United States v. Vargas-De-Jesus

United States Court of Appeals
For the First Circuit
No. 09-1519
UNITED STATES OF AMERICA,
Appellee,
v.
WAYNE VARGAS-DE JESÚS, a/k/a Waynsito,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Thompson, Selya, and Dyk,* Circuit Judges.
José Luis Novas Debien for appellant.
José Capo-Iriarte, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and Julia M. Meconiates, Assistant United States Attorney, were on
brief, for appellee.
August 30, 2010
*
Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. Wayne Vargas-De Jesús (“Vargas”) was
convicted on two counts charging violations of 21 U.S.C. §§
841(a)(1) and 860 — possession with intent to distribute illegal
drugs within one thousand feet of a school. He was also convicted
of one count of conspiracy to violate those provisions. See 21
U.S.C. § 846. On appeal, Vargas challenges the substantive
convictions based on lack of jurisdiction under the Federal
Juvenile Delinquency Act (“FJDA”), 18 U.S.C. § 5032, on the ground
that he was a minor when the offenses were committed. Because the
district court lacked jurisdiction over the substantive drug
charges, we vacate Vargas’s convictions with respect to those
counts. With respect to the conspiracy count, Vargas argues that
the district court committed plain error by failing to instruct the
jury that it could only find him guilty if he ratified and
participated in the conspiracy after he turned 18. We affirm the
conviction as to the conspiracy count because there was sufficient
evidence of postmajority conduct to convict, and it was not plain
error for the district court to fail to give the instruction.
I.
The FJDA provides:
A juvenile alleged to have committed an act of
juvenile delinquency . . . shall not be proceeded against
in any court of the United States unless the Attorney
General, after investigation, certifies to the
appropriate district court of the United States that
. . . (3) the offense charged is . . . an offense
described in section 401 of the Controlled Substances Act
(21 U.S.C. 841) . . . and that there is a substantial
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Federal interest in the case or the offense to warrant
the exercise of Federal jurisdiction.
If the Attorney General does not so certify, such
juvenile shall be surrendered to the appropriate legal
authorities of such State.
18 U.S.C. § 5032 (emphasis added). The statute defines a
“juvenile” as “a person who has not attained his eighteenth
birthday, or for the purpose of proceedings and disposition under
this chapter for an alleged act of juvenile delinquency, a person
who has not attained his twenty-first birthday,” and “juvenile
delinquency” 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. § 5031. In other
words, the statute provides that unless the Attorney General
certifies to the district court that the case satisfies one of
certain enumerated conditions, the district court may not proceed
against an individual under the age of 21 for acts committed before
reaching the age of 18.1 See United States v. Welch, 15 F.3d 1202,
1207 (1st Cir. 1993) (“[T]he FJDA does not apply to ‘a defendant
who . . . is not a juvenile and who has not committed an act of
1
The FJDA does not, however, make the defendant’s age a
substantive element of an offense. United States v. Welch, 15 F.3d
1202, 1207 n.5 (1st Cir. 1993) (citing United States v.
Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir. 1980)). While the
certification by the Attorney General is necessary for a district
court to proceed against a juvenile in a delinquency proceeding,
still more is required for the court to try a juvenile as an adult.
See 18 U.S.C. § 5032 (permitting adult trials of juveniles only
after a judicial hearing and determination that “transfer” for
trial as an adult would serve the interests of justice).
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juvenile delinquency.’” (quoting United States v. Doerr, 886 F.2d
944, 969 (7th Cir. 1989)); see also United States v. Thomas, 114
F.3d 228, 263 (D.C. Cir. 1997) (“[A] person who has reached
twenty-one can be criminally indicted for the acts committed under
eighteen because it is assumed he can no longer benefit from FJDA
protections.”). It is undisputed that in this case, the government
did not present the district court with such a certification, and
that the proceedings commenced before the defendant reached the age
of 21.
