                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 3, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-8064
          v.                                           (D. Wyoming)
 N.J.Y. (a juvenile),                           (D.C. No. 05-CR-35-02-D)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      N.J.Y., a juvenile, was adjudged delinquent under 18 U.S.C. §§ 5032 and

5037 by having committed sexual abuse and aiding and abetting sexual abuse,

which acts would have been crimes in violation of 18 U.S.C. §§ 2, 1153, and

2242(2)(A). He was sentenced to probation until his twenty-first birthday and

ordered to remain at a juvenile residential treatment facility where he would

undergo sexual offender and substance abuse treatment for an indefinite term not

to exceed his twenty-first birthday. He appeals his adjudication. For the reasons

set forth below, we affirm.



                                 BACKGROUND

      N.J.Y. was charged by information in February 2005 under the Federal

Juvenile Delinquency Act (“FJDA”), 18 U.S.C. §§ 5031-5042, based on conduct

that had allegedly occurred in September 2003, when N.J.Y. was fourteen years

old. He filed a motion to suppress oral and written statements that he had given

to Federal Bureau of Investigation (“FBI”) and local law enforcement agents two

days after the incident, when the agents visited the residence where N.J.Y. was

living with his aunt. He argued in this motion that the statements were obtained

in violation of the Fifth Amendment because he had not received the warnings

dictated by Miranda v. Arizona, 384 U.S. 436 (1966), prior to being questioned

and because the statements were not voluntary. He also filed a demand for a jury


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trial, arguing that the rule that the right to a jury trial does not apply to juvenile

delinquency proceedings is no longer valid in light of the Supreme Court’s

renewed emphasis on the Sixth Amendment as evidenced in the line of cases

culminating in United States v. Booker, 543 U.S. 220 (2005).

      Following a hearing on the suppression issue, the district court made the

following oral findings of fact:

      [T]he two officers arrived at the residence where [N.J.Y.] was
      located, unannounced. The . . . officers did speak with [N.J.Y.’s
      aunt] who called [N.J.Y.] to the front door. Officers indicate[d] that
      they c[ould] interview inside the house or inside the[ir] vehicle but
      expressed their preference to do the interview in the vehicle because
      the officers’ experience is that juveniles can often speak more freely
      outside the hearing of an adult and their family. [The aunt]
      indicate[d] it’s okay to interview him in the vehicle, and [N.J.Y.]
      agreed to be interviewed.

             [N.J.Y.] sat in the front seat with [the FBI agent] in the
      driver’s seat, and [the local agent] at some point got in behind him
      after speaking with [the aunt]. [The FBI agent] tells [N.J.Y.] he does
      not have to answer questions; he can open the car door from the
      inside and leave; he can stop the interview at any time; he’s not
      under arrest and won’t be arrested at the end of the interview and
      that the agents only want to hear the truth. The agents’ weapons are
      not visible, although a rifle is hung in the back of the SUV.

             At some point in time, [the aunt] came out of the house, got in
      her car and left, apparently to go to the post office.

             [The FBI agent] asked [N.J.Y.] to tell his side of the story
      regarding the incident. [The FBI agent] tells [N.J.Y.], after he gives
      his story, that he doesn’t believe him. [N.J.Y.] admits he knows
      more, and the agent asks him to tell his story again. Again, he tells a
      story, and again the officer tells him he doesn’t believe it to be


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      truthful. The agent discusses telling the truth, and he tells [N.J.Y.]
      that he thinks he’s doing himself more harm by not telling the truth.

             [N.J.Y.] gets out of the vehicle, leaves the door open, goes
      back to his own house, leaves the front door of the house open. [The
      FBI agent] follows him to the house threshold and yells into the
      home, telling him his view that [N.J.Y.]’s story is inconsistent with
      the medical evidence that indicates that [the alleged victim] was
      involved in a sexual activity, and it may have been non-consensual
      and that he again expressed his view that [N.J.Y.] was not being
      truthful.

             [N.J.Y.] exited the house and got back into the [agents’]
      vehicle. At some point in time during the interview, he admitted
      having sexual intercourse with [the alleged victim]. [The FBI agent]
      asks if they can take a written statement; and he, during the course of
      the interview of [N.J.Y.], created [the] [e]xhibit . . . which was the
      statement written in the hand of [the FBI agent]. At the end of the
      statement in print are the words “I have R-E-D-I-N-G that,”
      something crossed out and the initials “NJY,” then the word
      “statement,” and “I G-E-I-N W-E-N-T it.” And in parentheses [the
      FBI agent] writes underneath those words “agree with.” And there is
      again the initials of “NJY” underneath “agree with” and to the right
      of it. The statement is witnessed by both [the FBI agent] and [the
      local agent], a two-page statement.

            The testimony in this case . . . has indicated that [N.J.Y.]
      currently operates at a sixth- or seventh- grade level. Earlier testing
      had him operating at the reading level of a second-grader.

Tr. of Bench Trial at 891-93, R. Vol. VIII (sealed). After issuing these findings,

the district court denied N.J.Y.’s motion to suppress, holding that Miranda did not

apply because N.J.Y. was not in custody at the time he made the statements and

that N.J.Y. made the statements voluntarily. The district court also denied

N.J.Y.’s demand for a jury trial.


