U.S. v. Welch

• Citation: 15 F.3d 1202
• Decision Date: 15 June 1993
• Docket Number: 92-1370,Nos. 92-1368,s. 92-1368
• Parties: 40 Fed. R. Evid. Serv. 168 UNITED STATES of America, Appellee, v. Shane WELCH, Defendant, Appellant. UNITED STATES of America, Appellee, v. Christopher DRIESSE, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1202

15 F.3d 1202

40 Fed. R. Evid. Serv. 168

UNITED STATES of America, Appellee, v. Shane WELCH, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Christopher DRIESSE, Defendant, Appellant.

Nos. 92-1368, 92-1370.

United States Court of Appeals First Circuit.

Heard June 15, 1993.

Decided Dec. 30, 1993.

Stay of Mandate Dissolved Dec. 30, 1993.

Paul J. Haley, with whom Scott L. Hood and The Law Office of Paul J. Haley, P.A., were on brief, for appellant Shane Welch.

John P. Rab, for appellant Christopher Driesse.

Terry L. Ollila, Sp. Asst. U.S. Atty., with whom Peter E. Papps, U.S. Atty., was on brief, for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

This opinion addresses the separate appeals of Christopher Driesse and Shane Welch, two youthful defendants who were convicted of conspiring with their ten adult codefendants to possess and distribute cocaine, see 21 U.S.C. Sec. 846 (1988), as part of a New Hampshire drug distribution ring led by David Sepulveda during the period 1985-90. See United States v. Sepulveda, (1st Cir.1993) (affirming convictions of ten codefendants); ¹ see also United States v. Sepulveda (1st Cir.1993) (affirming denial of post-trial motion for dismissal or new trial based on newly discovered evidence). These appeals are accorded separate treatment primarily because Driesse and Welch initiated their participation in the Sepulveda conspiracy prior to their eighteenth birthdays. Although both came of age while their involvement in the criminal alliance continued, appellants contend that the district court lacked jurisdiction and deprived them of their rights under the Federal Juvenile Delinquency Act, 18 U.S.C. Secs. 5031-5042 (1988 & Supp.1992) (FJDA).

I. Appellants' Common Claims Under FJDA.

Appellants, whose participation in the Sepulveda conspiracy spanned their eighteenth birthdays, challenge their convictions on the grounds that the district court failed to comply with the FJDA by refusing to: (1) conduct a pretrial evidentiary hearing to determine its jurisdiction to try appellants as adults; (2) sever their trial from their ten codefendants; (3) instruct the jury that conduct prior to their eighteenth birthdays ("pre-majority conduct") could not evidence their guilt; and (4) grant their motion to dismiss, based on insufficient evidence of their post-majority participation in the conspiracy. ²

A. Pretrial Hearing on Jurisdiction.

Appellants first maintain that the FJDA divested the district court of jurisdiction to try them as adults unless some of their conspiratorial conduct occurred after they reached eighteen years of age ("post-majority conduct"). Since appellants contested the factual basis for the charge that they participated in the Sepulveda conspiracy after attaining their majority, they insist that the FJDA required a threshold evidentiary hearing on their jurisdictional claim before they could be subjected to trial as adults. ³ We do not agree.

The FJDA defines a "juvenile" as "a person who has not attained his eighteenth birthday, or for the purposes of proceedings and disposition under this chapter for an alleged act of juvenile delinquency, a person who has not attained his twenty-first birthday...." 18 U.S.C. Sec. 5031 (emphasis added). ⁴ Both Welch and Driesse were between ages eighteen and twenty-one at the time of their indictment. "Juvenile delinquency" is defined as "the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult." Id. (emphasis added). Thus, the FJDA does not apply to "a defendant who ... is not a juvenile and who has not committed an act of juvenile delinquency." United States v. Doerr, 886 F.2d 944, 969 (7th Cir.1989).

Generally speaking, it is readily apparent whether a non-continuing substantive violation was committed prior to or after the alleged offender's eighteenth birthday. See United States v. Cruz, 805 F.2d 1464, 1477 n. 15 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 and cert. denied, 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987). On the other hand, a criminal conspiracy--often a continuing offense--may persist long past its commencement, sometimes spanning the eighteenth birthday of an alleged conspirator. See United States v. Gjonaj, 861 F.2d 143, 144 (6th Cir.1988); see also United States v. Giry, 818 F.2d 120, 135 (1st Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 116 (1987). ⁵

The government asserts that the FJDA is inapplicable to appellants simply because the indictment charged that the conspiracy spanned their eighteenth birthdays. Appellants counter that the FJDA's applicability in a conspiracy case ought not depend conclusively on bare allegations as to the time period spanned by the conspiracy or the defendant's membership in it. On balance, however, we find the allegation-based approach to FJDA applicability more consonant with its language and structure, its legislative history, the case law, and important policy considerations.