The issues in this case arise out of alleged acts
committed both before and after the defendant reached the age of
18. It is undisputed that Vargas was born on July 22, 1989, and
reached 18 years of age on July 22, 2007. On May 7, 2008, a grand
jury returned a seven count indictment charging Vargas and numerous
codefendants with various narcotics offenses. Six of those counts
are pertinent here. Count 1 charged Vargas with conspiracy to
possess with the intent to distribute in excess of one kilogram of
heroin, fifty grams of cocaine base, five kilograms of cocaine,
and/or one hundred kilograms of marijuana within one thousand feet
of a public or private school, in violation of 21 U.S.C. §§
841(a)(1), 846, and 860. We refer to this count as the drug
conspiracy count. Counts 2 through 5 charged him with the
substantive offenses of aiding and abetting in the possession of
heroin, cocaine base, cocaine, and marijuana, respectively, within
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one thousand feet of a school with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 860, and 18 U.S.C. § 2. We
refer to these as the substantive drug counts. Count 6 charged
Vargas with conspiracy to possess firearms during and in relation
to a drug trafficking offense in violation of 18 U.S.C. §
924(c)(1)(A). We refer to this as the firearms conspiracy count.
According to the indictment, each of the charges against Vargas
arose out of alleged activities “[b]eginning on a date unknown, but
no later than in or about the year 2005, and continuing up to and
until the return of the instant Indictment [May 7, 2008].”
At trial, the government presented testimony regarding
the defendant’s activities from local police officers, cooperating
drug traffickers, and a paid confidential informant. Much of this
testimony related to conduct prior to Vargas’s eighteenth birthday.
The defendant did not request, and the district court did not
issue, an instruction to the jury regarding the findings of
postmajority conduct necessary to convict Vargas. The jury found
Vargas guilty of substantive drug counts 2 and 4, and the drug
conspiracy count.2 The jury acquitted on substantive drug counts
2
The jury verdict form erroneously described count 2 as
involving cocaine base when it should have been heroin, and count
3 as heroin instead of cocaine base. See Verdict Form at 2-3,
United States v. Vargas, No. 08-175 (D.P.R. Nov. 26, 2008), ECF No.
443. Thus, although the jury found Vargas guilty of count 2, it
appears that the jury likely thought it was finding Vargas guilty
of the cocaine base substantive offense (count 3 of the
indictment), not the heroin offense (count 2 of the indictment).
The presentence investigation report followed the jury verdict
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three and five, and the firearms conspiracy count. Although the
trial testimony made no reference to the defendant’s age, his date
of birth and age were noted in the presentence report. The
district court sentenced Vargas to 210 months’ imprisonment as to
each count for which he was convicted, to be served concurrently,
and ten years of supervised release. Vargas timely appealed, and
we have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
On appeal, Vargas argues that the district court lacked
jurisdiction over the substantive drug counts as to which he was
convicted. See 18 U.S.C. § 5032. We review the jurisdictional
issue de novo. Miller v. Nichols, 586 F.3d 53, 58-59 (1st Cir.
2009). Although Vargas failed to raise this issue with the
district court, “[an] objection to subject matter jurisdiction is
not waivable and may be raised for the first time on appeal.”
F.A.C., Inc. v. Cooperativa de Seguros de Vida de P.R., 449 F.3d
185, 189 (1st Cir. 2006); see Fed. R. Crim. P. 12(b)(3)(B)
(providing that lack of jurisdiction may be noticed by court at any
time); United States v. DiSanto, 86 F.3d 1238, 1244 (1st Cir.
1996).
form, listing the conviction under count 2 as a conviction for
cocaine base. In light of our disposition, there is no need for us
to determine whether this error is an independent ground for
reversal.
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Vargas argues that the district court lacked jurisdiction
because the government failed to provide the required certification
even though he was less than 18 years old when he committed the
substantive drug offenses, and still under 21 when indicted. The
government concedes that the age of a defendant is jurisdictional
under the statute. (“If the defendant had committed the offense
prior to his birthday and he did not continue committing the
offense beyond his eighteenth birthday, that conviction would have
to be reversed. That is the position of the United States.”).
On its face, the language of the statute — providing that
a juvenile “shall not be proceeded against in any court of the
United States” — appears jurisdictional. 18 U.S.C. § 5032. Such
mandatory language is generally held to be jurisdictional. See
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26,
35 (1998) (“[T]he mandatory ‘shall’ . . . normally creates an
obligation impervious to judicial discretion.”); California v.
Grace Brethren Church, 457 U.S. 393, 407-08 (1982) (statute
providing that district courts “shall not enjoin, suspend or
restrain the . . . collection of any tax under State law” “divests
the district court . . . of jurisdiction”); Mohasco Corp. v.
Silver, 447 U.S. 807, 817 (1980) (holding that action was
jurisdictionally barred for failure to comply with statutory
provision that “such charge shall be filed” within specified time
limits).
