UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE MALE, Defendant-Appellant.
No. 07-50107
United States Court of Appeals, Ninth Circuit
Argued and Submitted Aug. 9, 2007. Filed June 12, 2008. Vacated Jan. 13, 2009. Reargued and Resubmitted April 30, 2009. Filed Jan. 26, 2010. Amended Feb. 8, 2010.
590 F.3d 885
Christopher P. Tenorio, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.
Before MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges, and JAMES K. SINGLETON,* Chief District Judge.
ORDER
The opinion filed on January 26, 2010 is amended to include Judge Berzon‘s concurrence in part and dissent in part.
OPINION
PER CURIAM:
R.P., a male juvenile, appeals from a proceeding in which he was found to be a juvenile delinquent based on violations of
BACKGROUND
I. Statutory Protections for Arrested Juveniles.
Under the Juvenile Delinquency Act, juveniles are entitled to distinct procedural
Before instituting delinquency proceedings in federal court, the “Attorney General” must “certif[y] to the appropriate district court” that one of three conditions exists: “the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction“; “the State does not have available programs and services” for juveniles; or “the offense charged is a crime of violence” or a specified drug-related felony.
Lastly, a juvenile who is detained pending trial must be “brought to trial within thirty days from the date upon which such detention was begun,” unless “additional delay was caused by the juvenile or his counsel, consented to by the juvenile and his counsel, or would be in the interest of justice in the particular case.”
II. November 19, 2006 Arrest.
R.P. was arrested by federal border patrol agents on November 19, 2006, at approximately 5:00 p.m. on suspicion of smuggling aliens into the United States. R.P. and the other occupants of the blue Dodge Ram in which he was traveling were then transported to the Calexico Border Patrol Station. At the station, Border Patrol Agent Jesus Salazar asked R.P. his birth date. R.P. stated that he was born on January 18, 1988, making him 18 years old. Agent Salazar was informed by his dispatcher, however, that DHS records1 showed a number of earlier arrests for R.P., and that the birth dates given on at least two of those occasions would make R.P. a juvenile on the day of this latest border-crossing. Neither Agent Salazar nor any of the other border patrol officers attempted to notify the Mexican Consulate or R.P.‘s parents of R.P.‘s arrest.
Sometime after 12 a.m., Agent Salazar advised R.P. of his Miranda rights and began a videotaped interview. In the interview, R.P. stated that he was a citizen of Mexico and that he had no documents allowing him to legally enter or remain in the United States; that he met a smuggler in the Mexican city of Mexicali who offered to smuggle him into the United States for $1900; and that he later agreed to drive a vehicle carrying illegal immigrants into the United States in exchange for a reduction of his smuggling fee to $500.
III. Proceedings Before the Magistrate Judge.
R.P. challenges the timeliness of his trial under the speedy trial provision of the JDA,
On November 21, 2006, at least 36 hours after his arrest on November 19, 2006, R.P. was arraigned on a complaint charg
At the start of the December 1 hearing, defense counsel requested a continuance because the Mexican consulate had not yet interviewed R.P. The magistrate judge set the hearing for December 5, and indicated to defense counsel that evidence “that [R.P.] was previously removed as a juvenile” would likely not be sufficient to convince him that R.P. was a juvenile. However, the magistrate judge stated that verifying documents and testimony from the Mexican Consulate as to their authenticity would “lend[ ] a lot more credibility” to R.P.‘s claim that he was a juvenile.
At the December 5 hearing, defense counsel stated that she had obtained faxed copies of R.P.‘s birth certificate and the birth certificate of his mother by contacting R.P.‘s mother in Mexico. Defense counsel also represented that a defense investigator was prepared to testify that he had contacted R.P.‘s mother and obtained copies of the documents. The court informed defense counsel that “I‘ll just give you a tentative [ruling] that the birth certificate alone is not going to satisfy the Court without some other testimony,” and that a faxed birth certificate “with the testimony that somebody spoke to somebody on the telephone” was not “going to suffice.” The court decided to “give both sides [time] to prepare their cases,” and set the hearing for December 11.
