Professional Documents
Culture Documents
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Paul J. Haley, with whom Scott L. Hood and The Law Office of P
_____________
_____________
___________________
J. Haley, P.A. were on brief for appellant Shane Welch.
John P.
______________
________
for appellant Christopher Driesse.
Terry L. Ollila, Special Assistant United States Attorney, w
_______________
whom Peter E. Papps, United States Attorney, was on brief
________________
appellee.
____________________
December 30, 1993
____________________
the sepa-
period 1985-90.
(1st Cir.
ten codefendants);1
1993)] (affirming
convictions of
[___ F.3d
post-trial
motion
discovered
evidence).
for dismissal
treatment primarily
participation
1993)] (affirming
or
new trial
appeals
because Driesse
in the Sepulveda
teenth birthdays.
ment
These
and
are
denial of
based
on newly
accorded
separate
Welch initiated
conspiracy prior to
their
their eigh-
under the
Federal Juvenile
Delinquency
Act, 18
U.S.C.
conspiracy
whose
spanned their
participation
in
eighteenth birthdays,
the
Sepulveda
challenge their
____________________
1We
refer the
reader to
the main
___ _________
3
convictions
on the
grounds that
comply with
the FJDA
evidentiary hearing to
lants as
by refusing
birthdays
their
guilt; and
to
a pretrial
try appel-
teenth
to:
court failed
(1) conduct
dants; (3)
the district
("pre-majority
(4) grant
ten codefen-
conduct")
their motion
their eigh-
could not
evidence
to dismiss,
based on
maintain that
their
eighteen
conspiratorial
years of age
conduct occurred
after
they
("post-majority conduct").
factual
the
lants contested
the
basis
for the
participated in
charge
Since appelthat
after attaining
reached
they
their
a threshold eviden_________
tiary hearing
We do not agree.
eighteen
3Apparently satisfied
on
April 6,
1988;
Welch
on
that the
allegations of appellants'
___________
conduct were sufficient to satisfy the FJDA, the
post-majority
____
district court denied their pretrial motions to dismiss the
indictment for lack of jurisdiction, as well as their requests
for a pretrial evidentiary hearing.
4
ings and
disposition under
juvenile
________
first birthday
. . . ."
the time
of
18 U.S.C.
their indictment.
act of
___ __
an alleged
_______
added).4
"Juvenile delinquency"
is
by a
person prior
_____
been
a crime if
to his eighteenth
__ ___ __________
committed by an adult."
birthday which
________
would have
United States v. Doerr, 886 F.2d 944, 969 (7th Cir. 1989).
_____________
_____
Generally
speaking, it is
non-continuing substantive
after the
alleged offender's
States v. Cruz,
______
____
readily apparent
whether a
prior to
eighteenth birthday.
See
___
United
______
denied, 481 U.S. 100, and cert. denied, 482 U.S. 930 (1987).
______
___ _____ ______
the
other hand,
offense
may
or
criminal conspiracy
persist long
past
often a
its commencement,
On
continuing
sometimes
____________________
4The FJDA's remedial scheme focuses primarily on the circumstances of the alleged offender, particularly the offender's
current prospects for rehabilitation outside the adult criminal
_______
justice system, and only secondarily on the offender's age at the
time of the alleged offense.
Accordingly, even conduct that
occurred entirely before age eighteen has been held not wholly
exempt from adult criminal prosecution.
See United States v.
___ ______________
Hoo, 825 F.2d 667, 670 (2d Cir. 1987) (accused indicted after
___
twenty-first birthday is criminally liable, as an adult, for
illegal conduct committed entirely before age eighteen), cert.
________ ______
_____
denied, 484 U.S. 1035 (1988); In re Martin, 788 F.2d 696, 697-98
______
____________
(11th Cir.) (same), cert. denied, 478 U.S. 1009 (1986).
Of
_____ ______
course, given that Welch and Driesse were under age twenty-one at
indictment, this precise issue is not before us.
an alleged conspirator.