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Other courts of appeals have uniformly held that the
certification requirement of 18 U.S.C. § 5032 is a prerequisite to
a district court’s subject matter jurisdiction. See United States
v. Sealed Juvenile 1, 225 F.3d 507, 508 (5th Cir. 2000) (“The need
certification under 18 U.S.C. § 5032 is a jurisdictional
requirement . . . .”); In re Sealed Case, 131 F.3d 208, 211 (D.C.
Cir. 1997) (“certification must be a jurisdictional requirement”
that “go[es] to the subject-matter jurisdiction of the court”);
United States v. Wong, 40 F.3d 1347, 1363 (2d Cir. 1994) (“[P]roper
certification confers jurisdiction upon the district court
. . . .”); United States v. Chambers, 944 F.2d 1253, 1259 (6th Cir.
1991) (“[T]he certification requirement is a prerequisite to the
district court’s subject-matter jurisdiction in cases where the
government proceeds against juveniles accused of performing acts
which would be federal crimes if committed by adults.”); United
States v. Juvenile Male, 864 F.2d 641, 643 (9th Cir. 1988) (“To
establish jurisdiction for such an adjudication, the juvenile
delinquency procedures require the government to file a special
certification regarding the juvenile before it can proceed against
that juvenile . . . .”).
Although not directly deciding the question, this court
has recognized as well that the certification requirement of § 5032
is jurisdictional. See United States v. Female Juvenile, A.F.S.,
377 F.3d 27, 31-32 (1st Cir. 2004) (noting that § 5032 provides
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“that a district court has jurisdiction over a juvenile” if the
certification requirement is met); United States v. Smith, 178 F.3d
22, 24-25 (1st Cir. 1999) (stating that Ҥ 5032 provides that a
district court has jurisdiction over a juvenile if” the
certification requirement is satisfied, and that “[o]nce federal
jurisdiction has attached, juvenile delinquency proceedings ensue
unless the court transfers the juvenile for prosecution as an
adult”). We agree that the certification requirement is
jurisdictional, and that absent a certification, a conviction must
be set aside, even absent a timely objection, if the record
establishes that a defendant was under the age of 18 when the
offense was committed and under the age of 21 when criminal
proceedings were commenced.
The remaining question is whether the evidence here on
the two substantive drug counts was limited to acts occurring
before the defendant reached the age of 18. Vargas argues that it
was. The government failed to defend the convictions on these two
counts in its brief, but at oral argument urged for the first time
that there was sufficient postmajority evidence to convict. While
we would be justified in treating the failure to brief the issue as
a waiver, we choose to address the issue on the merits.
The government admits that Vargas was born on July 22,
1989, and that he reached majority on July 22, 2007. It also
acknowledges that much of the evidence presented against Vargas at
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trial on the substantive drug counts involved activities that
occurred when he was under the age of 18. At oral argument, the
government accurately asserted that the indictment did not provide
a specific date for the substantive drug offense counts; instead,
as with the conspiracy count, the indictment stated that the
alleged crimes “[b]eg[an] on a date unknown, but no later than in
or about the year 2005, and continu[ed] up to and until the return
of the instant Indictment,” i.e., past the date of Vargas’s
majority. But while the indictment may have charged postmajority
conduct, the record is clear that the only evidence to support
Vargas’s convictions on the substantive drug offenses related to
the period before he reached age 18.
The only evidence that potentially supports the
substantive drug offense convictions is the testimony of paid
confidential informant Ulises Martínez Camacho (“Martínez”).
Martínez’s role as an informant was to insert himself within a
local drug organization and purchase narcotics. Martínez first met
Vargas around April 4, 2007. Martínez described occasions in which
he purchased illegal drugs from Vargas. First, on April 19, 2007,
Martínez called Vargas to purchase two packages of crack cocaine
for $500. Martínez made the buy, but Vargas was not present at the
actual exchange. On May 11, 2007, Martínez arranged with Vargas to
buy an eighth of a kilogram of crack for $2,200 or $2,500. Again,
Vargas was not present at the exchange, and in this instance
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Martínez was swindled with a sweet confection made of sugar and
coconut known as dulce de coco, rather than drugs. During the same
conversation, however, Vargas and Martínez also discussed the sale
of ten kilograms of cocaine for $15,000 per kilogram.
