United States v. Female Juvenile, A.F.S.

United States Court of Appeals
For the First Circuit

No. 03-2171

UNITED STATES OF AMERICA,

Appellant,

v.

FEMALE JUVENILE, A.F.S.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Ernesto G. Lopez-Soltero, Assistant U.S. Attorney, with whom
H.S. Garcia, U.S. Attorney, and Sonia I. Torres, Assistant U.S.
Attorney, were on brief for appellant.
Juan F. Matos De Juan, Assistant Federal Public Defender,
Office of the Federal Public Defender, on brief for appellee.

July 27, 2004
 LIPEZ, Circuit Judge. This case raises important issues

of the jurisdiction of the federal courts over juvenile delinquency

proceedings and the effect of the juvenile speedy trial provision

on the proceedings at issue here.

I.

Defendant-appellee A.F.S., a seventeen-year-old female

juvenile, was arrested and charged by information with juvenile

delinquency pursuant to the Federal Juvenile Delinquency Act

("FJDA"), 18 U.S.C. § § 5031-5042, arising out of alleged federal

narcotics offenses. The district court dismissed the information

against A.F.S. on April 10, 2003, holding that the district court

lacked subject matter jurisdiction over juvenile delinquency

proceedings. The government appeals from the district court's

dismissal of the information, arguing that the court had subject

matter jurisdiction over the prosecution of A.F.S. for juvenile

delinquency pursuant to the FJDA. In response, A.F.S. argues that

the district court correctly dismissed the information and that,

even if it did not, we should uphold the dismissal based on the

government's failure to bring A.F.S. to trial within the thirty-day

period set forth in the speedy trial provision of the FJDA, 28

U.S.C. § 5036.

We hold that the district court erred in dismissing the

information for lack of jurisdiction. However, we affirm the

decision of the district court on different grounds, holding that

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the delay between the dismissal of the information and the

discharge of A.F.S. violated the defendant's right to a speedy

trial under the FJDA.

II.

On March 16, 2003, A.F.S., a seventeen-year-old female

juvenile, arrived at the Luis Munoz Marin International Airport, in

Carolina, Puerto Rico, from St. Maarten, Netherlands Antilles.

Upon her arrival, she was referred to a U.S. Bureau of Customs and

Border Protection (BCBP) Secondary Inspection. Based on her

answers to routine customs questions, the BCBP inspectors suspected

A.F.S. of being an internal narcotics courier. They conducted a

voluntary X-ray examination of her abdominal area, which indicated

the presence of drugs in her body. A.F.S. was arrested and

transported to a medical facility where a second X-ray examination

also yielded positive results. On March 17, 2003, A.F.S. allegedly

expelled 12 pellets, or 96 grams, of a substance containing a

detectable amount of heroin, a quantity that is consistent with

drug trafficking.

On March 18, 2003, a special agent with the Bureau of

Immigration and Customs Enforcement (BICE) filed a criminal

complaint against A.F.S., accusing her of juvenile delinquency

based on her alleged drug offenses. On March 21, the United States

filed an information charging A.F.S. with juvenile delinquency, in

violation of 18 U.S.C. § 5032, arising from her alleged importation

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of heroin and possession with intent to distribute.1 The

information charged that the defendant's actions would have

constituted offenses punishable under the Controlled Substances

Act, 21 U.S.C. § 841(a)(1), and the Controlled Substances Import

and Export Act, 21 U.S.C. § 952(a), if she had been an adult.2 On

the same date, the United States Attorney filed a certification,

which is required by 18 U.S.C. § 5032 as a precondition to federal

prosecution of juvenile delinquency. The certification stated that

the offenses charged against A.F.S. were "serious crime[s] in

relation to drug trafficking activities, as described in [21 U.S.C.

§ 952] which are at the core of the federal interest for

prosecution since it is a case of drug importation for which

federal authorities have primary jurisdiction."

Meanwhile, at a preliminary hearing held on March 18,

2003, the United States magistrate judge ordered A.F.S. committed

to a juvenile facility pending defense counsel's efforts to secure

a third party custodian who could guarantee her appearance at

future court proceedings. At that hearing, the government filed a

motion seeking authorization to obtain photographs and fingerprints

1
Juvenile proceedings are commenced by the filing of an
information rather than by indictment. See 18 U.S.C. § 5032.
2
The FJDA defines "juvenile delinquency" as "the violation of
a law of the United States committed by a person prior to his
eighteenth birthday which would have been a crime if committed by
an adult or a violation by such a person of section 922(x)." 18
U.S.C. § 5031.

