United States v. Welch

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1368

UNITED STATES OF AMERICA,

Appellee,

v.

SHANE WELCH,

Defendant, Appellant.

No. 92-1370
UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTOPHER DRIESSE,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

Paul J. Haley, with whom Scott L. Hood and The Law Office of Paul

J. Haley, P.A. were on brief for appellant Shane Welch. John P. Rab

for appellant Christopher Driesse.
Terry L. Ollila, Special Assistant United States Attorney, with

whom Peter E. Papps, United States Attorney, was on brief for

appellee.

December 30, 1993

2

CYR, Circuit Judge. This opinion addresses the sepa-
CYR, Circuit Judge.

rate appeals of Christopher Driesse and Shane Welch, two youthful

defendants who were convicted of conspiring with their ten adult

codefendants to possess and distribute cocaine, see 21 U.S.C.

846 (1988), as part of a New Hampshire drug distribution ring led

by David Sepulveda during the period 1985-90. See United States

v. Sepulveda, No. 92-1362 (1st Cir. Dec. 20, 1993) [ F.3d

(1st Cir. 1993)] (affirming convictions of ten codefendants);1

see also United States v. Sepulveda, No. 92-1258 (1st Cir. Dec.

30, 1993) [ F.3d (1st Cir. 1993)] (affirming denial of

post-trial motion for dismissal or new trial based on newly

discovered evidence). These appeals are accorded separate

treatment primarily because Driesse and Welch initiated their

participation in the Sepulveda conspiracy prior to their eigh-

teenth birthdays. Although both came of age while their involve-

ment in the criminal alliance continued, appellants contend that

the district court lacked jurisdiction and deprived them of their

rights under the Federal Juvenile Delinquency Act, 18 U.S.C.

5031-5042 (1988 & Supp. 1992) (FJDA).

I. Appellants' Common Claims Under FJDA.

Appellants, whose participation in the Sepulveda

conspiracy spanned their eighteenth birthdays, challenge their

1We refer the reader to the main Sepulveda decision for

factual detail not directly relevant to these separate appeals.
See Sepulveda, No. 92-1362 [ F.3d ].

3

convictions on the grounds that the district court failed to

comply with the FJDA by refusing to: (1) conduct a pretrial

evidentiary hearing to determine its jurisdiction to try appel-

lants as adults; (2) sever their trial from their ten codefen-

dants; (3) instruct the jury that conduct prior to their eigh-

teenth birthdays ("pre-majority conduct") could not evidence

their guilt; and (4) grant their motion to dismiss, based on

insufficient evidence of their post-majority participation in the

conspiracy.2

A. Pretrial Hearing on Jurisdiction.

Appellants first maintain that the FJDA divested the

district court of jurisdiction to try them as adults unless some

of their conspiratorial conduct occurred after they reached

eighteen years of age ("post-majority conduct"). Since appel-

lants contested the factual basis for the charge that they

participated in the Sepulveda conspiracy after attaining their

majority, they insist that the FJDA required a threshold eviden-

tiary hearing on their jurisdictional claim before they could be

subjected to trial as adults.3 We do not agree.

The FJDA defines a "juvenile" as "a person who has not

attained his eighteenth birthday, or for the purposes of proceed-

2Driesse became eighteen on April 6, 1988; Welch on
November 20, 1989.

3Apparently satisfied that the allegations of appellants'

post-majority conduct were sufficient to satisfy the FJDA, the

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 this chapter for an alleged act of

juvenile delinquency, a person who has not attained his twenty-

first birthday . . . ." 18 U.S.C. 5031 (emphasis added).4

Both Welch and Driesse were between ages eighteen and twenty-one

at the time of their indictment. "Juvenile delinquency" is

defined 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. (emphasis added).

Thus, the FJDA does not apply to "a defendant who . . . is not a

juvenile and who has not committed an act of juvenile delinquen-

cy." United States v. Doerr, 886 F.2d 944, 969 (7th Cir. 1989).

Generally speaking, it is readily apparent whether a

non-continuing substantive violation was committed prior to or

after the alleged offender's eighteenth birthday. See United

States v. Cruz, 805 F.2d 1464, 1477 n.15 (11th Cir. 1986), cert.

denied, 481 U.S. 100, and cert. denied, 482 U.S. 930 (1987). On

the other hand, a criminal conspiracy often a continuing

offense may persist long past its commencement, sometimes

4The FJDA's remedial scheme focuses primarily on the cir-
cumstances 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.

5

spanning the eighteenth birthday of an alleged conspirator. See

United States v. Gjonaj, 861 F.2d 143, 144 (6th Cir. 1988); see

also United States v. Giry, 818 F.2d 120, 135 (1st Cir.), cert.

denied, 484 U.S. 855 (1987).5

The government asserts that the FJDA is inapplicable to

appellants simply because the indictment charged that the con-

spiracy spanned their eighteenth birthdays. Appellants counter

that the FJDA's applicability in a conspiracy case ought not

depend conclusively on bare allegations as to the time period

spanned by the conspiracy or the defendant's membership in it.

