United States v. Edwin Mendez ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 21-50086
AMERICA,
Plaintiff-Appellee, D.C. Nos.
2:19-cr-00117-ODW-16
v. 2:19-cr-00117-ODW
EDWIN ISAAC MENDEZ,
AKA Carabina, AKA OPINION
Chino,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted February 8, 2022
Pasadena, California
Filed March 24, 2022
Before: Mary M. Schroeder, Richard C. Tallman, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Tallman
2 UNITED STATES V. MENDEZ
SUMMARY *
Criminal Law
Affirming the district court’s denial of a motion to
dismiss a Second Superseding Indictment (SSI) charging
Edwin Mendez with racketeering conspiracy under
18 U.S.C. § 1962(d), the panel held that the Juvenile
Delinquency Act (JDA) does not preclude the government
from prosecuting a person as an adult for a continuing
conspiracy that includes both pre- and post-majority conduct
after the court dismisses a JDA information charging that
person with conspiracy based solely on pre-majority
conduct.
The panel held that it had jurisdiction under the collateral
order doctrine to hear this interlocutory appeal.
The panel addressed whether JDA jurisdiction had
attached to preclude Mendez’s prosecution as an adult given
the government’s failure to complete the procedure set forth
in 18 U.S.C. § 5032 for transfer to adult prosecution and the
absence of a judicial determination regarding transfer. The
panel held that a defendant who continues to participate in a
conspiracy after reaching majority ratifies his prior conduct
in the conspiracy, such that the conspiracy carries over into
his majority, and that in this situation, the JDA is
inapplicable. The panel also held that, because Mendez
allegedly continued to participate in the racketeering
conspiracy on his eighteenth birthday and beyond, his
racketeering conspiracy offense was not an act of juvenile
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MENDEZ 3
delinquency under the JDA. The panel concluded that the
district court therefore has adult criminal jurisdiction over
the majority-spanning RICO conspiracy offense charged in
the SSI.
COUNSEL
Charles P. Diamond (argued), Law Offices of Charles P.
Diamond, Los Angeles, California; Seth Fortin, Biola
Macaulay, and Vanessa Guerrero, O’Melveny & Myers
LLP, Los Angeles, California; for Defendant-Appellant.
Joanna M. Curtis (argued), Chief, Violent and Organized
Crime Section; Bram M. Alden, Chief, Criminal Appeals
Section; Tracy L. Wilkison, Acting United States Attorney;
United States Attorney’s Office, Los Angeles, California;
for Plaintiff-Appellee.
OPINION
TALLMAN, Circuit Judge:
Entry into adulthood is a significant milestone. It
provides a new set of privileges and consequences, many
life-changing. A person’s eighteenth birthday also brings
with it new legal considerations. We look at one of those in
this criminal gang conspiracy case.
Edwin Mendez appeals the district court’s order denying
his motion to dismiss the Second Superseding Indictment
charging him with one count of racketeering conspiracy
under 18 U.S.C. § 1962(d). He stands accused of
participating in the operation of the criminal street gang
4 UNITED STATES V. MENDEZ
Mara Salvatrucha (also known as MS-13) in Los Angeles,
constituting a RICO enterprise which the grand jury charged
operated through various acts including drug distribution,
extortion, robbery, assault with intent to commit murder,
kidnapping, and murder. The district court’s interlocutory
order rested on the conclusion that the Juvenile Delinquency
Act (“JDA”) did not bar Mendez’s prosecution as an adult
under the superseding indictment. Mendez argues that the
district court erred because the government had previously
charged him in a JDA criminal information for related acts,
which the statute labels “act[s] of juvenile delinquency,”
including inter alia racketeering conspiracy. 18 U.S.C.
§§ 5031, 5032. We must decide whether the JDA precludes
the government from prosecuting a person as an adult for a
continuing conspiracy that includes both pre- and post-
majority conduct after the court dismisses a JDA information
charging that person with conspiracy based solely on pre-
majority conduct. We hold it does not and affirm.