Prosecutorial discretion is a hallmark of the criminal justice system. See Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985) ("[T]he decision whether or not to prosecute, and what charges to file or bring before a grand jury, generally rests entirely in [the prosecutor's] discretion.") (quoting Bordenkircher v. United States, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)). Notwithstanding several amendments expanding the role of the courts, the FJDA continues to impart considerable prosecutorial discretion as to whether an accused will be tried as an adult even though the criminal conduct charged qualifies as an act of juvenile delinquency. ⁶ For example, pursuant to 18 U.S.C. Sec. 5032 the government may bring a motion to transfer a juvenile defendant to the district court for trial as an adult if the juvenile is at least fifteen years of age and the government alleges that the juvenile committed certain enumerated "transferable" offenses (e.g., violent crimes or controlled substance violations). Although "transfer" is subject to an "interest of justice" test as well, the district court nonetheless may assume, without receiving evidence, that the government's factual allegations relating to the character of the offense are true. See In re Sealed Case, 893 F.2d 363, 369 (D.C.Cir.1990); United States v. Doe, 871 F.2d 1248, 1250 n. 1 (5th Cir.), cert. denied, 493 U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257 (1989). Yet more to the point, section 5032 permits the government to implement--again, on mere allegation, without prior hearing or judicial authorization--the mandatory "transfer" of a recidivist juvenile offender for trial as an adult. See Pub.L. No. 98-473, Title II, ch. XII, Part A, Sec. 1201, 98 Stat. 1837, 2149-50 (1988). ⁷ Given the breadth of Congress's consignment of other "jurisdictional" determinations to the prosecutor's discretion under the FJDA, it is not surprising that appellants cite no case law directly supporting their asserted right to a pretrial evidentiary hearing on the district court's jurisdiction to try them as adults. ⁸

Our interpretation comports with three basic policy concerns as well. First, neither appellant was unfairly prejudiced by the district court's decision to defer its determination of the applicability of the FJDA until trial. Congress did not amend the FJDA primarily in order to confer greater procedural rights on juveniles than are available to adults, but to assure that the procedural rights afforded juveniles would be augmented to a level comparable to those available to adults. See S.Rep. No. 1011, 93d Cong., 2d Sess. 47-48 (1974), reprinted in 1974 U.S.C.C.A.N. 5283, 5312 (FJDA simply codifies "safeguards fundamental to our system of justice," per In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). In fact, alleged offenders between the ages of eighteen and twenty-one at indictment often receive more procedural protections under the adult criminal justice system than would be available under juvenile process. ⁹

Second, the proposed pretrial evidentiary hearing would place an unwarranted burden on the prosecution, especially in multi-defendant conspiracy cases where most alleged coconspirators are adults. Regardless of the precise burden of proof applicable at the pretrial evidentiary hearing, the government would no doubt be expected to present substantial evidence outlining the alleged conspiracy, thereby prematurely "tipping its hand" on trial strategy and the testimony of its witnesses. See 18 U.S.C. Sec. 3500(a) (Jencks Act); Fed.R.Crim.P. 16(a)(2). Furthermore, we do not think a pretrial hearing would significantly enhance the procedural protection of youthful defendants already indicted by a grand jury.

Finally, the issue of district court "jurisdiction" in cases implicating the FJDA seems to us sufficiently similar to other fact-bound defenses to tip the balance in favor of a determination by the trial jury. See infra Pt. I.C. Appellants could only be convicted as adults if they "participated" in, or "ratified" the conspiracy, after age eighteen. See United States v. Maddox, 944 F.2d 1223, 1233 (6th Cir.), cert. denied, --- U.S. ----, ----, 112 S.Ct. 400, 610, 116 L.Ed.2d 349, 633 (1991), and cert. denied, --- U.S. ----, ----, ----, ----, 112 S.Ct. 948, 1219, 1978, 2317, 117 L.Ed.2d 117, 456, 118 L.Ed.2d 577, 119 L.Ed.2d 236 (1992). A finding of "participation" or "ratification" ordinarily depends heavily upon (i) common-sense evaluations of the youthful defendants' actions--viewed in the context of the criminal enterprise and the conduct of their coconspirators--and (ii) inferences as to the state of mind of the various actors. See United States v. Lopez-Pena, 912 F.2d 1536, 1537 (1st Cir.1989) (conspiracy requires that "the individual defendant knew of the...