nov. Supreme agreed: The Ohio Court proceedings court’s dismissal of age applied As to children under against eleven-year-old charged with statu- engage 13 who sexual conduct with tory rape four-year-old pursuant of a other children under the [the D.B.). It ruling In re maintains unconstitutionally vague be- statute] “many explanations that there are for dif- encourages authorizes and ar- [it] cause prosecution” charging ferential and that bitrary discriminatory and enforcement. of part JDT instead the other children is of engages an adult in sexual con- When prosecutorial discretion and does not stem 13, age duct with a child under the of it vagueness from of statute itself. party is clear which is the offender and “Congress intended that law enforcement But which is the victim. when two chil- discretion about who to view as the offend- of in age engage dren under the 13 er when under-12 children have sex to- other, sexual conduct with each each gether guided by be common sense consid- victim, child is both an offender and a activity, eration such as who initiated the and the distinction between those two respective ages their parties, terms breaks down. factually whether conduct was volun- explained Id. at 533. The court that Juvenile, tary.” The cites to Government theory aggressor “while the of D.B. as the 783-84, in support argu- 347 F.3d at of its alleging was consistent with the counts “older, prosecutors ment that look to the dismissed], rape, all of were [forcible which person” more mature to determine whom theory is incompatible with the counts prosecute culpable prose- as “more alleging statutory rape a violation of be- cution-worthy.” anyone engages cause who in con- sexual 2241(c) ... provides: Section “Whoever duct with a age minor under the of 13 knowingly act engages a sexual statutory rape regardless commits “Thus, person another who has not attained the whether if force was used.” Id. years of 12 ... ... true, age shall be fined alleged complaint facts in the were 2241(c). § imprisoned.” D.B. Unlike Kolen and M.G. would both be in violation of Morales, statutory rape der and where was unclear [the Id. statute].” prosecuted Ohio which would be Supreme pros- Court held that individuals be “[t]he charge ecutor’s choice to D.B. but not M.G. enforcement officials could deter- cause-

999 if it failed to unconstitutionally vague statute was violation mine who a defendant on notice that his conduct here, language put manner, plain ad hoc an Kilbride, criminal.” States v. United 2241(c) prohibition within its brings §of (9th Cir.2009) 1240, (citing 1257 584 F.3d in a knowingly engages who any person 809, F.3d Purdy, States v. in the United act,” elsewhere as defined “sexual Cir.2001)). (9th “A criminal statute is not statute, to the same susceptible not and is ordinary if a vague person reasonable those in discretionary determinations Kolender, understand what con intelligence would See and Morales. Kolender States Morales, prohibits.” duct the statute United 1855; 358, at 103 S.Ct. U.S. Cir.1999). Lee, v. 183 F.3d Accordingly, 119 S.Ct. 1849. at U.S. vagueness, for reviewing a statute 2241(c) When unconstitutionally vague § is not enjoys presumption challenged “a statute of the Unit- the Due Process Clause under constitutionality.” Napolita v. Forbes ed States Constitution. (cit (9th Cir.2000) no, B Bullitt, 360, 372, 84 377 U.S. ing Baggett (1964)). 1316, 12L.Ed.2d 377 S.Ct. 2241(c) § did argues also he, prepu him “adequately inform[ ] 2241(c) clearly expresses The text of subject prosecution boy, can be bescent who commits the listed any person in a sexual act engaging knowingly subject prosecution, regardless acts is age under the person with a long prosecutor “so as the age, his or her in the participants the other both he and ac- to believe that the probable has cause persons into the class of act ... fall defined committed offense cused protect.” intended to the statute is Bordenkircher, 434 U.S. statute.” that the statute counters The Government to no “text” of points 663. JDT 98 S.Ct. 2241(c) clear because “Section quite is ambiguous. The vague that is ’ ‘Whoever, juris federal within states pro- clearly defines what conduct statute diction, in a sexual act ‘knowingly engages may charged who be hibited and delineates attained person who has not with another it is not Accordingly, with such conduct. punished.” years,’ of 12 shall be not vio- unconstitutionally vague and does on the exception There is no based process. due principles of notice within late text of provided under the perpetrator that argues the statute. Government IV contains inclusive the statute “‘[w]here that the district contends ‘whoever,’ terms, ‘any person’ such as motion for it denied his erred when concluded that the generally have courts there was acquittal because judgment of all any offend applicable is statute finding support evidence to insufficient ” including minors.’ ers He maintains juvenile delinquency. legal an incorrect applied district court a rule of law the “Living under 2241(c)’s require § mens rea of which standard suppositions, one entails various in a sexual “knowingly” engaging ment of are entitled be persons] that ‘[all He asserts person. with another commands act to what the State informed as ” the “sexu that he know requires City v. Jack Papachristou or forbids.’ he 839, the acts” and sonville, 156, 162, al nature of 92 S.Ct. 31 405 U.S. testosterone, he was (1972) zero undisputedly had Lanzetta v. (quoting 110 L.Ed.2d motivation. 453, having a sexual 451, incapable of 59 S.Ct. Jersey, New 306 U.S. there was insuffi- (1939)). argues, he Accordingly, 618, “A statute is L.Ed. 888 83 1000 ment, court asked whether the knowingly engaged that he the district