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         Following a bench trial, the district court adjudged N.J.Y. to be a juvenile

delinquent, as indicated above. On appeal, N.J.Y. challenges the district court’s

rulings on the suppression and jury trial issues.



                                     DISCUSSION

I.       Motion to Suppress

         In asserting that the statements described above should have been

suppressed, N.J.Y. renews the arguments he made below concerning the agents’

failure to give Miranda warnings and the involuntariness of the statements. In our

review of these issues, “this court accepts the district court’s factual findings

unless clearly erroneous and views the evidence in the light most favorable to the

prevailing party.” United States v. Erving L., 147 F.3d 1240, 1242 (10th Cir.

1998).

         A.    Miranda warnings

         It is undisputed in this case that the agents did not give N.J.Y. Miranda

warnings before they questioned him. However, Miranda warnings are only

required “when an individual is subject to ‘custodial interrogation.’” United

States v. Hudson, 210 F.3d 1184, 1190 (10th Cir. 2000) (quoting Miranda, 384

U.S. at 444). The district court’s conclusion that N.J.Y. was not “in custody” for

purposes of Miranda is reviewed de novo. Erving L., 147 F.3d at 1246. In


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performing this review, we must determine whether a reasonable person in

N.J.Y.’s position “‘would have understood his situation . . . as the functional

equivalent of formal arrest.’” Hudson, 210 F.3d at 1190 (quoting Berkemer v.

McCarty, 468 U.S. 420, 442 (1984)); see Yarborough v. Alvarado, 541 U.S. 652,

662 (2004) (“[C]ustody must be determined based on how a reasonable person in

the suspect’s situation would perceive his circumstances.”); see also Erving L.,

147 F.3d at 1248 (applying standard of “a reasonable juvenile”).

      N.J.Y. does not argue that he was “in custody” during the agents’ initial

questioning but asserts that the questioning became custodial after he left the

agents’ vehicle, was followed to his home by the FBI agent, was told by the agent

that his story so far was inconsistent with the medical evidence, and returned to

the vehicle. According to N.J.Y., these circumstances “would have caused a

‘reasonable’ fourteen[-]year-old to believe that he was not free to leave and that

he was required to answer further questions.” Appellant’s Br. at 29 (sealed).

N.J.Y. also points to expert testimony of a psychologist that was offered during

the evidentiary hearing below. The expert stated that based on his examination of

N.J.Y., he “believe[d] that [N.J.Y.] didn’t perceive a realistic choice” in regard to

whether he had to return to the agents’ vehicle because “the mechanism that [the

FBI agent] had given [N.J.Y.] to interrupt the interview was to leave the vehicle,

which [N.J.Y.] exercised; and at that point the interview was not terminated, but


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instead [the FBI agent] followed [N.J.Y.] to the home.” Tr. of Bench Trial at

773, R. Vol. VII (sealed).

      Based on our careful review of the record, we do not agree that a

reasonable juvenile in N.J.Y.’s position would have believed himself to be in the

functional equivalent of a formal arrest at the point he returned to the agents’

vehicle. Although the agents did not leave when N.J.Y. exited the vehicle the

first time, the FBI agent’s further statements to N.J.Y. at the threshold of his

home were in the manner of attempting to persuade N.J.Y. that it was in his best

interests to return to the car and tell the truth and did not appear to change the

environment in which the interrogation was taking place. Specifically, the FBI

agent testified that

      [b]asically my message at that point in time was that I had crystal
      clear evidence from a doctor that [the alleged victim] had been
      involved in sexual activity the previous Saturday night and that it
      was very likely that that sexual activity may have been non-
      consensual or even rise to the level of a sexual assault and that I felt
      that [N.J.Y.] had . . . not helped himself any by telling me the stories
      he had told me.

Id. at 608, R. Vol. VI. According to the agent, after he “continued to relate that

same message,” N.J.Y. “agreed to come back and continue the interview.” Id. at

609. Moreover, as indicated by the district court’s findings, which are not clearly

erroneous, the agents clearly stated to N.J.Y. at the outset that he was free to

leave and would not be arrested. The FBI agent further testified that he told


                                          -7-
N.J.Y. that these “ground rules” still applied when they returned to the vehicle.

Id. at 697, 701, R. Vol. VII. We therefore conclude that N.J.Y. was not in

custody for purposes of Miranda and that the agents therefore were not required

to give him Miranda warnings.

      B.     Voluntariness

      As stated, N.J.Y. also asserts that, regardless of Miranda’s applicability, his

statements to the agents should have been suppressed as involuntary. In

reviewing the district court’s conclusion to the contrary, we must “examine the

entire record and make an independent determination of the ultimate issue of

voluntariness.” Erving L., 147 F.3d at 1248 (internal quotation omitted). This

determination rests on “whether, considering the totality of the circumstances, the

government obtained the statements by physical or psychological coercion or by

improper inducement so that the suspect’s will was overborne.” Id. at 1248-49;

see also United States v. Toles, 297 F.3d 959, 965 (10th Cir. 2002).

