UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                  No. 97-4896

RODNEY THOMPSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                  No. 97-4897

TIMOTHY A. WATSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                  No. 97-4899

DARRYL NATHANIEL HOGES,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                  No. 97-4923

KEVIN LAMONT TRENT, a/k/a K-Rock,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 98-4301

CHARLIE LEE DAVIS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 99-4070

ROBERT LEE TRENT, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-97-4)

Submitted: August 31, 1999

Decided: November 2, 1999

Before MURNAGHAN and WILKINS, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.

_________________________________________________________________

COUNSEL

Barbara R. Hudson, Danville, Virginia; Dorothy P. Dillon, Rocky
Mount, Virginia; Hunt L. Charach, OFFICE OF THE FEDERAL

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PUBLIC DEFENDER, Charleston, West Virginia; Thomas W. Far-
rell, David W. Hearn, WOOTEN & HART, P.C., Roanoke, Virginia;
Thomas S. Leebrick, THOMAS S. LEEBRICK, P.C., Lynchburg,
Virginia; James J. Angel, Lynchburg, Virginia, for Appellants. Robert
P. Crouch, Jr., United States Attorney, Donald R. Wolthius, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The record discloses that Appellants Rodney Thompson, Timothy
A. Watson, Darryl N. Hoges, Kevin L. Trent, Charlie L. Davis, and
Robert L. Trent, Jr., were involved in a drug trafficking organization
in Virginia. Appellants were indicted, and ultimately convicted and
sentenced for conspiracy and various drug trafficking crimes in viola-
tion of 21 U.S.C. §§ 841, 846 (1994). We have thoroughly reviewed
each Appellant's claims, and now affirm in part and vacate and
remand in part for the reasons that follow.

We first find no legal merit to the claim of Thompson and Hoges
that the trial court committed plain error in allowing the testimony of
two paid informants during their trial in violation of 18 U.S.C.A.
§ 201(c)(2) (West Supp. 1999). We also find no error in the district
court's denial of Watson's motion for acquittal based on insufficient
evidence. See Glasser v. United States, 315 U.S. 60, 80 (1942).

As to Kevin Lamont Trent, we find that: (1) the Government did
not withhold evidence in violation of Brady v. Maryland, 373 U.S. 83,
87 (1963); (2) the district court did not sentence him in violation of
the U.S. Sentencing Guidelines on the three grounds proffered;
(3) sufficient evidence supports the jury's guilty verdict; (4) the dis-
trict court did not abuse its discretion in denying his severance

                    3
motion; and (5) the district court did not err in admitting certain voice
identification testimony. With respect to Davis' arguments, we find
no abuse of discretion in the trial court's (1) refusal to excuse two
jurors and its decision to excuse another for cause; (2) admission of
a witness' testimony concerning his own hesitancy to testify; (3)
denial of Davis' motion to recuse the district court judge based on
comments he made at Davis' first trial which resulted in a hung jury;
and (4) denial of Davis' motion for a transcript of the first trial and
motion for continuance. Finding sufficient evidence to support Davis'
convictions, we find no error in the district court's denial of his
motion for judgment of acquittal. We further find that the district
court did not err in overruling Davis' objection to a two-point
enhancement under United States Sentencing Guidelines Manual
§ 3B1.1 (1997). As to Robert L. Trent, Jr., we find sufficient evidence
to support the jury's verdict.

We now address Rodney Thompson's claim regarding the district
court's lack of subject-matter jurisdiction over him for the alleged act
of cocaine distribution he committed when he was under eighteen
years of age. A jury convicted Thompson, born February 10, 1978, of
conspiracy to possess with intent to distribute cocaine and cocaine
base and two counts of possession with intent to distribute cocaine
base. Count two of the indictment, charging Thompson with posses-
sion with intent to distribute cocaine base, was based on an incident
occurring on January 4, 1996. Thompson contends that the district
court lacked jurisdiction under 18 U.S.C.A. § 5032 (West Supp.
1999) of the Juvenile Delinquency Act to proceed against him on this
specific charge, absent a filing of a certification and a transfer hearing
pursuant to § 5032, because he was seventeen years of age on January
4, 1996, and did not turn eighteen until February 10, 1996. The Gov-
ernment concedes error.