dent evidence than would “address the intent as- person younger Government in a act with sexual 2241(c). §of pect,” required or mens rea years old. twelve said, mean, luckily you “I The Government contends that The Government prove don’t have to intent this case.” “ ‘merely requires proof of knowingly asked, “You have to The district court facts that constitute the knowledge of the knowingly, don’t prove it was at least ” statutory It asserts offense.’ you?” responded: The Government pertain ... does not to the term “sexual understanding just happened. I that it I quality prove of the defendant’s have acting only while to the I prove any or his intentions don’t have to sexual intent. — mean, that if argues done.” It Con prove guess kind of acts I I have to he—I require a different men gress intended prove spasming can’t that he was when state, it would have included different tal happened, certainly it I have to but —I it in 18 mental state like did U.S.C. knowingly that the en- prove defendant (D), 2246(2)(C), it required where gaged in a sexual act.... And what’s a gratify intent to “arouse or the sexual just ... penis sexual act is defined as any person.” We review the desire of I penis the mouth and the anus of a statute de novo. Unit interpretation prove don’t have to motives at [JDT’s] (9th Patel, 784, v. 762 F.2d 791 ed States I just prove happened. all. have to Cir.1985) Wilson, (citing United States v. prove any don’t have to [W]e (9th Cir.1983)). 2 608, n. 720 F.2d 609 We prove motive. We don’t have to that he sufficiency pre review the of the evidence just knew this is what this means. We trial sented at a bench de novo. United prove have to that it was done.... Did Jiang, States v. 476 F.3d 1029 doing? he know what he was Yes. Cir.2007) Naghani, v. (citing United States (9th Cir.2004)). A 361 F.3d “ B must be affirmed if ‘after view conviction ing light the evidence in the most favor statutes, “In interpreting we be prosecution, any rational trier able to the gin with language of the statute itself.” of fact have found the essential ele could INS, v. Coronado-Durazo 123 F.3d beyond ments of the crime a reasonable (9th Cir.1997) INS, (citing Almero v. ” Maggi, doubt.’ v. United States (9th Cir.1994)). F.3d “The (9th Cir.2010) (quoting Jackson plain meaning legislation should con be Virginia, 443 U.S. S.Ct. clusive, except in the ‘rare cases [in which] (1979)). 2781, 61 L.Ed.2d 560 application pro the literal of a statute will demonstrably duce a result at odds with A ” the intentions of its drafters.’ United At the conclusion of the Government’s Enters., Inc., States v. Ron Pair 489 U.S. chief, orally judg- ease in moved for JDT 235, 242, 109 S.Ct. 103 L.Ed.2d 290 acquittal pursuant ment of to the Federal (1989) (quoting v. Oceanic Contrac Griffin Rule of Criminal Procedure Rule 29. JDT tors, Inc., 458 U.S. 102 S.Ct. argued there was insufficient evidence of (1982)). 3245, 73 L.Ed.2d 973 anal a penetration support conviction 2241(c) stated, prohibits “knowingly under Count 5. The district court Section en- notes, “I’ll my right gaging] per- check but now I’ll in a sexual act with another deny During closing argu- age the motion.” son who has not attained the of (1998)); 2241(c). see also United 141 L.Ed.2d 197 Section 18 U.S.C. years.” Crowder, 2246(2) States act as sexual defines Cir.2011) “knowingly” (explaining the term and the (A) penis between contact state of mind’ or ‘knowl ‘culpable is “not a anus, for and the penis or the vulva ” Dixon, (quoting 548 U.S. of the law’ edge contact subparagraph this of purposes 2437)). 5, 126 S.Ct. pen- upon occurs penis involving etration, slight; however the framework set forth Applying (B) mouth and the contact between case, to this the term and Crowder Dixon vulva, or mouth and penis, the culpable a knowingly require does not anus; and the mouth mind, rather, knowledge of the of but state (C) of slight, however penetration, Here, underlying the offense. facts of another genital opening or the anal only that JDT know “knowingly” requires any object, with finger byor a hand or in the mouth or putting he his penis harass, abuse, humiliate, an intent child, another as the Government anus of the sexual gratify or degrade, or arouse correctly during closing argument. stated or any person; of desire applied the correct stan- The district court (D) not touching, it that ample intentional dard and had evidence before of genitalia JDT, young boys of the to se- clothing, repeatedly, took through not attained the them to com- who has locations and directed person another cluded abuse, with an intent mit acts. JDT does contend years of 16 humiliate, harass, doing arouse or degrade, or that he did not know what he was any person; put children to his the sexual desire he directed these gratify when put or allow him to penis their mouths to be a was determined Id. JDT A trier in their anuses. rational penis his de- sexual acts delinquent performing acted have found JDT of fact could (A) (B). plain parts fined a reasonable doubt. knowingly beyond prohibits engaging meaning of the statute court did not err the district Accordingly, act, “sexual” is not in a sexual but Rule 29 motion for denying JDT’s “act”; instead, it is a describing adjective ground. judgment acquittal on this term, act,” in the further defined “sexual penis and the as contact between statute that the Government also contends JDT slight however penetration vulva/anus proof to its burden was not held the mouth and contact between because the knowingly acted prove reading A plain vulva/penis/anus. rea and the mens court conflated knowl- that there be require does not text requirements actus reus asserts, nature of the sexual edge, as JDT only knowingly the “act when said act, act” is a term of because “sexual basically doing it.” The discussion means art defined under the statute. court and the Govern- the district between however, ment, that the dis- demonstrates

Furthermore, ex- Supreme as the Court rea re- States, the mens trict court considered 548 U.S. in Dixon v. United plained the actus reus (2006), separate from quirement as L.Ed.2d 299 S.Ct. “ court’s Taking the district requirement. dictates the text of statute ‘unless on the relying in context and result, ‘knowingly’ statements the term different above, knowingly means conclusion knowledge of merely requires proof ” the acts 5, performing knew he was Id. at JDT that constitute the offense.’ facts 2241(c) the district proscribed, § (quoting Bryan v. United 126 S.Ct. 2437 reus that the actus 1939, not conclude States, court did 118 S.Ct. 524 U.S. 1002 (9th Cir.1996) the rea (citing satisfied mens re- 1226 v.

requirement United States (9th Goode, Cir.1987)). 1353, 814 Instead, the F.2d 1355 knowingly. of dis- quirement “knowingly” held that does not trict court by presented evidence the Govern- heightened understanding of require a ment of was sufficient for a rational trier Therefore, one’s actions. the to fact have found the essential elements properly held the Government to its beyond the crime a reasonable doubt. proof. burden of Hubbard, explained As this Court

the “exclusive of the fact to province finder credibility witnesses, determine the re- V evidentiary conflicts, solve and draw rea- contends the Govern sonable inferences from proven facts.” presented ment insufficient evidence at tri conflicting F.3d 1226. In reviewing finding al support delin testimony light in a most favorable to quency charges under Counts 3 and can prosecution, we infer that the district C.M.; penetration of alleging anal C.T. and Woolridge court found that Dr. was more penis that both victims testified that his credible than Dr. Guevara. . incidents, during was “soft” and that Courts found have evidence sufficient testimony medical “established that flac determinations affirm of a fact finder de- penis capable penetrating cid is not contradictory spite “existence of some anus;” therefore there is and not sufficient See, e.g., evidence the record.” United evidence that he aggravated committed Nevils, v. States 598 F.3d pursuant § abuse and Cir.2010) (en banc) (finding evidence suffi- 2246(2)(A). to support cient defendant’s conviction de- “ The Government maintains that ‘[s]oft’ by spite testimony negat- defense witness term, vague comparative is a and not nec- ing element of the offense because “the essarily excluding degree erection, her”); some jury [was] to disbelieve entitle[d] Howard, and neither specifically counsel asked United States F.2d (9th Cir.1971) curiam) penis (per (affirming whether the defendant’s erect.” jury It despite taking that its verdict defendant expert contends witness found it stand, possible directly contradicting child’s anus to Government penetrated be witnesses, degree introducing “circumstantial some a flaccid penis; and to evidence which added weight considerable there dispute extent is a between the testimony”). his Crediting Dr. Wool- experts, the district court was entitled to ridge’s testimony, coupling it with the expert find one more credible than the testimony of those who victims testified other. they anally penetrated were aby evidence, We must “the view both penis, “soft” there was sufficient evidence circumstantial, direct and light most for the district court to find that JDT favorable to the prosecution.” United 2241(c) by penetrating violated the anus- Magallon-Jimenez, States v. C.M., of C.T. slightly. es however Ac- (9th Cir.2000). Additionally, cordingly, uphold we the district court’s reviewing respect “[t]he court must determination delinquent that JDT is un- province exclusive of the fact finder to der Counts 3 and 5. credibility witnesses, determine re VI evidentiary conflicts,

