United States v. Jdt, Juvenile Male

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10005
Plaintiff-Appellee,
D.C. No.
v. 4:11-cr-00435-
RCC-DTF-1
JDT, JUVENILE MALE,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding

Argued and Submitted
September 11, 2013—San Francisco, California

Filed August 12, 2014

Before: Arthur L. Alarcón and Marsha S. Berzon, Circuit
Judges, and Jack Zouhary, District Judge.*

Opinion by Judge Alarcón;
Concurrence by Judge Berzon

*
The Honorable Jack Zouhary, District Judge for the U.S. District Court
for the Northern District of Ohio, sitting by designation.
2 UNITED STATES V. JUVENILE MALE

SUMMARY**

Criminal Law

The panel vacated the district court’s adjudication of
juvenile delinquency on six counts of aggravated sexual
abuse, in violation of 18 U.S.C. § 2241(c), remanded for
consideration of all disposition options, including a
suspension of delinquency, and affirmed in all other respects.

The panel held that the district court had jurisdiction over
the defendant’s juvenile delinquency proceedings pursuant to
the Juvenile Justice and Delinquency Prevention Act,
18 U.S.C. § 5032, because the government presented a valid
certification as to the need for the juvenile proceedings to
take place in federal court. The panel held that a certification
filed in the district court by a United States Attorney is
presumed to be accurate, absent circumstances calling into
question its accuracy or validity. Accordingly, the fact that
the record was bare as to whether the government made the
“requisite investigation” with county or state law enforcement
authorities to determine whether the state would prosecute the
defendant before it certified that position did not compel the
conclusion that the district court lacked jurisdiction.

The panel held that § 2241 is not unconstitutionally vague
in providing for arbitrary and discriminatory enforcement
when both the victim and the perpetrator are under the age of
twelve, and does not violate principles of notice within due
process.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. JUVENILE MALE 3

The panel held that the district court did not err in
applying the mens rea element of § 2241(c) because the
statute does not require that there be knowledge of the sexual
nature of the act. The panel held that the district court did not
err in denying a motion for judgment of acquittal as to two
counts alleging anal penetration. The district court also did
not err in admitting the hearsay statements of a victim
through the testimony of a social worker for medical
diagnosis and treatment.

The panel held that the district court erred in denying the
defendant’s requests to suspend his status as a juvenile
delinquent under Federal Rule of Criminal Procedure 35(a).
The panel held that the district court lacked jurisdiction to
issue its order denying the defendant’s motion because Rule
35(a)’s fourteen-day time limit had expired. The panel held
that the district court abused its discretion in not suspending
the determination of delinquency at the defendant’s
disposition hearing because the record did not show that the
court weighed factors bearing on suspension.

Judge Berzon concurred in the majority opinion with
regard to jurisdiction, sufficiency of the evidence, and the
evidentiary issue. She also concurred in the decision to
remand with respect to the delinquency finding, but unlike the
majority, she concluded that the only proper outcome on
remand would be suspension of the delinquency
determination due to the defendant’s age and circumstances,
the dire possible consequences for his future in light of the
recent proliferation of sexual offender registration statutes,
and the lack of prosecutorial guidance provided by § 2241(c)
as applied to a child offender himself under twelve years old.
4 UNITED STATES V. JUVENILE MALE

COUNSEL

Keith J. Hilzendeger, Federal Public Defender’s Office,
Phoenix, Arizona, for Defendant-Appellant.

Bruce M. Ferg, Assistant United States Attorney, Office of
the United States Attorney, Tucson, Arizona, for Plaintiff-
Appellee.

OPINION

ALARCÓN, Circuit Judge:

JDT, a juvenile, appeals from the district court’s
adjudication of delinquency on six counts of aggravated
sexual abuse, in violation of 18 U.S.C. § 2241(c), for
incidents occurring with four boys between the ages of five
and seven in Fort Huachuca, Arizona. We first review
whether the district court had subject matter jurisdiction over
JDT’s juvenile delinquency proceedings pursuant to
18 U.S.C. § 5032, and whether 18 U.S.C. § 2241(c) is
unconstitutionally vague because it provides for arbitrary and
discriminatory enforcement when both the victim and the
perpetrator are under the age of twelve. We conclude that the
district court had jurisdiction and that § 2241(c) is not
unconstitutionally vague.

JDT further contends on appeal that the district court
erred (1) applying the mens rea element of § 2241(c);
(2) denying the Rule 29 motion for judgment of acquittal as
to Counts 3 and 5 because there was insufficient evidence of
anal penetration; (3) admitting the hearsay statements of a
victim through the testimony of a social worker pursuant to
 UNITED STATES V. JUVENILE MALE 5

Rule 803(4) of the Federal Rules of Evidence for medical
diagnosis and treatment; and (4) denying JDT’s requests to
suspend his status as a juvenile delinquent. We find error
only with respect to the district court’s handling of JDT’s
suspension request, and accordingly vacate the district court’s
disposition decision and remand for further proceedings. We
affirm in all other respects.

I

JDT was charged by the Government with sexually
abusing five boys (E.F. (age 5), C.T. (age 7), C.M. (age 5),
N.S. (age 6), and C.B (age 6)) in and around Mott Circle, a
residential neighborhood for military families in Fort
Huachuca, Arizona, between June 1, 2010, and December 14,
2010. The housing units in Mott Circle surround a park with
a playground. A large drainage ditch with a cement tunnel
forms part of the perimeter of the neighborhood. JDT was ten
years old at the time of the alleged federal crimes.

On February 10, 2011, the Government filed an
Information charging JDT with six counts of violating
§ 2241(c) and a certification to proceed against JDT as a
juvenile in federal court pursuant to 18 U.S.C. § 5032, as
required under the Juvenile Justice and Delinquency
Prevention Act of 1974, §§ 5031 et seq., referred to herein as
the Federal Juvenile Delinquency Act (“FJDA”).1 The
Government filed a Superseding Information on March 1,
2011, charging JDT with two additional counts. JDT was
thus charged with four counts of violating § 2241(c) and
§ 2246(2)(B) (aggravated sexual abuse of a minor involving

1
Unless otherwise noted, all federal statutory references are to Title 18
of the United States Code.
6 UNITED STATES V. JUVENILE MALE

contact between the penis and mouth (Counts 1, 2, 4, and 6));
three counts of violating § 2241(c) and § 2246(2)(A)
(aggravated sexual abuse of a minor involving contact
between the penis and anus (Counts 3, 5, and 7)); and one
count of violating § 2244(a)(5) and § 2246(3) (abusive sexual
contact (Count 8)). The Government’s certification to
proceed against JDT as a juvenile in federal court pursuant to
§ 5032, filed March 1, 2011, stated that

the juvenile court or the state does not have
jurisdiction over the juvenile with respect to
the alleged act of juvenile delinquency; that
the offense charged is a crime of violence; and
that there is a substantial Federal interest in
the case or the offense to warrant the exercise
of Federal jurisdiction.

At a hearing in district court on March 9, 2011, JDT’s
counsel, Richard Raynor, objected to the Superseding
Information as follows:

Mr. Raynor: Your Honor, the superseding
information I would object to
because it lacks jurisdiction
because there’s no
certification for the additional
charges that are added.
There’s no new certification
for the additional charges that
are added. There’s no new
certification by the U.S.
Attorney himself who is
delegating - -
 UNITED STATES V. JUVENILE MALE 7

Government: I’m sorry. I probably just
didn’t give him that piece of
paper.

The Court: You know, I signed this
information and it’s my
recollection but - -

Government: You know, I just have it in the
copies I have and it wasn’t
attached but Dennis Burke did
sign.

The Court: I believe, because I looked at
that, and I believe that there
was a certification and perhaps
counsel can get a copy of that.
And if somehow it turns out to
be incorrect, file your motion
and we’ll come back and
revisit that. My recollection is
- - because I look for that sort
of thing and I believe there
was a certification.

Mr. Raynor: Okay. Thank you, Your
Honor. And, You Honor, as
the Court knows, jurisdiction
as an issue could be raised at
any time. I just raised it at this
moment.

The Court: That’s fine and the record will
reflect that you have objected.
8 UNITED STATES V. JUVENILE MALE

And if it turns out that my
recollection is incorrect, then I
guess you’ll be able to move
forward on that. But I think
since I signed the information,
I look for that and I believe
that I did see it.

Government: I’m handing him a copy,
Judge.

JDT did not raise any further challenges to the federal court’s
jurisdiction generally, or the validity of the Government’s
certification specifically, while proceedings were pending in
the district court.

During a three-day bench trial, testimony revealed that the
offenses occurred either in and around a “ditch,” (Counts 1,
2, 3 & 6), or in a vacant house (Counts 4 & 5), near Mott
Circle where JDT and the victims resided.

Count 1: At trial, E.F. (age 5) testified that on December
14, 2010, he “sucked [JDT’s] pee-pee” “[b]ecause [JDT]
said” to; JDT said to “not stop” and he continued; although
he wanted to go home, JDT said he “was going to hit [E.F.]
with a stick” if E.F. stopped. C.T. testified that he witnessed
the incident and that JDT “told [E.F.] to suck [JDT’s] penis”;
that JDT told him that if C.T. tried to leave the ditch, “he was
going to throw this little square thing that’s sharp” at
someone’s head, and “they would die”; and C.T. thought
someone would actually die if hit with the object.

Counts 2 and 3: C.T. (age 7) testified that one time when
he was alone with JDT in the ditch, JDT “made me suck his
 UNITED STATES V. JUVENILE MALE 9

penis, and then he sticked his private parts in my behind”; and
when JDT put his penis in C.T.’s butt, it was “pretty soft” like
when it was in his mouth. When asked, “Where did [JDT]
put his penis?,” C.T. answered JDT put his penis “[l]ike,
straight in the hole of it.”

Counts 4 and 5: C.M. (age 5) testified that JDT took him
to an empty house on Mott Circle and told him, “Don’t
worry”; JDT put his “pee-pee” in C.M.’s “mouth,” and in his
“butt”; he took his pants off and was “lying down” on his
stomach facing the wall, and that JDT was “right on top of
[him],” also with his pants off; JDT stopped “[b]ecause he
was done doing it.” When asked, “Were you ever afraid of
[JDT]?,” C.M. replied, “No.”

Count 6: N.S. (age 6) was asked three times if JDT ever
put his penis in his mouth, and each time he answered “No.”
He testified JDT hurt him when “[h]e pulled down my pants[,
but] he didn’t put his penis in my mouth.” At no point did
N.S. say that JDT put his penis in N.S.’s mouth or anus.
N.S.’s mother testified that her son disappeared with JDT and
when she asked him what happened, N.S. told her that JDT
had him pull down his pants and touched N.S. on the butt.
She asked him to show her what JDT did and he “crawled up
on to the bed, on top of [her] lap and jumped up and down in
a missionary position.” Judy Pike, a social services counselor
at Fort Huachuca Medical Clinic, testified that she met with
N.S. and he told her that JDT led him into an empty house
and told N.S. to touch JDT’s privates, “to put his mouth on
[JDT’s] private.” JDT’s counsel objected to the introduction
of these hearsay statements to Pike. Defense counsel argued
that the testimony “doesn’t fit within the hearsay” exception
for medical diagnosis or treatment, but instead was for law
enforcement purposes. The district court concluded, “I am
10 UNITED STATES V. JUVENILE MALE

going to conditionally allow Ms. Pike to testify, and I will
make my ultimate decision once I hear from her what was
really going on and how she really got involved in this case.”
The district court ultimately overruled the hearsay objection.

Counts 7 and 8: The testimony the Government elicited
from N.S. and C.B. with respect to these charges was
apparently insufficient to prove these counts, because at the
conclusion of the Government’s case-in-chief, Counts 7 and
8 of the Superseding Information were dismissed on the
Government’s motion.