At the December 11 evidentiary hearing, R.P.‘s fourth appearance before the magistrate judge, defense counsel informed the court that “the hearing obviously can‘t go forward at this time,” because the Mexican consulate had not “yet received the birth certificate or other documentation,” and no consular officer was available to testify. The magistrate judge then set the hearing for December 20, but noted that “that‘s going to be 30 days out,” and stated “I do think there is a certain urgency that should be given this proceeding since it is age-determinative in how [R.P.] is treated.”
When the hearing reconvened on December 20 the magistrate judge informed counsel that R.P. was not present because he had been transferred to San Diego. Defense counsel stated that she had with her R.P.‘s birth certificate and a Mexican consular official who was prepared to testify, and that R.P.‘s mother was on standby over the phone. Defense counsel also indicated that she wished to waive R.P.‘s appearance. The government objected to the waiver, and the court refused to waive R.P.‘s appearance, instead setting a hearing date for December 26.
Defense counsel and the magistrate judge then proceeded to discuss which party bears the burden of demonstrating juvenile status and what type of proof would suffice to demonstrate that R.P. was a juvenile. The magistrate judge indicated that it is “the [d]efense burden to prove that this individual is a juvenile,” because he “identified himself originally” as an adult, and further stated “there‘s a presumption that he‘s an adult.” The magistrate judge did not say precisely what the defense burden was, but informed defense counsel, “[y]ou‘re going to have to ... convince me,” and that a birth certificate “in itself would not be sufficient” because “you can get anything in Mexico that you want to pay for.” He would consider it
The evidentiary hearing on R.P.‘s juvenile status was finally conducted on December 26. The magistrate judge opened the hearing by telling the government “I think you have the initial burden.” The government presented the testimony of Agent Salazar, who identified R.P. and testified that R.P. had provided a birth date of January 18, 1988 at the time of his arrest. When he was asked by government counsel whether he had received additional information from his dispatcher regarding other arrests for R.P., Agent Salazar maintained that the birth dates R.P. had given upon his other arrests were “consistent” with the birth date R.P. provided to him. After Agent Salazar‘s testimony, the magistrate judge stated “I think the burden has shifted to the[d]efense now.” The defense then called the Mexican consular official, who testified that he had contacted R.P.‘s mother in Mexico and that she had provided an original copy of his birth certificate indicating his date of birth as January 1, 1989, as well as a residence letter from their county of residence. The consular official testified that, based on this evidence, he believed that R.P. was a minor. He also noted that R.P. had been returned as a juvenile to Mexico in October, 2006 through the Mexican consulate in Yuma, Arizona. The magistrate judge then found, based on the “credible evidence” provided by the defense, that R.P. was a juvenile.
The government filed a juvenile information the next day, alleging that R.P. had committed acts of juvenile delinquency. Counts One, Three, and Five of the information alleged violations of
The same day, the government filed two additional documents. The first document, titled “Certification” and signed by United States Attorney Carol C. Lam, states that “the juvenile court of the State of California does not have jurisdiction over the above-referenced juvenile defendant” and “that there is a substantial federal interest in the case to warrant the exercise of federal jurisdiction.” The second document, which is not dated, is entitled “Juvenile Delinquency Certification” and is signed by John Weis, an Assistant United States Attorney. On the document, a box has been checked next to the statement “Contacted Joseph Beard, Assistant District Attorney, Imperial County State Juvenile Court, who declined prosecution.”
IV. Pre-Trial Proceedings Before the District Court.
At the first motion hearing before the district court on January 4, 2007, R.P. moved to dismiss the information on the
On January 8, defense counsel filed motions to dismiss the information for failure to provide a proper juvenile certification under
V. Trial.
At trial, the government presented testimony from border patrol agents and from aliens who were passengers in the blue Dodge Ram. Two of the Border Patrol Agents who participated in R.P.‘s arrest identified R.P. as the driver of a blue Dodge Ram that was pulled over on November 19, 2006 with illegal aliens inside, and testified that he attempted to evade border patrol officers, first by swerving into oncoming traffic and later by running from the vehicle after it came to a stop. In addition, Agent Salazar testified that, after R.P. was transported to the Calexico Border Patrol station, he took R.P.‘s biographical information and found that he had six previous arrests, during some of which he had given birth dates that would indicate that he was a juvenile on November 19, 2006. Agent Salazar also testified to the contents of R.P.‘s statement.