solve and draw rea sonable inferences from proven facts.” JDT contends that the district Hubbard, United States v. F.3d court abused its discretion admitting, 803(4) (1) (2) legal ‘illogical,’ Rule of the Federal rect standard was pursuant (3) Evidence, testimony Judy ‘implausible,’ ‘support Pike’s without in in- Rules of put recounting may N.S.’s statements that JDT ferences that be drawn from the facts ” mouth. He penis his N. S.’s asserts in the (quoting record.’ Id. Anderson v. “nothing Bessemer, in the record indicates that City 470 U.S. of (1985)). statements to clinical social worker [N.S.J’s S.Ct. 84 L.Ed.2d 518 regarding identity perpe- Pike the of the 803(4) Pursuant to Rule of the Federal the of med- purposes trator were made for Evidence, hearsay Rules of statements are testimony, ical treatment.” Without diagno- admissible when made for medical maintains, he there was insufficient evi- 803(4). sis or treatment. Fed.R.Evid. juve- support dence to his determination of advisory “The committee notes to Rule delinquency nile under Count 6 because 803(4) observe statements of fault will affirmatively having denied seen N.S. ordinarily be admissible under the penis. JDT’s exception.” George, [medical examination] argues The Government that under “However, 960 F.2d at 99. other circuits (9th 960 F.2d 97 George, United States v. have held that statements a victim iden- Cir.1992), identity in a perpetrator of tifying her sexual abuser are admissible sexual abuse of a minor case falls within under the medical examination exception.” diagnosis the medical and treatment hear- Foretich, (citing Morgan Id. v. 846 F.2d say exception. It contends that Cir.1988), 948-50 and United cases, psy- abuse there are emotional and Renville, States v. 779 F.2d 435-39 injuries chological the extent (8th Cir.1985)). cases, Relying on those injuries may on depend those the abuser. inquiry we have stated critical “[t]he no Accordingly, asserts there was whether such statements are ‘made for the in admitting abuse of discretion Pike’s tes- purpose diagnosis of medical or treatment’ and, moreover, timony there is sufficient ‘reasonably pertinent diagnosis and are ” support record evidence (citing or treatment.’ Id. Fed.R.Evid. court’s determination JDT is delin- 803(4)). than “Sexual abuse involves more 6. quent under Count injury; physician at- physical must be treating tentive to emotional victim’s We “review for an abuse injuries, na- psychological exact discretion the district court’s decision to depend ture often and extent which hearsay excep admit evidence under a identity (citing Id. abuser.” Pena-Gutieirez, tion.” v. United States 437). Renville, “Furthermore, 779 F.2d at (9th Cir.2000). 222 F.3d 1086 n. 3 depending upon the nature of the sexual apply two-step We test to determine abuse, identity may of the abuser be whether district court abused its discre diagnosis pertinent to the and treatment First, tion. we review de novo whether sexually transmitted diseases.” Id. the district court “identified the correct At legal apply requested.” delinquency hearing, rule to to the relief the district Hinkson, admissibility court discussed the of Pike’s United States (9th Cir.2009) (en banc). 803(4), “If the to Rule which pursuant 1261-62 statements so, determining legal court failed to do we must is the “correct rule” for [district] admissibility hearsay conclude it abused its Id. at for medical discretion.” diagnosis George, 1262. If the district court identified the or treatment. See 803(4)). rule, Accord- legal (applying correct we will determine F.2d at 99 Rule ingly, cor- not abuse its “application whether the court’s the district court did discretion under the first step Hinkson five months alleged abuse, after the during applied legal correct which rule. exam the minor George identified the assailant. Id. at 98-99. The doctor Under the second step, a Hinkson dis- also testified that “she asked about the trict court abuses its only discretion if the identity assailant’s for the purpose of diag- “application of the correct legal standard nosing treating the victim.” Id. at 99. (1) (2) ‘illogical,’ (3) ‘implausible,’ or George was convicted. Id. On appeal, this ‘support without in inferences that may be Court held the ” district court did not abuse drawn from the facts in the record.’ its discretion in admitting the doctor’s tes- Hinkson, 585 at 1262. F.3d In other sexu- timony. 100-01; Id. at see People also cases, al abuse this Court has held that Territory Guam v. Ignacio, 10 F.3d admitting hearsay similar statements was (9th Cir.1993) (holding the “record not an abuse discretion. For example, does not show statement to the Lukashov, in United States v. 694 F.3d social worker was for medical treatment” (9th Cir.2012), a defendant was because the social worker testified that “he charged violating § with for alleg- questioned the child to determine whether edly repeatedly sexually abusing girl- his hé needed to notify Child Protective Ser- minor child in friend’s his car. The minor vices of a case of suspected abuse.”). child was taken to a medical clinic specializ- Here, Pike testified that when N.S. ar es in child abuse and was by overseen interview, rived for “we wanted to attorney’s office. Id. at 1111. A if know something happened so we could doctor and social worker examined the (similar treat him” in George doctor child, who told them that the defendant who testified that “she asked about the “put ‘private his part’ part ‘the where ” assailant’s identify for the purpose of diag the poop comes out.’ Id. The social work- nosing treating victim”). Pike saw er then alone, interviewed the minor with N.S. “several times provide afterwards to police doctor and a office watching treatment” and on those visits she spoke from behind window. Id. The social with parents N.S.’s “about how manage” sought worker a more detailed account of his symptoms. She testified that the MP trial, the abuse. Id. At the social worker’s referred the case to her because “they interview was admitted over defendant’s were concerned happened about what objection. Id. at 1112. The defendant to this child and can get how we him help, argued that the interview “was build a if something happened.” Pike further tes case against him rather than obtain medi- tified that she wanted to know what happened cal diagnosis” based on “the interview’s ]ecause I am if, “[b concerned that removal from the medical examination set- indeed, allegation of sexual abuse hap ting, the observation of the interview a pened, that we need to treat him and police officer, and [the minor’s] use of the monitor what going on with him to see word ‘evidence’during the interview.” Id. what the after effects are so that we can at 1115. This Court held that the district provide advice and counsel parents to the did err because “the interview about to manage how those things, but also place took of, the purpose and was help this child through move this incident reasonably pertinent to, diagnosis medical that happened.” This testimony is similar and treatment.” Id. to that of the Lukashov, social worker in