JDT called Alfredo Guevara, MD, a board-certified
urologist, who testified that he performed a complete
examination of JDT, and JDT’s lab tests revealed “[z]ero
level of testosterone”—meaning an undetectable level of
testosterone—in JDT’s bloodstream. The Government called
Dale Woolridge, MD, an associate professor of pediatrics and
emergency medicine at the University of Arizona. Both
doctors testified that it was possible for prepubescent boys to
get an erection.

In Dr. Guevara’s view, the “erections of a child that . . .
has not gone through puberty can only occur as a reflex.”
When asked if it was impossible for a reflex erection to be
used for sexual activity, he testified, “I don’t think so. In
order for one to perform a sexual act, a reflex erection has to
be maintained. And by nature, . . . a reflex erection is
nonmaintainable.” They occur “usually under REM sleep in
older boys.”

Dr. Woolridge testified that prepubescent boys
experienced both reflex erections and erections that are
“voluntary based on pleasure.” He explained that infants
 UNITED STATES V. JUVENILE MALE 11

“routine[ly]” have erections during medical examinations,
and that “it’s not uncommon” to examine the testicular size
of an infant or prepubescent boy and “actually stimulate an
erection.” He did not characterize these erections as “reflex”
but instead as “spontaneous” results of stimulation. Dr.
Woolridge “disagree[d] wholeheartedly” with Dr. Guevara’s
view that a ten- or eleven-year-old boy can only get a reflex
erection during sleep. Dr. Woolridge testified that “an awake
child . . . is able to develop an erection” during a medical
examination. He added that “it’s [] common knowledge
throughout the pediatric literature that prepubescent children
can get erections,” and that they can happen in such children
“spontaneously and with stimulation.”

Both doctors also agreed that testosterone was required
for a postpubescent male to manifest sexual intent through an
erection. Dr. Guevara stated that it was “a physical, scientific
impossibility for [JDT] to will an erection for sexual intent.”
Dr. Guevara pointed out that serum testosterone is required to
experience a sexual urge and to perform a sexual act.
However, Dr. Woolridge testified that “[a]cts of aggression
and acts of domination are essentially learned behaviors . . . .
[and t]hey may have a sexual form or a sexual outlet.” Dr.
Woolridge asserted that, before the onset of puberty,
testosterone is not necessary for a boy to get an erection, even
an intentional one, because a prepubescent boy can get an
erection “with stimulation” “akin to tickling.”

Dr. Guevara testified that “[i]t is impossible to penetrate
an anus with an unerect penis . . . . [A] soft penis is not erect
and, therefore, unable to penetrate.” Dr. Woolridge testified
that it was not “impossible for the anus of a child [to] be
penetrated by a penis that is flaccid.” When asked if there is
a different type of erection between someone who is pre- or
12 UNITED STATES V. JUVENILE MALE

post-pubescent, he said, “I would say no. I would say an
erection is an erection. It’s the engorged shaft of the penis.
It’s the tumescent state of the penis.”

The district court found JDT to be a delinquent based on
the evidence provided by the Government on Counts 1–6. It
ordered that JDT be evaluated by a physician prior to
disposition. On December 12, 2011, the district court held a
disposition hearing. The Government requested placement in
a facility called Casa de Tucson because JDT “is not being
monitored properly at school, which he would be if at Casa de
Tucson” and that JDT “committed these crimes while living
in []his home environment, which fostered this child’s
behavior.” JDT asked the district court to impose three years’
probation to allow for continuing treatment of JDT in his
home. The guardian ad litem opined that placement at a
facility like the Casa de Tucson treatment facility was
inappropriate for a child like JDT.

The district court stated:

• “I grew up in a system called
progressively increasing consequences. If
I start with Casa de Tuscon, I’ve got no
place else to go.”

• “I’m going to start out by leaving [JDT] in
the house, and I want to explain to you
why I’m going to do it.”

• “So I think it’s in [JDT’s] best interests to
give him a shot at home with probation
doing some major supervision, some
major counseling being done.”
 UNITED STATES V. JUVENILE MALE 13

• “My goal right now is not to make things
worse than they already are. He’s 11
going on 12 chronologically, but he’s
closer to seven or eight with his mental
status, at least educationally testing.”

• “Besides the fact that he’d be the youngest
one there, generally speaking, taking
someone to a facility such as Casa de
Tucson or [other inpatient facilities], there
is no surefire way of getting the desired
result, and sometimes we make things
worse.”

The district court placed JDT on probation for five years
and, as recommended by the guardian ad litem, remanded
him to the custody of his parents. The district court imposed
a number of restrictions as part of JDT’s probation also as
recommended by the guardian ad litem, including restrictions
on internet access and movies carrying an MPAA rating of
PG-13 or greater, a 6:00 p.m. curfew, that he be supervised
by an adult at all times when around children, take his
medication, and participate in weekly individual and family
therapy.

JDT asked the district court to suspend the finding of
delinquency because the determination would “brand [JDT]
for the rest of his life as a sex offender, . . . [and] would be
contrary to the purposes of rehabilitation.” The district court
asked defense counsel “[w]hat state law are you aware of
right now . . . would require him to register [as a sex
offender] for the rest of his life?” Defense counsel
responded: “I’m not aware of any right now.” (One week
later in his Rule 35(a) Motion, JDT identified thirty-four
14 UNITED STATES V. JUVENILE MALE

states in which juveniles adjudicated delinquent may be
subject to certain registration requirements for certain periods
of time.) Later in the disposition hearing, defense counsel
again inquired about suspension, asking whether the district
court “has made a decision or not to suspend the finding of
delinquency.” The district court stated, “I haven’t decided
whether to make that decision or not. He’s definitely
delinquent. I can’t suspend the fact that he’s delinquent.
He’s the poster child for being delinquent. We’ll talk about
the legal niceties later.”

JDT filed a motion to correct the sentence pursuant to
Rule 35(a) of the Federal Rules of Criminal Procedure. The
district court denied the motion to correct the sentence
explaining:

The Court has reviewed the pleadings filed by
the parties with regard to the request by the
juvenile to “suspend” his conviction. The
Court, after doing some basic research of the
statute, the term “suspend” is not defined or
explained and due to the gravity of the nature
of these charges, the Court declines to grant
the Motion to Correct Sentence.

JDT filed a timely notice of appeal.

II

JDT argues on appeal that the district court lacked
jurisdiction over these delinquency proceedings because the
Government did not present a valid certification as to the
need for these juvenile proceedings to take place in federal
court. The Government maintains that a facially valid
 UNITED STATES V. JUVENILE MALE 15

certification is not subject to review by this Court and must
be held sufficient. It further contends that even if the
certification can be reviewed by this Court, the certification
at issue here was correct. “Whether the government complied
with [the juvenile delinquency certification requirements of]
18 U.S.C. § 5032 is an issue of statutory interpretation which
this court reviews de novo.” United States v. Juvenile Male,
241 F.3d 684, 686 (9th Cir. 2001). A certification filed in the
district court by a United States Attorney is presumed to be
accurate, absent circumstances calling into question its
accuracy or validity. See Pasadena Research Labs., Inc. v.
United States, 169 F.2d 375, 381–82 (9th Cir. 1948) (holding
generally, the law “presumes[] that every man, in his private
and official character, does his duty, until the contrary is
proved; it will presume that all things are rightly done, unless
the circumstances of the case overturn this presumption”).

A

Section 5032 provides in relevant part:

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
16 UNITED STATES V. JUVENILE MALE

charged is a crime of violence that is a felony
or [one of several enumerated crimes] and that
there is a substantial Federal interest in . . . the
offense to warrant the exercise of federal
jurisdiction.

18 U.S.C. § 5032. “Regulations promulgated by the
Department of Justice delegate authority to sign need
certifications to the Assistant Attorney General for the
Criminal Division and his Deputy Assistant Attorneys
General, who may in turn delegate to the U.S. Attorneys.”
Juvenile Male, 241 F.3d at 686 (citing 28 C.F.R. § 0.57). The
statute and related regulations therefore require that the
United States Attorney, as the Attorney General’s delegated
representative, investigate and certify to the district court that
federal jurisdiction is appropriate based on one of the
enumerated reasons listed in § 5032.

“Because certification requirements are disjunctive, a
single basis for certification establishes jurisdiction.” United
States v. Male Juvenile, 280 F.3d 1008, 1013 (9th Cir. 2002).

B

JDT contends that the Government’s certification was
legally incorrect because it stated that “the juvenile court or
the state does not have jurisdiction over the juvenile with
respect to the alleged act of juvenile delinquency,” when in
fact “Arizona’s juvenile courts assert concurrent jurisdiction
in cases like this one.” The Government argues that the
certification correctly stated “that the Arizona courts lacked
jurisdiction” since no state court proceedings had been
initiated against JDT. Furthermore, the Government argues
that where Congress has “‘specified what the government
 UNITED STATES V. JUVENILE MALE 17

must do to establish jurisdictional preconditions,’ and the
proper government official has so certified, this Court ‘should
not . . . read into the statute an unwritten additional hurdle.”

This Court addressed a similar certification challenge in
United States v. Gonzalez–Cervantes, 668 F.2d 1073 (9th Cir.
1981). There, the United States Attorney filed a timely
certification that stated that the juvenile court of San Diego
County refused to assume jurisdiction over Gonzalez–
Cervantes, rather than the juvenile court of Imperial
County—where the underlying crimes occurred. “In an
attempt to remedy any error, the government, as an appendix
to its briefs, filed a certification stating that the Imperial
County courts refused to assume jurisdiction over Doe.” Id.
at 1077 n.6. This Court “note[d] that the defendant made no
objection to the certification at the trial court level,” and in
fact, “stated to the district court: ‘the appropriate certification
was filed stating that the State court did not wish jurisdiction
over Mr. (Doe).’” Id. at 1078. “The general rule is that a
party must object to an error at the first opportunity, or that
error is waived.” Id. (citing Fed. R. Crim. P. 51).

This Court noted that “[d]efense counsel was aware that
the certification[] stated that San Diego County courts refused
to assume jurisdiction . . . [and] had access to the facts
showing that the criminal activity occurred in Imperial
County. Thus, any objection to the error in the certification
should have been made to the district court judge at the
earliest opportunity.” Id.

Accordingly, this Court rejected Gonzalez–Cervantes’s
argument and held that
18 UNITED STATES V. JUVENILE MALE

the statute does not require the trial judge to
determine, sua sponte, if the certificate filed
refers to the appropriate state court before
instituting binding proceedings against the
juvenile. Where, as here, a certificate was
timely filed, and that certificate appeared
regular on its face, the trial judge has no duty
independently to investigate and determine if
the certificate refers to the proper state court.
Moreover, not only did defense counsel fail to
object to the certification, she agreed that it
was “appropriate.” We believe that the trial
judge can rely on the representations by the
United States Attorney, particularly in the
face of acquiescence by defense counsel, that
the certification is accurate. The district court
judge is then free to proceed against the
juvenile.

Id. at 1077–78 (footnote omitted).

JDT argues that unlike in Gonzalez–Cervantes, where the
Government presented evidence with its briefs on appeal that
it investigated with the proper state authorities to determine
whether they intended to prosecute, the Goverment here
“makes no effort [to address the investigation requirement]
before this Court.” JDT’s attempt to distinguish this case
from Gonzalez–Cervantes is not persuasive.