Material witnesses Neftali Sanchez-Moreno, Javier Tomas Hernandez-Alvarez, and Javier Peralta-Mendoza testified about their transportation to the United States. Sanchez-Moreno and Hernandez-Alvarez both testified that they agreed to pay a smuggler $1500-2000, and that they followed the smuggler‘s instructions to travel from Mexicali to Algodones and to then set out walking on a road, at which point they were picked up by a blue truck. Peralta-Mendoza testified that he traveled to Mexicali with his brother, where they waited in a hotel until a man came and met them and gave his brother instructions. He and his brother then took a bus to Algodones, and from there walked into the desert where a blue truck picked them up. Peralta-Mendoza testified that his father was going to pay for him to be smuggled into the United States.
After the government rested, defense counsel moved for acquittal under Federal Rule of Criminal Procedure 29(a) on Counts One, Three, and Five, arguing that the government failed to provide sufficient evidence of an intent to receive “financial gain,” and also renewed the motion to suppress R.P.‘s statement as obtained in violation of
Pronouncing its judgment, the district court held that R.P. was a juvenile delinquent with respect to all counts. With respect to Counts Two, Four, and Six the court found that R.P. knowingly drove a vehicle of undocumented aliens into the United States. Regarding Counts One, Three, and Five, the court further found that R.P. agreed to drive the vehicle to reduce his smuggling fee, and that this reduction constituted financial gain. The court also inferred from the evidence that R.P. knew that the other occupants of the vehicle were paying a smuggler. The court subsequently sentenced R.P. to ten and one-half months imprisonment and a term of supervised release that expires on his twenty-first birthday.
ANALYSIS
I. Certification Provision of the Federal Juvenile Delinquency Act (18 U.S.C. § 5032 ).
R.P. argues that the government did not properly certify the case as re
In this case, the U.S. Attorney submitted a signed certification stating that “the juvenile court of the State of California does not have jurisdiction over [R.P.] with respect to the charged offenses of Bringing in Illegal Aliens for Financial Gain under [8 U.S.C. § 1324(a)(2)(B)(ii), and aiding and abetting that crime], and Transportation of Illegal Aliens and aiding and abetting [that crime] under [8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II) ].” Also submitted, apparently on the same day, was a second, undated form signed by an Assistant U.S. Attorney and entitled “Juvenile Delinquency Certification,” on which a checkmark was placed next to the typed statement: “Contacted Joseph Beard, Assistant District Attorney, Imperial County State Juvenile Court, who declined prosecution.” We conclude that the certification did not violate
The government and R.P. both initially assumed that, because the Assistant District Attorney in fact “declined prosecution,” a substantively accurate certification would have indicated that the state court refused jurisdiction, not, as the certification stated in this case, that the state court did not have jurisdiction. According to R.P., this substantive inaccuracy in the certification rendered it invalid and deprived the district court of jurisdiction. But both parties failed to note that the second alternative of subsection (1) of the statute refers to the decision by the state court, not the state prosecutor, to “refuse[ ] to assume jurisdiction.”
Here, the state prosecutor affirmatively declined to initiate prosecution. The Assistant U.S. Attorney‘s statement so asserts, and, while the statement cannot serve as the statutorily required certification, it provides evidence, which is not disputed, of two factors relevant to the U.S. Attorney‘s certification: 1) that the requisite investigation had been performed
Our conclusion that the certification is consistent with the Assistant U.S. Attorney‘s report that the Assistant District Attorney “declined prosecution” rests upon two pillars:
First, the term “jurisdiction” is not defined in
Further reinforcing this interpretation of the term “jurisdiction” in
All of these linguistic considerations, then, support the conclusion that for purposes of
Second, although federal law determines the meaning of the term “jurisdiction” in
As we have seen, the California courts clearly have subject matter jurisdiction over claims that a juvenile violated federal criminal immigration laws even if no specific California statute addresses the same conduct.
California views this question as one concerning the separation of powers. The California Constitution divides governmental powers among the legislative, executive and judicial branches.
