                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                            FILED
                              FOR THE NINTH CIRCUIT                               JAN 06 2010

                                                                              MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                          No. 09-30109

                Plaintiff - Appellee,              D.C. No. 1:08-cr-00110-RFC-1

     v.
                                                   MEMORANDUM *
JUVENILE A,

                Defendant - Appellant.


                      Appeal from the United States District Court
                               for the District of Montana
                    Richard F. Cebull, Chief District Judge, Presiding

                        Argued and Submitted December 8, 2009
                                   Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

          Defendant/Appellant L.G.H. appeals his adjudication as a juvenile

delinquent and sentence for aggravated sexual assault. We affirm.

1.        The violations of the Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C.

§ 5033, in this case do not give rise to a due process violation, so dismissal was not



           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
required. L.G.H.’s parents were not immediately notified of his custody and

Miranda rights, but the Government’s failure to advise applied only to L.G.H.’s

interrogation, not a hearing on his freedom. See United States v. RRA-A, 229 F.3d

737, 746 (9th Cir. 2000); United States v. Doe (Doe V), 219 F.3d 1009, 1016 (9th

Cir. 2000). Although L.G.H. was not immediately informed of his Miranda rights

after arrest, he was so informed before interrogation. Id.

2.    Moreover, the district court did not abuse its discretion by ordering

suppression instead of dismissal of the information as a remedy for the statutory

violations. Once the district court suppressed the confession and physical evidence

at trial, the FJDA violations were harmless “beyond a reasonable doubt.” United

States v. Doe (Doe II), 862 F.2d 776, 779 (9th Cir. 1988). The unlawfully obtained

evidence almost certainly did not serve as the basis for the initiation of the criminal

proceeding. See United States v. D.L., 453 F.3d 1115, 1126 (9th Cir. 2006). At the

time of the federal charging decision, the Government had available S.G.’s initial

statement identifying L.G.H. as the perpetrator and later statements to Agent

Weyand about the attack. The presence of this evidence, sufficient to support

conviction after trial, makes comparison to United States v. D.L., 453 F.3d 1115,

and United States v. C.M., 485 F.3d 492 (9th Cir. 2007), inapposite. Moreover, the

original charging decision under Crow tribal law was based only on S.G.’s


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identification of L.G.H. as her assaulter, which bolsters the likelihood that L.G.H.’s

confession was not the basis for filing the subsequent federal information.

3.    The district court did not abuse its discretion by refusing to permit cross-

examination of Dr. Byron. Evidence otherwise inadmissible under Federal Rule of

Evidence 412 may become admissible at trial where a party “opens the door” to the

introduction of such evidence. S.M. v. J.K., 262 F.3d 914, 919 (9th Cir. 2001).

However, the government did not do so here. It asked only about S.G.’s fear of

retribution after the attack and about anxiety that left S.G. unable to sleep at night.

It did not put S.G.’s sexual history at issue.

4.    Finally, we affirm L.G.H.’s sentence. A “district court [must] weigh[] all of

the relevant factors and f[i]nd 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.” United States v. Juvenile, 347 F.3d 778, 787 (9th Cir. 2003).

The district court weighed the severity of the crime and its impact on S.G.,

L.G.H.’s improvement after the assault and compliance with conditions of release,

L.G.H.’s possible perpetration of a sexual assault against another intoxicated

young girl, and whether L.G.H.’s family support system would promote

rehabilitation. The court specifically stated that anything less than detention would

not provide the necessary rehabilitation to “lessen[] the danger [L.G.H.]


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present[ed] to the community.” Finally, the court considered in detail the services

that the detention facility would provide L.G.H. and concluded that the facility

offered the “best treatment and rehabilitative tools” in the area, while permitting

L.G.H. to remain close to his family. The district court’s determination was

reasonable and well within its discretion.

      AFFIRMED.




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