The record supports JDT’s assertion that the Government
has not provided any additional support—beyond the
certification it filed in the district court—demonstrating that
it investigated whether the state intended to assume
jurisdiction over JDT’s offenses. As this Court held in
 UNITED STATES V. JUVENILE MALE 19

Gonzalez–Cervantes, however, “any objection to the error in
the certification should have been made to the district court
judge at the earliest opportunity.” Gonzalez–Cervantes,
668 F.2d at 1078. While counsel for JDT objected to the
district court’s jurisdiction on the ground that the
Government failed to file a § 5032 certification corresponding
with its Superseding Information filed on March 1, 2011, the
record reflects that JDT was provided with a copy and then
dropped the objection, despite the district court’s express
invitation to file a motion objecting to the certification. JDT
did not raise the issue again and at no point articulated the
specific objections to the certification that are now being
raised for the first time on appeal.

Moreover, the statute only requires that the United States
Attorney certify that “the juvenile court or other appropriate
court of a State does not have . . . or refuses to assume
jurisdiction over [the acts of a juvenile].” § 5032. Black’s
Law Dictionary defines “certify” as follows: “1. To
authenticate or verify in writing. 2. To attest as being true
or as meeting certain criteria.” Black’s Law Dictionary 258
(9th ed. 2009). Here, the United States Attorney certified to
the district court that “the juvenile court or the state does not
have jurisdiction over the juvenile with respect to the alleged
act of juvenile delinquency no state court had jurisdiction.”
This Court has held that “there are certain well-established
presumptions regarding the regularity . . . of the acts of public
servants.” Pasadena Res. Labs., Inc., 169 F.2d at 381–82
(“The presumption of regularity supports the official acts of
public officers, and in the absence of clear evidence to the
contrary, courts presume that they have properly discharged
their official duties.” (quoting United States v. Chem. Found.,
Inc., 272 U.S. 1, 14 (1926))). Accordingly, the fact that the
record is bare as to whether the Government made the
20 UNITED STATES V. JUVENILE MALE

“requisite investigation” with county or state law enforcement
authorities to determine whether the state would prosecute
him before it certified that position does not compel the
conclusion that the district court lacked jurisdiction.

This holding is consistent with decisions in other
certification contexts. For example, this Court has held that
the certification provision in 18 U.S.C. § 3731, which
conveys appellate jurisdiction over certain interlocutory
matters and requires that the United States Attorney certify
“to the district court that the appeal is not taken for purpose
of delay and that the evidence is . . . material,” is satisfied by
“mere certification regarding the delay and materiality
prerequisites.” United States v. W.R. Grace, 526 F.3d 499,
505 (9th Cir. 2008) (en banc). Where Congress has specified
“what the government must do to establish those
jurisdictional preconditions . . . . we should not . . . read into
the statute an unwritten additional hurdle, even if well
intentioned.” Id. This Court held that “the plain language of
the statute shows that Congress intended that, as long as the
other requirements of § 3731 are present, mere certification
regarding the delay and materiality prerequisites is all the
statute requires to invoke our appellate jurisdiction.” Id.
“The certification itself is a representation by the United
States Attorney, as an officer of the court, that the appeal is
not for purposes of delay and that the suppressed evidence is
indeed material.” Id. at 507. “[S]hould we find the
government’s appeal to be patently frivolous or have reason
to believe its certification is false, we could directly sanction
such misconduct, surely a potent ‘check’ on prosecutorial
abuse of the certification process.” Id.

The Government’s representation is presumed to be
accurate, “until the contrary is proved . . . [or] unless the
 UNITED STATES V. JUVENILE MALE 21

circumstances of the case overturn the presumption.”
Pasadena Res. Labs., 169 F.2d at 381–82. JDT did not
challenge that representation or present any evidence that
would overturn the presumption of its correctness at the
district court level. Accordingly, we hold that the district
court had jurisdiction over JDT’s juvenile delinquency
proceedings.

Because a single basis for certification establishes
jurisdiction, we do not reach the merits of any of JDT’s other
arguments concerning the validity of the Government’s
certification. Male Juvenile, 280 F.3d at 1013.

III

JDT argues on appeal that § 2241(c) is unconstitutionally
vague within the meaning of the Due Process Clause of the
Fourteenth Amendment because it fails to clarify what is
contemplated in cases where all participants in the sexual acts
charged are under the age of twelve. He argues that
§ 2241(c) operates as a federal statutory rape provision, under
which an adult or teenager who engages in a sexual act with
a person under the age of twelve is the “natural target of
prosecution” and the child is the victim. He argues, however,
that “when two children under the age of 12 engage in a
sexual act together, ‘each child is both an offender and a
victim, and the distinction between those two terms[, offender
and victim,] breaks down.’” Accordingly, he contends that
§ 2241(c) is void for vagueness because it “encourages
arbitrary and discriminatory enforcement” when used to
prosecute one child under the age of twelve for sexual acts
performed with another child under the age of twelve.
22 UNITED STATES V. JUVENILE MALE

JDT also argues that the statute did not adequately inform
him that he could be prosecuted for knowingly engaging in a
sexual act with a person under the age of 12, because he falls
into the class of persons that the statute is intended to protect.
He contends that “Congress did not intend for the statutory-
rape provision to be used to prosecute a 10-year-old
prepubescent boy for knowing conduct, and that the trial
prosecutor arbitrarily disregarded Congress’s intention.”

The Government maintains that JDT’s “unguided
enforcement” claim is barred because JDT’s actions “‘clearly
come within the statute.’” Alternatively, the Government
argues that even if JDT’s challenge is permissible, only
statutes that “invite” arbitrary enforcement are unacceptably
vague. The Government asserts that § 2241(c) provides clear
notice to potential offenders as to what conduct is forbidden
and also provides constitutionally sufficient guidance for law
enforcement. The Government concedes, however, that there
are no reported cases of delinquency proceedings having been
brought against other juveniles under the age of twelve for
violating § 2241(c), while noting that “young juveniles are
subject to such proceedings.”

JDT’s vagueness claim was not raised in the district court.
This Court “review[s] de novo a defendant’s challenge that a
statute is unconstitutionally vague.” United States v. Lee, 183
F.3d 1029, 1031 (9th Cir. 1999) (citing United States v.
Iverson, 162 F.3d 1015, 1021 (9th Cir. 1998)).

To satisfy due process, “a penal statute must define the
criminal offense [1] with sufficient definiteness that ordinary
people can understand what conduct is prohibited and [2] in
a manner that does not encourage arbitrary and discriminatory
enforcement.” Skilling v. United States, 561 U.S. 358,
 UNITED STATES V. JUVENILE MALE 23

402–03 (2010) (quoting Kolender v. Lawson, 461 U.S. 352,
357 (1983)) (brackets omitted). “The void-for-vagueness
doctrine embraces these requirements.” Id. at 403. The
legislature must provide “minimal guidelines to govern law
enforcement” and “[w]here the legislature fails to provide
such minimal guidelines, a criminal statute may permit ‘a
standardless sweep that allows policemen, prosecutors, and
juries to pursue their personal predilections.’” Kolender,
461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 575
(1974)). “[T]he Government retains ‘broad discretion’ as to
whom to prosecute.” Wayte v. United States, 470 U.S. 598,
607 (1985) (quoting United States v. Goodwin, 457 U.S. 368,
380 n.11 (1982)). “So long as the prosecutor has probable
cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute,
and what charge to file or bring before a grand jury, generally
rests entirely in his discretion.” Id. (citing Bordenkircher v.
Hayes, 434 U.S. 357, 364 (1978)) (brackets omitted). In
Wayte the Supreme Court explained:

This broad discretion rests largely on the
recognition that the decision to prosecute is
particularly ill-suited to judicial review. Such
factors as the strength of the case, the
prosecution’s general deterrence value, the
Government’s enforcement priorities, and the
case’s relationship to the Government’s
overall enforcement plan are not readily
susceptible to the kind of analysis the courts
are competent to undertake.

Wayte, 470 U.S. at 607.
24 UNITED STATES V. JUVENILE MALE

A

JDT contends that “[i]n light of the undisputed testimony
at the delinquency hearing that [his] body had not yet begun
to produce testosterone,” there is “vagueness inherent in
prosecuting a 10-year-old boy under” a statute that identifies
children of his age a “protected party.” In light of this
vagueness in the statute, “the delinquency proceedings in this
case amount to an arbitrary exercise of prosecutorial power.”

Cases assessing whether a statute allows arbitrary and
discriminatory enforcement consider unguided enforcement
based on vagueness in the text of the statute. In Kolender, the
Supreme Court reviewed a California criminal statute that
“require[d] persons who loiter or wander on the streets to
provide a ‘credible and reliable’ identification and to account
for their presence when requested by a peace officer under
circumstances that would justify a [Terry] stop.” 461 U.S. at
353. The statute was challenged because it “vest[ed] virtually
complete discretion in the hands of the police to determine
whether the suspect ha[d] satisfied the statute.” Id. at 358.
The Court noted that “as presently drafted and construed . . . ,
[the statute] contains no standard for determining what a
suspect has to do in order to satisfy the requirement to
provide a ‘credible and reliable’ identification.” Id. At oral
argument, it was conceded that “a suspect violates [the
statute] unless ‘the officer is satisfied that the identification
is reliable.’” Id. at 360 (brackets omitted). The Court
reasoned the statute “furnish[ed] a convenient tool for harsh
and discriminatory enforcement by local prosecuting
officials, against particular groups deemed to merit their
displeasure.” Id. (internal quotation marks omitted). The
Court held the statute was “unconstitutionally vague . . .
because it encourage[d] arbitrary enforcement.” Id. at 361.
 UNITED STATES V. JUVENILE MALE 25

Similarly, in City of Chicago v. Morales, 527 U.S. 41
(1999), the Court examined an ordinance that prohibited
“‘criminal street gang members’ from ‘loitering’ with one
another or with other persons in any public place.” Id. at
45–46. Loitering was defined as “‘remaining in any one
place with no apparent purpose.’” Id. at 47 (brackets
omitted). The Court noted that “[t]he ‘no apparent purpose’
standard . . . is inherently subjective because its application
depends on whether some purpose is ‘apparent’ to the officer
on the scene.” Id. at 62. “Presumably an officer would have
discretion to treat some purposes—perhaps a purpose to
engage in idle conversation or simply to enjoy a cool breeze
on a warm evening—as too frivolous to be apparent if he
suspected a different ulterior motive.” Id. The statute was
held to be unconstitutional because it “afford[ed] too much
discretion to the police.” Id. at 64.

JDT relies on In re D.B., 950 N.E.2d 528 (Ohio 2011),
cert. denied sub nom., Ohio v. D.B., 132 S. Ct. 846 (2011), in
support of his argument that § 2241(c) authorizes and
encourages arbitrary and discriminatory enforcement when
applied to offenders under the age of 12. There, “A.W. [age
12] testified that he had observed D.B. [age 12] and M.G.
[age 11] engage in anal sex.” Id. at 530. “A.W. testified that
D.B. ‘bribed’ M.G. with video games to engage in sexual
conduct. Both A.W. and M.G. stated that the sexual conduct
was always initiated by D.B. and that D.B. would either
bargain with, or use physical force on, M.G. to convince
M.G. to engage in sexual conduct.” Id. D.B was adjudicated
to be delinquent and committed “to the Department of Youth
Services for a minimum of five years to the maximum period
of his 21st birthday.” Id. The court “suspended the
commitment, and placed D.B. on probation for an indefinite
26 UNITED STATES V. JUVENILE MALE

period of time.” Id. at 530–31. The disposition was affirmed
on appeal. Id. at 531.