In this case, no charges were ever brought against R.P. in any California court. Consequently, no California court ever acquired jurisdiction over him, e.g., no California court ever acquired the power to determine whether R.P. had illegally crossed the border in violation of the laws of the United States. Thus, the certification by the U.S. Attorney was correct: no California court had “jurisdiction over [R.P.],” who was “said juvenile.”
R.P. presents a number of arguments seeking to avoid this result. We briefly address those arguments. First, he argues that it is fundamental that parties may not by stipulation grant a court jurisdiction that it would not otherwise have. But R.P. is misled by ambiguities in the term “jurisdiction.” Where the legislature has denied a court subject matter jurisdiction, the parties may not, of course, grant it by stipulation. But a plaintiff may always prevent a court from having jurisdiction over a particular civil case by determining not to file a claim and so failing to file it; courts have no authority to reach out to decide cases never brought before them. Similarly, a prosecutor may prevent a court from acquiring jurisdiction
Second, R.P. argues that this solution ignores Congress‘s preference for state responsibility for juveniles where state proceedings are available. R.P. misunderstands the law.
California recognizes that where there is concurrent jurisdiction between state and federal courts regarding criminal matters, the California constitution gives the prosecutor discretion to consent to the case proceeding in federal court, thus denying state courts jurisdiction. Manduley, 41 P.3d at 18. This per
Finally, R.P. objects that our interpretation makes the language “or refuses to assume jurisdiction” redundant. We do not agree. Like the “does not have jurisdiction” clause, the “refuses” clause also applies to “the juvenile court or other appropriate court of a State,” not to a prosecutor, and refers to “jurisdiction.” See
In sum, we hold that the U.S. Attorney can certify to the absence of state court jurisdiction under
II. The Speedy Trial Provision of the Juvenile Delinquency Act (18 U.S.C. § 5036 ).
R.P. also alleges a violation of the speedy trial provision of the JDA,
It is now established that the speedy trial clock “begins to run at the commencement of federal detention of the juvenile on the federal delinquency charge.” United States v. Doe, 366 F.3d 1069, 1070 (9th Cir.2004) (en banc) (”Doe I“). Doe I also specifies that the deten
The government and R.P. disagree about when the relevant “federal detention” began for purposes of the speedy trial clock. The government argues that the district court correctly held that the speedy trial clock only begins to run once a determination has been made that an individual is a juvenile, because it is only at that point that the juvenile becomes an “alleged delinquent.” R.P. contends instead that the clock begins to run from the moment federal detention begins on the underlying acts that form the basis for the juvenile delinquency charge. Doe I did not address whether “unrelated federal detention” includes, as the government contends, detention as an adult for the same underlying act, or whether an ultimate determination that an individual is a juvenile is one of the “facts giving rise to a charge of delinquency” that must occur before the speedy trial clock begins to run. Id. at 1074 (citing United States v. Juvenile Male, 74 F.3d 526, 528-29 (4th Cir.1996) (holding that federal immigration detention prior to being charged with an act of delinquency did not start the speedy trial clock)). We need not resolve these questions, however, because even if the clock began to run at the moment R.P. was first taken into custody on November 19, there was no violation of the Act.
The JDA speedy trial provision excludes from the 30-day limit delay that is (1) “caused by the juvenile or his counsel,” (2) “consented to by the juvenile and his counsel,” or (3) “in the interest of justice in the particular case.”
One of our sister circuits has held that delay occasioned in part by a juvenile lying about his age is excludable as either consented to or caused by the juvenile. In United States v. Romulus, 949 F.2d 713 (4th Cir.1991), the actual date on which the juvenile was taken into federal custody was unclear, but he was brought before a magistrate judge on July 2, 1990, at which time he provided a false birth date and a false name. Id. at 714-15. Only on July 3, 1990 did the government determine his true name and age. Id. at 715. The Fourth Circuit held that “because the government was unaware that Romulus was a juvenile until July 3, 1990 ... any period of time prior to July 3 was properly excluded as delay caused by the juvenile.” Id. at 716. See also United States v. Doe, 49 F.3d 859, 866 (2d Cir.1995) (excusing a delay was in the interest of justice where “Doe‘s misrepresentations as to his age and identity, defense counsel‘s tactical delay ..., and his extending that delay beyond 30 days in hopes of gaining a dismissal with prejudice” were the cause).