      In particular, we examine “both the characteristics of the accused and the

details of the interrogation,” including “(1) the age, intelligence, and education of

the defendant; (2) the length of detention; (3) the length and nature of the

questioning; (4) whether the defendant was advised of his constitutional rights;

and (5) whether the defendant was subject to physical punishment.” United States

v. Lopez, 437 F.3d 1059, 1063-64 (10th Cir. 2006) (internal quotation omitted).


                                         -8-
The government bears the burden of proving voluntariness by a preponderance of

the evidence. Id. at 1063 (citing Missouri v. Seibert, 542 U.S. 600, 608 n.1

(2004)). However, in order for suppression of statements to be appropriate, there

must be some evidence of coercion, either through physical force or through some

other form of manipulation. See Erving L., 147 F.3d at 1251 (holding confession

by thirteen-year-old voluntary where “none of the actions of the officers were

coercive”); United States v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993) (“[T]o

find a statement involuntary, the police must somehow overreach by exploiting a

weakness or condition known to exist.”).

      N.J.Y. points to the following in support of his claim that his statements

were involuntary: that he was fourteen years old at the time of the interrogation;

that he had a “reduced intellectual ability”; that the questioning occurred in the

agents’ car; that his parents or legal guardian were not present; that “the

questioning took approximately two hours and N.J.Y. was never fully advised of

his constitutional rights”; that the FBI agent followed him after he left the vehicle

“and induced him to reenter”; and that the FBI agent accused N.J.Y. of not telling

the truth. Appellant’s Br. at 25-26.

      We recognize that “admissions and confessions of juveniles require special

caution.” In re Gault, 387 U.S. 1, 45 (1967); see also A.M. v. Butler, 360 F.3d

787, 800 (7th Cir. 2004). However, as stated above, N.J.Y. was not in custody


                                          -9-
during his questioning. Although no parent or guardian was present, the

questioning took place in a vehicle a short distance away from his home, and he

was told he was free to leave at any time and at one point did so. While the FBI

agent testified that the entire interrogation lasted between one and one-half to two

hours, he stated that most of this time was spent composing N.J.Y.’s written

statement after he had admitted having sexual contact with the alleged victim. Tr.

of Bench Trial at 890, R. Vol. VIII (sealed). The record does not indicate that the

agents pressed for a particular story from N.J.Y. but that they repeatedly told him

they wanted the truth. Under these circumstances, the agents’ assertions at

several points during the initial interview that N.J.Y. was not telling the truth, and

that his story was inconsistent with medical evidence, did not amount to coercion.

Moreover, though the FBI agent wrote N.J.Y.’s written statement after N.J.Y.

indicated he could not write well, there is no indication that the agents were

aware that N.J.Y. had a “reduced intellectual ability” or made efforts to exploit

any such reduced ability.

      Thus, based on our review of the totality of the circumstances as indicated

by the record and the district court’s findings, we cannot conclude that the agents

engaged in any form of coercion, either through force or through manipulation of

N.J.Y.’s youth or other personal characteristics. We therefore affirm the district

court’s ruling that N.J.Y.’s statements were voluntary.


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      Accordingly, we affirm the district court’s denial of N.J.Y.’s motion to

suppress.



II.   Jury Trial

      In regard to N.J.Y.’s demand for a jury trial, N.J.Y. acknowledges that it is

established law in this circuit that juveniles are not entitled to a jury trial in

delinquency proceedings conducted pursuant to the FJDA. See McKeiver v.

Pennsylvania, 403 U.S. 528, 550 (1971) (rejecting right to jury trial in state court

juvenile proceedings); United States v. Duboise, 604 F.2d 648, 652 (10th Cir.

1979) (rejecting right to jury trial in FJDA proceedings); see also United States v.

Brian N., 900 F.2d 218, 220 (10th Cir. 1990) (explaining that FJDA proceedings

“result[] in an adjudication of status—not a criminal conviction” and that the

purpose of such proceedings “is to remove juveniles from the ordinary criminal

process in order to avoid the stigma of a prior criminal conviction and to

encourage treatment and rehabilitation”). However, N.J.Y. contends that “[t]he

continuing validity of [these cases] is questionable given the U.S. Supreme

Court’s recent emphasis on a defendant’s right to a jury” in Booker and the line of

cases preceding it. Appellant’s Br. at 34.

      The cases to which N.J.Y. refers concern the requirement that a jury make

all factual findings that serve to increase a criminal defendant’s sentence under a


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mandatory sentencing scheme. See, e.g., Booker, 543 U.S. at 244. We do not

perceive a direct connection between the Supreme Court’s rulings in those cases

and the right to a jury trial in noncriminal juvenile delinquency proceedings. We

must therefore adhere to this circuit’s precedent on the issue. See United States

v. Brothers, 438 F.3d 1068, 1074 (10th Cir. 2006). Accordingly, we affirm the

district court’s denial of a jury trial in this case.




                                     CONCLUSION

       For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                   ENTERED FOR THE COURT


                                                   Stephen H. Anderson
                                                   Circuit Judge




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