The Ohio Supreme Court, however, held that a state
statute “criminaliz[ing] what is commonly known as
‘statutory rape,’” id., was “unconstitutional[ly vague] as
applied in these circumstances,” id. at 529. The statute under
review “h[e]ld offenders strictly liable for engaging in sexual
conduct with children under the age of 13 [and] force [was]
not an element of the offense because a child under the age of
13 is legally presumed to be incapable of consenting to sexual
conduct.” Id. at 531. D.B. argued that the statute was
“unconstitutional as applied to him because it fail[ed] to
provide guidelines that designate which actor is the victim
and which is the offender, resulting in arbitrary and
discriminatory enforcement.” Id. at 532. The Ohio Supreme
Court agreed:

As applied to children under the age of 13
who engage in sexual conduct with other
children under the age of 13, [the statute] is
unconstitutionally vague because [it]
authorizes and encourages arbitrary and
discriminatory enforcement. When an adult
engages in sexual conduct with a child under
the age of 13, it is clear which party is the
offender and which is the victim. But when
two children under the age of 13 engage in
sexual conduct with each other, each child is
both an offender and a victim, and the
distinction between those two terms breaks
down.
 UNITED STATES V. JUVENILE MALE 27

Id. at 533. The court explained that “while the theory of D.B.
as the aggressor was consistent with the counts alleging
[forcible rape, all of which were dismissed], this theory is
incompatible with the counts alleging a violation of statutory
rape because anyone who engages in sexual conduct with a
minor under the age of 13 commits statutory rape regardless
of whether force was used.” Id. “Thus, if the facts alleged in
the complaint were true, D.B. and M.G. would both be in
violation of [the statutory rape statute].” Id. The Ohio
Supreme Court held that “[t]he prosecutor’s choice to charge
D.B. but not M.G. is the very definition of discriminatory
enforcement. D.B. and M.G. engaged in sexual conduct with
each other, yet only D.B. was charged.” Id. “The facts of
this case demonstrate that [the statutory rape law] authorizes
and encourages arbitrary and discriminatory enforcement
when applied to offenders [who are both] under the age of 13.
The statute is thus unconstitutionally vague [in violation of
the Due Process Clause of the United States Constitution] as
applied to this situation.” Id.

The Government argues that In re D.B. “is a meritless
aberration.” But see In re D.R., No. 12 MA 16, 2012 WL
5842773, at *6 (Ohio Ct. App. Nov. 14, 2012) (affirming
juvenile court’s dismissal of proceedings against eleven-year-
old charged with statutory rape of a four-year-old pursuant to
the ruling in In re D.B.). It maintains that there are “many
explanations for differential prosecution” and that charging
JDT instead of the other children is part of prosecutorial
discretion and does not stem from the vagueness of the statute
itself. “Congress intended that law enforcement discretion
about who to view as the offender when under-12 children
have sex together be guided by common sense consideration
such as who initiated the activity, their respective ages of the
parties, and whether the conduct was factually voluntary.”
28 UNITED STATES V. JUVENILE MALE

The Government cites to Juvenile, 347 F.3d at 783–84, in
support of its argument that prosecutors look to the “older,
more mature person” to determine whom to prosecute as
“more culpable and prosecution-worthy.”

Section 2241(c) provides: “Whoever . . . knowingly
engages in a sexual act with another person who has not
attained the age of 12 years . . . shall be fined . . . and
imprisoned.” § 2241(c). Unlike in Kolender and Morales,
where it was unclear which individuals would be prosecuted
because enforcement officials could determine who was in
violation of the statute in an ad hoc manner, here, the plain
language of § 2241(c) brings within its prohibition any person
who knowingly engages in a “sexual act,” as defined
elsewhere in the statute, and is not susceptible to the same
discretionary determinations as those in Kolender and
Morales. See Kolender, 461 U.S. at 358; Morales, 527 U.S.
at 62. Accordingly, § 2241(c) is not unconstitutionally vague
under the Due Process Clause of the United States
Constitution.

B

JDT also argues that § 2241(c) did not “adequately
inform[] him that he, a prepubescent boy, can be subject to
prosecution for knowingly engaging in a sexual act with a
person under the age of 12, because both he and the other
participants in the sexual act . . . fall into the class of persons
that the statute is intended to protect.” The Government
counters that the statute is quite clear because “Section
2241(c) states that ‘Whoever,’ within federal jurisdiction,
‘knowingly engages in a sexual act with another person who
has not attained the age of 12 years,’ shall be punished.”
There is no exception based on the age of the perpetrator
 UNITED STATES V. JUVENILE MALE 29

provided under the text of the statute. The Government
argues that “‘[w]here the statute contains inclusive terms,
such as ‘any person’ or ‘whoever,’ courts have generally
concluded that the statute is applicable to any and all
offenders including minors.’”

“Living under a rule of law entails various suppositions,
one of which is that ‘[all persons] are entitled to be informed
as to what the State commands or forbids.’” Papachristou v.
City of Jacksonville, 405 U.S. 156, 162 (1972) (quoting
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). “A
statute is unconstitutionally vague . . . if it failed to put a
defendant on notice that his conduct was criminal.” United
States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009) (citing
United States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2001)).
“A criminal statute is not vague if a reasonable person of
ordinary intelligence would understand what conduct the
statute prohibits.” United States v. Lee, 183 F.3d 1029, 1032
(9th Cir. 1999). When reviewing a statute for vagueness, “a
challenged statute enjoys a presumption of constitutionality.”
Forbes v. Napolitano, 236 F.3d 1009, 1012 (9th Cir. 2000)
(citing Baggett v. Bullitt, 377 U.S. 360, 372 (1964)).

The text of § 2241(c) clearly expresses that any person
who commits the listed acts is subject to prosecution,
regardless of his or her age, “so long as the prosecutor has
probable cause to believe that the accused committed an
offense defined by statute.” Bordenkircher, 434 U.S. at 364.
JDT points to no “text” of § 2241(c) that is vague or
ambiguous. The statute clearly defines what conduct is
prohibited and delineates who may be charged with such
conduct. Accordingly, it is is not unconstitutionally vague
and does not violate principles of notice within due process.
30 UNITED STATES V. JUVENILE MALE

IV

JDT contends that the district court erred when it denied
his motion for judgment of acquittal because there was
insufficient evidence to support a finding of juvenile
delinquency. He maintains that the district court applied an
incorrect legal standard to § 2241(c)’s mens rea requirement
of “knowingly” engaging in a sexual act with another person.
He asserts that § 2241(c) requires that he know the “sexual
nature of the acts” and that because he undisputedly had zero
testosterone, he was incapable of having a sexual motivation.
Accordingly, he argues, there was insufficient evidence that
he knowingly engaged in a sexual act with a person younger
than twelve years old.

The Government contends that knowingly “‘merely
requires proof of knowledge of the facts that constitute the
offense.’” It asserts that the statutory term “sexual . . .does
not pertain to the quality of the defendant’s understanding or
his intentions while acting—only to the kind of acts done.”
It argues that if Congress intended to require a different
mental state, it would have included a different mental state
like it did in 18 U.S.C. § 2246(2)(C), (D), where it required
the intent to “arouse or gratify the sexual desire of any
person.” We review the interpretation of a statute de novo.
United States v. Patel, 762 F.2d 784, 791 (9th Cir. 1985)
(citing United States v. Wilson, 720 F.2d 608, 609 n.2 (9th
Cir. 1983)). We review the sufficiency of the evidence
presented at a bench trial de novo. United States v. Jiang,
476 F.3d 1026, 1029 (9th Cir. 2007) (citing United States v.
Naghani, 361 F.3d 1255, 1261 (9th Cir. 2004)). A conviction
must be affirmed if “‘after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
 UNITED STATES V. JUVENILE MALE 31

a reasonable doubt.’” United States v. Maggi, 598 F.3d 1073,
1080 (9th Cir. 2010) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).

A

At the conclusion of the Government’s case in chief, JDT
orally moved for judgment of acquittal pursuant to the
Federal Rule of Criminal Procedure Rule 29. JDT argued
there was insufficient evidence of anal penetration to support
a conviction under Count 5. The district court stated, “I’ll
check my notes, but right now I’ll deny the motion.” During
closing argument, the district court asked whether the
Government would “address the intent aspect,” or mens rea
required of § 2241(c). The Government said, “I mean,
luckily you don’t have to prove intent in this case.” The
district court asked, “You have to prove it was at least
knowingly, don’t you?” The Government responded:

I have to just prove that it happened. I don’t
have to prove any sexual intent. I have to
prove that he—I mean, I guess I can’t prove
that he was spasming when it happened, but I
certainly—I have to prove that the defendant
knowingly engaged in a sexual act. . . . And
what’s a sexual act is just defined as . . . penis
in the mouth and penis in the anus . . . I don’t
have to prove [JDT’s] motives at all. I just
have to prove it happened.

[W]e don’t have to prove any sexual motive.
We don’t have to prove that he knew this is
what this means. We just have to prove that it
32 UNITED STATES V. JUVENILE MALE

was done. . . . Did he know what he was
doing? Yes.

B

“In interpreting statutes, we begin with the language of
the statute itself.” Coronado-Durazo v. INS, 123 F.3d 1322,
1324 (9th Cir. 1997) (citing Almero v. INS, 18 F.3d 757, 760
(9th Cir. 1994)). “The plain meaning of legislation should be
conclusive, except in the ‘rare cases [in which] the literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters.’” United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 242 (1989) (quoting Griffin
v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).

Section 2241(c) prohibits “knowingly engag[ing] in a
sexual act with another person who has not attained the age
of 12 years.” 18 U.S.C. § 2241(c). Section 2246(2) defines
sexual act as

(A) contact between the penis and the vulva or
the penis and the anus, and for purposes of
this subparagraph contact involving the penis
occurs upon penetration, however slight;

(B) contact between the mouth and the penis,
the mouth and the vulva, or the mouth and the
anus;

(C) the penetration, however slight, of the
anal or genital opening of another by a hand
or finger or by any object, with an intent to
abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person; or
 UNITED STATES V. JUVENILE MALE 33

(D) the intentional touching, not through the
clothing, of the genitalia of another person
who has not attained the age of 16 years with
an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any
person;

Id. JDT was determined to be a juvenile delinquent for
performing sexual acts defined in parts (A) and (B). The
plain meaning of the statute prohibits engaging in a sexual
act, but “sexual” is not an adjective describing “act”; instead,
it is a term, “sexual act,” further defined in the statute as
contact between a penis and the vulva/anus with penetration
however slight or contact between the mouth and the
vulva/penis/anus. A plain reading of this text does not
require that there be knowledge, as JDT asserts, of the sexual
nature of the act, because “sexual act” is a term of art defined
under the statute.

Furthermore, as the Supreme Court explained in Dixon v.
United States, 548 U.S. 1 (2006), “‘unless the text of a statute
dictates a different result, the term ‘knowingly’ merely
requires proof of knowledge of the facts that constitute the
offense.’” Id. at 5 (quoting Bryan v. United States, 524 U.S.
184, 193 (1998)); see also United States v. Crowder, 656 F.3d
870, 874 (9th Cir. 2011) (explaining the term “knowingly” is
“not a ‘culpable state of mind’ or ‘knowledge of the law’”
(quoting Dixon, 548 U.S. at 5)).

Applying the framework set forth in Dixon and Crowder
to this case, the term knowingly does not require a culpable
state of mind, but rather, knowledge of the facts underlying
the offense. Here, “knowingly” only requires that JDT know
he was putting his penis in the mouth or anus of another
34 UNITED STATES V. JUVENILE MALE

child, as the Government correctly stated during closing
argument. The district court applied the correct standard and
had ample evidence before it that JDT, repeatedly, took
young boys to secluded locations and directed them to
commit sexual acts. JDT does not contend that he did not
know what he was doing when he directed these children to
put his penis in their mouths or allow him to put his penis in
their anuses. A rational trier of fact could have found that
JDT acted knowingly beyond a reasonable doubt.
Accordingly, the district court did not err in denying JDT’s
Rule 29 motion for a judgment of acquittal on this ground.