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of the defendant. A.F.S. opposed the motion, and it was denied by

the magistrate judge on March 21. On March 26, the magistrate

judge determined that no conditions of release existed that would

reasonably assure the defendant's timely appearance at further

court proceedings and ordered that she be detained in a juvenile

facility pending adjudication.3

On April 10, 2003, a status conference was held in the

chambers of the district court. The court informed the parties

that a juvenile may not be tried as a juvenile before a federal

district court because "the federal government does not deal with

juvenile delinquents." It explained that the government was

required either to move to transfer A.F.S. to adult status for

prosecution in the district court or to transfer the case to state

authorities for prosecution under state law. The court issued a

separate written order stating that "[t]he information filed by the

government, charging the juvenile to have committed an act of

juvenile delinquency, is stricken from the record." The order also

gave the government five days to decide whether to "begin criminal

proceedings by requesting a transfer [of A.F.S.] to adult status."

3
18 U.S.C. § 5034 provides that where a juvenile
has not been discharged before his initial appearance
before the magistrate judge, the magistrate judge shall
release the juvenile to his parents, guardian, custodian,
or other responsible party . . . unless the magistrate
judge determines, after hearing, at which the juvenile is
represented by counsel, that the detention of such
juvenile is required to secure his timely appearance
before the appropriate court or to insure his safety or
that of others.

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Notwithstanding the dismissal of the information, the court did not

discharge A.F.S. at that time.

The government chose not to initiate transfer

proceedings. Instead, on April 11, it filed a motion for

reconsideration of the dismissal of the information and a motion

requesting a trial date on or before April 15, 2003, "in order to

comply with the speedy trial requirement of [18 U.S.C. § 5036]."

The defendant did not oppose either motion.

On April 29, 2003, A.F.S. filed a motion entitled "Sealed

Request for Dismissal of All Pending Prosecutions and Request for

Immediate Order of Release." The motion claimed that A.F.S. had

been detained in federal custody for more than thirty days without

being brought to trial (she had been in custody since March 16), in

violation of the speedy trial provision of the FJDA, 18 U.S.C. §

5036. The United States filed a response, arguing that the speedy

trial period had ended on April 10, 2003, when the district court

dismissed the information charging A.F.S. with juvenile

delinquency, and would not commence again until the district court

ruled on the government’s motion for reconsideration. The

government also noted that an INS detainer had been lodged against

A.F.S.

On May 12, 2003, another magistrate judge issued a report

and recommendation addressing the defendant’s motion for dismissal

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and release on speedy trial grounds. He recommended that the

motion be granted, explaining that

[a]lthough the government's unopposed motion for
reconsideration was filed within the juvenile speedy
trial's thirty day period, the fact remains that the
trial did not commence within thirty (30) days of the
detention. Section 3036's strict language, in turn,
precludes the Court from extending the speedy trial clock
based on the filing of the Government's motion to
reconsider.

In a footnote to his report, the magistrate judge observed that

"[u]pon review of [the government's motion for reconsideration],

the undersigned is of the opinion that the same has merit, and

should have been granted."4

On May 14, 2003, the government filed written objections

to the magistrate judge's report and recommendation. Finding

support for its position in the language of § 5036's speedy trial

provision, the government argued that the "thirty day limitation

deals specifically with days the juvenile has been detained pending

trial [and] since the information was dismissed on April 10 the

juvenile has not been detained pending trial." Thus, the

government again argued that because the district court had

dismissed the information on April 10, 2003, "no speedy trial

violations have occurred in the instant case and as such the

juvenile may not be released." A.F.S. filed an opposition to the

government's objections on May 19, 2003.

4
When the magistrate judge issued his report and
recommendation, the government's motion for reconsideration was
still pending before the district court.