See
___
the FJDA's
applicability in
however, we
the con-
Appellants counter
a conspiracy
bare allegations as
the conspiracy or
On balance,
FJDA
eighteenth birthdays.
conclusively on
spanned by
case ought
to the
time period
find the
not
in it.
allegation-based approach
with its language
to
and struc-
ture, its legislative history, the case law, and important policy
considerations.
Prosecutorial discretion
justice system.
(1985) ("[T]he
or not
to prosecute,
607
and what
charges to
file or
bring before a
grand jury,
generally rests
____________________
entirely
kircher v.
_______
in [the
prosecutor's]
discretion.") (quoting
U.S. 357, 364 (1978)).
Borden_______
Notwith-
as an act of
the
juvenile delin-
quency.6
For
the
fifteen years of age and the government alleges that the juvenile
committed
certain
violent crimes
enumerated
or
controlled substance
"transfer" is subject
the
district
"transferable"
may
893
(e.g.,
____
Although
test as well,
assume, without
receiving
violations).
to an "interest of justice"
court nonetheless
the character of
offenses
to
Doe, 871
___
____________________
F.2d
1248, 1250
n.1
(5th
Cir.), cert.
_____
(1989).
ment to
implement
hearing
or judicial authorization
again, on
917
prior
493 U.S.
2149-50
denied,
______
Part A,
See Pub.
___
evidentiary hearing on
to a pretrial
to try
them as adults.8
____________________
Our
concerns
interpretation comports
as well.
First, neither
with
three basic
policy
FJDA primarily in
rights on juveniles
that
until trial.
order to confer
Congress did
not
greater procedural
but to assure
to a level
No. 1011,
2d Sess. 47-48
our system of
See S. Rep.
___
U.S. 1
twenty-one
at
indictment
often
receive
more
____
procedural
1476-77.
Thus, evidence of the defendant's pre-majority conduct
was admissible on the ultimate issue of guilt, and not merely to
show knowledge of the conspiracy. See infra Pt. I.B.
___ _____
Other cases cited by appellants, relying on Cruz, suffer
____
from the same misfocus and, if anything, suggest that the appropriate vantage for determining such jurisdictional facts is after
all the evidence has been presented at trial. See United States
___ _____________
v. Maddox, 944 F.2d 1223, 1233-34 (6th Cir.) ("evidence was more
______
than sufficient for the jury to conclude . . ."), cert. denied,
_____ ______
112 S. Ct. 400, 610 (1991), and cert. denied, 112 S. Ct. 948,
___ _____ ______
1219, 1978, 2317 (1992); United States v. Harris, 944 F.2d 784,
_____________
______
786 (10th Cir. 1991) ("since the government had presented evidence from which the jury could infer . . ."), cert. denied, 112
_____ ______
S. Ct. 903 (1992); Gjonaj, 861 F.2d at 143-44 (finding evidence
______
sufficient for judge to sentence defendant as adult after guilty
plea).
unwarranted burden
multi-defendant conspiracy
on the
prosecution, especially
cases where
most alleged
in
coconspir-
____________________
information, see 18 U.S.C.
5032.
___
fundamental right to trial by jury.
An adult
accused has
the
ators
are adults.
applicable at
would
no doubt
outlining
Regardless
the pretrial
be
expected
the alleged
of the
precise burden
evidentiary hearing,
to
present
conspiracy, thereby
of proof
the government
substantial
evidence
prematurely "tipping
its hand" on
See 18 U.S.C.
___
3500(a) (Jencks
Furthermore,
we do
not think
of its witnesses.
pretrial hearing
would signi-
fact-bound defenses
to
tip
to us sufficiently
the balance
context
the
of
youthful
the criminal
coconspirators
the various
112 S.
upon (i)
defendants'
enterprise
See
___
actions
"ratifica-
and the
viewed
conduct
1219,
common-sense evalua-
actors.
112 S.
Ct. 948,
of "participation" or
tions of
Appellants
610 (1991),
"participated" in, or
Ct. 400,
favor of
in
similar to
in
the
of their
of mind of
912 F.2d
"the indi-
S. Ct.
2886 (1991).
resolution.