On balance, however, we find the allegation-based approach to

FJDA applicability more consonant with its language and struc-

ture, its legislative history, the case law, and important policy

considerations.

Prosecutorial discretion is a hallmark of the criminal

justice system. See Wayte v. United States, 470 U.S. 598, 607

(1985) ("[T]he decision whether or not to prosecute, and what

charges to file or bring before a grand jury, generally rests

5The term "alleged act," as used in 5031, means the
alleged offense, not each separate act comprising the offense.
Thus, the FJDA cannot be read to preclude an adult conspiracy
prosecution simply because the accused's participation in the
conspiracy began while he was under age eighteen or in other

words, because he committed an "act" in furtherance of the
conspiracy prior to age eighteen which might be viewed indepen-
dently as an "act of juvenile delinquency." See, e.g., Cruz, 805

F.2d at 1475 (citing United States v. Spoone, 741 F.2d 680, 687

(4th Cir. 1984)). Otherwise, defendants age 18-21 would be
insulated from criminal prosecution simply because they got an
early start. Neither does the FJDA make the defendant's age at
the time of the offense a substantive "element" of every criminal
offense. See United States v. Frasquillo-Zomosa, 626 F.2d 99,

101 (9th Cir.), cert. denied, 449 U.S. 987 (1980).

6

entirely in [the prosecutor's] discretion.") (quoting Borden-

kircher v. United States, 434 U.S. 357, 364 (1978)). Notwith-

standing several amendments expanding the role of the courts, the

FJDA continues to impart considerable prosecutorial discretion as

to whether an accused will be tried as an adult even though the

criminal conduct charged qualifies as an act of juvenile delin-

quency.6 For example, pursuant to 18 U.S.C. 5032 the govern-

ment may bring a motion to transfer a juvenile defendant to the

district court for trial as an adult if the juvenile is at least

fifteen years of age and the government alleges that the juvenile

committed certain enumerated "transferable" offenses (e.g.,

violent crimes or controlled substance violations). Although

"transfer" is subject to an "interest of justice" test as well,

the district court nonetheless may assume, without receiving

evidence, that the government's factual allegations relating to

the character of the offense are true. See In re Sealed Case,

893 F.2d 363, 369 (D.C. Cir. 1990); United States v. Doe, 871

6Enacted in 1938, the FJDA originally provided absolute
discretion to the Attorney General to try juvenile offenders as
adults. See 18 U.S.C. 921 (1940); see also United States v.

Quinones, 516 F.2d 1309, 1311 (1st Cir.) (per curiam) (finding no

due process right to judicial hearing prior to adult trial),
cert. denied, 423 U.S. 852 (1975). In order to "incorporate the

rehabilitative concept of a juvenile proceeding," S. Rep. No.
1011, 93d Cong., 2d Sess. 48 (1974), reprinted in 1974 U.S.C.-

C.A.N. 5283, 5312, thereby minimizing the involvement of young
offenders in the juvenile and criminal justice systems, id. at

5285, in 1974 Congress substantially amended the FJDA, see Pub.

L. No. 93-415, 88 Stat. 1109, 1133-38 (1974) (codified as amended
at 18 U.S.C. 5031-42), 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. Pub.
L. No. 93-415, Title V, Part A, 502, 88 Stat. at 1134 (codified
as amended at 18 U.S.C. 5032).

7

F.2d 1248, 1250 n.1 (5th Cir.), cert. denied, 493 U.S. 917

(1989). Yet more to the point, section 5032 permits the govern-

ment to implement again, on mere allegation, without prior

hearing or judicial authorization the mandatory "transfer" of

a recidivist juvenile offender for trial as an adult. See Pub.

L. No. 98-473, Title II, ch. XII, Part A, 1201, 98 Stat. 1837,

2149-50 (1988).7 Given the breadth of Congress's consignment of

other "jurisdictional" determinations to the prosecutor's discre-

tion under the FJDA, it is not surprising that appellants cite no

case law directly supporting their asserted right to a pretrial

evidentiary hearing on the district court's jurisdiction to try

them as adults.8

7It might be argued that the language of 5032 is ambiguous
on the necessity for a district court hearing prior to the
mandatory "transfer" of a recidivist juvenile. See 18 U.S.C.

5032 (connector term "however" follows provision for "interests
of justice" transfer, which requires hearing, but precedes
recidivism provision, which is silent as to hearing requirement).
Nevertheless, the legislative history makes clear that the
recidivism provision was intended as an absolute exception to the
hearing requirement. S. Rep. No. 225, 98th Cong., 1st Sess. 390-
91 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3530-31 (recidi-

vism transfer "mandatory" "upon motion of the government").