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 The district court set oral arguments on all of the

pending motions for the morning of May 27, 2003 and scheduled a

transfer hearing before a magistrate judge for that afternoon. At

the motions hearing, the district court reiterated its prior order

to strike the information from the record, explaining that it

charge[d] a felony and it cannot be filed against a
juvenile unless she is transferred to adult status and
she waives her right to have a Grand Jury find probable
cause and bring an indictment. The juvenile has to be
subject to a transfer hearing. The government cannot
proceed against her by means of an information charging
a felony.

The district court denied all pending motions, including the

government's motion for reconsideration and A.F.S.'s motion

requesting dismissal of all pending prosecutions and an immediate

order of release. It noted, however, that "[t]he Court is not

dismissing the complaint." It stated that if, following the

transfer hearing, "the Magistrate Judge finds that the juvenile is

not to be transferred to adult status, then the complaint may be

dismissed because the thirty days have expired and the juvenile

will be released." The government again declined to seek to

transfer A.F.S. to adult status, and the magistrate judge cancelled

the transfer of status hearing scheduled for that afternoon. The

district court issued a judgment of discharge, also on May 27,

2003, which ordered the discharge of A.F.S. on the ground that

"[t]he Court has dismissed the charges in view of the fact that the

government did not request that the juvenile be transferred to

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adult status, pursuant to 18 U.S.C. § 5031 et seq." This appeal by

the government followed.

III.

The United States argues that the district court erred in

ordering dismissal of the information filed against A.F.S. on the

ground that it lacked subject matter jurisdiction over juvenile

proceedings, at least where the charged offense would be a felony

if committed by an adult. Because this issue turns on the district

court's interpretation of the Federal Juvenile Delinquency Act, our

review is plenary. See United States v. M.I.M., 932 F.2d 1016,

1019 (1st Cir. 1991) ("Whether a district court correctly

interpreted a statute is a question of law receiving de novo

review.").

Section 5032 of the FJDA sets forth the procedures for

trying an individual under eighteen years of age as a juvenile in

federal court or for transferring such a juvenile to adult status

for the purpose of federal criminal prosecution. This section

provides, in relevant part, that a district court has jurisdiction

over a juvenile if "the Attorney General, after investigation,

certifies to the appropriate district court of the United States

that . . . (3) the offense charged is . . . an offense that is

described in [certain enumerated sections] of the Controlled

Substances Act . . . [or] of the Controlled Substances Import and

Export Act . . . and that there is a substantial Federal interest

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in the case or the offense to warrant the exercise of Federal

jurisdiction." 18 U.S.C. § 5032.5 We have held, in line with the

majority of the circuits, that the Attorney General's certification

of a "substantial federal interest" is an act of prosecutorial

discretion that is shielded from judicial review. United States v.

Smith, 178 F.3d 22, 25 (1st Cir. 1999).

"Once federal jurisdiction has attached, juvenile

delinquency proceedings ensue unless the court transfers the

juvenile for prosecution as an adult." Id. at 25. Section 5032

includes both permissive and mandatory transfer provisions. Upon

the government's motion, the district court may transfer a juvenile

"if such court finds, after hearing, such transfer would be in the

interest of justice," in light of six specific factors set forth in

§ 5032.6 Under the mandatory transfer provision of § 5032, a

5
Applying a presumption of exclusive state jurisdiction over
juvenile offenses, 18 U.S.C. § 5032 provides for the commencement
of juvenile proceedings in federal court only where the Attorney
General certifies to the appropriate district court that
(1) the juvenile court or other appropriate court of a
State does not have the 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 enumerated sections of the] Controlled
Substances Act . . . [or] of the Controlled Substances
Import and Export Act . . . 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.
6
Under the discretionary transfer provision of 18 U.S.C. §
5032, the district court is required to consider and make findings

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district court shall transfer a juvenile if three factors are

present: 1) the juvenile committed the act underlying the charged

offense after his sixteenth birthday; 2) the charged offense is a

felony that has as an element the use of physical force or by its

nature involves the risk of physical force, or is an offense

specifically enumerated in the paragraph; and 3) the juvenile has

previously been found guilty of a crime that would satisfy factor

2). 18 U.S.C. § 5032. In the case of both permissive and

mandatory transfers, however, the Attorney General must move to

transfer the juvenile to adult status before the district court

considers the issue. See, e.g., United States v. Juvenile Male No.