JDT also contends that the Government was not held to its
burden of proof to prove JDT acted knowingly because the
district court conflated the mens rea and actus reus
requirements of § 2241(c) when it said the “act of knowingly
only means basically doing it.” The discussion between the
district court and the Government, however, demonstrates
that the district court considered the mens rea requirement as
separate from the actus reus requirement. Taking the district
court’s statements in context and relying on the conclusion
above, that knowingly means JDT knew he was performing
the acts that § 2241(c) proscribed, the district court did not
conclude that the actus reus requirement satisfied the mens
rea requirement of knowingly. Instead, the district court held
that “knowingly” does not require a heightened understanding
of one’s actions. Therefore, the district court properly held
the Government to its burden of proof.

V

JDT contends that the Government presented insufficient
evidence at trial to support a finding of juvenile delinquency
under Counts 3 and 5, the charges alleging anal penetration
 UNITED STATES V. JUVENILE MALE 35

of C.T. and C.M.; that both victims testified that his penis
was “soft” during the incidents, and that medical testimony
“established that a flaccid penis is not capable of penetrating
the anus;” and therefore there is not sufficient evidence that
he committed aggravated sexual abuse pursuant to § 2241(c)
and § 2246(2)(A).

The Government maintains that “‘[s]oft’ is a vague and
comparative term, not necessarily excluding some degree of
erection, and neither counsel specifically asked whether the
defendant’s penis was erect.” It contends that its expert
witness found it possible for a child’s anus to be penetrated
to some degree by a flaccid penis; and to the extent there is a
dispute between the experts, the district court was entitled to
find one expert more credible than the other.

We must view “the evidence, both direct and
circumstantial, in the light most favorable to the prosecution.”
United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th
Cir. 2000). Additionally, “[t]he reviewing court must respect
the exclusive province of the fact finder to determine the
credibility of witnesses, resolve evidentiary conflicts, and
draw reasonable inferences from proven facts.” United States
v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996) (citing United
States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987)).

The evidence presented by the Government was sufficient
for a rational trier of fact to have found the essential elements
of the crime beyond a reasonable doubt. As this Court
explained in Hubbard, it is the “exclusive province of the fact
finder to determine the credibility of witnesses, resolve
evidentiary conflicts, and draw reasonable inferences from
proven facts.” 96 F.3d at 1226. In reviewing the conflicting
testimony in a light most favorable to the prosecution, we can
36 UNITED STATES V. JUVENILE MALE

infer that the district court found that Dr. Woolridge was
more credible than Dr. Guevara.

Courts have found evidence sufficient to affirm
determinations of a fact finder despite the “existence of some
contradictory evidence in the record.” See, e.g., United States
v. Nevils, 598 F.3d 1158, 1169 (9th Cir. 2010) (en banc)
(finding evidence sufficient to support defendant’s conviction
despite testimony by defense witness negating element of the
offense because “the jury[ was] entitle[d] to disbelieve her”);
United States v. Howard, 454 F.2d 720, 721 (9th Cir. 1971)
(per curiam) (affirming jury verdict despite defendant taking
stand, directly contradicting Government witnesses, and
introducing “circumstantial evidence which added
considerable weight to his testimony”). Crediting Dr.
Woolridge’s testimony, and coupling it with the testimony of
those victims who testified that they were anally penetrated
by a “soft” penis, there was sufficient evidence for the district
court to find that JDT violated § 2241(c) by penetrating the
anuses of C.T. and C.M., however slightly. Accordingly, we
uphold the district court’s determination that JDT is
delinquent under Counts 3 and 5.

VI

JDT contends that the district court abused its discretion
in admitting, pursuant to Rule 803(4) of the Federal Rules of
Evidence, Judy Pike’s testimony recounting N.S.’s statements
that JDT put his penis in N.S.’s mouth. He asserts that
“nothing in the record indicates that [N.S.]’s statements to
clinical social worker Pike regarding the identity of the
perpetrator were made for the purposes of medical
treatment.” Without this testimony, he maintains, there was
insufficient evidence to support his determination of juvenile
 UNITED STATES V. JUVENILE MALE 37

delinquency under Count 6 because N.S. affirmatively denied
having seen JDT’s penis.

The Government argues that under United States v.
George, 960 F.2d 97 (9th Cir. 1992), the identity of a
perpetrator in a sexual abuse of a minor case falls within the
medical diagnosis and treatment hearsay exception. It
contends that in sexual abuse cases, there are emotional and
psychological injuries and that the extent of those injuries
may depend on the abuser. Accordingly, it asserts that there
was no abuse of discretion in admitting Pike’s testimony and,
moreover, there is sufficient record evidence to support the
district court’s determination that JDT is delinquent under
Count 6.

We “review for an abuse of discretion the district court’s
decision to admit evidence under a hearsay exception.”
United States v. Pena-Gutierrez, 222 F.3d 1080, 1086 n.3
(9th Cir. 2000). We apply a two-step test to determine
whether a district court abused its discretion. First, we review
de novo whether the district court “identified the correct legal
rule to apply to the relief requested.” United States v.
Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).
“If the [district] court failed to do so, we must conclude it
abused its discretion.” Id. at 1262. If the district court
identified the correct legal rule, we will determine whether
the court’s “application of the correct legal standard was
(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in
inferences that may be drawn from the facts in the record.’”
Id. (quoting Anderson v. City of Bessemer, 470 U.S. 564, 577
(1985)).

Pursuant to Rule 803(4) of the Federal Rules of Evidence,
hearsay statements are admissible when made for medical
38 UNITED STATES V. JUVENILE MALE

diagnosis or treatment. Fed. R. Evid. 803(4). “The advisory
committee notes to Rule 803(4) observe that statements of
fault will not ordinarily be admissible under the [medical
examination] exception.” George, 960 F.2d at 99.
“However, other circuits have held that statements by a
victim identifying her sexual abuser are admissible under the
medical examination exception.” Id. (citing Morgan v.
Foretich, 846 F.2d 941, 948–50 (4th Cir. 1988), and United
States v. Renville, 779 F.2d 430, 435–39 (8th Cir. 1985)).
Relying on those cases, we have stated “[t]he critical inquiry
is whether such statements are ‘made for the purpose of
medical diagnosis or treatment’ and are ‘reasonably pertinent
to diagnosis or treatment.’” Id. (citing Fed. R. Evid. 803(4)).
“Sexual abuse involves more than physical injury; the
physician must be attentive to treating the victim’s emotional
and psychological injuries, the exact nature and extent of
which often depend on the identity of the abuser.” Id. (citing
Renville, 779 F.2d at 437). “Furthermore, depending upon
the nature of the sexual abuse, the identity of the abuser may
be pertinent to the diagnosis and treatment of sexually
transmitted diseases.” Id.

At the delinquency hearing, the district court discussed
the admissibility of Pike’s statements pursuant to Rule
803(4), which is the “correct legal rule” for determining the
admissibility of hearsay for medical diagnosis or treatment.
See George, 960 F.2d at 99 (applying Rule 803(4)).
Accordingly, the district court did not abuse its discretion
under the first Hinkson step because it applied the correct
legal rule.

Under the second Hinkson step, a district court abuses its
discretion only if the “application of the correct legal standard
was (1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support
 UNITED STATES V. JUVENILE MALE 39

in inferences that may be drawn from the facts in the record.”
Hinkson, 585 F.3d at 1262. In other sexual abuse cases, this
Court has held that admitting similar hearsay statements was
not an abuse of discretion. For example, in United States v.
Lukashov, 694 F.3d 1107 (9th Cir. 2012), a defendant was
charged with violating § 2241(c) for allegedly repeatedly
sexually abusing his girlfriend’s minor child in his car. The
minor was taken to a medical clinic that specializes in child
abuse and was overseen by the district attorney’s office. Id.
at 1111. A doctor and social worker examined the child, who
told them that the defendant “put his ‘private part’ in ‘the part
where the poop comes out.’” Id. The social worker then
interviewed the minor alone, with the doctor and a police
office watching from behind a window. Id. The social
worker sought a more detailed account of the abuse. Id. At
trial, the social worker’s interview was admitted over
defendant’s objection. Id. at 1112. The defendant argued
that the interview “was to build a case against him rather than
obtain medical diagnosis” based on “the interview’s removal
from the medical examination setting, the observation of the
interview by a police officer, and [the minor’s] use of the
word ‘evidence’ during the interview.” Id. at 1115. This
Court held that the district court did not err because “the
interview took place for the purpose of, and was reasonably
pertinent to, medical diagnosis and treatment.” Id.

Similarly, in George, 960 F.2d 97, the defendant was
charged with sexually abusing his daughter. A doctor
examined her five months after the alleged abuse, during
which exam the minor identified George as the assailant. Id.
at 98–99. The doctor also testified that “she asked about the
assailant’s identity for the purpose of diagnosing and treating
the victim.” Id. at 99. George was convicted. Id. On appeal,
this Court held the district court did not abuse its discretion
40 UNITED STATES V. JUVENILE MALE

in admitting the doctor’s testimony. Id. at 100–01; see also
People of Territory of Guam v. Ignacio, 10 F.3d 608, 613 (9th
Cir. 1993) (holding the “record does not show that the
statement to the social worker was for medical treatment”
because the social worker testified that “he questioned the
child to determine whether he needed to notify Child
Protective Services of a case of suspected child abuse.”).

Here, Pike testified that when N.S. arrived for the
interview, “we wanted to know if something happened so we
could treat him” (similar to the doctor in George who
testified that “she asked about the assailant’s identify for the
purpose of diagnosing and treating the victim”). Pike saw
N.S. “several times afterwards to provide treatment” and on
those visits she spoke with N.S.’s parents “about how to
manage” his symptoms. She testified that the MP referred the
case to her because “they were concerned about . . . what
happened to this child and how can we get him help, if
something happened.” Pike further testified that she wanted
to know what happened “[b]ecause I am concerned that if,
indeed, the allegation of sexual abuse happened, that we need
to treat him and monitor what is going on with him to see
what the after effects are so that we can provide advice and
counsel to the parents about how to manage those things, but
also help this child move through this incident that
happened.” This testimony is similar to that of the social
worker in Lukashov, where the interview “took place for the
purpose of, and was reasonably pertinent to, medical
diagnosis and treatment.” Lukashov, 694 F.3d at 1115.
Unlike the social worker in Ignacio, Pike attemped to
understand N.S.’s needs based on the incident he experienced
and was not interviewing him to notify authorities.
 UNITED STATES V. JUVENILE MALE 41

Accordingly, the district court correctly held that N.S.’s
statements to Pike fell within the hearsay exception for
medical treatment and diagnosis. Because the district court
did not abuse its discretion, Pike’s testimony was properly
considered by the district court when it found JDT delinquent
under Count 6. Reviewing the evidence in the light most
favorable to the prosecution, testimony that JDT put his penis
in N.S.’s mouth is sufficient to support a delinquency
determination.

VII

JDT contends that the district court erred in denying his
Rule 35(a) motion to suspend the finding of delinquency,
arguing that the district court “conduct[ed] minimal legal
research” into the availability of suspending his delinquency
determination, and that “[i]nsofar as the district court’s failure
to act rested on an incorrect or incomplete legal
understanding of what it means to suspend a finding of
delinquency . . . , it made a legal error that amounts to an
abuse of discretion.”

The Government counters the district court did not have
jurisdiction to rule on JDT’s motion because more than
fourteen days had passed since the disposition was
announced. It also argues that the district court understood its
discretion and “certainly considered the defendant’s
arguments, but simply was not persuaded.”

Whether a district court had jurisdiction to modify its
judgment under Rule 35(a) is reviewed de novo. United
States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). The
district court found JDT to be a juvenile delinquent on
December 12, 2011. It announced its disposition
42 UNITED STATES V. JUVENILE MALE

determination the same day. On December 19, 2011, JDT
filed a motion to correct the sentence pursuant to Rule 35(a).
The district court denied the motion on January 13, 2012.

