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145

Criminal acts occurring before and after defendant's eighteenth birthday

A special note should be made concerning cases of a continuing criminal nature such as conspiracy where acts occurred before and after the defendant's eighteenth birthday. The Act does not prevent a criminal defendant from being prosecuted as an adult simply because he first became embroiled in a conspiracy or a substantive RICO crime which spans a period of time with which he was charged while still a minor. United States v. Wong, 40 F. 3d 1347, 1365 (2d Cir. 1994), cert. denied, ___ U.S. ___, 116 S. Ct. 190, ___ L. Ed. 2d ___ (1995); United States v. Gjonaj, 861 F. 2d 143 (6th Cir. 1988); Cruz, 805 F. 2d at 1475 (quoting United States v. Spoone, 741 F. 2d 680, 687 (4th Cir. 1984), cert. denied, 469 U.S. 1162, 105 S. Ct. 917, 83 L. Ed. 2d 929 (1985)). Although the crime of conspiracy is "complete" at the moment the deal is struck, it is a continuing crime. United States v. Tolliver, 61 F. 3d 1189, 1199 (5th Cir. 1995). A co-conspirator commits the crime each day he remains a member of the conspiracy. United States v. Maddox, 944 F. 2d 1223, 1233 (6th Cir.), cert. denied, 502 U.S. 950, 992, 112 S. Ct. 400, 610, 116 L. Ed. 2d 349, 633 (1991), cert. denied, 502 U.S. 1063, 112 S. Ct. 948, 117 L. Ed. 2d 117 (1992), cert. denied, 502 U.S. 1113, 112 S. Ct. 1219, 117 L. Ed. 2d 456 (1992), cert. denied, 504 U.S. 924, 112 S. Ct. 1978, 118 L. Ed. 2d 577 (1992), and cert. denied, 504 U.S. 961, 112 S. Ct. 2317, 119 L. Ed. 2d 236 (1992). Thus, one who continues to participate in a conspiracy after his eighteenth birthday commits an act in violation of law after his birthday and may be subject to prosecution as an adult. Id. Once it is established that certain acts of the charged offense occurred after the defendant's eighteenth birthday, some courts believe it is appropriate for the entire case to be tried in adult court, and the government's introduction of evidence is limited only by the Federal Rules of Evidence. Wong, 40 F. 3d at 1368; United States v. Doerr, 886 F. 2d 944, 969-70 (7th Cir. 1989); United States v. Cruz, 805 F.2d at 1477.

For the defendant to be charged as an adult with a conspiracy that transcends the eighteenth birthday, he or she must do something to ratify the involvement in the conspiracy after reaching the age of majority. Tolliver, 61 F. 3d at 1200; Maddox, 944 F. 2d at 1233. Courts have reasoned this concept analogous to the concept of ratification in contract law. Id. An infant cannot enter a contract prior to majority age, but can be held liable if he or she acts to ratify the contract. Id., citing J. Calamari & J. Perillo, Contracts 8-4 (3d. ed. 1987). Therefore, the government should make a threshold showing that the defendant who joined the conspiracy prior to the eighteenth birthday ratified membership in that conspiracy after becoming eighteen. Welch, 15 F.3d at 1209, citing Maddox, 944 F.2d at 1233.

One who does nothing to further the conspiracy or to reaffirm membership in it after the eighteenth birthday should not be held criminally liable as an adult in federal court unless transferred. Welch, 15 F. 3d at 1207; Maddox, 944 F. 2d at 1233. Although defendants may try for a pretrial hearing as to this issue, a court has ruled that this is a matter especially suited to jury resolution. Welch, 15 F. 3d at 1209.

The defendant's age at the time the substantive RICO or RICO conspiracy offense is completed is the relevant age for purposes of the Act, and that an adult defendant may properly be held liable under RICO for predicate offenses committed as a juvenile. Wong, 40 F.3d at 1368.

Circuits are split on whether the district court must instruct the jury to disregard evidence of pre-eighteen conduct when determining guilt. See Maddox, 944 F. 2d at 1233; Spoone, 741 F. 2d 687 (holding pre-eighteen conduct is allowed limited or no relevance to the determination of guilt as to post-eighteen charges). However, the court in Maddox did state that pre-eighteen conduct can be relevant to put post-eighteen actions in proper context. Id. The jury is entitled to assess testimony of a defendant's post-majority participation in a conspiracy in light of other evidence showing the defendant had known of the criminal scheme since its inception. Spoone, 741 F.2d at 687. But see Wong, 40 F. 3d at 1368; Doerr, 886 F. 2d at 969-70 (an adult defendant may properly be held liable for pre-eighteen actions). Where there is one continuous conspiracy, and the defendant has straddled his eighteenth birthday by membership in that conspiracy both before and after that significant day, his prior acts could be found to be the sole basis for guilt. United States v. Newton, 44 F.3d 913, 919 (11th Cir. 1995), citing Cruz, 805 F.2d 1464.

Instructing jurors that evidence of pre-eighteen conduct is admitted and can be considered for the limited purposes of enabling them to decide when, if ever, a defendant became a member of a charged conspiracy, may avoid error. United States v. Strothers, 77 F.3d 1389, 1392 (D.C. Cir. 1996). However, at least three circuits have concluded that evidence of pre-majority acts can be admitted as substantive evidence of a conspiracy without a limited instruction. Wong, 40 F.3d at 1367; Doerr, 886 F.2d at 969; Cruz, 805 F.2d at 1476. In a case where the jury was not instructed to disregard evidence of pre-eighteen conduct because the appellate court found that post-eighteen evidence sufficiently supported the jury's verdict, the defendant could not show that the omission of the jury instruction affected his substantial rights, and therefore, plain error was not established. Tolliver, 61 F. 3d at 1200-01.