1, 47 F.3d 68, 69 (2d Cir. 1995) (government was precluded from

arguing on appeal that the district court would have been required

to grant a motion for mandatory transfer of juvenile to adult

status where it never filed such a motion below). "Juvenile

adjudication is presumed appropriate unless the government

establishes that prosecution as an adult is warranted." Id. at 71.

This statutory presumption in favor of juvenile proceedings

reflects the purpose of the FJDA to "remove juveniles from the

as to each of the following factors in assessing whether a transfer
would be in the interest of justice: 1)"the age and social
background of the juvenile"; 2) "the nature of the alleged
offense"; 3) "the extent and nature of the juvenile's prior
delinquency record"; 4) "the juvenile's present intellectual
development and psychological maturity"; 5) "the nature of past
treatment efforts and the juvenile's response to such efforts"; and
6) "the availability of programs designed to treat the juvenile's
behavioral problems."

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ordinary criminal process in order to avoid the stigma of a prior

criminal conviction and to encourage treatment and rehabilitation."

United States v. Brian N., 900 F.2d 218, 220 (10th Cir. 1990)

(citations omitted).

In this case, the Attorney General properly certified

that the offenses charged were described in an enumerated section

of the Controlled Substances Act, 21 U.S.C. § 841, and the

Controlled Substances Import and Export Act, 21 U.S.C. § 952(a),

and that there was a sufficiently substantial federal interest in

the case to warrant federal jurisdiction. Thus, federal

jurisdiction attached.7 Moreover, for the reasons set forth above,

the government was not required to seek a transfer of A.F.S. to

adult status in order to prosecute the case against her. The

district court's conclusion that it lacked jurisdiction over A.F.S.

with respect to her alleged acts of juvenile delinquency was an

error of law.

IV.

Our conclusion that the district court erred in

dismissing the information for lack of subject matter jurisdiction

does not end our inquiry. A.F.S. argues that even if the district

7
On appeal, the government argues that federal jurisdiction
was also established in this case on the alternative ground that
Puerto Rico does not have authority to prosecute individuals
accused of importing controlled substances into the United States.
See 18 U.S.C. § 5032. Whatever its merits, this jurisdictional
argument is not before us as it was not a basis for the Attorney
General's certification.

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court erred in its jurisdictional dismissal, we must affirm on the

alternative ground that the court, consonant with the

recommendation of the magistrate judge, should have dismissed the

information for violation of the speedy trial provision of the

FJDA, 18 U.S.C. § 5036. We consider de novo the legal question of

whether the detention of A.F.S. exceeded the thirty-day period

permitted under the FJDA's speedy trial provision, requiring

dismissal of the information and the defendant's immediate release.

United States v. Santiago-Becerril, 130 F.3d 11, 15 (1st Cir. 1997)

("This court reviews the disposition of [an adult Speedy Trial Act]

issue for clear error as to factual findings and de novo as to

legal rulings."); United States v. Sealed Juvenile 1, 192 F.3d 488,

490 (5th Cir. 1999) (finding that "the same twin standard of

review" applicable under the adult Speedy Trial Act also applies to

the speedy trial provision of the FJDA because the "underlying

purpose of the statutes are identical").8

Section 5036 of Title 18 United States Code provides:

If an alleged delinquent who is in detention pending
trial is not brought to trial within thirty days from the
date upon which such detention was begun, the information
shall be dismissed on motion of the alleged delinquent or
at the direction of the court, unless the Attorney
General shows that additional delay was caused by the
juvenile or his counsel, or consented to by the juvenile
and his counsel, or would be in the interest of justice
in the particular case. Delays attributable solely to
court calendar congestion may not be considered in the
interest of justice. Except in extraordinary

8
See the Appendix for a chronology of dates and events that
are important to the speedy trial analysis in this case.

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 circumstances, an information dismissed under this
section may not be reinstituted.

A.F.S. argues that her detention for speedy trial purposes began on

March 16, 2003, when she was detained by customs agents at the

airport, and concluded when she was discharged on May 27, 2003.9

She acknowledges that the four-day period between March 18-21,

2003, during which the district court considered and ultimately

rejected the government's request to photograph and fingerprint

A.F.S., could be considered excludable from the speedy trial period

because A.F.S. arguably consented to the delay by filing an

opposition to the motion.10 Moreover, she concedes that the speedy

trial clock was tolled between April 29, 2003 and May 27, 2003,

pending the district court's consideration of her motion requesting

dismissal of all pending prosecutions and an immediate order of

release. Even excluding those two time periods, however, A.F.S.

argues that she was detained for forty days, ten days over the

limit set by § 5036, without being brought to trial.

