United States v. Mendez

28 F.4th 1320

UNITED STATES of America, Plaintiff-Appellee,

v.Edwin Isaac MENDEZ, aka Carabina, aka Chino, Defendant-Appellant.

No. 21-50086

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2022 Pasadena, California

Filed March 24, 2022

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.

Before: Mary M. Schroeder, Richard C. Tallman, and Eric D. Miller, Circuit Judges.

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 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, 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 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 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, 97 S.Ct. 2034, 52 L.Ed.2d 651 (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 immediately. See Midland Asphalt Corp. v. United States , 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (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.

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 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...