United States v. Juvenile MaleUnited States v. Juvenile Male
Lead Opinion
ORDER
The opinion filed on January 26, 2010 is amended to include Judge Berzon’s concurrence in part and dissent in part.
OPINION
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.” Id. § 5036.
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 records
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 charging him with illegal transportation of aliens
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 Neftalí 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
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 (
R.P. argues that the government did not properly certify the case as required by
In this ease, 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 [
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 by the U.S. Attorney’s Office, and 2) that the investigation established that the state prosecutor responsible for any juvenile proceeding had affirmatively declined to institute such a proceeding. In this set of circumstances, determined after an appropriate investigation, the U.S. Attorney’s certification that “the juvenile court ... does not have jurisdiction” is accurate.
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 over a criminal matter by deciding not to file charges and so not filing them.
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, 117
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 (
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,
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 bgfore the speedy trial clock begins to run. Id. at 1074 (citing United States v. Juvenile Male,
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,
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 determining R.P.’s age is excludable as delay caused by the juvenile.
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 appropriate application of the shifting burdens.
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 ex-cludable. 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 (
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,
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 “[wjhenever 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,
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,
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,
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,
For the foregoing reasons, we conclude that juveniles must be provided with the protections of
A. Application of
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.,
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,
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
Notes
. DHS ''maintains information on every INS apprehension.” United States v. Parga-Rosas,
.
Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien ... shall ... in the case of ... an offense done for the purpose of commercial advantage or private financial gain ... be fined under Title 18 and shall be imprisoned ....
.
Any person who ... knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law ... shall be punished as provided in subparagraph (B).
.
A juvenile alleged to have committed an act of juvenile delinquency ... shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony or an offense described in [certain federal statutes].
. The certification cannot be signed by an Assistant U.S. Attorney, only by the U.S. Attorney herself. See United States v. Doe,
. It is not contended that Joseph Beard did not have the authority to speak for the Office of the District Attorney. As we shall see, California law gives the District Attorney authority to determine which cases will proceed to court and in so doing determines which court, and in fact, if any California court, will have jurisdiction over a particular charge against a particular juvenile.
. We assume, for purposes of our analysis, that had a prosecution been brought a California state court could have exercised jurisdiction over R.P. under the California Welfare & Institutions Code, which provides that "any person who is under the age of 18 years when he or she violates any law of this state or of the United States ... is within the jurisdiction of the juvenile court.” (
. Our conclusion may not be determinative in a state where the bringing of charges by the prosecutor is not necessary to give a juvenile or other appropriate state court jurisdiction over a particular juvenile for a specific alleged illegal act. See United States v. Juvenile,
. The District Court may have erred in refusing to waive R.P.’s appearance at the December 20 hearing, making the delay from December 20-26 not excludable. That period does not matter, however, because even if it is not excluded, it is insufficient to make the period of delay not caused by R.P. greater than 30 days. We therefore assume for purposes of our analysis that the time is not excludable.
. We note with some concern that Agent Salazar’s testimony before the magistrate judge in the pretrial proceedings was seriously misleading as to whether R.P. had ever provided juvenile birth dates in the past. Agent Salazar testified in the pretrial proceedings that the information he received from DHS records was "consistent” with the adult birth date that R.P. provided on November 19, 2006. He did not indicate until trial that some of the birth dates previously provided by R.P. would have made him a juvenile. Agent Salazar’s misleading testimony, however, did not lead to a delay in R.P.'s trial. Salazar testified for the first time on December 26, 2006, at which time the magistrate judge found that R.P. was a juvenile. The delay prior to December 26, 2006 was thus caused by R.P.’s provision of an adult birth date, not by the misleading testimony of Agent Salazar.
. A recent study of 200 known exonerations based upon DNA evidence concludes that 31 cases involved false confessions, 12(39%) of which were made by juveniles. Out of the 200 known exonerations, 22(11%) involved juveniles. Thus, 12 out of 22 of the juveniles exonerated (55%) had initially provided confessions that proved to be false. Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 65, 89 (2008).
. In adopting the bright-line rule, we recognize that a juvenile could theoretically be encouraged to lie about his age in an attempt to mislead the government into violating the JDA. But, as we explain shortly, to obtain relief based on a violation of
The bright-line rule could also lead to arresting officers erring on the side of contacting the parents of arrestees who are actually adults, with the result that the parents of some adult arrestees may be notified over their childrens' objections. Such errors, however, are likely to result in swiftly ascertaining that the arrestees are in fact adults, allowing the arresting officers to dispense with the special protections accorded juveniles.
. Because we conclude that R.P.'s confession was prejudicial to him at trial, see infra at 903-04, we need not decide whether the violations of
The interaction of due process and the JDA was first discussed in United States v. Doe,
Due process violations that prejudice a defendant are, of course, a basis for relief regardless of whether they are also violations of the JDA.
. The "harmless beyond a reasonable doubt” standard is not usually applied to non-constitutional violations. See, e.g., United States v. Morales,
Moreover, in articulating the harmless beyond a reasonable doubt standard for the first time, Doe II relied on Bank of Nova Scotia v. United States,
. Even had the government argued that it did provide R.P. the protections of
. As we remand for a determination of whether R.P.’s confession was caused by the violations of
Concurrence Opinion
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