Sunday, November 06, 2016

Case o' The Week: Seventeen will get you Twenty - Camez and juvenile offenses as substantive federal crimes

Years of federal sentence: twenty.
Age at time of offense: seventeen.
  Troubling math from the Ninth.
 United States v. Camez, 2016 WL 6068195 (9th Cir. Oct. 17, 2016), decision available here.

Players: Decision by Judge Graber, joined by Judge McKeown and District Judge Peterson.

Facts: Camez went to trial on RICO counterfeit card and ID charges. Id. at *1. The jury was instructed that it could not convict Camez solely on conduct that took place before his eighteenth birthday. Id. Over defense objection, however, the jury was instructed that it could “consider Defendant’s pre-majority conduct as proof of the substantive crimes.” Id. 
  Recall that substantive RICO counts require a pattern of racketeering activity -- specifically, conviction on at least two predicate acts. *2 (discussing 18 U.S.C. § 1962(c)).

  In a special verdict form, the jury convicted Camez of one predicate for conduct before he was 18, a second allegation for conduct after he was 18, and acquitted him on a third post-18 allegation. Id.

Issue(s): “Defendant argues that the Juvenile Delinquency Act (‘JDA’) prohibits consideration of his pre-majority conduct as proof of the substantive crimes.” Id. 
  “[F]or continuing crimes alleged to have occurred before and after the defendant turned 18, the statute provides no clear answer to the question whether the JDA applies. We face that situation here, because Defendant was 20 at the time of the indictment and because the government alleged that he committed the crime when he was both 17 and 18.” Id. at *2. 
  “[Defendant] argues . . . . that the JDA implicitly forbids a jury from considering any of his pre-majority conduct as substantive proof of the crime.” Id. at *3.

Held: “[W]e hold that the district court’s instruction, which comported with the law of most circuits that have addressed this issue, was not erroneous. Accordingly, we affirm the judgment.” Id. at *1.

Of Note: In this case of first impression, the Ninth parts ways with the D.C. Circuit. Id. at *3. Unfortunately, DC had it right: that circuit has held that a “conviction that rests in whole or in part on acts committed as a juvenile is invalid.” Id. at *3 (internal quotations and citation omitted).  
  Camez bucks the national policy trend. Neuroscience is confirming what all parents know: juvenile brains are hired-wired differently. In 2012 the Supreme Court’s decision in Miller v. Alabama considered this science and kick-started the trend of more progressive juvenile sentencing laws. See article here
  The Sentencing Commission has also signaled that is aware of this new science – a current priority is the “Study of the treatment of youthful offenders under the Guidelines Manual.” See List of Commission Priorities here.
  There’s a growing circuit split on whether the JDA permits conviction on pre-majority conduct. Hopefully a full Supreme Court will soon revisit the issue of juvenile justice, and continue its Miller line.

How to Use: Juvi conduct can now support federal convictions in the Ninth. Are there limits?
  The First Circuit says, “yes:” a jury has to find that continuing conduct went past the defendant’s 18th birthday. Id. at *4.
  The Eleventh requires the government to introduce sufficient evidence that the defendant’s crimes spanned 18. Id.
  The Second just requires a court to look at the defendant’s age at the time of the offense charged in the indictment – there’s no additional evidentiary burden. Id. at *5.
  What approach did the Ninth adopt? “We need not – and do not – determine which of those approaches is correct.” Id.
  Though Judge Graber throws some dicta love towards the Second Circuit approach, how the court approaches juvenile convictions remains a very live issue in the Ninth.

  Short answer: fight for the First Circuit's approach in Welch – that circuit’s law “is the most restrictive of the various approaches.” Id. at *4.

For Further Reading: Under federal law, juvi brain science impacts punishment. It also bears upon the Miranda “reasonableness” analysis. 

  Why aren’t substantive offenses viewed with the same modern scientific lens? So asks Professor Jenny Carroll, in her compelling article: Brain Science and the Theory of Juvenile Mens Rea, 94 N. Carolina L. Rev. 539 (2016), available here.

Image of brain development from 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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