This case is slightly different from Romulus, because the government—here, Agent Salazar—was on notice from the DHS records that R.P. might be a juvenile. Still, in this case, as in Romulus, R.P. created the need for proceedings to determine his juvenile status by lying about his age. Thus, the time spent in
Applying these principles to this case, there was no JDA speedy trial violation once the excludable time is removed. R.P. was arrested on November 19, 2006 and placed in federal custody. His trial began on January 18, 2007, 60 days after he was arrested. The period from January 8-18 is excludable as caused by the juvenile or his counsel, because it was brought about by the filing of pre-trial motions by the defense. The period from November 21, when defense counsel first provided notice to the court of R.P.‘s alleged juvenile status, to December 20, when defense counsel first appeared with an original copy of R.P.‘s birth certificate and a witness from the consulate, is also excludable, as delay caused by the juvenile. The passage of time was necessary to make a determination of R.P.‘s juvenile status, and the need for that determination resulted from his false response when first asked his date of birth.
R.P. argues that it took until December 26 to determine that he was a juvenile only because the judge inappropriately put the burden of proof on him to show that he was a juvenile and refused to consider an uncertified birth certificate from Mexico. As a result, the defense argues, no portion of the time from December 5, when a copy of the birth certificate was first proffered, to December 26, when R.P. was finally determined to be a juvenile, should be excluded.
The record shows, however, that no delay was caused by a failure correctly to apply the burden of proof. There is a paucity of cases addressing the appropri
Here, the magistrate judge correctly applied these burdens. At the ultimate hearing on December 26, the court appropriately required the government to present prima facie evidence of R.P.‘s age, and appropriately treated R.P.‘s own previous statements as such evidence. Only then did the judge require that R.P. come forward with proof to rebut that presumption. Similarly, the requirement imposed by the judge at earlier hearings that R.P. come forward with evidence was simply an ap
R.P. further argues that, even if his statements constituted prima facie evidence of his adult status so as to shift the burden to the defense, the defense presented sufficient evidence of juvenile status by December 5, so that the time from December 5 through December 26 is excludable. He argues, in particular, that the copied birth certificate should have been admissible, without authentication through consular testimony. The question, however, is not the admissibility of the birth certificate but rather the weight to be accorded it. The magistrate judge was not compelled to find that the copied, unauthenticated birth certificate was sufficient to show that R.P. was a juvenile.
We conclude that the time from January 8 through 18 and from November 21 through December 20 is excludable. As a result, the government was responsible for only 21 days of the delay in bringing R.P. to trial as a juvenile. We therefore affirm the district court‘s refusal to dismiss the information for failure to comply with
III. Warning, Notification, and Arraignment Requirements of the JDA (18 U.S.C. § 5033 ).
R.P. alleges that the district court erred in failing to suppress his statements or dismiss the information despite the gov
We agree with R.P. that the government was obligated to comply with the requirements of the JDA, but for a somewhat different reason. We conclude that under the plain language of the statute, the determinative factor in the application of
“In interpreting a statute, we look first to [its] plain language.” United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir.1999) (quoting Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir.1996)).
Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile‘s parents, guardian, or custodian of such custody. The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.
The juvenile shall be taken before a magistrate judge forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate judge.
A comparison of
Nor is there any support in the language of the statute for a requirement that the protections of
The use of the phrase “alleged act of juvenile delinquency” does not change this conclusion. A “juvenile” by definition can only be arrested for an “alleged act of juvenile delinquency“; the statute would be plainly inconsistent if it read “[w]henever a juvenile is taken into custody for an alleged [crime].” See
“When we find the terms of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.” Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991). We may only reject the application of the statute as written if it “will produce a result ‘demonstrably at odds with the intentions of its drafters.‘” Id. at 190-91 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)); see also Middle Mountain Land & Produce, Inc. v. Sound Commodities, Inc., 307 F.3d 1220, 1223 (9th Cir.2002). Not only is there no evidence in this case that application of the unambiguous text of the statute will lead to a result in conflict with the intentions of Congress, there are a number of reasons Congress might have concluded that precisely such a bright line rule is preferable.