8Appellants rely primarily on Cruz, 805 F.2d 1464, where the

Eleventh Circuit noted 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 (emphasis added). Appellants interpret the word "once" as
indicating a temporal requirement that the government submit

sufficient proof of post-majority participation before it can

subject them to trial as adults. However, the context makes
clear that the Cruz court was simply evaluating the jurisdic-

tional issue in light of the sufficiency of the evidence present-
ed at trial, and that it was addressing the threshold require-

ments for admitting evidence of pre-majority conduct in support
of defendant's conviction as an adult, not for purposes of
establishing jurisdiction to try defendants as adults. Id. at

8

Our interpretation comports with three basic policy

concerns as well. First, neither appellant was unfairly preju-

diced by the district court's decision to defer its determination

of the applicability of the FJDA until trial. Congress did not

amend the FJDA primarily in order to confer greater procedural

rights on juveniles than are available to adults, but to assure

that the procedural rights afforded juveniles would be augmented

to a level comparable to those available to adults. See S. Rep.

No. 1011, 93d Cong., 2d Sess. 47-48 (1974), reprinted in 1974

U.S.C.C.A.N. 5283, 5312 (FJDA simply codifies "safeguards funda-

mental to our system of justice," per In re Gault, 387 U.S. 1

(1967)). In fact, alleged offenders between the ages of eighteen

and twenty-one at indictment often receive more procedural

protections under the adult criminal justice system than would be

available under juvenile process.9

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 appro-
priate 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 evi-
dence 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).

9For example, a felony charge against an adult presupposes
indictment by a grand jury, see U.S. Const. amend. V, while the

FJDA permits a prosecutor to level an equivalent charge simply by

9

Second, the proposed pretrial evidentiary hearing would

place an unwarranted burden on the prosecution, especially in

multi-defendant conspiracy cases where most alleged coconspir-

information, see 18 U.S.C. 5032. An adult accused has the

fundamental right to trial by jury. See U.S. Const. amend. VI;

Fed. R. Crim. P. 23. But see 18 U.S.C. 5037 (juvenile verdict

by judge); McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971)

(finding no constitutional right to jury trial in juvenile
proceedings); United States v. Bent, 702 F.2d 210, 212 (11th Cir.

1983) (applying McKeiver to federal juvenile proceedings).

To be sure, the FJDA extends certain pretrial protections
not available under the adult criminal justice system, including
separate pretrial incarceration at juvenile facilities, see 18

U.S.C. 5033, 5035, and a ban on pretrial publicity relating to
the offense, see id. 5038(e). Assuming, without deciding, that

these protections confer a cognizable "right," see, e.g., In re

Sealed Case, 893 F.2d at 366-67 (in 5032 "transfer" proceeding,

denial of separate incarceration or of protection from pretrial
publicity is immediately appealable), appellants do not expressly
assert deprivation of either of these "rights" as a ground for
their jurisdictional challenge. See United States v. Zannino,

895 F.2d 1, 17 (1st Cir.) (issues raised on appeal, without
adequate argumentation, are deemed waived), cert. denied, 494

U.S. 1092 (1990); United States v. Baker, F.3d , (9th

Cir. 1993) [1993 U.S. App. LEXIS 27042, at *43 (9th Cir. Oct. 19,
1993)] (juvenile defendant waives challenge to incarceration with
adults unless objection raised in district court).
Appellants' reticence is perhaps understandable. Driesse
was in state custody, hence never subjected to pretrial detention

on these federal charges. Welch originally was released on bail,
but bail was revoked because he repeatedly violated the
conditions of release. Although the district court ordered Welch
detained at a "corrections facility" pending trial, neither Welch
nor the appellate record describes the place or precise condi-
tions of confinement, affording us no basis for assessing whether
the FJDA was violated. Finally, whatever plausible argument
Welch might have made about any harm attending adult incarcera-
tion would be considerably weakened by the intervening bail
violation.
Moreover, since 5038(e) expressly conditions the ban on
pretrial publicity (even for defendants under age eighteen at the
time of indictment) on the prosecutor's discretionary decision

not to "transfer," we perceive no principled basis for deeming
any attendant publicity sufficient reason for foreclosing prose-
cutorial discretion over appellants' "transfer." See 18 U.S.C.

5038(e) ("Unless a juvenile who is taken into custody is
prosecuted as an adult . . . . ").

10

ators are adults. Regardless of the precise burden of proof

applicable at the pretrial evidentiary hearing, the government

would no doubt be expected to present substantial evidence

outlining the alleged conspiracy, thereby prematurely "tipping

its hand" on trial strategy and the testimony of its witnesses.

See 18 U.S.C. 3500(a) (Jencks Act); Fed. R. Crim. P. 16(a)(2).

Furthermore, we do not think a pretrial hearing would signi-

ficantly enhance the procedural protection of youthful defendants

already indicted by a grand jury.