Martínez thus testified to deals involving only crack
(cocaine base) and cocaine — the same drugs for which Vargas was
found guilty on the substantive charges. However, that testimony
related to events which occurred before Vargas reached the age of
18. Because the government failed to provide the necessary
certification under the FJDA, Vargas’s convictions on the
substantive drug offenses must be vacated for lack of jurisdiction.
See, e.g., United States v. Male Juvenile, 148 F.3d 468, 472 (5th
Cir. 1998) (vacating adjudication of juvenile delinquency for lack
of jurisdiction due to failure to provide proper FJDA
certification); United States v. Doe, 98 F.3d 459, 461 (9th Cir.
1996) (same).
III.
As to the conspiracy charge, we hold that the district
court had jurisdiction. Here, the indictment charged Vargas with
the drug conspiracy “[b]eginning on a date unknown, but no later
than in or about the year 2005, and continuing up to and until the
return of the instant Indictment” — namely, May 7, 2008. Although
Vargas was under 18 at the beginning of this charged period, he had
reached the age of majority by the end of the period. In United
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States v. Welch, 15 F.3d 1202, 1207 (1st Cir. 1993), we held that
such an indictment was not defective simply because the period
includes premajority conduct.
This court has also held that the jury may properly hear
evidence regarding a defendant’s premajority conduct to establish
the existence of a conspiracy. In Welch, this court considered
whether evidence of premajority conduct should be withheld from the
jury, and rejected that argument:
We think the better view is that . . . “once [the
government] ha[s] established that certain acts of the
offense occurred after the defendant’s eighteenth
birthday, the entire case may be tried in accordance with
the adult rules of procedure and evidence.” . . . We
therefore hold that a criminal defendant’s pre-majority
conduct is admissible on the same bases as other
evidence, and does not alone compel severance of a
youthful defendant’s trial.
Id. at 1212 (quoting United States v. Cruz, 805 F.2d 1464, 1477
(11th Cir. 1986)). However, where a case involves conduct both
before and after the age of 18, there can be “no conviction unless
the jury found that appellant[] in some manner ‘ratified’ [his]
participation in the conspiracy after attaining majority.” Id.There was ample evidence here that the defendant
continued his participation in the conspiracy after he reached the
age of majority. Three officers from the Puerto Rico Police
Department testified that they continued to observe Vargas at the
local drug point after he had turned 18. In addition, Ricardo
Madera Báez (“Madera”), a member of a rival drug gang, testified
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that Vargas attended a meeting between rival drug gangs in November
2007, four months after Vargas’s eighteenth birthday, where Vargas
declared that he was the “owner” of cocaine for his group.
Therefore, it was proper for the jury to consider Vargas’s
premajority conduct as well in finding him guilty of the drug
conspiracy.
The defendant does not contend here that the evidence is
insufficient to convict on the drug conspiracy count under the
governing standard, with one exception. The defendant argues that
we must assume that the jury did not credit the testimony of Madera
because the jury acquitted Vargas on count 6 of the indictment.
That count charged a conspiracy to possess firearms during and in
relation to a drug trafficking offense. At trial, the only
evidence of Vargas’s postmajority conduct relating to firearms was
the testimony by Madera that Vargas showed off his .45-caliber
handgun at the November 2007 meeting. Vargas argues that his
acquittal on the firearms conspiracy charge means that the jury
“discredited” Madera’s testimony. He therefore contends that
Madera’s testimony thus cannot support a conviction on the drug
conspiracy charge, and without that testimony there is insufficient
evidence to convict.
Even if we were to assume that Madera’s testimony was
essential to the conviction on the drug conspiracy count and that
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the verdicts were inconsistent,3 defendant’s argument is meritless.
In United States v. Powell, 469 U.S. 57 (1984), the Supreme Court
held that an acquittal on one charge in a criminal case does not
create collateral estoppel as to other charges. That decision
reaffirmed the rule established in Dunn v. United States, 284 U.S.
390 (1932), that “a criminal defendant convicted by a jury on one
count [can] not attack that conviction because it was inconsistent
with the jury’s verdict of acquittal on another count.” Powell,
469 U.S. at 58. In Powell, a jury acquitted the defendant of drug
conspiracy and possession counts, but found the defendant guilty of
compound offenses involving the use of a telephone in “committing
and in causing and facilitating” the alleged conspiracy and
possession. Id. at 59-60. The court of appeals reversed the
convictions, holding that a defendant cannot be found guilty of
facilitating a felony for which he has been acquitted. Id. at
60-62. The Supreme Court reversed. Because inconsistent verdicts
may be the result of juror mistake or lenity, and because the
government cannot appeal an acquittal, the Court held that “the
3
The verdicts were not in fact necessarily inconsistent.