Rule 35(a) provides: “Within 14 days after sentencing, the
court may correct a sentence that resulted from arithmetical,
technical, or other clear error.” Fed. R. Crim. P. 35(a). The
Rule defines “sentencing” as “the oral announcement of the
sentence.” Id. 35(c). We have held that the fourteen-day
period to correct a sentence for arithmetical, technical, or
other clear error is jurisdictional, and that a district court
cannot adjust a sentence outside of the fourteen-day window
even if the Rule 35(a) motion is filed within that window. In
United States v. Barragan–Mendoza, 174 F.3d 1024 (9th Cir.
1999), the district court sentenced the defendant on May 29,
1997. Id. at 1025. The Government filed a motion to
reconsider the sentence on June 3, 1997, within the then
seven-day window of Rule 35(c). Id. at 1025–26. Rule 35(a)
was formerly Rule 35(c) and had a seven day time limit. Fed.
R. Crim. P. 35 advisory committee’s note. The district court
held the hearing on the motion on July 31, 1997, and
modified the sentence. Id. at 1026. We explained that “‘Rule
35(c) provides the only plausible avenue by which the district
court could properly correct or modify [Barragan’s] original
sentence.’” Id. at 1028 (quoting United States v.
Soto–Holguin, 163 F.3d 1217, 1220 (10th Cir. 1999)). We
noted that “[a]lthough the government filed its motion within
seven days, the district court did not rule on the motion within
that time period,” and the “government, nevertheless, argues
that it satisfied the requirements of Rule 35(c), because the
district court need not actually decide the motion within
seven days, as long as the government filed the motion within
that period.” Id. at 1029–30.
 UNITED STATES V. JUVENILE MALE 43

We held in Barragan–Mendoza that “the district court did
not ‘act’ within seven days from the imposition of sentence
and therefore lacked jurisdiction thereafter to modify
Barragan’s sentence.” Id. at 1030; see also United States v.
Aguilar–Reyes, 653 F.3d 1053, 1055–56 (9th Cir. 2011)
(holding “the fourteen day provision in Rule 35(a) is
jurisdictional” and reinstating defendant’s original sentence
when defendant was originally sentenced on March 1st,
defendant filed a Rule 35(a) motion on March 5th, the district
court held a hearing on the Rule 35 motion on March 29th,
and resentenced defendant on April 12th); Penna, 319 F.3d at
510 (“We hold that the seven-day requirement in Rule 35(c)
is a jurisdictional requirement. Here, because the district
court vacated Penna’s sentence within seven days, but did not
resentence him within the same seven day period, it lacked
jurisdiction under Rule 35(c) to resentence Penna.”).

In this matter, the district court announced its
determination that JDT is a juvenile delinquent and
announced its disposition determination on December 12,
2011. JDT filed his Rule 35(a) motion on December 19,
2012, seven days after the district court announced its
decision. The district court did not rule on the motion until
January 13, 2012, a full month after the delinquency hearing.
Rule 35(a)’s fourteen-day time limit ran on December 26th.
Accordingly, the district court did not have jurisdiction to
issue its January 13, 2012 order denying JDT’s Rule 35(a)
motion.

JDT also maintains the district court abused its discretion
in not suspending the determination of delinquency at the
disposition hearing on December 12, 2011, because it “did
not consider whether the goals of rehabilitation would be
promoted by suspending the finding of delinquency.” He
44 UNITED STATES V. JUVENILE MALE

asserts the district court did not disclose whether its
“‘decision is within the range of permissible decisions that
the court could have made given the law and the facts
confronting it.’” The Government maintains that the district
court did not err because JDT’s rehabilitative needs were met
with carefully tailored conditions. We review sentences for
juvenile delinquency for an abuse of discretion. Juvenile,
347 F.3d at 784.

“In keeping with its rehabilitative goals, the FJDA
disfavors institutionalization and in particular the
warehousing of young people away from their communities.”
Id. at 785 (citing 18 U.S.C. § 5039). “Youth who are
adjudged to be delinquent under the FJDA must therefore be
confined in the least-restrictive environment that will support
their continued rehabilitation.” Id. “It must be clear from the
record, if not explicit, that a district court weighed all of the
relevant factors and found that the disposition imposed was
the least restrictive means to accomplish a young person’s
rehabilitation,” id. at 787, particularly when repeatedly urged
by a party to adopt one disposition over others.

On this record, it is clear the district court considered
detention and probation as two options available under the
statute, before settling on the latter. But the district court did
not clearly articulate whether the FJDA’s rehabilitative
purposes would best be advanced by suspension of the
delinquency finding, despite repeatedly being asked to do so.
As important, it also is not clear that the district court knew
it could consider suspension. This lack of clarity requires
remand.

As the disposition hearing drew to a close, defense
counsel sought to clarify whether “the Court has made a
 UNITED STATES V. JUVENILE MALE 45

decision . . . to suspend the finding of delinquency,” a request
included in JDT’s pre-hearing briefing and referenced earlier
in the disposition hearing. The district court responded: “I
haven’t decided whether to make that decision or not.” In
nearly the same breath, the district court suggested it was
unable to suspend the delinquency finding, stating “He’s
definitely delinquent. I can’t suspend the fact that he’s
delinquent. He’s the poster child for being delinquent. We’ll
talk about the legal niceties later.” After discussing an
unrelated matter, the district court adjourned the disposition
hearing. Four days later, the district court entered an Order
of Probation, containing no discussion of suspending the
delinquency finding. There are no other indications in the
record that the district court weighed factors bearing on
suspension while it had jurisdiction to do so. Given the state
of the record, we remand this portion of the district court’s
judgment to allow specific consideration of JDT’s suspension
request. Our remand parts with the Concurrence in two ways.

First, we are not as confident as the Concurrence that the
district court failed to appreciate that the FJDA vests the
district court with discretion to suspend (or not) a finding of
delinquency. But we acknowledge the record is far from
crystalline on this point. Implicit in the district court’s
comment, that it had yet to decide whether to suspend the
delinquency finding, is the recognition that the district court
could make such a decision.

In the context of this case, a (possible) implicit
recognition of the correct legal rule does not suffice. We
have noted “we must remand if we are unable to determine
from the record whether the district court’s ruling was an
exercise of its discretion or a legal ruling” that no such
discretion existed. United States v. Eaton, 31 F.3d 789, 793
46 UNITED STATES V. JUVENILE MALE

(9th Cir. 1994) (internal quotation marks omitted) (examining
district court’s failure to expressly address an adult offender’s
request for downward sentencing departure); see also United
States v. Dickey, 924 F.3d 836, 839 (9th Cir. 1991). This
requirement to remand applies with equal force—if not
greater force—to juvenile sentencing matters which may have
lifetime consequences for the juvenile. We cannot conclude
“[t]he district judge’s conduct at the sentencing hearing
indicate[d] that he was aware that [suspension] was an
option.” United States v. Doe, 149 F.3d 945, 951 (9th Cir.
1998) (citing Eaton, 31 F.3d at 793).

Second, we do not hold that suspension of the
delinquency finding is the only appropriate disposition for
JDT. While state-law sex offender registration requirements
are one relevant factor that should be considered on
remand—including the potential for lifetime registration as a
sex offender—we disagree with the Concurrence that such
requirements, as matter of law, have so negative an affect on
JDT’s prospects for rehabilitation or on the broader public
interest as to overbear other relevant factors favoring
probation.

We express no opinion on the proper outcome on remand.
The FJDA tasks the district court, not this Court, with
balancing relevant factors in the first instance. See 18 U.S.C.
§ 5037(a); see also Juvenile, 347 F.3d at 784 (noting that in
view of “the discretion [the FJDA] vests in district courts to
fashion a [rehabilitative] sentence,” we must give deference
to the district court “[ i]f an ‘essentially factual’ inquiry is
present, or if the exercise of the district court’s discretion is
determinative” (quoting United States v. Owen, 789 F.2d 750,
752 (9th Cir. 1986))). When considering all available
disposition options on remand, the district court may consider
 UNITED STATES V. JUVENILE MALE 47

JDT’s progress under probation in the twenty months that
have passed since imposition of the original disposition.

CONCLUSION

Accordingly, we VACATE the district court’s disposition
decision, REMAND for consideration of all disposition
options, including a suspension of delinquency, and
AFFIRM in all other respects.

BERZON, Circuit Judge, concurring:

J.D.T. was a ten-year-old child when the acts for which he
was adjudicated occurred. He was prepubescent and
developmentally delayed. The district court acknowledged at
sentencing that even then, a year after the offenses occurred,
J.D.T. was “closer to seven or eight with his mental status.”
The statute under which he was declared a juvenile
delinquent, 18 U.S.C. § 2241(c), makes illegal certain acts,
considered inherently sexual in nature if committed by a
physically mature individual, without regard to sexual
motivation or intent, and regardless of whether the defendant
used force or threats to accomplish the act.

I concur in the majority opinion with regard to
jurisdiction, sufficiency of the evidence, and the evidentiary
issue. I also concur in the decision to remand with respect to
the delinquency finding, but unlike the majority, I believe
there is only one proper outcome to that issue on remand.
J.D.T. should not have been treated as a delinquent given his
age, the dire possible consequences for his future in light of
the recent proliferation of sexual offender registration
48 UNITED STATES V. JUVENILE MALE

statutes, and the lack of prosecutorial guidance provided by
§ 2241(c) as applied to a child offender himself under twelve
years old—the age limit of the victims protected by the
statute.

DISCUSSION

I

Under the Federal Juvenile Delinquency Act (FJDA), the
district court had several options when determining the
disposition of a child found to be a juvenile delinquent. The
FJDA provides that the district court “may suspend the
findings of juvenile delinquency, place him on probation, or
commit him to official detention which may include a term of
juvenile delinquent supervision to follow detention,” and may
also impose restitution. 18 U.S.C. § 5037(a). “[A]lthough
the FJDA grants district courts the discretion to select from
among the dispositions authorized under § 5037, this
discretion must be exercised in accordance with the
rehabilitative function of the FJDA, which requires an
assessment of the totality of the unique circumstances and
rehabilitative needs of each juvenile.” United States v.
Juvenile, 347 F.3d 778, 787 (9th Cir. 2003). “It must be clear
from the record, if not explicit, that a district court weighed
all of the relevant factors and found that the disposition
imposed was the least restrictive means to accomplish a
young person’s rehabilitation, given the needs of the child
and the community.” Id. And the district court “must
provide a reasoned basis for why it has rejected less
restrictive interventions.” Id. at 788.

J.D.T.’s attorney requested that the finding of juvenile
delinquency be suspended. He argued that, if the court did
 UNITED STATES V. JUVENILE MALE 49

not suspend the finding of delinquency, J.D.T. may be
required to register as a sex offender for life, and “to brand
[J.D.T.] for the rest of his life as a sex offender . . . would be
contrary to the purposes of rehabilitation.”

The district court nonetheless left the juvenile
delinquency finding in place and sentenced J.D.T. to a five-
year term of probation. On one level the sentence was a
suitable one, as J.D.T. was left in his home and required to
undergo therapeutic treatment, rather than committed to an
institutional setting. But the district court did not consider
whether to suspend the finding of delinquency entirely.
Instead, the court stated, “I haven’t decided whether to make
that decision or not. He’s definitely delinquent. I can’t
suspend the fact that he’s delinquent. He’s the poster child
for being delinquent. We’ll talk about the legal niceties
later.” Thereafter, the district court entered judgment,
deeming J.D.T. “a juvenile delinquent” and imposing the
probation term.