Finally, the issue of district court "jurisdiction" in

cases implicating the FJDA seems to us sufficiently similar to

other fact-bound defenses to tip the balance in favor of a

determination by the trial jury. See infra Pt. I.C. Appellants

could only be convicted as adults if they "participated" in, or

"ratified" the conspiracy, after age eighteen. See United States

v. Maddox, 944 F.2d 1223, 1233 (6th Cir.), cert. denied, 112 S.

Ct. 400, 610 (1991), and cert. denied, 112 S. Ct. 948, 1219,

1978, 2317 (1992). A finding of "participation" or "ratifica-

tion" ordinarily depends heavily upon (i) common-sense evalua-

tions of the youthful defendants' actions viewed in the

context of the criminal enterprise and the conduct of their

coconspirators and (ii) inferences as to the state of mind of

the various actors. See United States v. Lopez-Pena, 912 F.2d

1536, 1537 (1st Cir. 1989) (conspiracy requires that "the indi-

vidual defendant knew of the agreement, had intent to agree, and

had intent to commit the substantive offense"), cert. denied, 111

11

S. Ct. 2886 (1991). These are matters especially suited to jury

resolution. See United States v. Piedrahita-Santiago, 931 F.2d

127, 130 (1st Cir. 1991) ("It is the province of the jury, not

this court, to determine the credibility of the witnesses."); cf.

United States v. Passos-Paternina, 918 F.2d 979, 985 (1st Cir.)

("We defer, within reason, to inferences formulated by the jury

in light of its collective understanding of human behavior in the

circumstances revealed by the evidence."), cert. denied, 111 S.

Ct. 1637, 2808-09 (1991).10 Properly instructed in the perfor-

mance of their traditional tasks, trial juries can be entrusted

to discriminate between pre-majority and post-majority conduct.

See, e.g., Cruz, 805 F.2d at 1476. We therefore conclude that

the FJDA's language, structure, legislative history, and related

policy considerations, militate against requiring a pretrial

evidentiary hearing on jurisdiction.

10In fact, the FJDA expressly requires very similar eviden-
tiary 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. Severance.

Appellants next contend that the district court commit-

ted reversible error by denying their motion for severance, see

Fed. R. Crim. P. 14, since (1) the evidence against their ten

adult codefendants was so voluminous, in comparison with the

meager evidence against appellants, that the jury would

indiscriminately lump appellants together with the adults, and

(2) the government was entitled to introduce evidence of appel-

lants' pre-majority conduct against the adult codefendants,

whereas the FJDA prohibits, or severely limits, the admissibility

of such evidence against appellants.

A motion for severance is committed to the sound

discretion of the trial court, and we review only for a manifest

abuse of discretion resulting in a miscarriage of justice. See

United States v. McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992). In

order to gain severance, a defendant must make a "strong showing

[that] substantial prejudice" would result from a joint trial.

See United States v. Barnett, 989 F.2d 546, 559 (1st Cir.), cert.

denied, 114 S. Ct. 148 (1993); United States v. Martinez, 922

F.2d 914, 922 (1st Cir. 1991) (noting that "'prejudice means more

than just a better chance of acquittal at a separate trial'")

(citation omitted). Appellants have not shown especial preju-

dice.

The existence of stronger evidence against their

codefendants did not entitle appellants to automatic severance on

grounds of evidentiary spillover. See United States v. Cresta,

13

825 F.2d 538, 554-55 (1st Cir. 1987), cert. denied, 486 U.S. 1042

(1988). Nor does the relatively minor conspiratorial role of a

particular defendant normally preclude a joint trial with more

prominent codefendants. See Martinez, 922 F.2d at 922. Adequate

safeguards are available to protect against undue prejudice from

evidentiary spillover in most cases. For example, the district

court carefully cautioned the jury in the present case to consid-

er the evidence against each individual defendant. See Cresta,

825 F.2d at 555. Absent a contrary showing or some evidence of

an extraordinary impediment, we will credit the readiness and

ability of the trial jury to abide by cautionary and limiting

instructions aimed at minimizing the mundane risks of evidentiary

spillover. See United States v. Figueroa, 976 F.2d 1446, 1452

(1st Cir. 1992) (citing United States v. Natanel, 938 F.2d 302,

308 (1st Cir. 1991), cert. denied, 112 S. Ct. 986 (1992)), cert.

denied, 113 S. Ct. 1346 (1993).

Next, appellants argue that severance was required

because evidence of their pre-majority conduct was admissible

against all their codefendants, but not against them. Since

prejudicial evidentiary spillover cannot result from evidence

directly admissible against all defendants, Figueroa, 976 F.2d at

1452 (citing United States v. Sabatino, 943 F.2d 94, 96 (1st Cir.

1991)), appellants must establish that evidence of their pre-

majority membership and participation in the conspiracy was not

directly admissible to support their convictions.

Appellants argue, relying on dicta in United States v.