See
___
931 F.2d
jury, not
to inferences formulated by
Cir.)
the jury
mance of their
to discriminate
See, e.g.,
___ ____
Properly instructed in
1476.
We
the perfor-
can be entrusted
post-majority conduct.
militate
against
111 S.
requiring
related
pretrial
____________________
10In fact, the FJDA expressly requires very similar evidentiary monitoring by the jury once the prosecutor's allegations
have led to a youthful defendant's trial as an adult.
After a
juvenile has been transferred for trial as an adult, whether by
transfer hearing or mandatory process, see supra note 6 and
___ _____
accompanying text, unless the jury also convicts the accused of a
________
transferable crime the accused is returned for disposition under
the FJDA.
See 18 U.S.C.
5032 (listing types of crimes permit___
ting "transfer").
Even the FJDA amendments of 1984, which
conferred significant "transfer" discretion upon the prosecutor,
kept these "return" provisions in place on the theory that jury
involvement, after factual corroboration at trial, provides a
valuable case-by-case assessment of
the appropriateness of
juvenile process.
See S. Rep. No 225, 98th Cong., 1st Sess. 391
___
(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3531.
____________
12
B.
B.
Severance.
Severance.
_________
Fed. R.
adult
meager
Crim. P.
codefendants was
evidence
so voluminous,
against
appellants,
in
that
their ten
comparison with
the
jury
the
would
indiscriminately
lump appellants
pre-majority
conduct
against
the
adults, and
evidence of appeladult
codefendants,
motion for
severance
is
committed
to
the
sound
resulting in a miscarriage of
justice.
See
___
In
result from a
joint trial.
See United States v. Barnett, 989 F.2d 546, 559 (1st Cir.), cert.
___ _____________
_______
_____
denied, 114
______
S. Ct.
Martinez, 922
________
F.2d 914, 922 (1st Cir. 1991) (noting that "'prejudice means more
than just
a better
(citation
omitted).
chance of acquittal
Appellants
at a
separate trial'")
especial preju-
dice.
The
existence
of
stronger
evidence
against
their
spillover.
13
825 F.2d 538, 554-55 (1st Cir. 1987), cert. denied, 486 U.S. 1042
_____ ______
(1988).
Nor
particular
prominent codefendants.
safeguards
role of a
a joint trial
with more
Adequate
cases.
For example,
the district
court carefully cautioned the jury in the present case to consider the evidence
an extraordinary
ability of
impediment, we
the trial
will credit
jury to abide
See Cresta,
___ ______
some evidence of
the readiness
by cautionary
and
and limiting
1446, 1452
evidence
against
all their
prejudicial
of their
argue
that
severance
pre-majority conduct
codefendants, but
evidentiary spillover
not against
cannot
was
required
was admissible
them.
result from
Since
evidence
1452 (citing United States v. Sabatino, 943 F.2d 94, 96 (1st Cir.
_____________
________
1991)), appellants
must establish
that evidence
of their
pre-
was not
urged by
evidence of
of evidence of
pre-majority conduct
cautionary
pre-majority conduct
the sole
basis for the defendant's conviction, and therefore that the FJDA
could
violated.
Id.
___
The jury
charge in Spoone
______
provide
cy, as
an aid
eighteen.
________
in assessing
F.2d 1464:
after age
_____ ___
the offense
occurred after
entire case
the defendant's
may be tried
proach).
in Cruz, 805
____
birthday, the
note
his conduct
___ _______
Id.
___
We think the
acts of
evidence of
________ __
eighteenth
in accordance
Id. at 1477.
___
with the
See supra
___ _____
at 969-70 (adopting
Cruz ap____
appellants
would afford
appropriate
significantly
greater protection
than
We therefore
on the
same
bases as
other evidence,
and does
not alone
Jury Instructions.
Jury Instructions.
_________________
Appellants further
not
properly
limit
contend that
jury consideration
15
the instructions
of
their
did
pre-majority
conduct.
Although evidence
admissible against
F.2d at 1477,
of their
appellants for
we reject any
pre-majority conduct
all purposes,
was
see Cruz,
___ ____
805
Cruz for
____
the
proposed reliance on
proposition that the trial judge is the sole and final arbiter of
conduct, or that
to
been
1476-77; see
___
the satisfaction of
also Doerr, 886
____ _____
the trial
court.