Similarly, in George, the where the place interview “took for the defendant was charged sexually of, abus- purpose pertinent was reasonably ing his daughter. A to, doctor examined her diagnosis medical and treatment.” Lu- kashov, disposition the so- announced its F.3d at 1115. Unlike determination day. the same On December Ignacio, attemped Pike cial worker JDT filed motion correct the sentence N. needs based on the understand S.’s 35(a). pursuant to Rule The district court experienced and was not inter- incident he 13, January denied the motion on 2012. notify authorities. viewing him to 35(a) provides: Rule 14 days “Within correctly the court Accordingly, district sentencing, may after the court correct a to Pike fell held that N. S.’s statements arithmetical, sentence that resulted from hearsay exception within the for medical technical, or other clear error.” Fed. diagnosis. Because the dis- treatment and 35(a). R.Crim.P. The Rule defines “sen discretion, not its trict court did abuse tencing” as “the oral announcement of the testimony properly Pike’s was considered 35(c). sentence.” Id. We have held that by the district court when it found JDT fourteen-day period the to correct a sen Reviewing under 6. delinquent Count arithmetical, technical, tence for or other light in the favorable to the evidence most jurisdictional, clear error is and that a testimony that prosecution, put his adjust district court cannot a sentence out penis sup- N. S.’s mouth is sufficient to fourteen-day side of the if window even the port delinquency determination. 35(a) Rule motion is filed within that win In Barragan-Men dow. United States v. VII doza, (9th Cir.1999), 174 F.3d 1024 JDT contends that the district district court sentenced the defendant on 35(a) denying court erred in his Rule mo 29, May 1997. Id. 1025. The Govern suspend finding delinquency, tion to ment filed motion to reconsider the sen arguing that the district court “conduct[ed] tence June within the then legal minimal research” into the availabili 35(c). seven-day window of Rule Id. at ty suspending delinquency his determi 35(a) formerly 1025-26. Rule was Rule nation, and that as the district “[i]nsofar 35(c) day and had a seven time limit. Fed. court’s failure to act rested on an incorrect advisory R.Crim.P. 35 committee’s note. incomplete legal of what understanding The court hearing district held the on the suspend finding delinquen it means to July motion on and modified the ..., cy legal it made a error that amounts explained sentence. Id. at 1026. We “ to an abuse of discretion.” provides only plausible ‘Rule avenue which the district court could The Government counters properly modify [Barragan’s] correct or jurisdiction court did not have to rule on ” original (quoting sentence.’ Id. at 1028 JDT’s motion because more than fourteen Soto-Holguin, v. F.3d United States days disposition passed had since (10th Cir.1999)). 1217, 1220 noted that We It argues announced. also that the district mo “[a]lthough government filed its court understood its discretion and “cer- days, tion within seven the district court tainly argu- considered the defendant’s did not rule on the motion within that time ments, simply persuaded.” but was not period,” “government, and the neverthe juris less, Whether district court had require that it argues satisfied modify judgment 35(c), diction to its under Rule ments of Rule because the district 35(a) novo. actually is reviewed de United States the motion need decide (9th Cir.2003). Penna, days, long govern as the within seven juve period.” The district court found JDT to be a ment filed the motion within that delinquent nile on December 2011. It Id. at 1029-30. “ Barragan-Mendoza not disclose whether its ‘decision is with- held