14

Spoone, 741 F.2d 680, 687-88 (4th Cir. 1984), cert. denied, 469

U.S. 1162 (1985), that use of evidence of pre-majority conduct

must be limited as urged by appellants even though cautionary

instructions are given. In Spoone, the Fourth Circuit determined

that evidence of pre-majority conduct had not formed the sole

basis for the defendant's conviction, and therefore that the FJDA

could not have been violated. Id. The jury charge in Spoone

instructed, inter alia, that pre-majority conduct could provide

context for evaluating the defendant's knowledge of the conspira-

cy, as an aid in assessing evidence of his conduct after age

eighteen. Id.

We think the better view is that adopted in Cruz, 805

F.2d 1464: "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." Id. at 1477. See supra

note 8; see also Doerr, 886 F.2d at 969-70 (adopting Cruz ap-

proach). We are not persuaded that the restrictions advocated by

appellants would afford significantly greater protection than

appropriate cautionary and limiting instructions. We therefore

hold that a criminal defendant's pre-majority conduct is admissi-

ble on the same bases as other evidence, and does not alone

compel severance of a youthful defendant's trial.

C. Jury Instructions.

Appellants further contend that the instructions did

not properly limit jury consideration of their pre-majority

15

conduct. Although evidence of their pre-majority conduct was

admissible against appellants for all purposes, see Cruz, 805

F.2d at 1477, we reject any proposed reliance on Cruz for the

proposition that the trial judge is the sole and final arbiter of

the threshold determination as to the sufficiency of the evidence

of post-majority conduct, or that further limiting instructions

to the jury are unnecessary once the evidentiary threshold has

been met to the satisfaction of the trial court. See id. at

1476-77; see also Doerr, 886 F.2d at 970 (once the evidentiary

threshold has been met, the trial is "limited only by the Federal

Rules of Evidence").11 An age-of-majority-spanning conspiracy

is somewhat analogous to a criminal conspiracy that spans a bar

date imposed by the statute of limitations. See Maddox, 944 F.2d

at 1233; Gjonaj, 861 F.2d at 144. Although evidence of both pre-

and post-bar date conduct is fully admissible in such a case, the

jury nonetheless must be instructed to acquit a defendant who

withdrew from the conspiracy before the bar date. See United

States v. Piva, 870 F.2d 753, 756-57 (1st Cir. 1989); see 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. The temporal demarcation under the FJDA is not identical

11The approach approved in Cruz and Doerr appears to be

based on Fed. R. Evid. 404(b), which allows evidence of a defen-
dant's prior wrongful acts on such issues as motive and intent.
However, in an age-of-majority-spanning conspiracy, the defen-
dant's pre-majority conduct is not merely extrinsic evidence of a
prior wrongful act, but an integral component of the alleged
conspiracy for which he is on trial.

16

to a statute-of-limitations bar date, nor does it necessarily

follow that appellants could be convicted as "adults" simply

because there was no evidence that they withdrew from the age-of-

majority-spanning conspiracy prior to attaining age eighteen.12

A more apt analogy for FJDA cases involving age-of-majority-

spanning conspiracies may be the contract "ratification" doc-

trine, which provides that a minor legally incapable of contract-

ing may nonetheless affirm by his post-majority conduct. See

Maddox, 944 F.2d at 1233 ("a person who does absolutely nothing"

after age of majority cannot be held liable as adult) (citing

John D. Calamari and Joseph M. Perillo, Contracts 8-4 (3d ed.

1987)). We think the Maddox analogy better comports with the

fundamental principle that criminal liability is premised on some

discernible actus reus, be it action or (in an appropriate case)

intentional inaction. See United States v. Bishop, 469 F.2d

1337, 1348 (1st Cir. 1972) (Constitution prohibits punishment for

mere status) (citing Powell v. Texas, 392 U.S. 514 (1968)); see

generally 1 Wayne LaFave & Arthur Scott, Substantive Criminal Law

3.2-.3 (1986). Under the Maddox approach, therefore, rather

12Statute-of-limitations bar dates serve extrinsic ends.
See, e.g., Toussie v. United States, 397 U.S. 112, 114-15 (1970)

(limitations period protects individuals from charges brought
after the basic facts have been obscured by time, and fosters
diligent law enforcement). On the other hand, the "withdrawal"
defense promotes the reporting, and preemptive thwarting, of
criminal conspiracies. See Piva, 870 F.2d at 757.

By the same token, in some instances the FJDA decriminalizes

pre-majority conduct by divesting federal courts of criminal

jurisdiction and establishing a separate juvenile justice system
whose primary focus is on offender rehabilitation. See 18 U.S.C.

5032; see also S. Rep. No. 1011, supra note 6; In re Sealed

Case, 893 F.2d at 367.