I
The United States filed a seven-count juvenile
information on March 29, 2019, charging Mendez—an
alleged member of MS-13’s Fulton clique in Los Angeles
County—with acts of juvenile delinquency, including
Racketeer Influenced and Corrupt Organizations Act
(“RICO”) conspiracy under 18 U.S.C. § 1962(d), two counts
of first-degree murder, violent crimes in aid of racketeering,
and aiding and abetting. 1 According to the JDA information,
1
We GRANT Defendant-Appellant’s motion for judicial notice
(Dkt. No. 12) and Plaintiff-Appellee’s request for judicial notice
(Dkt. No. 21) of the prior proceedings before the district court under the
JDA. Although juvenile records are generally sealed, and Defendant-
Appellant’s exhibits were filed under seal, most of the allegations
UNITED STATES V. MENDEZ 5
these alleged acts of juvenile delinquency occurred prior to
Mendez’s eighteenth birthday on June 16, 2017. With
respect to the RICO conspiracy charge, the information
alleged the commission of 29 overt acts of juvenile
delinquency in furtherance and to accomplish the objects of
the RICO conspiracy, the last of which allegedly involved
an illegal firearm transaction occurring on June 14, 2017,
when Mendez was still a minor. All of these alleged crimes
would have been violations of various provisions of Title 18
but for Mendez’s age.
The government continued to investigate the MS-13
enterprise. In July 2019, a federal grand jury returned a
Second Superseding Indictment (“SSI”), indicting a total of
22 defendants alleged to be MS-13 gang members from
various cliques in Los Angeles. Mendez, then 20, was
charged with one count under 18 U.S.C. § 1962(d). This
adult RICO conspiracy charge covers both pre- and post-
majority conduct. The SSI accuses Mendez—participating
with other co-defendants and unindicted co-conspirators—
of displaying gang signs, possessing weapons, and engaging
in narcotics trafficking. While the JDA information had
originally charged Mendez with two counts of first-degree
murder and violent crimes in aid of racketeering as acts of
juvenile delinquency, the SSI did not charge Mendez with
those crimes.
On January 23, 2020, the government filed a motion to
transfer Mendez for adult criminal prosecution on the
discussed in this opinion have been realleged in the SSI, a publicly
available filing. Our opinion contains a generalized discussion of the
JDA pleadings and proceedings only for context, procedural posture, and
to explain the reasoning behind our decision. The orders sealing these
documents are lifted to the extent necessary to permit these references.
6 UNITED STATES V. MENDEZ
charges in the JDA information. But the government later
determined that it would not proceed on the juvenile murder-
related charges, only on the adult RICO conspiracy charged
in the SSI. So, on June 1, 2020, the government moved to
dismiss the JDA information to “conserve government,
judicial, and Criminal Justice Act resources.” Mendez
objected. But the district court dismissed the JDA case the
next day without a hearing.
On January 19, 2021, Mendez moved to dismiss the SSI
for lack of statutory jurisdiction over the sole charge as to
him—RICO conspiracy under 18 U.S.C. § 1962(d). The
district court denied Mendez’s motion on March 29, 2021,
rejecting his argument that the government was required—
once having decided to proceed under the JDA—to continue
the juvenile proceedings against him. The court further
rejected Mendez’s argument that the government could not
prosecute him for the same offense conduct as an adult
absent a formal JDA transfer proceeding in which the district
court would decide whether Mendez would be tried as an
adult. Accordingly, the adult prosecution could go forward.
Mendez timely filed a notice of interlocutory appeal. 2
II
We must presume the facts in the SSI to be true for
purposes of reviewing the district court’s ruling on the
2
Subsequently, on August 5, 2021, while this appeal was pending,
the government filed a Third Superseding Indictment (“TSI”) charging
additional co-defendants and adding new allegations of Mendez’s post-
majority conduct. We agree with the government that the TSI does not
render this case moot because “deciding the appeal from the [SSI] . . .
[could] affect the resolution of the government’s case against the
defendant under the [TSI].” United States v. Scott, 884 F.2d 1163, 1165
(9th Cir. 1989) (per curiam).
UNITED STATES V. MENDEZ 7
motion to dismiss. See United States v. Fiander, 547 F.3d
1036, 1041 n.3 (9th Cir. 2008). We review de novo the
district court’s denial of the motion to dismiss the indictment
based on its interpretation of the JDA. See United States v.
