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United States v. Doe

*fn* submitted seattle washington: August 3, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN DOE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Idaho. D.C. No. CR-91-029-S-HLR. Harold L. Ryan, District Judge, Presiding.

Before: Eugene A. Wright, Robert R. Beezer and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Hall.

Author: Hall

HALL, Circuit Judge:

Defendant John Doe appeals his adjudication of juvenile delinquency for knowingly engaging in sexual contact with a person younger than twelve years of age, in violation of 18 U.S.C. §§ 5031 and 2244(a)(1). Defendant contends that the district court never acquired jurisdiction because the government failed to comply with 18 U.S.C. § 5032, and that the court improperly relied on groundless inferences in sentencing him to a three year term of imprisonment and recommending incarceration with the California Youth Authority. We conclude that although this court has jurisdiction over the appeal, the district court lacked jurisdiction to commence juvenile delinquency proceedings against the minor. Therefore we vacate the adjudication of delinquent status, vacate the sentence imposed and remand to the district court with instructions to dismiss the information without prejudice.

I.

Section 5032 of the United States Code, Title 18, sets out two different certification requirements for juvenile delinquency proceedings in federal district courts: (1) a "need certification" provision, requiring certification by the Attorney General that there is a need for proceedings to take place in federal rather than state court; and (2) a "record certification" provision, requiring delivery to the federal court of any prior juvenile court records or certification by the juvenile court that there are no such records. The need certification provision states:

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 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 [a drug offense], . . . and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.

18 U.S.C. § 5032 Par. 1 (1988). The record certification provision states:

Any proceedings against a juvenile shall not be commenced until any prior juvenile court records of such juvenile have been received by the court, or the clerk of the juvenile court has certified in writing that the juvenile has no prior record, or that the juvenile's record is unavailable and why it is unavailable.

Id. Par. 10.

The government filed an information charging Doe with juvenile delinquency on April 19, 1991, and on the same day filed the need certification pursuant to the first clause of section 5032, certifying that the appropriate state court lacked jurisdiction over him. Doe made his initial appearance before the court on June 4. On June 12, the prosecutor filed the record certification, stating that the government "knew of no prior juvenile court record pertaining" to Doe. The certification was signed by the assistant United States Attorney prosecuting the case, rather than a clerk of the court. Doe, who had no juvenile records, did not object to the record certification before the district court.

Doe contends that because the United States Attorney failed to certify to the court, prior to commencement of proceedings against him, "that the juvenile has no prior record, or that the juvenile's record is unavailable and why it is unavailable," the district court never acquired jurisdiction.*fn1 We review this issue of statutory interpretation de novo. See United States v. Doe, 862 F.2d 776, 779 (9th Cir. 1988).

II.

"Certification is a jurisdictional requirement." United States v. Baker, No. 89-10302, slip op. 13953, 13981 (9th Cir. Dec. 13, 1993); United States v. Juvenile Male, 864 F.2d 641, 643 (9th Cir. 1988). But see United States v. Gonzalez-Cervantes, 668 F.2d 1073, 1077 (9th Cir. 1988) (holding that the filing of an accurate need certification is not jurisdictional). "Proceedings" under section 5032 begin with the filing of the information. See United States v. Doe, 631 F.2d 110, 112-13 (9th Cir.), cert. denied, 449 U.S. 867, 66 L. Ed. 2d 86, 101 S. Ct. 202 (1980); United States v. Brian N., 900 F.2d 218, 221 (10th Cir. 1990). Here, the government did not file the record certification until nearly two months after the information was filed. Further, the record ...


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