The government, on the other hand, claims that after the

district court dismissed the information on April 10, 2003, A.F.S.

9
A.F.S. states that she was discharged on May 29, 2003.
However, the district court's judgment of discharge was issued and
filed on May 27, 2003.
10
We take no position on whether the defendant's opposition to
the government's pre-trial motion constituted consent to the delay
occasioned by that motion and hence tolled the speedy trial clock.

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remained in custody but was not "in detention pending trial" for an

alleged act of juvenile delinquency and therefore was not subject

to the speedy trial provision of § 5036. Accordingly, the

government argues that only the twenty-one days between the initial

detention of A.F.S. on March 16, 2003 and the dismissal of the

information on April 10, 2003 (excluding the four days pending

consideration of the government's motion to obtain fingerprints and

photographs) should be counted towards the thirty-day limit.

We agree with the government that the protections of §

5036 are not triggered by every detention of a juvenile but only by

the "detention pending trial" of an "alleged delinquent." The

parties do not dispute that the thirty-day time limitation of the

speedy trial provision of the Juvenile Delinquency Act begins to

run when the juvenile is taken into federal custody pending trial

on federal delinquency charges. See, e.g., United States v. Doe,

365 F.3d 117 (9th Cir. 2004); United States v. Three Male

Juveniles, 49 F.3d 1058, 1063 (5th Cir. 1995); United States v.

Wong, 40 F.3d 1347, 1371 (2d Cir. 1994). If the juvenile is not

turned over to state authorities following her arrest, the

"Attorney General shall proceed by information" against the

juvenile in an appropriate district court.11 18 U.S.C. § 5032. The

11
If a juvenile is charged with certain class B or C
misdemeanors, however, the government need not proceed by
information but may initiate delinquency proceedings before a
magistrate judge by filing a violation notice or complaint. 18
U.S.C. § § 3401(g) & 5032.

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speedy trial clock continues to run, with certain specified

exceptions, until the alleged delinquent "is brought to trial."

Id. § 5036.

If an information is dismissed, however, on the

initiative of either the government or the court, the Attorney

General may not "proceed" against the juvenile. See 18 U.S.C. §

5032. With the Attorney General's authority to proceed against the

juvenile removed by the dismissal of the information, and in the

absence of any alternative basis for detention, the juvenile should

be discharged from custody and released. In this case, however,

A.F.S. was not released from federal custody when the district

court dismissed the information against her, but remained in

detention until the district court issued a judgment of discharge

on May 27, 2003. We share the defendant's concern, first raised in

her motion opposing the government's objection to the magistrate

judge's report and reiterated at oral argument, that "the

government's assertion that the minor is not detained pending

Trial, begs the question of the legality of the minor's custody."

In its reply brief, the government appears to concede the

dubious legal authority for A.F.S.'s detention, stating bluntly

that "the juvenile was under custody but not pending trial,

actually she would have been released if such order would have been

sought by then." Perhaps recognizing the inadequacy of this

response to the question of why A.F.S. was not released immediately

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after the district court dismissed the information against her,

counsel for the government claimed at oral argument that A.F.S.

remained in administrative custody following the dismissal of the

information pursuant to an INS detainer that had been filed against

her. However, an INS detainer is not, standing alone, an order of

custody. Rather, it serves as a request that another law

enforcement agency notify the INS before releasing an alien from

detention so that the INS may arrange to assume custody over the

alien. 8 C.F.R. § 287.7(a);12 see also Zolicoffer v. United States

Dep't of Justice, 315 F.3d 538, 540 (5th Cir. 2003) (collecting

cases and agreeing with the majority of circuits that absent an

order of deportation, an INS detainer does not create custody in

the INS).13 In this case, the government has not shown that A.F.S.