Camez, 839 F.3d 871, 872 (9th Cir. 2016).
III
A
We must first ensure our appellate jurisdiction. See
United States v. McIntosh, 833 F.3d 1163, 1170 (9th Cir.
2016). The final judgment rule applies in direct criminal
appeals. See id. Absent, for example, a claim of double
jeopardy, a pretrial order denying a defendant’s motion to
dismiss is generally not immediately appealable. See Abney
v. United States, 431 U.S. 651, 659, 662 (1977). However,
the collateral order doctrine permits review of a “small class
of decisions,” including some non-final orders that do not
terminate the underlying action. United States v. Pace,
201 F.3d 1116, 1119 (9th Cir. 2000). The order must:
1) conclusively determine the disputed question; 2) resolve
an important issue completely separate from the merits of the
action; and 3) be effectively unreviewable on appeal from a
final judgment. Id.The district court’s denial of Mendez’s motion to dismiss
meets that standard. First, the district court’s denial of
Mendez’s motion to dismiss conclusively determined that
the JDA does not prevent Mendez’s prosecution under the
SSI. Second, whether the JDA applies to prohibit
prosecution as an adult is a separate question from Mendez’s
criminal culpability for the racketeering conspiracy charge.
Finally, the issue here is effectively unreviewable on appeal
from a final judgment because Mendez’s claimed statutory
right not to be tried as an adult will be lost if not appealed
8 UNITED STATES V. MENDEZ
immediately. See Midland Asphalt Corp. v. United States,
489 U.S. 794, 801 (1989); United States v. Gerald N.,
900 F.2d 189, 190–91 (9th Cir. 1990) (per curiam) (“[T]he
legal and practical value of the right to be tried as a juvenile
would be destroyed without the concomitant right of
immediate appeal.”). We therefore hold that we have
interlocutory jurisdiction to hear this appeal.
B
We must decide whether JDA jurisdiction had attached
to preclude Mendez’s prosecution as an adult given the
government’s failure to complete the transfer procedure set
forth in 18 U.S.C. § 5032 and the absence of a judicial
determination regarding transfer. Mendez argues that the
JDA “unambiguously bars” his prosecution under the SSI
because by charging the RICO conspiracy offense as an “act
of juvenile delinquency” in the JDA information, “the
government triggered the JDA’s mandatory procedural
mechanism,” which requires dismissal because the
government dismissed the information without completing
the transfer process and submitting the question to the
district court. But the government responds that because
Mendez’s alleged participation in the conspiracy continued
beyond his eighteenth birthday, it was no longer an “act of
juvenile delinquency” as defined by the JDA, and an act that
is not one of “juvenile delinquency” is not subject to the
JDA’s transfer requirements. We think the government has
the better of the argument.
1
The JDA’s purpose is to “remove juveniles from the
ordinary criminal process in order to avoid the stigma of a
prior criminal conviction and to encourage treatment and
rehabilitation.” United States v. Doe, 94 F.3d 532, 536 (9th
UNITED STATES V. MENDEZ 9
Cir. 1996) (citation omitted); see also Camez, 839 F.3d at
873. The JDA “does not create a substantive offense with
its own jurisdictional basis, but rather establishes a
procedural mechanism for the treatment of juveniles who are
already subject to federal jurisdiction because of the
commission of acts cognizable under other federal criminal
statutes.” Camez, 839 F.3d at 873–74 (citation omitted). A
successful JDA prosecution results in adjudication of a status
as a juvenile delinquent, not conviction of a crime as an adult
would suffer. See United States v. Araiza-Valdez, 713 F.2d
430, 432 (9th Cir. 1980) (per curiam).
To prosecute “an act of juvenile delinquency” in the
federal criminal justice system, “the government must
follow the certification procedures required by 18 U.S.C.
§ 5032.” United States v. Doe, 170 F.3d 1162, 1165 (9th Cir.
1999). Certification is jurisdictional. Id. If the Attorney
General, or his designee, makes the requisite certification,
the United States “shall proceed by information . . . and no
criminal prosecution shall be instituted for the alleged act of
juvenile delinquency except as provided [in the JDA].”
