Criminal acts occurring before and after
A special note should be made concerning cases of a continuing
nature such as conspiracy where acts occurred before and after the
eighteenth birthday. The Act does not prevent a criminal defendant
prosecuted as an adult simply because he first became embroiled in
or a substantive RICO crime which spans a period of time with which
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.
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
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
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.
U.S. 1063, 112 S. Ct. 948, 117 L. Ed. 2d 117 (1992), cert.
U.S. 1113, 112 S. Ct. 1219, 117 L. Ed. 2d 456 (1992), cert.
U.S. 924, 112 S. Ct. 1978, 118 L. Ed. 2d 577 (1992), and cert.
U.S. 961, 112 S. Ct. 2317, 119 L. Ed. 2d 236 (1992). Thus, one who
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
offense occurred after the defendant's eighteenth birthday, some
it is appropriate for the entire case to be tried in adult court,
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
transcends the eighteenth birthday, he or she must do something to
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
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.,
Calamari & J. Perillo, Contracts 8-4 (3d. ed. 1987). Therefore,
should make a threshold showing that the defendant who joined the
prior to the eighteenth birthday ratified membership in that
becoming eighteen. Welch, 15 F.3d at 1209, citing
944 F.2d at 1233.
One who does nothing to further the conspiracy or to reaffirm
in it after the eighteenth birthday should not be held criminally
liable as an
adult in federal court unless transferred. Welch, 15 F. 3d
Maddox, 944 F. 2d at 1233. Although defendants may try for
hearing as to this issue, a court has ruled that this is a matter
suited to jury resolution. Welch, 15 F. 3d at 1209.
The defendant's age at the time the substantive RICO or RICO
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
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.
Maddox, 944 F. 2d at 1233; Spoone, 741 F. 2d 687
conduct is allowed limited or no relevance to the determination of
guilt as to
post-eighteen charges). However, the court in Maddox did
pre-eighteen conduct can be relevant to put post-eighteen actions
context. Id. The jury is entitled to assess testimony of
post-majority participation in a conspiracy in light of other
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
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
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
United States v. Strothers, 77 F.3d 1389, 1392 (D.C. Cir.
at least three circuits have concluded that evidence of
pre-majority acts can be
admitted as substantive evidence of a conspiracy without a limited
Wong, 40 F.3d at 1367; Doerr, 886 F.2d at 969;
F.2d at 1476. In a case where the jury was not instructed to
of pre-eighteen conduct because the appellate court found that
evidence sufficiently supported the jury's verdict, the defendant
could not show
that the omission of the jury instruction affected his substantial
therefore, plain error was not established. Tolliver, 61 F.