17

than face conviction simply for failing to "withdraw" from the

age-of-majority-spanning conspiracy prior to attaining age

eighteen, there could be no conviction unless the jury found that

appellants in some manner "ratified" their participation in the

conspiracy after attaining majority.13

In all events, whatever the precise contours of the

"ratification" theory in the context of an age-of-majority-

spanning conspiracy, the instructions in this case required

significantly more post-majority conspiratorial conduct than the

FJDA mandates. The district court instructed the jury 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.) The challenged instruction effectively re-

quired the jury to determine whether evidence of appellants'

post-majority participation in itself was sufficient to support

appellants' convictions. Similarly, under the "moving train"

theory, knowing participation in any act in furtherance of a

13Juries commonly are called upon to make similar distinc-
tions 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

States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert.

denied, 492 U.S. 910 (1989); United States v. Baines, 812 F.2d

41, 42 (1st. Cir. 1987). Thus, the jury was not left free to

convict appellants based solely on an "act of juvenile delinquen-

cy," but only if it found post-majority conduct sufficient to

establish beyond a reasonable doubt that appellants participated

in the conspiracy alleged in the indictment.

D. Sufficiency of the Evidence.

"[E]schewing credibility judgments and drawing all

reasonable inferences in favor of the verdict," we evaluate the

sufficiency of the evidence with a view to whether the verdict

"draws its essence from a plausible reading of the record" and

whether the jury rationally could have determined that the

government established every element of the charged offense

beyond a reasonable doubt. Sepulveda, No. 92-1362, slip op. at 7

[ F.3d at ]; see United States v. Clifford, 979 F.2d 896,

897 (1st Cir. 1992) ("'Nor does the government have to disprove

every reasonable hypothesis of innocence.'") (citation omitted).

Appellants question the sufficiency of the evidence on but one

element of the offense their voluntary or "meaningful" post-

majority participation in the conspiracy. We find no shortfall.

No less than five witnesses testified to overt conduct

by Driesse from which the jury reasonably could have found direct

participation in the Sepulveda conspiracy following his eigh-

teenth birthday on April 6, 1988. In the "summer of 1988,"

19

Driesse delivered an ounce of cocaine to the residence of John

Rice; after Rice complained to Edgar Sepulveda that the cocaine

Driesse had delivered was underweight, Driesse collected $1150

from Rice. Daniel Santos accompanied Driesse and the Sepulvedas

on a drug run to Massachusetts in the "summer of 1988," at the

culmination of which Driesse "threw [Santos] the coke." Driesse

later admitted to Rice that he had made another drug run to

Massachusetts with codefendant Ernest Langlois in late 1988 or

early 1989. Moreover, Randall Vetrone and Norberto Perez bought

cocaine from Driesse several times a week throughout 1989.

Finally, in April 1989, David Sepulveda referred Kurt Coriarty to

Driesse as a source of cocaine.

Four witnesses testified to overt conduct by Shane

Welch from which the jury reasonably could have inferred partici-

pation in the conspiracy following his eighteenth birthday on

November 20, 1989. In late 1989 and early 1990, Santos, Vetrone

and Rice purchased cocaine from Welch, usually at Edgar Sepul-

veda's residence, and on some occasions Welch himself conducted

these transactions. On March 6, 1990, Welch accompanied Santos

and the Sepulveda brothers on a drug run to Massachusetts for the

announced purpose of replenishing the Sepulvedas' cocaine

inventory. During this run, when he discovered they were under

surveillance by local police, Welch warned Santos. Detective

Vallante arrested Welch after he stopped Santos's car, and the

20

cocaine was seized.14 Following his return to New Hampshire,

Welch also served as a fledgling "enforcer" for Sepulveda, at one

time attempting to break down the door at the Vetrone residence.

The only attack appellants mount against all this

evidence is that it is incredible, a challenge foreclosed by the

jury's credibility determination. See United States v. David,

940 F.2d 722, 730 (1st Cir. 1991). Thus, there was ample evi-

dence of post-majority participation to overcome appellants'

14Shane Welch raises one separate issue. Pointing to his
March 1990 state court conviction in Massachusetts for cocaine
possession, criminal conduct which the federal indictment alleges
as an overt act by Welch in furtherance of the Sepulveda
conspiracy, Welch argues that the federal prosecution was barred
by the Double Jeopardy Clause of the United States Constitution.
As primary authority, he cites Grady v. Corbin, 495 U.S. 508

(1990), in which the Supreme Court stated that double jeopardy
bars a subsequent prosecution "if, to establish an essential
element of an offense charged in that prosecution, [the govern-
ment] will prove conduct that constitutes an offense for which

the defendant has already been prosecuted." Id. at 510 (emphasis

added).
Welch's argument fails for at least two reasons. First, it
seems entirely possible that Grady, which involved two successive

state prosecutions, was not intended to override the longstanding

"dual sovereign" doctrine, which holds that successive prosecu-
tions by federal and state governments normally do not implicate
the Double Jeopardy Clause. See Heath v. Alabama, 474 U.S. 82,

92-93 (1985) ("[A] single act constitutes an 'offense' against
each sovereign whose laws are violated by that act."). Second,
the Supreme Court mooted the entire matter in United States v.

