# United States v. Male Juvenile (95-Cr-1074)

> Court of Appeals for the Second Circuit · July 28, 1997 · 121 F.3d 34

URL: https://www.frixlaw.com/law-library/cases/9490548

## Case

- **Full name:** UNITED STATES of America, Appellee, v. MALE JUVENILE (95-CR-1074), Defendant-Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** July 28, 1997
- **Citations:** 121 F.3d 34; 1997 U.S. App. LEXIS 19219; 1997 WL 416548
- **Precedential status:** Published
- **Opinion:** Dissent by Newman
- **Judges:** Meskill, Skill, Newman, Meavoy
- **Cited by:** 1,050 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9490548

## How later opinions describe it (automated extraction)

- holding, in a pre-Rule 5916 case, that “failure to object timely to a magistrate judge’s report may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object”
- holding that the failure to timely object to a magistrate judge’s R & R “may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object”
- stating that, if an objection is filed, "'the court shall make a de novo determination of those portions of the report . . . to which objection is made'" (quoting [ 28 U.S.C. § 636 (b)])
- finding that suspect knowingly and intelligently waived his rights even though he had learning disabilities since he told the interrogating officers that he understood his rights
- finding waiver was knowing for juvenile with attentional and learning disabil- ities because juvenile indicated that he understood the rights as they were being read to him

## Opinion text

JON O. NEWMAN, Circuit Judge,
dissenting:
Congress has required that “[wjhenever a juvenile is taken into custody ... [t]he arresting officer shall immediately advise such juvenile of his legal rights ... [and] shall also notify the parents ... of the rights of the juvenile . 18 U.S.C. § 5033 (emphasis added). That provision was violated in this case. Because I believe the violation resulted in a confession that the Government has not shown would have been obtained had the statute’s requirement been observed, I think the confession should have been suppressed. I therefore respectfully dissent.
The key facts are not disputed. At the time the confession was obtained, the defendant was 16. He had an IQ of 71 and was diagnosed with Attention Deficit Hyperactivity Disorder and “learning problems.”
The questioning that produced the confession occurred at-a military police station at Fort Hamilton in Brooklyn, N.Y. When the questioning began, the federal agents regarded the defendant as an informant, not a suspect. Nevertheless, before any questioning occurred, the juvenile called his mother and asked her to come to the police station. When she arrived, a military police investigator informed her that her son was not a suspect and was not in any trouble, and obtained her permission to speak to her son without her presence. As the investigator candidly testified, he “knew that it might be easier to get information from [the juvenile] if his mother wasn’t present.”
During the course of the ensuing questioning, however, circumstances changed. The interrogating officers began to suspect the defendant of participation in a robbery. The principal questioner then shifted his chair to confront the defendant, changed his tone of voice, displayed his badge, and read the defendant his Miranda rights. As the District Court found, and the majority agrees, the defendant at that point was in custody.
When a juvenile is in “custody,” section 5033 requires the arresting officers not only to notify him of his rights but also to notify his parents of the juvenile’s rights. Such a notification was especially important in this case because permission to question the juvenile in the absence of a parent had been obtained only on the representation that the juvenile was not a suspect or in trouble, i.e., that he was not in custody.
The obvious purpose of requiring notification to a parent of a child’s legal rights is to assure that the parent can take steps to enforce those rights. Whether or not the juvenile’s mother had a right to be present for any custodial interrogation, see United States v. White Bear, 668 F.2d 409, 412 (8th Cir.1982) (parent’s presence not required for valid confession by juvenile), she was surely entitled to speak with him, to inform him of the changed circumstances, and to offer such advice as she deemed appropriate from her perspective as a parent. In requiring that a parent be notified of a child’s rights, Congress recognized that notification to a child is not always sufficient to assure protection of the child’s rights. The parent is notified not simply to educate the parent but to enable the parent to exercise parental responsibilities concerning the child’s rights. The purpose, it has been well observed, is to “alert a more knowledgeable and responsible adult ... in order to protect the defendant from himself.” United States v. Nash, 620 F.Supp. 1439, 1443 (S.D.N.Y.1985). The fact that the juvenile was offered and declined an opportunity to speak with his mother after custody attached only underscores how important it was to comply with section 5033 and let the parent decide what advice to give her son. As the Supreme Court has said, a juvenile in police custody needs
the aid of more mature judgment as to the steps he should take in [his] predicament .... [A]n adult relative ... could have given [the juvenile] the protection which his own immaturity could not.” *44 Gallegos v. Colorado, 370 U.S. 49, 54 , 82 S.Ct. 1209, 1213 , 8 L.Ed.2d 325 (1962).
The Supreme Court has recognized that a juvenile may waive his Fifth Amendment rights and that even the denial of a request to speak with a parent is only one circumstance to be assessed in determining whether a juvenile in custody waived his constitutional right to remain silent. See Fare v. Michael C., 442 U.S. 707, 725 , 99 S.Ct. 2560, 2571-72 , 61 L.Ed.2d 197 (1979). I agree with the majority in the pending case that the defendant’s confession was not coerced in violation of the Constitution and that he waived his Miranda rights. But the statutory violation remains. The Supreme Court’s decision in Michael C, involving a state conviction tested against constitutional requirements, had no occasion to consider section 5033. Neither the District Court nor the majority has given any explicit consideration to the fact that the defendant’s mother was not advised of his rights after custody attached as required by section 5033 or that her prior consent to questioning in her absence was obtained only on the assurance that he was not in custody. Though appellant has not cited section 5033, his brief presses the point that none of the interrogating officers “bothered to inform [the mother], who was sitting just outside, that her son had now been placed into custody.” Brief for Appellant at 40. The absence of a statutory citation ought not to waive a legal issue, the facts of which are undisputed in the record and are advocated on appeal.
It may well be that not every instance of noncompliance with the requirements of section 5033 invalidates a juvenile’s confession. See United States v. Doe, 701 F.2d 819, 822-23 (9th Cir.1983) (prompt notification excused where parents outside the United States). But where compliance is readily feasible, lack of compliance ought not to be excused unless it appears, with reasonable certainty, that the noncompliance did not contribute to obtaining the confession. That cannot be said here. The likelihood is that the mother, informed of her son’s peril and of his rights, would have advised him not to speak to the agents before obtaining legal representation. The fact that, without his parent’s advice, he agreed to speak to the agents provides no assurance that he would have done so had section 5033 been followed.
For these reasons, I think the confession should have been suppressed, and the conviction vacated. At a minimum, the case should be remanded to afford the Government an opportunity to prove that the violation of section 5033 was harmless. For these reasons, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490548. Public record. Not legal advice.