Opinion
4:00-CR-3057
August 23, 2000
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS INDICTMENT AND REQUEST FOR EVIDENTIARY HEARING
The defendant has been charged in a single-count indictment which alleges that, beginning as early as April 2000, and continuing until at least May 5, 2000, in the District of Nebraska and elsewhere, he did willfully and knowingly combine, conspire, confederate, and agree together with other persons to distribute and possess with intent to distribute a mixture or substance containing marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1), 846 (filing 1). The defendant has filed a motion to dismiss the indictment for lack of subject matter jurisdiction on the grounds that he was under the age of 18 years when he allegedly committed the crime charged (filing 9), and has requested an evidentiary hearing to present evidence to support his motion to dismiss. I find that the defendant's motion must be denied.
I. FACTUAL BACKGROUND
For the purposes of this memorandum only, I shall consider the following facts alleged by the defendant as true. Subsequent to his arrest on April 20, 2000, Mr. Seth Jackson began cooperating with law enforcement authorities. Jackson identified the defendant as the person who supplied him with the marijuana recovered from his residence just prior to his arrest. According to Jackson, he received marijuana from the defendant periodically beginning on about April 1, 1999, and continuing until about April 1, 2000. On April 14, 2000, the defendant reached the age of eighteen. Law enforcement officials learned that Jackson still owed the defendant money for the marijuana he had purchased, and decided to have Jackson arrange a meeting with the defendant to pay a part of the money owed. This meeting occurred on May 5, 2000. On June 22, 2000, the defendant was indicted on the present charge.
The government indicates in its response brief that it also accepts these particular facts as true.
II. STANDARD OF REVIEW
"Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial on motion." Fed.R.Crim.P. 12(b). A defense based on the indictment's failure to show jurisdiction in the court shall be noticed by the court at any time during the pendency of the proceedings. Id. at 12(b)(2).
III. LEGAL DISCUSSION
The Federal Juvenile Delinquency Act [FJDA], 18 U.S.C. § 5031 — 5042, applies to those persons who commit offenses before the age of eighteen and who are below the age of twenty-one at the time of the indictment. See 18 U.S.C. § 5031. A person who commits an offense between the ages of eighteen and twenty-one cannot be adjudicated under the FJDA, but instead must be tried as an adult. United States v. Smith, 675 F. Supp. 307, 312 (E.D.N.C. 1987). In the present case, the defendant appears to be under the age of twenty-one at this time. I am asked to determine whether jurisdiction is appropriate to adjudicate the defendant as a juvenile, whether jurisdiction is appropriate to try the defendant as an adult, or whether federal jurisdiction over this case is lacking.
The government's response brief suggests that the United States may wish to certify the defendant for juvenile delinquency proceedings. In order for the district court to have jurisdiction over a juvenile in juvenile delinquency proceedings, the Attorney General must certify to the court that either (1) the juvenile court or other appropriate state court does not have jurisdiction or refuses to assume jurisdiction over the juvenile with respect to the alleged act of delinquency; (2) the state does not have available programs and services that are adequate for the needs of juveniles; or (3) the offense charged is a crime of violence that is a felony or an offense that falls within an enumerated list, and there is a substantial federal interest that warrants the exercise of federal jurisdiction. 18 U.S.C. § 5032. The government argues that it has jurisdiction over the defendant under the FJDA because the defendant is charged with a violation of 21 U.S.C. § 841, which is one of the enumerated crimes referred to in § 5032. The government also certifies in its brief that there is a substantial federal interest that is sufficient to warrant the exercise of federal jurisdiction. The government argues at some length that, although it is a question of first impression in this circuit, its certification constitutes an exercise of prosecutorial discretion and must be accepted by the courts as final.
The government's argument must be rejected. Without resolving its claim regarding the appropriate scope of review of its decision to prosecute in federal court pursuant to the FJDA, and without deciding whether certification might be appropriate on some other grounds, it is apparent that the government's present certification is disingenuous. While 21 U.S.C. § 841 constitutes the substantive offense underlying the conspiracy charge in the indictment and is an enumerated offense under 18 U.S.C. § 5032 that confers jurisdiction, the defendant has not been indicted for violating § 841. The indictment charges the defendant only with violating 21 U.S.C. § 846, which is not described in section 401 of the Controlled Substances Act referenced in § 5032. Thus, I find that since there has not been a proper certification, there is no jurisdiction over the defendant under the FJDA at this time.
It remains to be determined whether the defendant may appropriately be tried as an adult in federal court. The defendant argues that because he was under the age of eighteen years when he allegedly committed the charged offense, the indictment against him should be dismissed for lack of jurisdiction. The defendant's argument hinges on the determination of whether his acceptance of payment from Jackson subsequent to his eighteenth birthday is sufficient to permit the government to prosecute him as an adult on the conspiracy charge.
This issue appears to present a question of first impression in this circuit. Other circuits dealing with this issue can be loosely divided into two main camps. United States v. Cruz, 805 F.2d 1464 (11th Cir. 1986) represents one camp, wherein courts have held that once sufficient evidence has been introduced to allow a reasonable jury to conclude that a defendant's participation in a conspiracy continued after his eighteenth birthday, the defendant may be tried as an adult. Id. at 1476; See also United States v. Doerr, 886 F.2d 944, 969-70 (7th Cir. 1989); United States v. Harris, 944 F.2d 784, 785-86 (10th Cir. 1991). The other camp is represented by United States v. Maddox, 944 F.2d 1223 (6th Cir. 1991). In these cases, substantive rules for determining whether a person who participated in a conspiracy spanning his eighteenth birthday are articulated. See, e.g., Id. at 1233 (government must demonstrate that defendant "ratified" his membership in the conspiracy after his eighteenth birthday); United States v. Welch, 15 F.3d 1202, 1212 (1st Cir. 1993) (no conviction "unless the jury found that . . . [Welch] in some manner `ratified' [his] . . . participation in the conspiracy after attaining majority").
The substantive standard to be used in this determination is better left for a later date. For example, the parties should have an opportunity to propose jury instructions that instruct the jury to find whether the defendant withdrew from the conspiracy prior to his eighteenth birthday, or whether the defendant "ratified" the conspiracy by performing acts in furtherance of the conspiracy after his eighteenth birthday, or some other substantive standard for determining whether jurisdiction is appropriate. It is inappropriate for me to determine at this time whether the defendant committed acts in furtherance of the conspiracy subsequent to his eighteenth birthday, as the defendant requests, because to do so would require me to make a determination that ought to be made during the trial and after the appropriate standard has been argued and decided. That is, this motion may not be determined without "the trial of the general issue," and thus it is not an appropriate pretrial motion under Fed.R.Crim.P. 12(b). The evidentiary hearing would be inappropriate for the same reason. Therefore, the defendant's motion is denied in all respects.
IT IS ORDERED that the defendant's motion to dismiss the indictment and request for an evidentiary hearing are denied.