We range permissible court did not ‘act’ within sev decisions that “the district imposition given of sentence the court could have made the law days en from ” jurisdiction confronting thereaf the facts it.’ Govern- lacked and therefore Barragan’s sentence.” Id. at ment maintains that the district court did modify ter to 1030; Aguilar- States v. not err because JDT’s rehabilitative needs see also United carefully 1055-56 Cir. were met with tailored condi- Reyes, 653 F.3d 2011) day provision “the fourteen tions. review sentences for (holding We 35(a) delinquency jurisdictional” and reinstat abuse discretion. in Rule Juvenile, original sentence when de 347 F.3d at 784. ing defendant’s originally sentenced on March fendant was keeping “In with its rehabilitative 35(a) 1st, filed a Rule motion on defendant goals, the disfavors institutionaliza FJDA 5th, hear the district court held a March particular and in warehousing tion the 29th, motion on March ing on the Rule 35 young people away from their communi 12th); April defendant on and resentenced 5039). (citing ties.” Id. at 785 18 U.S.C. (“We Penna, at F.3d hold that the adjudged “Youth who delinquent are to be 35(c) seven-day requirement in Rule is a under the FJDA must therefore be con Here, jurisdictional requirement. fined the least-restrictive environment the district court vacated Penna’s sentence support will their continued rehabili days, within but did not resentence seven tation.” Id. “It must be clear from the day period, him the it within same seven record, if explicit, not that a district court jurisdiction lacked under Rule to re- weighed all of the relevant factors and Penna.”). sentence disposition imposed found that the was the matter, In the district court an- least accomplish restrictive means to nounced its determination that JDT is a rehabilitation,” 787, young person’s id. at juvenile delinquent and announced its dis- particularly repeatedly urged by when position determination on December party adopt one disposition over others. 35(a) his Rule 2011. JDT filed motion on record, On this it is clear the district 19, 2012, days seven after the December court considered detention and probation district court announced its decision. The statute, options as two available under the district court did not rule on the motion settling before on the latter. But the dis- until a full January month after trict court clearly did not articulate wheth- 35(a)’s the delinquency hearing. Rule er the FJDA’s purposes rehabilitative ran fourteen-day time limit on December by suspension would best be advanced Accordingly, 26th. the district court did delinquency the finding, despite repeatedly jurisdiction January have to issue its being important, asked to do so. As it also 35(a) denying 2012 order JDT’s Rule is not clear the district court knew it motion. suspension. could consider This lack of clarity requires remand. also maintains the district suspend court its discretion in not disposition hearing abused As the drew to ing close, of delinquency sought clarify the determination at defense counsel disposition hearing the on December whether “the Court has made a decision 2011, because it “did not consider whether to suspend finding delinquency,” the goals pro request the of rehabilitation would be pre-hearing included JDT’s by suspending finding briefing moted the of delin and referenced earlier the dis- quency.” position hearing. He asserts the district court did The district court re- (9th Dickey, v. “I decided whether to States 924 F.2d sponded: haven’t Cir.1991). nearly requirement In This to remand that decision or not.” make applies equal greater force—if not breath, suggested the district court same sentencing force—to matters delinquency suspend was unable to may consequences which have lifetime definitely delinquent. finding, stating “He’s juvenile. We cannot conclude “[t]he suspend I the fact that he’s delin- can’t judge’s sentencing district conduct being quent. poster He’s the child for hearing that he was aware that indicate[d] legal talk ni- delinquent. We’ll about [suspension] an option.” United discussing After an unrelat- ceties later.” Doe, States Cir. matter, adjourned ed the district court 1998) 793). Eaton, (citing 31 F.3d at later, days disposition hearing. Four district court entered an Order of Proba- Second, suspension we do not hold that tion, containing suspend- no discussion delinquency finding only ap- is the finding. There are no ing delinquency propriate disposition for JDT. state- While registration requirements law sex offender other indications the record are one relevant factor that should be con- weighed bearing factors poten- sidered on including jurisdiction it had to do suspension while remand — registration tial for lifetime as a sex of- record, we so. Given the state of the disagree fender —we with the Concurrence portion remand this of the district court’s law, that such requirements, as matter of judgment specific to allow consideration of negative pros- have so an affect on JDT’s request. suspension JDT’s Our remand pects for rehabilitation or on the broader ways. in parts with the Concurrence two public interest as to overbear other rele- First, not confident as the we are favoring probation. vant factors that the district court failed Concurrence express opinion proper We no on the appreciate the FJDA vests the outcome on remand. The FJDA tasks the suspend district court with discretion to court, Court, not this with balanc- (or not) But finding delinquency. a we in ing relevant factors the first instance. acknowledge crys- the record is far from 5037(a); Juvenile, § See 18 U.S.C. see also in point. Implicit talline on this the district (noting F.3d at 784 view of “the comment, yet that it to decide court’s had vests in district [the FJDA] discretion suspend delinquency whether to find- a courts to fashion sen- [rehabilitative] ing, recognition is the the district tence,” give we must deference to the dis- court could make such a decision. ‘essentially trict court factual’ in- “[i]f case, (pos In a the context quiry present, or if the exercise of the sible) implicit recognition of the correct determinative” district court’s discretion is legal rule does not suffice. We have noted Owens, (quoting States v. 789 F.2d United if are “we must remand we unable (9th Cir.1986))). consider- When determine from the record whether options all on re- ing disposition available ruling district court’s was an exercise of its mand, may court consider the district legal ruling” or a that no such discretion progress probation JDT’s under twenty discretion existed. United States v. Ea im- passed months have since (9th Cir.1994) ton, (inter position original disposition. of the 31 F.3d omitted) (examining nal marks quotation CONCLUSION failure to address expressly district court’s the district request Accordingly, an adult offender’s for downward we VACATE decision, REMAND for disposition court’s sentencing departure); see also United in- disposition options, “may suspend findings of all de- consideration linquency, place probation, him on delinquency, com- cluding suspension may mit him to official detention which respects. in all other AFFIRM juvenile delinquent include a term of su- BERZON, Judge, concurring: Circuit detention,” pervision may to follow impose also restitution. 18 U.S.C. ten-year-old child when the J.D.T. was 5037(a). “[Although grants § the FJDA adjudicated acts for which he was oc- district courts the discretion to select from prepubescent He was and devel- curred. among dispositions authorized under delayed. The district court ac- opmentally this discretion must be exercised then, knowledged sentencing that even in accordance with the rehabilitative func- occurred, year after the offenses J.D.T. FJDA, requires tion of the which an as- eight “closer to seven or with his was totality unique sessment of the of the cir- The statute under which mental status.” cumstances and rehabilitative needs of juvenile delinquent, he declared a Juvenile, juvenile.” each United States 2241(c), illegal makes certain U.S.C. (9th Cir.2003). “It must acts, inherently considered na- record, be clear from if explicit, physically if ture committed mature that a district court all weighed of the individual, regard without to sexual moti- disposi- relevant factors and found that the intent, regardless vation or of whether imposed tion was the least restrictive the defendant used force or threats to accomplish means to a young person’s re- accomplish the act. habilitation, given the needs of the child majority I opinion concur community.” and the Id. And the district jurisdiction, sufficiency regard to provide “must a reasoned basis for evidence, evidentiary and the issue. I also why rejected it has less restrictive inter- concur in decision to the remand with re- at ventions.” Id. 788. spect delinquency finding, the but to unlike attorney requested J.D.T.’s that the majority, only the I believe there is one finding juvenile of delinquency suspend- be that proper outcome to issue on remand. that, argued ed. He if the court did not J.D.T. should not have been treated as a suspend finding the delinquency, J.D.T. delinquent age, given possible his the dire may required register be a as sex of- consequences light for his future in of the life, fender for and “to brand [J.D.T.] proliferation reg- recent of sexual offender the rest of his life as a sex offender ... statutes, istration prosecu- the lack of would be contrary purposes to the of reha- torial guidance provided by bilitation.” applied to a child offender himself under years twelve old—the limit of the vic- The district court nonetheless left the protected tims the statute. juvenile delinquency finding place and five-year

sentenced J.D.T. to a term of DISCUSSION probation. On one level the sentence was one, a suitable as J.D.T. was left his

I required undergo therapeutic home and treatment, Delinquency Under the Federal Juvenile rather than committed to an (FJDA), Act the district court had setting. several institutional But the district court options determining disposition when the did not suspend consider whether to Instead, of a a juvenile delinquent. finding child found to be of delinquency entirely. provides stated, The FJDA that the district court “I the court haven’t decided wheth- delinquent, disposi- He’s the court shall hold a that or not. to make decision er hearing concerning appropriate suspend I can’t tion definitely delinquent. and after it delinquent. poster disposition,” disposi- He’s the holds fact that he’s “may talk it being delinquent. hearing, suspend findings We’ll tion child for Thereafter, juvenile delinquency.” niceties later.” 18 U.S.C. legal about 5037(a) added).1 Thus, judgment, (emphasis entered deem- it was the district court im- juvenile delinquent” legal error for the district court to decline ing J.D.T. “a suspend finding its a posing probation term. J.D.T. was juvenile delinquent ground on the to decide whether expressly refusing In power lacked the to do so once it made the delinquency, the suspend finding finding.2 court its discretion two abused First, court failed to ways. the district II statutorily enumerated one of the

