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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