12
8 C.F.R. § 287.7(a) provides, in relevant part:
A detainer serves to advise another law enforcement
agency that the Department seeks custody of an alien
presently in the custody of that agency, for the purpose
of arresting and removing the alien. The detainer is a
request that such agency advise the Department, prior to
the release of the alien, in order for the Department to
arrange to assume custody, in situations when gaining
immediate physical custody is either impracticable or
impossible.

13
On the other hand, a detainer, together with a final order
of removal, may suffice to place the alien in the legal custody of
the INS even if the alien is physically detained somewhere else.
See, e.g., Simmonds v. INS, 326 F.3d 351, 354 (2d Cir. 2003) (final
order of removal is sufficient to establish INS custody for
purposes of habeas proceedings). The record does not indicate
whether A.F.S. had been charged with an immigration offense or
ordered deported at the time that the district court dismissed the
information charging her with juvenile delinquency.

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was held in administrative custody under the authority of the INS

following the dismissal of the information on April 10.14

Instead, the district court apparently believed that the

original complaint remained in force after it dismissed the

information, providing the legal basis for the anticipated transfer

proceedings and for the continued detention of A.F.S.15 As noted,

however, "juvenile proceedings may only proceed by information,"

not by criminal complaint. M.I.M., 932 F.2d at 1019; see United

States v. Hayes, 590 F.2d 309, 310 (9th Cir. 1979) ("The filing of

a juvenile information is an essential step in the process by which

the qualifying juvenile can be proceeded against as a juvenile or

ultimately, following the grant of a transfer motion, as an

adult."). Moreover, the original complaint was superceded by the

information filed on March 21, 2003, and thus was no longer in

14
Counsel for the government noted at oral argument that the
INS did assume custody of A.F.S. after she was discharged on the
offense of juvenile delinquency on May 27, 2003, and successfully
initiated deportation proceedings against her.
15
At a hearing on the parties' pending motions held on May 27,
2003, the district court reaffirmed its prior order striking the
information from the record but noted that "the Court [was] not
dismissing the complaint," suggesting that under the authority of
that original charging document, "[c]riminal prosecution [could]
begin by holding a hearing to transfer the juvenile to adult
status." Likewise, in her motion requesting dismissal of all
pending prosecutions and an order of immediate release, A.F.S.
noted that "[a]s the Matter stands, the only charging instrument is
the initial Complaint. However, the existence of that Complaint is
questionable since the filing of the Information necessarily
implies the dismissal of the Complaint as a charging document and
its succession, as a new proceeding, of the prosecution of the
Information." (emphasis in the original).

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existence when the information was dismissed on April 10, 2003.16

See Wayne R. LaFave et al., 1 Criminal Procedure § 1.3(n) (2d ed.

1999) (noting that "like the indictment, the information is a

charging instrument which replaces the complaint"); see also United

States v. Funk, 412 F.2d 452, 455 (8th Cir. 1969) (information

supercedes previously filed criminal complaint). Therefore, the

district court's reliance on the authority of a pre-existing

complaint as the basis for the continued prosecution and detention

of A.F.S. was a legal error.17

Nevertheless, the government relied on the district

court's error in continuing to proceed against and assert custody

over A.F.S. after the dismissal of the information on April 10,

2003. As the Supreme Court has explained with regard to the Sixth

Amendment's guarantee of a speedy trial, "the Speedy Trial Clause's

16
Indeed, in its Notice to the Court, filed along with the
information on March 21, 2003, the government informed the district
court that "[t]oday under seal the United States is filing an
Information against the same juvenile defendant which supercedes
the previously filed complaint."
17
When the district court struck the information from the
record, it invited the government to move to transfer A.F.S. to
adult status within five days. Instead of accepting that
invitation, the government filed a motion for reconsideration and
a motion requesting a trial date before April 15, 2003 "in order to
comply with the speedy trial requirement of [18 U.S.C. § 5036]."
At no time did the government request a stay of the court's
dismissal order pending resolution of the motion for
reconsideration, apparently understanding that A.F.S. would remain
in custody. In fact, as we have noted, A.F.S. was not released
from federal detention or transferred to the custody of the INS
prior to her discharge on May 27, 2003.

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core concern is impairment of liberty." United States v. Loud

Hawk, 474 U.S. 302, 312 (1986). Thus, "when no indictment is

outstanding, only the actual restraints imposed by arrest and

holding to answer a criminal charge . . . engage the particular

protections of the speedy trial provision of the Sixth Amendment."