18 U.S.C. § 5032. 3
The statutory definitions are critical. A juvenile is “a
person who has not attained his eighteenth birthday, or for
the purpose of proceedings and disposition under [the JDA]
for an alleged act of juvenile delinquency, a person who has
not attained his twenty-first birthday.” Id. § 5031. The
defendant’s age is determined at the time of indictment.
3
The statute also includes a jeopardy provision: “Once a juvenile
has entered a plea of guilty or the proceeding has reached the stage that
evidence has begun to be taken with respect to a crime or an alleged act
of juvenile delinquency subsequent criminal prosecution or juvenile
proceedings based upon such alleged act of delinquency shall be barred.”
Id. The facts here do not meet either triggering event under the statute.
10 UNITED STATES V. MENDEZ
Camez, 839 F.3d at 874. Juvenile delinquency is “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 or a violation by such a
person of section 922(x).” 18 U.S.C. § 5031.
“A juvenile who is alleged to have committed an act of
juvenile delinquency . . . shall be proceeded against under
[the JDA],” with limited exceptions, only one of which is
relevant in this appeal. Id. § 5032. The JDA permits the
government to initiate the transfer for adult prosecution of a
juvenile who is 15 years or older and has allegedly
committed an act which would constitute an adult felony for
a crime of violence, or certain other narcotics and weapons
crimes. See id. The court must find, “after hearing, such
transfer would be in the interest of justice,” considering the
evidence and making record findings with respect to several
specific statutory factors. Id. As explained above, the
transfer process was never completed. Instead, the
government elected to proceed on the SSI, and the district
court dismissed the JDA information before any hearing in
support of the transfer.
2
We begin our analysis with the pertinent definitions.
Mendez was a “juvenile” under 18 U.S.C. § 5031 when the
government first charged him by information at age 19 for
the various acts of “juvenile delinquency” allegedly
committed before his eighteenth birthday. See Camez,
839 F.3d at 874. And by filing the information, the
government was undisputedly bound by the JDA’s
provisions—including the adult transfer protocol—for those
alleged acts of juvenile delinquency. Therefore, the key to
resolving this appeal is determining whether the racketeering
conspiracy charged in the SSI was an “act of juvenile
UNITED STATES V. MENDEZ 11
delinquency” or was instead a majority-spanning criminal
offense for which he may be tried and convicted as an adult.
The ratification doctrine answers the question presented
in this case and our decision in Camez helps guide the
analysis. Camez considered the evidentiary question
whether the JDA barred consideration of pre-majority
conduct as proof of substantive RICO crimes. Id. at 872–73.
The government there indicted the defendant alleging pre-
and post-majority conduct. Id. The defendant challenged
his conviction only on the substantive RICO count, arguing
that the district court erred in instructing the jury that it could
consider his pre-majority conduct. Id. at 873. We affirmed,
reasoning in part that analogy to the contract ratification
doctrine supports the admissibility of pre-majority conduct.
Id. at 876. As we explained, “a defendant may ratify his pre-
eighteen participation in a conspiracy or other continuing
crime by continued participation after attaining majority.”
Id. (cleaned up) (citing United States v. Wong, 40 F.3d 1347,
1366 (2d Cir. 1994)). We rejected the notion that Congress
in enacting the JDA “intended to allow all persons
effectively to start with a clean slate” on their eighteenth
birthday. Id. To the contrary, “for continuing crimes alleged
to have occurred both before and after the defendant turned
18 . . . adult prosecution is warranted.” Id. at 874.
Mendez argues that Camez is inapposite because it does
not address the JDA’s criminal prosecution bar and transfer
provision, see 18 U.S.C. § 5032, where JDA jurisdiction had
already attached to an alleged act of juvenile delinquency. It
is true that the government in Camez did not first pursue a
juvenile action before bringing an adult prosecution. But the
JDA transfer requirement applies only to acts of juvenile
delinquency. Thus, we look to the nature of the offense
itself. See United States v. Delatorre, 157 F.3d 1205, 1210
12 UNITED STATES V. MENDEZ
(10th Cir. 1998) (explaining that an offense completed by
age 18 will constitute an act of juvenile delinquency under
the JDA). And a majority-spanning conspiracy is simply not
an act of juvenile delinquency.