Count 6 charged that Vargas and his codefendants “did knowingly and
intentionally, combine, conspire, and agree with each other and
with diverse other persons . . . to knowingly and intentionally
possess firearms during and in relation to a drug trafficking
crime.” While there was evidence presented to the jury that Vargas
possessed firearms both before and after his eighteenth birthday,
the jury could have concluded that there was no evidence that
Vargas “combine[d], conspire[d], and agree[d]” with others to
possess firearms.
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best course to take is simply to insulate jury verdicts from review
on this ground.” See id. at 69. Under these circumstances, the
potential inconsistency in the verdicts is not a ground for setting
aside the drug conspiracy conviction.
The defendant also contends that the district court
should have charged the jury as to the appropriate standard to be
used when the conspiracy occurred in part before and in part after
the age of majority. See Welch, 15 F.3d at 1211-12; see also
United States v. Maddox, 944 F.2d 1223, 1233 (6th Cir. 1991). In
other words, he contends that the jury should have been charged
that it could only find Vargas guilty if it found that he ratified
his participation in the conspiracy after turning 18. There was,
however, no contemporaneous objection to the failure to give such
a charge, so the plain error standard applies. United States v.
Riccio, 529 F.3d 40, 46 (1st Cir. 2008). Under this standard, a
conviction may only be disturbed if the appellant meets the “heavy
burden of showing (1) that an error occurred; (2) that the error
was clear or obvious; (3) that the error affected his substantial
rights; and (4) that the error also seriously impaired the
fairness, integrity, or public reputation of judicial proceedings.”
Id. “Even then, the reviewing court may, but is not required to,
rectify the situation.” United States v. Moran, 393 F.3d 1, 13
(1st Cir. 2004) (citing United States v. Olano, 507 U.S. 725,
735-36 (1993)). As such, “plain error review tends to afford
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relief to appellants only for ‘blockbuster[]’ errors.” Id.(quoting United States v. Griffin, 818 F.2d 97, 100 (1st Cir.
1987)). Even if we were to assume that the error was plain —
despite the fact that Vargas did not rely on the age issue at
trial, see United States v. George, 448 F.3d 96, 100 (1st Cir.
2006) — the plain error standard has not been satisfied. Under the
third prong of the plain error test, Vargas is required to
demonstrate that the error was prejudicial. United States v.
Garcia-Pastrana, 584 F.3d 351, 382 (1st Cir. 2009). That
requirement has not been met.
In order to show that an error was prejudicial, an
appellant “must show that the error likely ‘affected the outcome of
the district court proceedings.’” United States v. Hebshie, 549
F.3d 30, 44 (1st Cir. 2008) (quoting Olano, 507 U.S. at 734). This
means that he must show “a reasonable probability that, but for
[the error claimed], the result of the proceeding would have been
different.” United States v. Padilla, 415 F.3d 211, 221 (1st Cir.
2005) (en banc) (quoting United States v. Dominguez Benitez, 542
U.S. 74, 82 (2004)) (quotation marks omitted). “[I]t is enough to
sustain the conviction that the result would quite likely have been
the same” even if a proper instruction had been given. See
Hebshie, 549 F.3d at 44 (quoting United States v. O’Brien, 435 F.3d
36, 40 (1st Cir. 2006)) (quotation marks omitted).
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Here, as noted above, although most of the conspiracy
evidence related to Vargas’s conduct as a minor, there was evidence
presented at trial that supported his ratification and continued
participation in the drug conspiracy after attaining the age of
majority. Officers from the Puerto Rico Police Department
testified that they continued to observe Vargas at the local drug
point after he had turned 18. And Madera testified that Vargas
attended a meeting between rival drug gangs in November 2007, after
Vargas turned 18, where Vargas declared that he was the “owner” of
cocaine for his group. In light of this evidence of postmajority
conduct, we hold that the district court did not commit plain error
in not providing a jury instruction on postmajority ratification.
IV.
For the foregoing reasons, we vacate Vargas’s substantive
drug offense convictions on counts 2 and 4 for lack of
jurisdiction. We affirm the conviction as to the drug conspiracy.
The case is remanded to the district court with instructions to
dismiss counts 2 and 4.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
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