See
___
id. at
___
the evidentiary
threshold has been met, the trial is "limited only by the Federal
Rules of Evidence").11
is somewhat analogous
An age-of-majority-spanning
to a criminal conspiracy that
conspiracy
spans a bar
must be
instructed to acquit
the conspiracy
a defendant
date.
who
See United
___ ______
also
____
United States v. Juodakis, 834 F.2d 1099, 1102-04 (1st Cir. 1987)
_____________
________
(per curiam).
The
statute
of limitations
analog
is imperfect,
of
course.
____________________
11The
approach approved
to a
statute-of-limitations bar
follow
that appellants
date, nor
could be
convicted
does it
necessarily
as "adults"
simply
because there was no evidence that they withdrew from the age-ofmajority-spanning conspiracy
A
more apt
spanning
analogy for
FJDA
conspiracies may
be
prior to attaining
age eighteen.12
cases involving
age-of-majority-
the contract
"ratification" doc-
nonetheless affirm
of majority
John D. Calamari
by his
post-majority conduct.
See
___
liable as
adult) (citing
1987)).
We think
better comports
with the
inaction.
See
___
v. Bishop,
______
469 F.2d
therefore, rather
____________________
than face
age-of-majority-spanning
failing to "withdraw"
conspiracy
prior
to
from the
attaining
age
in the
events, whatever
"ratification" theory
spanning
in
the
conspiracy, the
the precise
context
of
an
instructions
in
this
contours of
The district
the
age-of-majoritycase
required
as fol-
lows:
[T]he defendant's juvenile acts may not be
considered as proof of his participation in
the conspiracy unless the jury first finds
that he participated in the conspiracy after
his eighteenth birthday. . . .
In other
words, you can't consider the acts before
___ _____ ________ ___ ____ ______
their eighteenth birthday unless you first
_____ __________ ________ ______ ___ _____
find beyond a reasonable doubt that they
____ ______ _ __________ _____ ____ ____
participated in the conspiracy after they
____________ __ ___ __________ _____ ____
attained the age of eighteen years.
________ ___ ___ __ ________ _____
(Emphasis added.)
quired
the jury
The
challenged
to determine
post-majority participation
appellants'
theory,
convictions.
instruction effectively
whether
evidence of
knowing participation
in any
act in
re-
appellants'
to support
the "moving
train"
furtherance of
____________________
13Juries commonly are called upon to make similar distinctions in determining the criminal liability of codefendants as
accessories, a task which requires findings both as to the
underlying offense and the codefendants' association with the
principal. See, e.g., United States v. Ortiz, 966 F.2d 707, 711___ ____ _____________
_____
12 (1st Cir. 1992) (collecting cases), cert. denied, 113 S. Ct.
_____ ______
1005 (1993).
18
conspiracy
entails full
conspiratorial liability.
See United
___ ______
Cir.), cert.
_____
denied, 492
______
41, 42 (1st.
Cir. 1987).
812 F.2d
to
if it
found post-majority
____
conduct sufficient
to
"[E]schewing
credibility
judgments
and
drawing
all
the verdict,"
sufficiency of
a view to whether
the verdict
record" and
"draws its
whether
essence from a
the jury
government
rationally
established
every
element
of
offense
that
the charged
the
offense
F.2d 896,
have to disprove
their voluntary
determined
element of the
have
could
we evaluate the
on but one
by Driesse from which the jury reasonably could have found direct
participation
teenth
in the
birthday on
Sepulveda conspiracy
April 6,
1988.
In the
following
his eigh-
"summer of
1988,"
19
Driesse delivered
Rice;
an ounce of
of John
Driesse had
from Rice.
delivered was
underweight, Driesse
on a drug
run to Massachusetts in
admitted to
Massachusetts
early 1989.
cocaine
Rice that
collected $1150
he had
the coke."
made another
Driesse
drug
Langlois in late
several
times
week
run to
1988 or
from Driesse
at the
bought
throughout
1989.
witnesses testified
to
overt conduct
by
Shane
Welch from which the jury reasonably could have inferred participation in
the conspiracy
following his
In late 1989
these transactions.
on
eighteenth birthday
Welch, usually at
Edgar Sepul-
himself conducted
accompanied Santos
purpose
inventory.