Id. at 310 (citation and quotation marks omitted) (emphasis in the

original). The statutory speedy trial provision of the FJDA is

similarly concerned with the impairment of liberty,18 in particular

the impairment of liberty imposed by incarceration. Unlike the

adult Speedy Trial Act, the FJDA does not include an arrest-related

speedy trial provision but applies only to the time during which

the juvenile is detained pending trial.19 In this case, A.F.S.

remained in federal detention after the dismissal of the

information on April 10 notwithstanding the apparent absence of any

18
The Senate Report to the 1974 bill that amended the 1948 FJDA
to its present form stated that a central purpose of the amended
act was to "provide for the unique characteristics of a juvenile
proceeding and the constitutional safeguards fundamental to our
system of justice." It further explained that "[a]t a time when
many states have already or are re-examining their own juvenile
codes, it is essential that the Act be a model code for juveniles,
combining the unique benefits of the juvenile system with virtually
all of the constitutional rights guaranteed an adult in a criminal
prosecution." S. Rep. No. 93-1011, reprinted in U.S.C.C.A.N. 5283,
5312.
19
The drafters of the FJDA's speedy trial provision initially
adopted but later rejected a provision that would have required a
trial within thirty days of a juvenile's arrest, irrespective of
whether or not the arrested juvenile was detained during that time.
Compare S. Rep. No. 93-1011, reprinted in 1974 U.S.C.C.A.N. 5283,
5321 (discussion of proposed amendment to section 5036), with 18
U.S.C. § 5036.

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legal basis for her continued custody. Under these circumstances,

it would be incongruous to accept the government's argument that

the speedy trial provision did not apply after April 10.

Therefore, we conclude that, for all practical purposes, A.F.S. was

"in detention pending trial" from the time that she was taken into

federal custody on March 16, 2003, until she was discharged of the

offense of juvenile delinquency on May 27, 2003.

The government further argues, however, that even if §

5036 applies to the period of time between the dismissal of the

information and the judgment of discharge, the failure to bring

A.F.S. to trial within thirty days of her arrest did not constitute

a speedy trial violation because the relevant delays were

excludable from the computation of the thirty days within which

trial for the offense of juvenile delinquency must commence. As

A.F.S. acknowledges, the period of time between April 29, 2003 and

May 27, 2003, pending the court's consideration of her motion

requesting dismissal of all pending prosecutions and an immediate

order of release, was properly excluded from the speedy trial

period because it was "caused by the juvenile or [her] counsel."

18 U.S.C. § 5036. The prior delay, from April 11, 2003 to April

29, 2001, is attributable to the government's motion for

reconsideration of the district court's order dismissing the

information for want of subject matter jurisdiction and its motion

requesting a trial date on or before April 15. Because that delay

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was not caused or consented to by A.F.S. or her counsel, it is

excludable from the thirty-day speedy trial period only if it was

"in the interest of justice."20 Id.

We do not agree with the government that the "interest of

justice" exception to the strict application of the thirty-day

requirement of the FJDA's speedy trial provision should remove from

the speedy trial count the eighteen days between the filing of the

government's motion for reconsideration and motion requesting a

trial date, and the filing of the defendant's motion requesting

dismissal of all pending prosecutions and an immediate order of

release. It is true, as the government notes, that courts have

held that the time between the government's motion to transfer a

juvenile to adult status and the court's disposal of that motion

tolls the thirty-day speedy trial period. See, e.g., Sealed

Juvenile 1, 192 F.3d at 492; Wong, 40 F.3d at 1371; United States

v. Romulus, 949 F.2d 713, 716 (4th Cir. 1991). Even if ultimately

unsuccessful, such motions may serve the interest of justice by

enabling the government to "distinguish defendants who would

benefit from the juvenile system from those who should be properly

transferred to adult proceedings." Sealed Juvenile 1, 192 F.3d at

20
Defense counsel explained at oral argument that he chose not
to oppose the government's motions so that A.F.S. would not be
found to have consented to the delay occasioned by the filing and
consideration of those motions, thus tolling the speedy trial
clock. Again, we take no position on whether the clock would have
been so tolled. See supra note 10.