consider juvenile delin- sentencing options for The district court’s failure to consider delinquency of the find- quent suspension — adequately suspend finding whether to op- option That was less restrictive ing. delinquency contrary primary to “the probation imposed. tion than the term purpose of the FJDA to rehabilitate Thus, the district court did not consider acts, children who have committed criminal it im- sufficiently whether the sentence assisting them to become successful and was the least restrictive means posed productive members of their communities.” J.D.T., rehabilitating in violation of the Juvenile, Although 347 F.3d at 787. asked FJDA’s mandate. so, to do the district court did not consider Second, legal development directly clear a recent that is the district court made “primary purpose” thought suspend that it that it could not odds -namely, many the fact finding delinquency because J.D.T. FJDA — states, may required register juvenile delinquent. was in fact a But a J.D.T. be offender, juvenile delin- as a even after he has com- finding that J.D.T. was sex some, In his necessary pleted probation to sus- his term. quent predicate photograph identifying information pending finding preclude such a did not —it states, distributed, may publicly despite laws suspension. The FJDA “If the be generally keep juvenile pri- records juvenile to be a finds statute, discussing ‘suspend’ defined or Report proposed 1. A a the term is not Senate sequence, § gravity amendment to 5037 confirms this explained and due to the of the nature juvenile explaining finding a grant ”[a]fter charges, these the Court declines to of of ..., delinquency, authorized after the court is By to Sentence.” the Motion Correct concerning disposi- hearing appropriate time that the district court acted on the mo tion, suspend finding juvenile to delin- tion, modify jurisdiction the sen it lacked to Comm, Judiciary, quency.” S. on the 94th 35(a), tence under Rule so its comments at Sess., Cong., Rep. the Criminal Justice 1st on directly pertinent point to wheth are not (Comm. 1975) Reform Act of 1975 1020 Print legal treating J.D.T. er it committed error in added). (emphasis delinquent. United States v. Barra as a See gan-Mendoza, 174 F.3d 1027-30 Shortly sentencing, 2. after J.D.T. moved 1999). the district court's comment Cir. But Federal Rule of correct his sentence under denying to correct the sentence on the motion 35(a), again asking Criminal Procedure confusion as to does confirm its substantive delinquency district court to set aside the later, authority suspend of its the find reach finding. Several the district weeks motion, ing delinquency. explaining, juvenile “The court denied Court, doing after some basic research of the First, requirement could se- Quyen registration Pittman and Nicole vate.3 See Snapshot ability employ- A Juvenile Sex find Nguyen, verely limit J.D.T.’s Of- and Registration likely are Employers ment in the future. Notification fender States Survey A the United Laws: even if the reluctant to hire sex offenders Watch, Easy (2011); Rights No Human bearing nature of the offense has no on in the US Laws Answers: Sex states, job. registered And in some sex Offender (2007).4 Although suggest- I am not 75-76 working jobs barred from in offenders are delin- juvenile that all sex offenders’ ing they may into contact with where come suspended be quency findings should inadvertently, they children even or where (nor I consequence am certain avoid this places a certain will be within distance delinquency finding suspension be, may as public where children such avoid the sex offend- would all instances See, swimming pools. athletic fields or J.D.T.’s registration requirements5), er Geer, e.g., Phoebe Justice Served? prior treat- age and lack of recidivism High Regis- Cost Juvenile Sex Offender ment; liability nature of the the strict tration, 27 Dev. Mental Health L. 49- crime; inability to dis- consequent and the Watch, (2008); Rights supra, Human at tinguish between the offender victim 81-84. all to me that the district court’s indicate the delin- suspending Second, failure to consider may difficulty in J.D.T. face a fundamental error. quency finding was finding housing the future. Landlords Indeed, view, suspension should my registered often refuse to rent to sex of- only grant- have considered but been Watch, at Rights supra, fenders. Human ed; any conclusion would have been other Also, many municipali- 95-96. states an abuse of discretion. prohibit ties have laws or ordinances that in ar- registered living sex offenders from through online

Being publicly identified may eas near where children be. Id. impact have an enormous registries would J.D.T., perhaps “prevent for the rest of his life. 100-04. Such restrictions often that, although party regis- 3. I note neither has so also makes the name and address of case, may publicly argued laws tered sexual offenders available. See in this insofar as state 45-5-502(3); §§ require public pic- Ann. 46-23- disclosure of the name or Mont.Code 502(9)(b),(10); 46-23-506(1); adjudicated ture of a child who was as a 46-23- 508(l)(a); delinquent for a also United v. Juvenile in federal court sexual of- see States Male, while under the of four- 360 Mont. 255 P.3d 112-15 fense committed teen, (2011) adjudicated may preempted by (holding such laws be delinquent confidentiality provision. See 18 in federal court for violation of FJDA’s 5038; duty reg- § U.S.C. United States v. Juvenile had under state law to Male, (9th Cir.2012) present ister as a sexual offender when 1007-08 Montana). (concluding Similarly, 5038 conflicted if he went to school in Iowa, registration reg- required he federal sex offender disclo- Illinois or would be 150/3(a-5); requirements Comp. sure created the Sex Offend- ister. See 730 Ill. Stat. (SORNA) 692A.102(l)(c)(34), 103(l)(e), Registration §§ er and Notification Act Iowa Code (3). juvenile delinquents for who were fourteen offense, years or older at the time of the and example, registration requires 5.For Colorado that the later enacted SORNA controlled for disposition "any person a of who receives juveniles, these older but that all other "[f]or adjudicated juvenile delinquent a based on juvenile delinquents, the confidentiali- FJDA's any may act that constitute the commission of force"). ty provisions remain in who receives a unlawful sexual behavior or adjudication Among places, 4. were based on commission other if J.D.T. to move deferred Montana, subject lifelong he would be of” such an act. Colo.Rev.Stat. 16-22- offender; 103(4) added). registration (emphasis as a sexual state law

1011 ju presuppositions closest These of the federal living in the areas from offenders transit, schools, delinquency legislation venile are borne public since jobs and out more recent law and informa case centers, built and are often daycare parks tion, general regard in and both with areas of of main residential in the center “[Registries offenders. and notifica sex 101, towns,” may id. at and cities and systems youth tion cut off from beneficial very few offenders to registered restrict networks, creating stigma social social see, areas, any, e.g., if G.H. v. residential isolation, suicide, increasing the risk of N.J.Super. 401 Township Galloway, youth from alienating school and commu (N.J.Su- 221, 392, 951 A.2d 236 nity, raising par barriers to successful (observing that New per.Ct.App.Div.2008) ticipation society.” Policy in . Insti Justice preventing sex offend- Jersey ordinances tute, Youth Who Commit Sex 2,500 Offenses: any within feet of residing ers from sources). 2 (collecting Facts and Fiction school, library, or park, playground, public Court, recognized by Supreme As “de may exclu- daycare center result “total velopments psychology and brain sci exclusion”); Fross v. sion” or “near-total ence continue to show fundamental differ 421, Pa. 20 A.3d Cnty. Allegheny, 610 juvenile minds,” ences between and adult (2011) 1193, (observing that similar 1199 capable change and children “are more “essentially any sex prohibit[ ] restrictions Florida, than are adults.” v. 560 Graham most of living throughout offender from 2011, U.S. 130 S.Ct. 176 L.Ed.2d Allegheny County”). (2010); Carolina, see also J.D.B. v. N. — Third, registration requirements U.S. -, 131 S.Ct. 2403 n. their effects undermine the rehabilitative (2011). L.Ed.2d that Studies show juvenile justice system. As purpose children who commit sex offenses have recognized by the Senate when it first relatively low recidivism rates and are justice system separate established susceptible more to treatment and rehabil children in is ... advisable Hu “[i]t itation than adult sex offenders. See (col Watch, juvenile delinquent Rights supra, for whom there is man at 69-70 sources); Nat’l lecting not re- Center Sexual hope some of rehabilitation should Youth, Office of Juvenile Jus that Behavior stigma ceive the of a criminal record Prevention, Delinquency tice and U.S. throughout attach to him his life.” would Justice, Dep’t What Research Shows (1938). 75-1989, S.Rep. No. at 1-2 This (2003) About Sex Adolescent labeling” serves to “remove” the “negative Offenders Juvenile, (same); see also United States socializing from normal child “further Cir.2003) 789 n. 9 reason, process” and for when amend- “virtually all of the stud (recognizing FJDA, ing recognized Senate relatively [juvenile few ies show rehabilitation, goal achieve the “[a]t charged sex are subse offenders] step, each critical we should exhaust crime” and “sexual recidivism of quent sex rejecting, stigmatizing less less recourses post-treatment offenders taking expulsive step.” the next S. before rare”) (brackets original)(in very 93-1011, (1974), Rep. omitted). quotation ternal marks Yet, stigmatiz- 5289. U.S.C.C.A.N. ing “negative labeling” inherent of- Labeling delinquent J.D.T. as a sex — —is registration programs (again, sex offender for the rest of his life is all fender here, par- preemption, questionable absent federal which has more as J.D.T.’s here), voluntarily initiated the involve- bringing thus far invoked ents had been agency protection of the local child two schemes into direct conflict. ment 1012 offender with J.D.T.’s characteris- year-old him. See counseling for had started (studies