Felix, 112 S. Ct. 1377 (1992). "[L]ong antedating [Grady], and

not questioned in [Grady], is the rule that a substantive crime,

and a conspiracy to commit that crime, are not the 'same offense'
for double jeopardy purposes," so that "prosecution ... for
conspiracy, where certain of the overt acts relied upon ... are
based on substantive offenses for which the defendant has been
previously convicted, does not violate the [Double Jeopardy]
Clause." Id. at 1380, 1384. Indeed, prior to Felix, we gave

Grady the same gloss. See United States v. Rivera-Feliciano, 930

F.2d 951, 954-55 (1st Cir. 1991), cert. denied, 112 S. Ct. 1676,

and cert. denied, 113 S. Ct. 221 (1992). One year after Felix,

the Supreme Court explicitly overruled Grady. United States v.

Dixon, 113 S. Ct. 2849, 2860 (1993).

21

"mere bystander" defenses.

II. Claims Made Exclusively by Driesse.15
II. Claims Made Exclusively by Driesse.

A. Coconspirator Statements.

Driesse claims that the district court committed rever-

sible error by allowing the government to introduce, over timely

objection, an inadmissible hearsay statement. James Noe testi-

fied that he was told by Robert Labrecque, Driesse's cousin, that

Labrecque was selling cocaine for Driesse in late 1988 and early

1989; that is, after Driesse reached age eighteen. No reason was

assigned for admitting the hearsay statement over the Driesse

objection. Moreover, Driesse contends that the government failed

to prove by a preponderance of the evidence that Labrecque was a

"coconspirator," Fed. R. Evid. 801(d)(2)(E), whose statement

would have been admissible if made "in furtherance of the con-

spiracy."

"[A] [putative] coconspirator's statement, standing

alone, is insufficient to meet the preponderance standard of Rule

801(d)(2)(E)"; the proponent of the statement must submit some

extrinsic evidence of the declarant's involvement in the

conspiracy. Sepulveda, No. 92-1362, slip op. at 29-30 [ F.3d

at ]. There is no such extrinsic evidence in the record.

Labrecque's statement was the sole source of Noe's knowledge

15We need not discuss certain other contentions Driesse
raised in common with his codefendants, the merits of which were
considered in Sepulveda, No. 92-1362, slip op. at 55 [ F.3d at

], including his challenges to the bill of particulars, see

id. at 57-58, and the government's closing arguments, see id. at

39-49.

22

about Labrecque's complicity. Beyond that, Noe simply testified

that Driesse and Labrecque were "cousins," who lived in the same

apartment project, and that Noe had observed Labrecque "with"

Driesse on previous occasions. See United States v. Gomez, 921

F.2d 378, 381 (1st Cir. 1991) (mere "association" does not estab-

lish conspiratorial involvement). Although Noe sold cocaine to

Labrecque for Labrecque's "use, not for [re]selling," Noe never

observed Labrecque selling drugs, let alone doing so in Driesse's

company, or "for" Driesse. Although the government argues that

the trial court was permitted to conclude that it was "more

likely than not" that Labrecque was an "unindicted

coconspirator," except for the hearsay statement itself there was

no evidentiary basis, only conjecture, to support such an infer-

ence.

Although admission of Noe's hearsay statement was

error, we conclude that the error was harmless. See Fed. R.

Crim. P. 52(a). No less than five other witnesses offered

unequivocal testimony with respect to Driesse's active involve-

ment in the conspiracy. See supra Section I.D. Thus, the

Labrecque hearsay statement was merely cumulative, and had no

significant effect on the verdict. See United States v. Dworken,

855 F.2d 12, 26 (1st Cir. 1988).16

16Driesse asserts that the government laid an evidentiary
"trap" for the unwary defense team, when it elicited testimony
from Randall Vetrone on direct examination that he had purchased
stolen property previously. The government did not go on to
inquire into the identity of Vetrone's source. On cross-examina-
tion by counsel for one of Driesse's codefendants, Vetrone
testified that he had bought the pilfered goods from Driesse.

23

B. "Missing Witness" Instruction.

Driesse contends that he was entitled to a "missing

witness" instruction, which would have permitted the jury to

infer, from "'the failure of a party to produce available evi-

dence that would help decide an issue, . . . that the [missing]

evidence would [have been] unfavorable to the party to whom it is

available or whom it would normally be expected to favor.'"

United States v. St. Michael's Credit Union, 880 F.2d 579, 597

(1st Cir. 1989) (citation omitted). As the proponent of such an

instruction, Driesse was required to show that the absent witness

(Labrecque) would have been (1) "favorably disposed" to testify

in the government's behalf by virtue of his status or relation-

ship to the parties, (2) "peculiarly available" to the govern-

ment, or (3) within the government's "exclusive control." Id.

Driesse asserted that Labrecque could more easily have been

located by the government since he was under the probationary

supervision of the New Hampshire Department of Corrections.