To be sure, what Mendez describes as “the thin
allegations of post-majority conduct” in the SSI might
ultimately be insufficient to prove that Mendez ratified his
pre-majority conduct. And thus, Mendez argues that the SSI
does not actually allege a majority-spanning conspiracy.
However, at this stage the SSI’s facts are presumed true; the
inquiry is not whether the United States can prove its case.
See United States v. Blinder, 10 F.3d 1468, 1471 (9th Cir.
1993). On the merits, we conclude that Mendez’s argument
fails because the SSI alleges multiple post-majority
instances of Mendez possessing drugs and weapons and
flashing MS-13 gang signs with co-defendants and
unindicted co-conspirators—all acts which, if proved, a
reasonable jury could determine were intended by Mendez
to achieve the goals of the enterprise conspiracy. See, e.g.,
Fiander, 547 F.3d at 1041 (explaining a defendant need not
commit the substantive offense to be guilty of RICO
conspiracy; rather “it is sufficient that he knew about and
agreed to facilitate the scheme” (cleaned up)).
Most of our sister circuits agree that the government may
charge a majority-spanning conspiracy as an adult offense.
See Camez, 839 F.3d at 875–77 (collecting cases from the
First, Second, Sixth, Tenth, and Eleventh Circuits); see also
United States v. Guerrero, 768 F.3d 351, 361–62 (5th Cir.
2014), cert. denied, 575 U.S. 916 (2015); United States v.
Doerr, 886 F.2d 944, 969–70 (7th Cir. 1989). To illustrate,
the government directs us to United States v. Cruz, 805 F.2d
1464, 1475–77 (11th Cir. 1986). Cruz addressed in part
whether the federal district court had jurisdiction over one
UNITED STATES V. MENDEZ 13
defendant who was convicted of conspiracy to possess and
distribute cocaine where he was indicted as an adult and was
a juvenile at the time he entered into the conspiracy. Id.
at 1475. The Eleventh Circuit held that “once sufficient
evidence has been introduced that would allow a jury to
reasonably conclude that the defendant’s participation in a
conspiracy continued after his eighteenth birthday, then he
may be tried as an adult.” Id. at 1476. The court explained
that none of the JDA’s provisions “are applicable in a trial
involving one who is not a juvenile and has not committed
an act of juvenile delinquency.” Id. (emphasis added) (citing
18 U.S.C. § 5031); accord United States v. Welch, 15 F.3d
1202, 1211 (1st Cir. 1993).
The Second Circuit’s decision in Wong, upon which
Camez also relied, supports our analysis with respect to the
JDA’s applicability to continuing offenses like racketeering
conspiracy. See 40 F.3d at 1365–68. Wong held that where
the defendants began committing the RICO offenses charged
in the indictment “while they were juveniles, but continued
to do so after their eighteenth birthdays,” the JDA did not
apply “[b]ecause the RICO offenses were not ‘committed by
a [defendant] prior to his eighteenth birthday.’” Id. at 1365(quoting 18 U.S.C. § 5031). Indeed, because “RICO
conspiracy offenses are continuing crimes,” the Second
Circuit held that the district court properly exercised
jurisdiction over the adult RICO conspiracy charges based
on the defendants’ post-18 conduct, notwithstanding their
argument that the JDA barred their prosecution. Id. at 1366–
67.
The Tenth Circuit also found Wong persuasive. See
Delatorre, 157 F.3d at 1210. Delatorre held that because the
government, invoking its prosecutorial discretion, charged a
continuing, majoring-spanning RICO conspiracy, it “need
14 UNITED STATES V. MENDEZ
not comply with the JDA’s provisions governing acts of
juvenile delinquency.” Id. (explaining that an offense
completed by age 18 will constitute an act of juvenile
delinquency under the JDA). In sum, we find our sister
circuits’ approaches to majority-spanning conspiracies
persuasive. We hold that a defendant who continues to
participate in a conspiracy after reaching majority ratifies his
prior conduct in the conspiracy, such that the conspiracy
carries over into his majority. In this situation, the JDA is
inapplicable.