Thompson did not assert this jurisdictional argument in the district
court. Courts, however, can always consider questions as to subject
matter jurisdiction--whenever raised. See United States v. White, 139
F.3d 998, 999-1000 (4th Cir. 1998), cert. denied , ___U.S. ___, 67
U.S.L.W. 3257 (U.S. Oct. 13, 1998) (No. 98-5146). Because proper
certification under § 5032 is jurisdictional, see United States v. NJB,
104 F.3d 630, 632 (4th Cir. 1997), we address Thompson's claim.

                     4
When an individual under eighteen years of age commits a viola-
tion of federal law "which would have been a crime if committed by
an adult," that individual has committed an act of juvenile delin-
quency. 18 U.S.C.A. § 5031 (West Supp. 1999). Having obtained
jurisdiction pursuant to § 5032, the Government must proceed against
a juvenile who commits an act of juvenile delinquency under the
delinquency provisions of Title 18, Chapter 403, rather than the crimi-
nal laws of the United States, except in narrowly defined statutory cir-
cumstances. See 18 U.S.C.A. § 5032. Thompson, seventeen years of
age when the alleged violation occurred, was eligible to be transferred
for adult prosecution if the district court, upon motion and after hear-
ing, concluded that treating Thompson as an adult"would be in the
interest of justice." Id.

Here, the Government failed to move under § 5032 to have Thomp-
son tried as an adult for the act of juvenile delinquency he committed
on January 4, 1996. Consequently, there was no certification or hear-
ing on the issue. Instead, Thompson was directly tried in district court
as an adult. Because the Government acknowledges that it did not fol-
low the procedural requirements of § 5032 and given the district
court's failure to consider and make findings for the record on the six
factors in making the "interest of justice determination," we vacate
Thompson's conviction and sentence on count two of the indictment
and remand to the district court to proceed in accordance with statu-
tory mandate.

Because the offense forming the basis for the last count for which
Thompson was charged clearly took place after Thompson reached
the age of eighteen, and Thompson does not challenge the sufficiency
of evidence to support that conviction, we affirm Thompson's convic-
tion for distribution as alleged in count nine of the indictment. We
must, however, vacate the conspiracy conviction. This Court has held
that conspiracy is a continuing crime and although a defendant may
have become involved in the conspiracy before his eighteenth birth-
day, a conviction can be sustained if he continued to play an active
part in the conspiracy after he became eighteen years old. See United
States v. Spoone, 741 F.2d 680, 687 (4th Cir. 1984). It is important,
however, that a jury be instructed that it cannot consider a defendant's
juvenile acts as evidence of his guilt. See id.

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Count one of the indictment charges Thompson with conspiracy to
possess with intent to distribute and to distribute cocaine and cocaine
base from the Fall of 1995--prior to Thompson's eighteenth birthday
--to the date of the indictment, January 21, 1997, approximately a
year after Thompson's eighteenth birthday. Because Thompson's age
was not raised as an issue before the district court, the district court
did not instruct the jury not to consider Thompson's juvenile acts as
evidence of his involvement in the conspiracy. Consequently, it can-
not be determined if the jury inappropriately considered the juvenile
acts in convicting Thompson of the conspiracy charge. We, therefore,
also vacate Thompson's conspiracy conviction and accompanying
sentence and remand to the district court for further proceedings con-
sistent with this opinion. In light of our decision, we do not address
Thompson's challenge to the sufficiency of evidence for his convic-
tions on counts one and two.

Accordingly, we affirm the convictions and sentences of Timothy
A. Watson, Darryl N. Hoges, Kevin L. Trent, Charlie L. Davis, and
Robert L. Trent, Jr. For the reasons stated above, we vacate Rodney
Thompson's convictions upon count one and count two of the indict-
ment, and remand to the district court for proceedings consistent with
this opinion. We otherwise affirm Thompson's conviction on count
nine of the indictment. We further grant the Government's motion to
file a sur-reply brief in Appeals No. 97-4896, 97-4897, 97-4899, 97-
4923, and 98-4301, and the motion by Robert Lee Trent, Jr., to submit
his appeal on the briefs. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court, and oral argument would not aid the decisional pro-
cess.

AFFIRMED IN PART, VACATED AND REMANDED IN PART

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