Juvenile, stigmatized possi- is background at 789 n. 9 tics and F.3d 347 — is treatment of life as a sex offender bly publicly that successful “have found —for sexually is fundamentally offended at odds with the FJDA’s juveniles who have participation prospects of the rehabilitative recognition facilitated family”); States v. Juvenile potential consequences United children. The child’s for (9th Cir.1988) Male, finding F.2d delinquency of the district court’s to chan “Congress’ desire (observing it more difficult to rehabili- only will make and local treatment juveniles into state J.D.T., conjunction nel in with especially tate leg in the “clearly expressed programs” is developmental and emo- the tremendous 5032”). Indeed, history of section islative that he faces. tional issues il testimony the district court before III well responding that J.D.T. was lustrated to act and had not continued to treatment A consideration also influences second sexually with other children.6 out only my appropriate conclusion that suspension case was disposition rehabilitation and treat- The need for delinquency finding. applied As ment, rather than retribution and condem- old, years 18 U.S.C. nation, children under twelve heightened due to particularly is 2241(c) J.D.T., § one of two reflects least de- unique characteristics. ten J.D.T.’s that underlie the Constitutional and fects years old at the time the offenses namely, it accords in- vagueness yet developmentally de- pubescent, doctrine' — prosecutors assign finite age,” discretion layed, “emotionally immature for his status, services, guid- victim offender with no At- special receives education has Disorder, ance from the statute as to how to do so. Hyperactivity tention Deficit daily medications to con- takes numerous 2241(c) criminalizes what is com- Section Further, recog- trol his behavior. we have monly statutory rape. to as referred “[a]ge-inappropriate previously nized provides part, in relevant “Whoev- section knowledge symptom is a common special er ... in the maritime and territo- Juvenile, children,” sexually among abused jurisdiction rial States ... United 1,n. prosecutor 347 F.3d at 781 which the sexual act knowingly engages likely believed J.D.T. was. person another who has not attained the years fined may be the case for an older shall be under Whatever adjudicated imprisoned for a violent this title and for not less than child or for a child crime, years a ten- or for life.” creating a situation which degree, statutory provide care and treatment of 6. To a scheme under ed to for the juvenile delinquents, recognition signifi- prosecuted, which J.D.T. was and the district judge's disposition, recognize delinquents these concerns. cant differences between Male, prosecuted J.D.T. was under and adult offenders.” Juvenile Because FJDA, 2241(c) (internal quotation § sentencing provisions of F.3d at 1004 marks and omitted). inapplicable proceedings. The district court’s deci- were to the An citations probation of violation of sion to sentence J.D.T. to rather adult who is convicted facility imprisonment placing § in a was faces "for not less than him detention recog- years on rehabilitative concerns and a than 30 life." 18 U.S.C. based contrast, FJDA, 2241(c). may nition that a custodial sentence "make In under things placed But the district court still was J.D.T. could not be in official detention worse.” required past twenty-first birthday. U.S.C. to consider whether an alternative his 5037(c). delinquency finding than the The reason that differences such less restrictive appropriate. FJDA intend- was as this one exist is that "the

1013 guidelines govern it an offense for a mal to provision The makes law enforce- Kolender, 358, in with a engage sexual acts ment.’” 461 U.S. at 103 person twelve, age regardless (quoting Goguen, the of 1855 Smith v. child under S.Ct. 415 1242, age. whether the offender knew the child’s U.S. 94 39 S.Ct. L.Ed.2d (1974)). element, legislature Lack of consent is not “Where the fails legal- provide of twelve are such minimal age guidelines, children under a crim- ly incapable providing may consent. Unlike inal statute ‘a permit standardless statutes, sweep policemen, prosecutors, certain other federal criminal allows [that] juries pursue an element the and personal predi- does not have as their ” Smith, physical (quoting threatened use of force or lections.’ Id. use or U.S. See, 1242). carry act. e.g., harm to out the sexual 94 S.Ct. 2242(1). 2241(a), §§ Nor is sex- 18 U.S.C. 2241(c), applied Section to children impact