During
surveillance by
of
replenishing
the
Sepulvedas'
local police,
Welch warned
after he stopped
20
cocaine
Santos.
Detective
the
cocaine was
seized.14
Following his
return to
New Hampshire,
only
attack
evidence is that it is
jury's
all
this
v. David,
_____
ample evi-
post-majority
mount against
credibility determination.
appellants
participation
to
overcome
appellants'
____________________
Clause.
Coconspirator Statements.
Coconspirator Statements.
________________________
Driesse claims that the district court committed reversible error by allowing the
objection, an inadmissible
James
Noe testi-
admitting the
hearsay statement
No reason was
over the
Driesse
to prove by a
"coconspirator,"
would have
Fed.
R.
Evid.
been admissible if
801(d)(2)(E), whose
statement
the con-
spiracy."
"[A]
[putative]
coconspirator's
statement,
standing
________
the proponent of
evidence
of
the
declarant's
no such
statement was
involvement
in
the
extrinsic evidence
the sole
____
submit some
source
in the
of Noe's
record.
knowledge
____________________
39-49.
22
about
Labrecque's complicity.
and that
Driesse on previous
Noe had
occasions.
observed Labrecque
"with"
v. Gomez, 921
_____
F.2d 378, 381 (1st Cir. 1991) (mere "association" does not establish conspiratorial involvement).
Labrecque for Labrecque's
cocaine to
__
Noe never
"for" Driesse.
trial court
likely
than
Although the
was permitted
not"
that
to
conclude that
Labrecque
was
an
it was
"more
"unindicted
such an infer-
ence.
Although
admission
error, we conclude
that the
Crim.
No
P. 52(a).
of
Noe's
error was
less than
five
hearsay
harmless.
statement
See Fed.
___
other witnesses
was
R.
offered
ment in
See
___
the
conspiracy.
Labrecque hearsay
supra Section
_____
statement was
I.D.
merely cumulative,
involveThus,
the
and had
no
B.
B.
witness"
that he
instruction, which
infer, from
"'the failure of
was entitled
would have
to a
permitted
a party to produce
"missing
the jury
to
available evi-
or
whom it
would
normally be
expected
to favor.'"
United States
_____________
(citation omitted).
579, 597
to testify
status or relation-
available" to the
govern-
asserted
located by
that
Labrecque could
the government
since he
more
easily
Id.
___
have been
probationary
review
the
refusal to
give
"missing witness"
____________________
instruction for
abuse of
United States
_____________
discretion.
v. Arias______
in the same
make no
bare fact
that Labrecque
was a
familial relationship,
state probationer
did not
unavailable to Driesse.
Indeed, the
where
whereabouts
during
government's
F.2d at
598 (upholding
government allegedly
attested
call Labrecque as
any evidence
880
trial),
a witness.17
that
government provided
Labrecque was
knew
that he
cf. St.
___ ___
denial of
missing witness's
was
not
In these circumstances,
not
available to
his
in the
need) to
absent
cousin
____________________
17As
Driesse, or
locate or
that the
government interfered
produce Labrecque at
well within
its discretion
with any
in denying
effort to
court acted
a "missing witness"
in-
struction.
C.
C.
Sentencing.
Sentencing.
__________
Finally, Driesse challenges the drug quantity
calcula-
sentencing.
The
on the
on "about 20" drug runs between 1987 and 1989, involving from one
9.09 kilos
(or
320 oz.).
Thus,
in a total estimate of
Driesse was
assigned a
base
the rough
of drug
runs but the cocaine quantity per trips, the only rough averaging
involved in the drug quantity
(4 ozs. to 1 kilogram).
trip
quantity range (4 ozs.) per trip would yield a total drug quanti26
ty
of approximately 2.3
well below
accordance
____________________