In expressly refusing to decide whether to suspend the
finding of delinquency, the district court abused its discretion
in two ways. First, the district court failed to consider one of
the statutorily enumerated sentencing options for a juvenile
delinquent — suspension of the delinquency finding. That
option was less restrictive option than the probation term
imposed. Thus, the district court did not consider sufficiently
whether the sentence it imposed was the least restrictive
means of rehabilitating J.D.T., in violation of the FJDA’s
mandate.

Second, the district court made clear that it thought that
it could not suspend the finding of delinquency because
J.D.T. was in fact a juvenile delinquent. But a finding that
50 UNITED STATES V. JUVENILE MALE

J.D.T. was a juvenile delinquent was a necessary predicate to
suspending such a finding — it did not preclude that
suspension. The FJDA states, “If the court finds a juvenile to
be a juvenile delinquent, the court shall hold a disposition
hearing concerning the appropriate disposition,” and after it
holds the disposition hearing, it “may suspend the findings of
juvenile delinquency.” 18 U.S.C. § 5037(a) (emphasis
added).1 Thus, it was legal error for the district court to
decline to suspend its finding that J.D.T. was a juvenile
delinquent on the ground that it lacked the power to do so
once it made the finding.2

1
A Senate Report discussing a proposed amendment to § 5037 confirms
this sequence, explaining that “[a]fter a finding of juvenile delinquency,
the court is authorized . . . , after a hearing concerning the appropriate
disposition, to suspend the finding of juvenile delinquency.” S. Comm.
on the Judiciary, 94th Cong., 1st Sess., Rep. on the Criminal Justice
Reform Act of 1975 1020 (Comm. Print 1975) (emphasis added).
2
Shortly after sentencing, J.D.T. moved to correct his sentence under
Federal Rule of Criminal Procedure 35(a), again asking the district court
to set aside the delinquency finding. Several weeks later, the district court
denied the motion, explaining, “The Court, after doing some basic
research of the statute, the term ‘suspend’ is not defined or explained and
due to the gravity of the nature of these charges, the Court declines to
grant the Motion to Correct Sentence.” By the time that the district court
acted on the motion, it lacked jurisdiction to modify the sentence under
Rule 35(a), so its comments at that point are not directly pertinent to
whether it committed legal error in treating J.D.T. as a delinquent. See
United States v. Barragan-Mendoza, 174 F.3d 1024, 1027–30 (9th Cir.
1999). But the district court’s comment on denying the motion to correct
the sentence does confirm its substantive confusion as to the reach of its
authority to suspend the finding of juvenile delinquency.
 UNITED STATES V. JUVENILE MALE 51

II

The district court’s failure to consider adequately whether
to suspend the finding of delinquency is contrary to “the
primary purpose of the FJDA . . . to rehabilitate children who
have committed criminal acts, assisting them to become
successful and productive members of their communities.”
Juvenile, 347 F.3d at 787. Although asked to do so, the
district court did not consider a recent legal development that
is directly at odds with this “primary purpose” of the FJDA
– namely, the fact that in many states, J.D.T. may be required
to register as a sex offender, even after he has completed his
probation term. In some, his photograph and identifying
information may be publicly distributed, despite laws that
generally keep juvenile records private.3 See Nicole Pittman
and Quyen Nguyen, A Snapshot of Juvenile Sex Offender
Registration and Notification Laws: A Survey of the United
States (2011); Human Rights Watch, No Easy Answers: Sex

3
I note that, although neither party has so argued in this case, insofar as
state laws may require public disclosure of the name or picture of a child
who was adjudicated as a delinquent in federal court for a sexual offense
committed while under the age of fourteen, such laws may be preempted
by the FJDA’s confidentiality provision. See 18 U.S.C. § 5038; United
States v. Juvenile Male, 670 F.3d 999, 1007–08 (9th Cir. 2012)
(concluding that § 5038 conflicted with the federal sex offender
registration and disclosure requirements created by the Sex Offender
Registration and Notification Act (SORNA) for juvenile delinquents who
were fourteen years or older at the time of the offense, and that the later
enacted SORNA controlled for these older juveniles, but that “[f]or all
other juvenile delinquents, the FJDA’s confidentiality provisions remain
in force”).
52 UNITED STATES V. JUVENILE MALE

Offender Laws in the US 75–76 (2007).4 Although I am not
suggesting that all juvenile sex offenders’ delinquency
findings should be suspended to avoid this consequence (nor
am I certain that suspension of the delinquency finding would
in all instances avoid the sex offender registration
requirements5), J.D.T.’s age and lack of recidivism or prior
treatment; the strict liability nature of the crime; and the
consequent inability to distinguish between the offender and
victim all indicate to me that the district court’s failure to
consider suspending the delinquency finding was a
fundamental error. Indeed, in my view, the suspension
should have been not only considered but granted; any other
conclusion would have been an abuse of discretion.

Being publicly identified through online registries would
have an enormous impact on J.D.T., perhaps for the rest of
his life. First, a registration requirement could severely limit
J.D.T.’s ability to find employment in the future. Employers

4
Among other places, if J.D.T. were to move to Montana, he would be
subject to lifelong registration as a sexual offender; state law also makes
the name and address of registered sexual offenders publicly available.
See Mont. Code Ann. §§ 45-5-502(3); 46-23-502(9)(b),(10); 46-23-
506(1); 46-23-508(1)(a); see also United States v. Juvenile Male, 255 P.3d
110, 112–15 (Mont. 2011) (holding that a juvenile adjudicated as
delinquent in federal court for violation of § 2241(c) had a duty under
state law to register as a sexual offender when present in Montana).
Similarly, if he went to school in Illinois or Iowa, he would be required to
register. See 730 Ill. Comp. Stat. 150/3(a-5); Iowa Code
§§ 692A.102(1)(c)(34), 103(1)(e), (3).
5
For example, Colorado requires registration of “any person who
receives a disposition or is adjudicated a juvenile delinquent based on the
commission of any act that may constitute unlawful sexual behavior or
who receives a deferred adjudication based on commission of” such an
act. Colo. Rev. Stat. § 16-22-103(4) (emphasis added).
 UNITED STATES V. JUVENILE MALE 53

are likely reluctant to hire sex offenders even if the nature of
the offense has no bearing on the job. And in some states,
registered sex offenders are barred from working in jobs
where they may come into contact with children even
inadvertently, or where they will be within a certain distance
of places where children may be, such as public athletic fields
or swimming pools. See, e.g., Phoebe Geer, Justice Served?
The High Cost of Juvenile Sex Offender Registration, 27 Dev.
Mental Health L. 34, 49–50 (2008); Human Rights Watch,
supra, at 81–84.

Second, J.D.T. may face difficulty in finding housing in
the future. Landlords often refuse to rent to registered sex
offenders. Human Rights Watch, supra, at 95–96. Also,
many states and municipalities have laws or ordinances that
prohibit registered sex offenders from living in areas near
where children may be. Id. at 100–04. Such restrictions
often “prevent offenders from living in the areas closest to
jobs and public transit, since schools, daycare centers, and
parks are often built in the center of main residential areas of
cities and towns,” id. at 101, and may restrict registered
offenders to very few residential areas, if any, see, e.g., G.H.
v. Township of Galloway, 951 A.2d 221, 236 (N.J. Super. Ct.
App. Div. 2008) (observing that New Jersey ordinances
preventing sex offenders from residing within 2,500 feet of
any school, park, playground, public library, or daycare
center may result in “total exclusion” or “near-total
exclusion”); Fross v. Cnty. of Allegheny, 20 A.3d 1193, 1199
(Pa. 2011) (observing that similar restrictions “essentially
prohibit[] any sex offender from living throughout most of
Allegheny County”).

Third, registration requirements and their effects
undermine the rehabilitative purpose of the juvenile justice
54 UNITED STATES V. JUVENILE MALE

system. As recognized by the Senate when it first established
a separate justice system for children in 1938, “[i]t is . . .
advisable that a juvenile delinquent for whom there is some
hope of rehabilitation should not receive the stigma of a
criminal record that would attach to him throughout his life.”
S. Rep. No. 75-1989, at 1–2 (1938). This “negative labeling”
serves to “remove” the child “further from the normal
socializing process” and for that reason, when amending the
FJDA, the Senate recognized that to achieve the goal of
rehabilitation, “[a]t each critical step, we should exhaust the
less rejecting, less stigmatizing recourses before taking the
next expulsive step.” S. Rep. 93-1011, at 24 (1974). Yet,
stigmatizing – “negative labeling” – is inherent in sex
offender registration programs (again, absent federal
preemption, which has not thus far been invoked here),
bringing the two schemes into direct conflict.

These presuppositions of the federal juvenile delinquency
legislation are borne out by more recent case law and
information, both in general and with regard to sex offenders.
“[R]egistries and notification systems cut youth off from
beneficial social networks, creating social stigma and
isolation, increasing the risk of suicide, alienating a youth
from school and community, and raising barriers to
successful participation in society.” Justice Policy Institute,
Youth Who Commit Sex Offenses: Facts and Fiction 2
(collecting sources). As recognized by the Supreme Court,
“developments in psychology and brain science continue to
show fundamental differences between juvenile and adult
minds,” and children “are more capable of change than are
adults.” Graham v. Florida, 560 U.S. 48, 68 (2010); see also
J.D.B. v. N. Carolina, 131 S.Ct. 2394, 2403 n.5 (2011).
Studies show that children who commit sex offenses have
relatively low recidivism rates and are more susceptible to
 UNITED STATES V. JUVENILE MALE 55

treatment and rehabilitation than adult sex offenders. See
Human Rights Watch, supra, at 69–70 (collecting sources);
Nat’l Center on Sexual Behavior of Youth, Office of Juvenile
Justice and Delinquency Prevention, U.S. Dep’t of Justice,
What Research Shows About Adolescent Sex Offenders 1
(2003) (same); see also United States v. Juvenile, 347 F.3d
778, 789 n.9 (9th Cir. 2003) (recognizing that “virtually all of
the studies show . . . that relatively few [juvenile sex
offenders] are charged with a subsequent sex crime” and
“sexual recidivism of juvenile sexual offenders post-
treatment was very rare”) (brackets in original)(internal
quotation marks omitted).

Labeling J.D.T. as a delinquent sex offender for the rest
of his life is all the more questionable here, as J.D.T.’s
parents had voluntarily initiated the involvement of the local
child protection agency and had started counseling for him.
See Juvenile, 347 F.3d at 789 n.9 (studies “have found that
successful treatment of juveniles who have sexually offended
is facilitated by the participation of the child’s family”);
United States v. Juvenile Male, 864 F.2d 641, 644 (9th Cir.
1988) (observing that “Congress’ desire to channel juveniles
into state and local treatment programs” is “clearly expressed
in the legislative history of section 5032”). Indeed, the
testimony before the district court illustrated that J.D.T. was
responding well to treatment and had not continued to act out
sexually with other children.6

6
To a degree, the statutory scheme under which J.D.T. was prosecuted,
and the district judge’s disposition, recognize these concerns. Because
J.D.T. was prosecuted under the FJDA, the sentencing provisions of
§ 2241(c) were inapplicable to the proceedings. An adult who is
convicted of violation of § 2241(c) faces imprisonment “for not less than
30 years or for life.” 18 U.S.C. § 2241(c). In contrast, under the FJDA,
J.D.T. could not be placed in official detention past his twenty-first
56 UNITED STATES V. JUVENILE MALE

The need for rehabilitation and treatment, rather than
retribution and condemnation, is particularly heightened due
to J.D.T.’s unique characteristics. J.D.T., ten years old at the
time of the offenses and not yet pubescent, is
developmentally delayed, “emotionally immature for his
age,” receives special education services, has Attention
Deficit Hyperactivity Disorder, and takes numerous daily
medications to control his behavior. Further, we have
recognized previously that “[a]ge-inappropriate sexual
knowledge is a common symptom among sexually abused
children,” Juvenile, 347 F.3d at 781 n.1, which the
prosecutor believed J.D.T. likely was.