ual motivation or an element.7 age under the of twelve who in engage satisfy process, penal “To due ‘a statute sexual acts with other children under [must] define the criminal offense ^[1] with age twelve, encourages arbitrary and occasion, ordinary people discriminatory sufficient definiteness that enforcement. On prohibited engage play. can understand what conduct is children in mutual sexual and ^[2] a manner that does not encour- See, e.g., In re M.D., 38 Ohio St.3d (1988) (case arbitrary discriminatory enforce- age involving and N.E.2d 286 a five- States, Skilling year-old putting penis ment’.” United his mouth of 402-03, five-year-old U.S. 130 S.Ct. another at the direction of (2010) (formatting original) “play- L.Ed.2d 619 another child while the three were doctor”). Lawson, 461 (quoting ing Kolender v. U.S. When the sexual conduct at 352, 357, 103 S.Ct. 75 L.Ed.2d 903 issue involves an adult child and a under (1983)). twelve, void-for-vagueness only doctrine age “The the adult can be the requirements.” perpetrator only embraces these Id. The the child can be the has “that the But Supreme recognized Court victim. when two children under years important aspect vagueness engage more doc- twelve old sexual conduct notice, another, not actual provides trine ‘is but other with one the statute no element of the doctrine —the re- to who offender and principal guidance as is the who Instead, quirement legislature that a mini- is the victim. under the terms of establish abuse, humiliate, 2246(2) years act with an 7. 18 U.S.C. defines sexual as: intent harass, degrade, gratify or or arouse (A) penis contact between the and the vulva any person. sexual desire of anus, penis purposes or the and the and for charged adjudicated J.D.T. was as de- subparagraph involving of this contact committing linquent a sexual act as de- however, penis upon penetration, occurs (A) (B), fined in subsections and not slight; Therefore, (C) (D). govern- subsections or (B) pe- and the contact between the mouth prove ment did not have to he acted nis, vulva, the mouth and the or the mouth abuse, humiliate, harass, "with an intent to anus; and the degrade, gratify or arouse or the sexual desire (C) penetration, slight, however of the 2246(2)(C), (D). any person.” §§ 18 U.S.C. genital opening anal or of another fact, charged originally J.D.T. In finger by any object, hand or with an showing. abuse, humiliate, harass, require one count that did such degrade, intent to government voluntarily dismissed that gratify any or arouse or the sexual desire of charge presentation of at the conclusion of its person; or because, observes, (D) majority touching, through evidence as the the intentional clothing, apparently genitalia of another the evidence "was insufficient Maj. person prove” Op. at 990. who has not attained the of 16 count. culpable young the ently considered J.D.T. statute, child is both offender each the not cure the unfettered discre- child does and a victim. suggest that problem, tion as the factors Supreme explained Court As the Ohio aggressor the are extrane- that J.D.T. was a similar state statute it invalidated when They fully are matters ous to the statute. unconstitutionally vague, as rely prosecutors’ within the discretion provide this case an exam- The facts not, prosecutors as the choose. upon or prosecutors for temptation the ple of the as the offender and label one child always do not make prosecutors And appar- the victim. Based child as other or charging their decisions in a constrained theory that D.B. forced ently upon the Z.C., way. In rel. 165 P.3d wise State ex conduct, the engage sexual M.G. (Utah 2007), example, for the state M.G., D.B., but not alleged state engaged who prosecuted both children in conduct constituted engaged had The sexual conduct with one another. However, while the the- statutory rape. children in Z.C. were twelve and thirteen aggressor was consis- ory of D.B. as the old, engaged in consensual sexu years alleging the counts a violation tent with intercourse; al the statute criminalized 2907.02(A)(2), proscribes which of R.C. behavior with children under fourteen such force, theory incompati- this is rape years old. Id. at 1207-08. alleging counts a violation of ble Placing such unconstrained discretion statutory rape anyone because who en- prosecutors within the hands of because minor gages in conduct with a the statute itself contains no ascertainable statutory age under the of 13 commits prosecu- precisely problem limits is regardless of whether force was rape vagueness torial discretion strain of the Thus, alleged if facts in the used. designed By doctrine is to cure. entrust- true, complaint D.B. and M.G. were ing development of minimum stan- be in violation of R.C. would both case-by-case for to the dards enforcement 2907.02(A)(1)(b). legislatures judgment prosecutors, “ab- D.B., 950 N.E.2d In re 129 Ohio St.3d responsibilities setting dicate their — denied, U.S. -, (2011), cert. criminal standards of the law.” See (2011). L.Ed.2d 563 132 S.Ct. Smith, at 1242. U.S. S.Ct. applied have D.B. to bar The Ohio courts majority that the insists statute there is prosecution of children even where unconstitutionally vague, ap difference significant age between plies engages pro to “whoever” in the alleged perpetrator and victim. See In re conduct, scribed and the forbidden acts are (Ohio D.R., 2012 at *4-6 WL spelled quite clearly. out As to the notice Ct.App.2012). doctrine, aspect vagueness might I here, Similarly, the elements of the of- agree that the statute the crimi “define[s] charged which J.D.T. was do fenses with nal offense ... with sufficient definiteness use of force or threats of not involve the ordinary people can understand what here, proven if force. Under facts prohibited.” Skilling, conduct is 561 U.S. to children under the apply can 402, 130 2896. S.Ct. twelve, chil- age of J.D.T. and other “ordinary people” in violation of the But standard dren involved were all unreality applied statute. That one child and not the other takes on an air of when and emo- aggressor ten-year-old to be the would to a with mental was considered eight-year- of a appar- capacity not matter. That the tional seven- prosecutors engages twelve who sexual acts with importantly, the breadth More old. twelve, if as- one other under the discretion —even children prosecutorial by Congress8 it was intended age group sumes child still could be found the exercise of the —must inform if guilty rape other additional elements authority suspend court’s perpe- were found that differentiated the Where, here, the finding. delinquency the victim—for if the example, trator from very a consequences for possible actual threats, offender used force or 18 U.S.C. reg- designation as a young child—lifetime 2241(a), 2242(1); §§ if the ren- offender in some states —is sex offender istered person dered another unconscious or of the presuppositions odds with the 2241(b); § drugged person, the 18 U.S.C. FJDA, guidance the statute the lack of if person physically incap- the other for most me- provides calls otherwise act, to in the refusing participate able of judicial when of discretion ticulous exercise 2242(2)(B). § But U.S.C. J.D.T. was disposition. partic- a It was thus imposing charged any violations of of these with for the district court ularly important provisions. apply statutory rape And to a disposition options understand provision prosecute developmentally carefully which alternative was consider delayed ten-year-old child is extreme means to rehabilitate the least restrictive FJDA, the aims of the for all tension with child it. young before surveyed. of the reasons I have sum, In the district court should have IV suspended delinquency finding. As view, my given specific possible In applied wrong legal the district court J.D.T., age and cir- consequences for his failing suspen- rule in to consider J.D.T.’s cumstances, prosecutorial the lack of request, majority’s I concur in the sion provided by the offense statute guidance with an in- decision to remand case twelve, any re- regarding children under struction that the district court make suspension than of the delin- sult other on that issue. determination an abuse of dis- quency finding would be cretion. that, if remembered even

It must be we 2241(c) § is unconstitu-

were to hold age to a child under the applied

tional as (statement (1984) of Victoria Toens- Although contrary are indications as Sess. 96 8. there well, Gen., Justice). history aspects legislative Atty. Dep't ing, Dep. some Ass't 2241(c) Congress may suggest § have opined Department "[t]he Justice charging in cases intended to leave decisions legislation might be to send an effect of such involving young prosecutorial two children Congress signal con- unfortunate hearing During a on an earlier discretion. activity by pre-teenage dones sexual and with of the Sexual Abuse Act version children, long participants as both are of so 2241(c), Department which added Id. It years.” urged that in- similar tender suggested removal of the differ- Justice Congress sexual ac- stead should "criminalize ence limitation that "would make an of- tivity by anyone person twelve with a under engage person in a sexual act fense for old, prosecutorial judi- years and leave to years an individual less than twelve old the occasions when such activi- cial discretion only years older if the actor were at least four very young ty persons of occurs between two victim,” requirement that was ulti- than the reassured, Id. at 96-97. are age.” “[w]e It mately eliminated when was enact- any in which such not aware of instance Hearing Rape Be- ed. Federal Law Reform: alleged been abused.” to have discretion the Subcomm. on Criminal Justice fore Id. at 97. Comm, Cong., Judiciary, 2nd H. on the 98th

Case Details

Case Name: United States v. Jdt, Juvenile Male

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 12, 2014

Citation: 762 F.3d 984

Docket Number: 12-10005

Court Abbreviation: 9th Cir.