We review the refusal to give a "missing witness"

Driesse moved for mistrial, contending that the government's
"trap" evidenced prosecutorial misconduct, which resulted in the
admission of otherwise inadmissible evidence. See Figueroa, 976

F.2d at 1453 ("other crime" evidence generally inadmissible to
show bad character or unrelated criminal activity); United States

v. Eatherton, 519 F.2d 603, 611 (1st Cir.) (same), cert. denied,

423 U.S. 987 (1975). We find no evidence of prosecutorial
misconduct in the government's anticipatory proffer. The govern-
ment explains that it divulged the evidence of Vetrone's past
criminal activity in order to preempt the defense from impeaching
Vetrone on cross-examination. Given the reasonableness of its
trial tactic, the government cannot be faulted for the seemingly
irrelevant follow-up question the defense chose to put to Vet-
rone.

24

instruction for abuse of discretion. United States v. Arias-

Santana, 964 F.2d 1262, 1268 (1st Cir. 1992). Given the avail-

able evidence that Driesse and Labrecque were family members who

had resided in the same apartment project, Driesse can make no

serious claim that Labrecque was naturally predisposed to testify

for the government. Moreover, given the familial relationship,

the bare fact that Labrecque was a state probationer did not

establish that he was peculiarly available to the government, let

alone unavailable to Driesse. Indeed, the government provided

the defense with Labrecque's two last-known addresses, cf. St.

Michael's Credit Union, 880 F.2d at 598 (upholding denial of

instruction where government allegedly knew missing witness's

whereabouts during trial), attested that he was not in the

government's control, and disavowed any intention (or need) to

call Labrecque as a witness.17 In these circumstances, absent

any evidence that Labrecque was not available to his cousin

17As noted, see supra Pt. II.A, Labrecque's testimony, even

if favorable to the government, would have been largely cumula-
tive, giving rise to a plausible explanation for the government's
decision not to investigate his whereabouts or to call him as a
witness. United States v. Johnson, 467 F.2d 804, 808 (1st Cir.

1972), cert. denied, 410 U.S. 909 (1973) ("No [adverse] inference

is permissible, however, where the unpresented evidence would be
merely cumulative ...."); United States v. Norris, 873 F.2d 1519,

1522-23 (D.C. Cir.) (trial court may consider all of the cir-
cumstances in determining entitlement to "missing witness"
instruction, including whether the government simply bypassed
calling the witness because his testimony "'would likely have
been merely cumulative or corroborative'") (citation omitted),
cert. denied, 493 U.S. 835 (1989). Were it not for this common-

sense approach, the government could be held presumptively
responsible for failing to call any person who might have been

able to provide relevant testimony, even though the evidence was
presented through some other witness.

25

Driesse, or that the government interfered with any effort to

locate or produce Labrecque at trial, the district court acted

well within its discretion in denying a "missing witness" in-

struction.

C. Sentencing.

Finally, Driesse challenges the drug quantity calcula-

tion recommended in the presentence report (PSR) and relied on by

the court at sentencing. The PSR calculation was based on the

trial testimony of Norberto Perez that Driesse accompanied Perez

on "about 20" drug runs between 1987 and 1989, involving from one

kilogram to 113.4 grams of cocaine per trip. The PSR assigned an

average of 16 ounces per trip, resulting in a total estimate of

9.09 kilos (or 320 oz.). Thus, Driesse was assigned a base

offense level (BOL) of 32 (5-15 kilograms).

Where the sentencing court relies solely on the rough

drug quantity estimates of a lay witness, expressed in terms of a

range, rote averaging is an insufficiently reliable basis for a

supportable drug quantity finding. Sepulveda, No. 92-1362, slip

op. at 69-75 [ F.3d at ]. Unlike the sentences imposed on

Driesse's codefendants, Tony Rood and William Wallace, which were

based on rough ranging estimates not only of the number of drug

runs but the cocaine quantity per trips, the only rough averaging

involved in the drug quantity finding for the Driesse sentencing

was the wide ranging estimate of the quantity of drugs per trip

(4 ozs. to 1 kilogram). Nevertheless, since the lowest estimated

quantity range (4 ozs.) per trip would yield a total drug quanti-

26

ty of approximately 2.3 kilograms, dropping Driesse well below

BOL 32,18 we vacate his sentence, and remand for resentencing, in

accordance with our decision in United States v. Sepulveda,

F.3d , (1st Cir. 1993).19

The judgments of conviction entered against Christopher

Driesse and Shane Welch are affirmed. The sentence of Christo-

pher Driesse is vacated and case No. 92-1370 is remanded for

resentencing in accordance with this opinion.

18Driesse was assigned an additional 1.146 kilograms apart
from the Perez testimony. In any event, even with this addition-
al amount, the total drug quantity would be 3.446, well below the
5 kilogram threshold for BOL 32.

19All other arguments raised by these appellants are either
dealt with by reference in Sepulveda, F.3d, (1st Cir.

1993) (No. 92-1362), or plainly meritless.

27