concurring:
I concur in the majority’s view that the government’s conduct violated this juvenile’s statutory rights. I write separately to emphasize first that the violations were so egregious that we could easily conclude that Doe was prejudiced without a remand for further fact finding, and second that the proper remedy for such misconduct is dismissal of the charges against the juvenile?
In this ease, a fifteen year old boy, clearly in his minority, was detained for 36 hours by the Border Patrol in flagrant violation of his statutory rights to notification of his parents, guardian or custodian and of his right to arraignment within a reasonable period of time. 18 U.S.C. § 5033. The inherently confusing bureaucratic procedures to which the youngster was subjected compounded the seriousness of these statutory violations. Presented with a variety of forms, Doe early requested the stated option of voluntary departure. After having done so, but without being granted the option of voluntary departure, he was prevailed upon to make incriminating statements about his role in the border crossing incident. Only then was he informed, belatedly, that he would be subject to criminal prosecution for a felony violation. Then, too late, he refused to speak further and asserted his right to counsel. This situation presents a paradigmatic illustration of the rationale for our legal system’s enhanced solicitude for the rights of juveniles, particularly their right to have a parent, guardian or custodian notified before interrogation begins. Deprived of the advice or support of a responsible adult, Doe had already incriminated himself before he was advised of his right to legal counsel. His own words were then used to convict him, words the government elicited from him only by violating his statutory and constitutional rights. Greater prejudice is difficult to imagine. What are the needs and interests of justice that demand a fifteen year old be charged and convicted of a felony in this type of case?
Dismissal of the charges is appropriate because it is imperative that a clear message is sent to the Border Patrol and the Department of Justice that such violations will not be tolerated. The government now argues before us that its conduct conforms to the “spirit” of our prior decision in United States v. Doe, 701 F.2d 819 (9th Cir.1983), where this court found excuse for non-compliance with the statute in that instance, and it apparently asks that we sanction the apparent practice of disregarding the statute and continue to excuse such violations of duty. To the contrary, the literal meaning and the spirit of Doe require strict compliance with the law and permit deviations from the statutory requirements only in the face of exigent circumstances. Because no such circumstances exist in this case, I would echo and re-echo the warning of the district court:
I suggest to the Government ... that they better order the Border Patrol to change their procedures.... I don’t think the statute can be read other than that — they have no obligation to go to a foreign country, but I think they have an obligation to try and make a phone call rather than leaving it up to an incarcerated juvenile to do so, to locate the parents.
Also, I suggest that they better change their procedures so that anybody that’s arrested before midnight is arraigned the next day, and not the second day.
In this case adequate justice requires that we clear this juvenile’s record; the appropriate remedy is to dismiss the charges against Doe.