We also hold that, because Mendez allegedly continued
to participate in the racketeering conspiracy on his
eighteenth birthday and beyond, his racketeering conspiracy
offense was not an act of juvenile delinquency under the
JDA. See 18 U.S.C. §§ 5031, 5032. To be fair, there is no
dispute that JDA jurisdiction attached to Mendez’s alleged
acts of juvenile delinquency such as the completed murders
in furtherance of the pre-18 RICO conspiracy, see id. § 5032,
as those offenses were complete before he turned 18. But at
the moment he decided not to withdraw, but rather ratified
his pre-majority conduct by continuing to participate in the
conspiracy after his eighteenth birthday, the JDA’s exclusive
jurisdiction over the offense—and the required application
of its transfer protocol—ceased. Cf. Camez, 839 F.3d at 876;
see also Delatorre, 157 F.3d at 1210; Wong, 40 F.3d at1366–67; Cruz, 805 F.2d at 1476. Consequently, the district
court has adult criminal jurisdiction over the majority-
spanning RICO conspiracy offense charged in the SSI. 4
4
Indeed, we have previously concluded that, under certain
circumstances, the filing of a JDA information does not necessarily bar
the government from proceeding against a defendant as an adult for the
same conduct, even without a formal transfer hearing. See United States
UNITED STATES V. MENDEZ 15
Mendez relies on contrary language in United States v.
Smith suggesting that “once the government invokes
18 U.S.C. § 5032, it may not in the future proceed against
the defendant except in accordance with the terms of that
provision.” 851 F.2d 706, 709–10 (4th Cir. 1988). There,
the Fourth Circuit held that the defendant’s motion to
dismiss the indictment should have been granted where the
government had previously dismissed a JDA information
against the defendant. Id.But the problem with Mendez’s argument is that the
grand jury in Smith indicted the defendant, then 21, for the
same completed substantive offenses charged in the prior
JDA information the government dismissed before the
indictment: three counts of first-degree murder committed
at age 15. Id. at 707–08. Here, unlike Smith, the SSI does
not charge Mendez with the same completed substantive
offenses—first-degree murder, violent crimes in aid of
racketeering, and aiding and abetting—as the JDA
information charged as acts of juvenile delinquency.
In contrast, the government maintains the Mendez
indictment does not charge the same offense, and thus it was
not required to proceed under § 5032. Given the continuing
nature of the crime of conspiracy, as we explain above, and
on these facts, we agree that is the correct view. See Camez,
839 F.3d at 876–77; see also Cruz, 805 F.2d at 1477;
Delatorre, 157 F.3d at 1211 (“The Government may
prosecute [the defendant] as an adult in accordance with the
federal evidentiary and procedural rules so long as the
v. HOS, 696 F.3d 869, 870–72 (9th Cir. 2012) (holding that where the
government continued its investigation and later learned the defendant
was an adult when he committed the offenses, the adult criminal case
could proceed).
16 UNITED STATES V. MENDEZ
Government establishes that [the defendant] participated in
the continuing crimes with which he is charged beyond his
eighteenth birthday.”).
That the government previously filed the JDA
information alleging Mendez violated 18 U.S.C. § 1962(d)
is a distinction without a difference. Looking at the offense,
see Delatorre, 157 F.3d at 1210, the one charged in the
information was an act of juvenile delinquency. But the SSI
alleges post-majority acts sufficient to support a majority-
spanning § 1962(d) adult RICO conspiracy charge.
Ultimately, whether Mendez ratified his conduct is a
question left for the factfinder. See Blinder, 10 F.3d at 1471.
Because Mendez’s participation in the conspiracy
allegedly continued beyond his eighteenth birthday, it was
no longer an act of juvenile delinquency under the JDA.
Rather, the conduct became a continuing adult RICO
conspiracy offense which began when he was a juvenile but
continued when he allegedly engaged in additional acts in
furtherance of the ongoing conspiracy after reaching the age
of majority. The JDA does not shield Mendez from having
to answer for this continuing criminal behavior as an adult.
IV
When a minor ratifies his pre-majority conduct by
continuing to participate in an ongoing criminal conspiracy
after his eighteenth birthday, the offense is not insulated by
the JDA’s procedural enclave.
The district court’s order denying Mendez’s motion to
dismiss the superseding indictment is AFFIRMED.