Whatever may be the case for an older child or for a child
adjudicated for a violent crime, creating a situation in which
a ten-year-old offender with J.D.T.’s characteristics and
background is stigmatized — possibly publicly — for life as
a sex offender is fundamentally at odds with the FJDA’s
recognition of the rehabilitative prospects for children. The
potential consequences of the district court’s delinquency
finding will only make it more difficult to rehabilitate J.D.T.,
especially in conjunction with the tremendous developmental
and emotional issues that he faces.

birthday. 18 U.S.C. § 5037(c). The reason that differences such as this
one exist is that “the FJDA was intended to provide for the care and
treatment of juvenile delinquents, in recognition of significant differences
between juvenile delinquents and adult offenders.” Juvenile Male,
670 F.3d at 1004 (internal quotation marks and citations omitted). The
district court’s decision to sentence J.D.T. to probation rather than placing
him in a detention facility was based on rehabilitative concerns and a
recognition that a custodial sentence may “make things worse.” But the
district court still was required to consider whether an alternative less
restrictive than the delinquency finding was appropriate.
 UNITED STATES V. JUVENILE MALE 57

III

A second consideration also influences my conclusion
that the only appropriate disposition in this case was
suspension of the delinquency finding. As applied to children
under twelve years old, 18 U.S.C. § 2241(c) reflects at least
one of two defects that underlie the Constitutional vagueness
doctrine — namely, it accords infinite discretion to
prosecutors to assign victim and offender status, with no
guidance from the statute as to how to do so.

Section 2241(c) criminalizes what is commonly referred
to as statutory rape. The section provides in relevant part,
“Whoever . . . in the special maritime and territorial
jurisdiction of the United States . . . knowingly engages in a
sexual act with another person who has not attained the age
of 12 years . . . shall be fined under this title and imprisoned
for not less than 30 years or for life.”

The provision makes it an offense for a person to engage
in sexual acts with a child under the age of twelve, regardless
of whether the offender knew the child’s age. Lack of
consent is not an element, because children under the age of
twelve are legally incapable of providing consent. Unlike
certain other federal criminal statutes, § 2241(c) does not
have as an element the use or threatened use of physical force
or harm to carry out the sexual act. See, e.g., 18 U.S.C.
§§ 2241(a), 2242(1). Nor is sexual motivation or impact an
element.7

7
18 U.S.C. § 2246(2) defines sexual act as:

(A) contact between the penis and the vulva or the
penis and the anus, and for purposes of this
58 UNITED STATES V. JUVENILE MALE

“To satisfy due process, ‘a penal statute [must] define the
criminal offense [1] with sufficient definiteness that ordinary
people can understand what conduct is prohibited and [2] in
a manner that does not encourage arbitrary and discriminatory
enforcement’.” Skilling v. United States, 561 U.S. 358,
402–03 (2010) (formatting in original) (quoting Kolender v.
Lawson, 461 U.S. 352, 357 (1983)). “The void-for-vagueness
doctrine embraces these requirements.” Id. The Supreme

subparagraph contact involving the penis occurs upon
penetration, however, slight;

(B) contact between the mouth and the penis, the mouth
and the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or
genital opening of another by a hand or finger or by any
object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person; or

(D) the intentional touching, not through the clothing,
of the genitalia of another person who has not attained
the age of 16 years with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of
any person.

J.D.T. was charged and adjudicated as delinquent for committing a
sexual act as defined in subsections (A) and (B), and not subsections (C)
or (D). Therefore, the government did not have to prove that he acted
“with an intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person.” 18 U.S.C. §§ 2246(2)(C), (D).

In fact, J.D.T. originally was charged with one count that did require
such a showing. The government voluntarily dismissed that charge at the
conclusion of its presentation of evidence because, as the majority
observes, the evidence “was apparently insufficient to prove” that count.
Maj. Op. at 10.
 UNITED STATES V. JUVENILE MALE 59

Court has recognized “that the more important aspect of
vagueness doctrine ‘is not actual notice, but the other
principal element of the doctrine — the requirement that a
legislature establish minimal guidelines to govern law
enforcement.’” Kolender, 461 U.S. at 358 (quoting Smith v.
Goguen, 415 U.S. 566, 574 (1974)). “Where the legislature
fails to provide such minimal guidelines, a criminal statute
may permit ‘a standardless sweep [that] allows policemen,
prosecutors, and juries to pursue their personal
predilections.’” Id. (quoting Smith, 415 U.S. at 575).

Section 2241(c), as applied to children under the age of
twelve who engage in sexual acts with other children under
the age of twelve, encourages arbitrary and discriminatory
enforcement. On occasion, children engage in mutual sexual
play. See, e.g., In re M.D., 527 N.E.2d 286 (Ohio 1988) (case
involving a five-year-old putting his penis in the mouth of
another five-year-old at the direction of another child while
the three were “playing doctor”). When the sexual conduct
at issue involves an adult and a child under the age of twelve,
only the adult can be the perpetrator and only the child can be
the victim. But when two children under twelve years old
engage in sexual conduct with one another, the statute
provides no guidance as to who is the offender and who is the
victim. Instead, under the terms of the statute, each child is
both an offender and a victim.

As the Ohio Supreme Court explained when it invalidated
a similar state statute as unconstitutionally vague,

The facts of this case provide an example of
the temptation for prosecutors to label one
child as the offender and the other child as the
victim. Based apparently upon the theory that
60 UNITED STATES V. JUVENILE MALE

D.B. forced M.G. to engage in sexual conduct,
the state alleged that D.B., but not M.G., had
engaged in conduct that constituted statutory
rape. However, while the theory of D.B. as
the aggressor was consistent with the counts
alleging a violation of R.C. 2907.02(A)(2),
which proscribes rape by force, this theory is
incompatible with the counts alleging a
violation of statutory rape because anyone
who engages in sexual conduct with a minor
under the age of 13 commits statutory rape
regardless of whether force was used. Thus,
if the facts alleged in the complaint were true,
D.B. and M.G. would both be in violation of
R.C. 2907.02(A)(1)(b).

In re D.B., 950 N.E.2d 528, 533 (Ohio 2011), cert. denied,
132 S. Ct. 846 (2011). The Ohio courts have applied D.B. to
bar prosecution of children even where there is a significant
age difference between the alleged perpetrator and victim.
See In re D.R., 2012 WL 5842773, at *4–6 (Ohio Ct. App.
2012).

Similarly, here, the elements of the offenses with which
J.D.T. was charged do not involve the use of force or threats
of force. Under the facts proven here, if § 2241(c) can apply
to children under the age of twelve, J.D.T. and the other
children involved were all in violation of the statute. That
one child and not the other was considered to be the aggressor
would not matter. That the prosecutors apparently considered
J.D.T. the culpable young child does not cure the unfettered
discretion problem, as the factors that suggest that J.D.T. was
the aggressor are extraneous to the statute. They are matters
 UNITED STATES V. JUVENILE MALE 61

fully within the prosecutors’ discretion to rely upon or not, as
the prosecutors choose.

And prosecutors do not always make their charging
decisions in a constrained or wise way. In State ex rel. Z.C.,
165 P.3d 1206 (Utah 2007), for example, the state prosecuted
both children who engaged in sexual conduct with one
another. The children in Z.C. were twelve and thirteen years
old, and engaged in consensual sexual intercourse; the statute
criminalized such behavior with children under fourteen years
old. Id. at 1207–08.

Placing such unconstrained discretion within the hands of
prosecutors because the statute itself contains no
ascertainable limits is precisely the problem the prosecutorial
discretion strain of the vagueness doctrine is designed to cure.
By entrusting the development of minimum standards for
enforcement to the case-by-case judgment of prosecutors,
legislatures “abdicate their responsibilities for setting the
standards of the criminal law.” See Smith, 415 U.S. 575.

The majority insists that the statute is not
unconstitutionally vague, because it applies to “whoever”
engages in the proscribed conduct, and the forbidden acts are
spelled out quite clearly. As to the notice aspect of the
vagueness doctrine, I might agree that the statute “define[s]
the criminal offense . . . with sufficient definiteness that
ordinary people can understand what conduct is prohibited.”
Skilling, 561 U.S. at 402.

But this “ordinary people” standard takes on an air of
unreality when applied to a ten-year-old with a mental and
emotional capacity of a seven- or eight-year-old. More
importantly, the breadth of prosecutorial discretion — even
62 UNITED STATES V. JUVENILE MALE

if one assumes that it was intended by Congress8 — must
inform the exercise of the district court’s authority to suspend
the juvenile delinquency finding. Where, as here, the actual
possible consequences for a very young child — lifetime
designation as a registered sex offender in some states — is
at odds with the presuppositions of the FJDA, the lack of
guidance the statute otherwise provides calls for the most
meticulous exercise of judicial discretion when imposing a
disposition. It was thus particularly important for the district
court to understand the disposition options and to consider
carefully which alternative was the least restrictive means to
rehabilitate the young child before it.

8
Although there are contrary indications as well, some aspects of the
legislative history for § 2241(c) suggest that Congress may have intended
to leave charging decisions in cases involving two young children to
prosecutorial discretion. During a hearing on an earlier version of the
Sexual Abuse Act of 1986, which added § 2241(c), the Department of
Justice suggested removal of the age difference limitation that “would
make it an offense for a person to engage in a sexual act with an individual
less than twelve years old only if the actor were at least four years older
than the victim,” a requirement that was ultimately eliminated when
§ 2241(c) was enacted. Federal Rape Law Reform: Hearing Before the
Subcomm. on Criminal Justice of the H. Comm. on the Judiciary, 98th
Cong., 2nd Sess. 96 (1984) (statement of Victoria Toensing, Dep. Ass’t
Atty. Gen., Dep’t of Justice). The Department of Justice opined that
“[t]he effect of such legislation might be to send an unfortunate signal that
the Congress condones sexual activity by and with pre-teenage children,
so long as both participants are of similar tender years.” Id. It urged that
instead Congress should “criminalize sexual activity by anyone with a
person under twelve years old, and leave to prosecutorial and judicial
discretion the occasions when such activity occurs between two persons
of very young age.” Id. at 96–97. It reassured, “[w]e are not aware of any
instance in which such discretion is alleged to have been abused.” Id. at
97.
 UNITED STATES V. JUVENILE MALE 63

IV

In my view, given the specific possible consequences for
J.D.T., his age and circumstances, and the lack of
prosecutorial guidance provided by the offense statute
regarding children under twelve, any result other than
suspension of the delinquency finding would be an abuse of
discretion.

It must be remembered that, even if we were to hold that
§ 2241(c) is unconstitutional as applied to a child under the
age of twelve who engages in sexual acts with other children
under the age of twelve, a child in that age group still could
be found guilty of rape if other additional elements were
found that differentiated the perpetrator from the victim —
for example, if the offender used force or threats, 18 U.S.C.
§§ 2241(a), 2242(1); if the offender rendered another person
unconscious or drugged the person, 18 U.S.C. § 2241(b); or
if the other person was physically incapable of refusing to
participate in the act, 18 U.S.C. § 2242(2)(B). But J.D.T. was
not charged with violations of any of these provisions. And
to apply a statutory rape provision to prosecute a
developmentally delayed ten-year-old child is in extreme
tension with the aims of the FJDA, for all of the reasons I
have surveyed.

In sum, the district court should have suspended the
delinquency finding. As the district court applied the wrong
legal rule in failing to consider J.D.T.’s suspension request,
I concur in the majority’s decision to remand the case with an
instruction that the district court make a determination on that
issue.