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491. Similarly, an appeal from the district court's denial of a

motion to transfer was found to be in the interest of justice where

the delay was caused by "the government's valid attempt to ensure

that the district court did not abuse its discretion in refusing to

transfer the defendant." United States v. Doe, 94 F.3d 532, 536

(9th Cir. 1996).

In each of those cases, however, the juvenile was

lawfully detained pending trial when the government filed the

motion or appeal that caused an additional delay. By contrast, so

far as we can tell from this record, A.F.S. should have been

released immediately following the district court's dismissal of

the information on April 10, 2003. Cf. United States v. MacDonald,

456 U.S. 1, 9 (1982) (holding that constitutional speedy trial

guarantee is no longer applicable following the dismissal of an

indictment because "[a]fter the charges against him have been

dismissed, a citizen suffers no restraints on his liberty and is

[no longer] the subject of public accusation") (internal quotation

marks omitted). Instead, A.F.S. remained in detention from April

10, 2003 to May 29, 2003 pursuant to no valid legal authority at

all. As incongruous as it would be to find that the speedy trial

provision does not apply to the period of time following the

district court's dismissal of the information, it would be even

more incongruous to use that provision's "interest of justice"

exception to the running of the thirty-day speedy trial requirement

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to avoid the strict application of that requirement to a juvenile

whose custody was without lawful authority. Hence, under the

circumstances of this case, we conclude that the interest of

justice exception does not excuse from the thirty-day speedy trial

count the eighteen days between the filing of the government's

motions for reconsideration and for a trial date, and the filing of

the defendant's motion requesting dismissal of all pending

prosecutions and an immediate order of release. Accordingly, we

hold that A.F.S.'s speedy trial rights have been violated and the

information against her must be dismissed with prejudice.21

V.

For the foregoing reasons, we affirm the decision of the

district court on the alternative speedy trial ground. The

information against A.F.S. is dismissed with prejudice pursuant to

the speedy trial provision of the FJDA, 18 U.S.C. § 5036.22

So ordered.

21
"Except in extraordinary circumstances, an information
dismissed under [the FJDA's speedy trial provision] may not be
reinstated." 18 U.S.C. § 5036. We find no such extraordinary
circumstances here.
22
This judgment does not foreclose the prosecution of the
defendant as a juvenile by territorial authorities under Puerto
Rico's criminal laws pertaining to drug offenses.

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 APPENDIX

Speedy Trial Chronology

March 16, 2003. A.F.S. is arrested and detained in federal
custody.
March 18, 2003. Government files criminal complaint against
A.F.S., charging her with juvenile delinquency.
March 18, 2003. At a preliminary hearing, magistrate judge orders
A.F.S. committed to a juvenile facility pending
efforts to secure third-party custodian.
March 18, 2003. Government files motion seeking authorization to
obtain juvenile's fingerprints and
photographs.
March 20, 2003. A.F.S. opposes government's motion.
March 21, 2003. Magistrate judge denies government's motion to
obtain fingerprints and photographs.
March 21, 2003. Government files information charging A.F.S. with
juvenile delinquency based on her alleged drug
offenses.
March 21, 2003. Government files certification.
March 26, 2003. Magistrate judge finds that detention is required
to secure presence of A.F.S. at court proceedings
and orders her detained in juvenile facility
pending adjudication.
April 10, 2003. At a status conference, district court issues
order dismissing information. It grants
government five days to decide whether to seek to
transfer A.F.S. to adult status.
April 11, 2003. Government files motion for reconsideration of
district court's order dismissing the information
and motion requesting trial by April 15, 2003.
April 29, 2003. A.F.S. files motion requesting dismissal of all
pending prosecutions and immediate order of
release based on violation of FJDA's speedy trial
provision.
May 12, 2003. Magistrate judge issues magistrate judge's report
and recommendation recommending dismissal on
speedy trial grounds.
May 14, 2003. Government files objections to magistrate judge's
report and recommendation.
May 19, 2003. A.F.S. opposes government's objections.
May 27, 2003. Following oral arguments, district court
dismisses all pending motions. Government

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 declines to seek transfer of A.F.S. to adult
status.
May 27, 2003. District court enters judgment of discharge.

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