Congress did not indicate expressly in any of its reports on the JDA its reason for adopting the language of
As this purpose suggests, the Act was adopted in part in response to the Supreme Court‘s decision in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), in which the Court emphasized that juvenile delinquency proceedings “must measure up to the essentials of due pro
Given this emphasis on strong procedural protections, there are several reasons Congress might have believed that requiring the protections of
is unlikely to have any conception of what will confront him when he is made accessible only to the police. That is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protect his own interests or how to get the benefits of his constitutional rights.
Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); see Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (noting that “minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them“). The likelihood that juveniles will not appreciate the significance of detention underlies this circuit‘s conclusion that a juvenile cannot waive the protections of the JDA. See United States v. Juvenile, L.M.K., 149 F.3d 1033, 1035 (9th Cir.1998) (holding that “the statute does not permit the juvenile to waive notification“); see also United States v. D.L., 453 F.3d 1115, 1123 n. 6 (9th Cir.2006) (noting, “because [the issue] is likely to recur, that it is highly doubtful that a juvenile can waive consular notification“). Congress could have believed that a juvenile should also not be able to waive the JDA interrogation protections by lying about his age. The very premise of the JDA, indeed, is that juveniles will often make choices—including the choice to appear to be adults when they are not—that are not in their own interest.
Congress might also have concluded that the practical consequences of a rule that permits of no exceptions are more desirable than the consequences of, for example, a rule that would require courts to determine what information was available to the arresting officer. The strict rule adopted by Congress should, as a practical matter, induce arresting officers initially to treat an arrestee as a juvenile if there is some basis for doing so—for example, the arrestee‘s appearance, information about past arrests, or some other indication.
Finally, Congress may have concluded that compliance with the requirements of
Our discussion of the legislative history and identification of sensible justifications for the statute‘s clearly stated rule shows that this is not “one of those rare cases” when application of the plain language of the statute is “demonstrably at odds with the intentions of its drafters.” See Demarest, 498 U.S. at 190. There is no evidence in the legislative history that Congress did not intend the protections of
For the foregoing reasons, we conclude that juveniles must be provided with the protections of
A. Application of § 5033 .
In analyzing a claim under
The government has not contended, either before the district court or on appeal, that it provided R.P. any of the protections of
Having determined that
We remand to the district court, because we are not convinced beyond a reasonable doubt that the confession, if caused by the violation of the JDA, was harmless. “In assessing harmlessness, we must be convinced beyond a reasonable doubt that the government‘s misconduct did not give rise to any prejudice.” C.M., 485 F.3d at 503 (citing Wendy G., 255 F.3d at 767). A defendant is prejudiced by his confession if his statements are a major part of the proof of the crime at trial. RRA-A, 229 F.3d at 747 (holding that there was prejudice when the “confession was the primary basis of evidence on which [defendant] was convicted“); Doe IV, 219 F.3d at 1018 (holding there was prejudice where the statement was the “sole source of proof of his knowledge of the drugs“).
R.P.‘s statement was “the primary basis of evidence” that he intended to gain financially and that he knew there were smugglers who were receiving money to transport the aliens. See RRA-A, 229 F.3d at 747. The district court found with regard to the financial gain counts that “pursuant to [R.P.‘s] own statement ... [R.P.] agreed to drive others to reduce his smuggling fee.” In the absence of R.P.‘s statement, there would be insufficient evidence to sustain a finding of delinquency with regard to the
With regard to Counts Two, Four and Six (violations of
R.P. argues that the appropriate remedy in this case, assuming the violations of
Accordingly, we remand to the district court so that it may determine whether the violation of
We therefore AFFIRM the district court‘s decision with regard to
BERZON, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority opinion with the exception of the conclusion that a remand is necessary to determine whether the violations of
The government‘s failure to argue for remand on the causation issue is well-advised.
As the majority acknowledges, the burden is on the government to show lack of causation. The government has not suggested that it could meet this burden. I therefore conclude that in light of the government‘s position and the complete lack of compliance with