                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 14-10251
                 Plaintiff-Appellee,
                                                    D.C. No.
                     v.                          2:12-cr-00004-
                                                 APG-GWF-23
 DAVID RAY CAMEZ, aka Badman,
 AKA Doctorsex,
              Defendant-Appellant.                  OPINION


        Appeal from the United States District Court
                 for the District of Nevada
        Andrew P. Gordon, District Judge, Presiding

           Argued and Submitted August 10, 2016
                 San Francisco, California

                     Filed October 17, 2016

  Before: Susan P. Graber and M. Margaret McKeown,
  Circuit Judges, and Rosanna Malouf Peterson,* District
                          Judge.

                    Opinion by Judge Graber




    *
      The Honorable Rosanna Malouf Peterson, United States District
Judge for the Eastern District of Washington, sitting by designation.
2                    UNITED STATES V. CAMEZ

                            SUMMARY**


                            Criminal Law

    The panel affirmed a criminal judgment in a case in which
the defendant was convicted under the Racketeer Influenced
and Corrupt Organizations Act for continuing crimes that
spanned his 18th birthday.

    The panel rejected the defendant’s contention that the
Juvenile Delinquency Act prohibits consideration of the
defendant’s pre-majority conduct as proof of the substantive
crimes, and concluded that the defendant’s conviction must
stand where the district court instructed the jury that it could
convict only if it found that the defendant continued his
participation after turning 18, and the jury’s special verdict
form makes clear that the defendant, in fact, continued his
participation after turning 18.


                             COUNSEL

Chris T. Rasmussen (argued), Rasmussen & Kang LLC, Las
Vegas, Nevada, for Defendant-Appellant.

William R. Reed (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Daniel G. Bogden,
United States Attorney; United States Attorney’s Office,
Reno, Nevada; for Plaintiff-Appellee.


    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    UNITED STATES V. CAMEZ                             3

                             OPINION

GRABER, Circuit Judge:

    Defendant David Ray Camez participated in a criminal
enterprise, known as the “carder.su enterprise,” that operated
an online trading post for stolen and counterfeit access
devices and means of identification. The government
indicted him under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) for continuing crimes that,
according to the government, spanned Defendant’s eighteenth
birthday. The district court instructed the jury that it could
not convict Defendant solely for his pre-majority conduct.
But the court permitted the jury, over Defendant’s objection,
to consider Defendant’s pre-majority conduct as proof of the
substantive crimes. Defendant argues that the Juvenile
Delinquency Act (“JDA”) prohibits consideration of his pre-
majority conduct as proof of the substantive crimes.
Reviewing de novo the question of statutory interpretation,
United States v. Watson, 792 F.3d 1174, 1177 (9th Cir. 2015),
we 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.1

    The carder.su enterprise engaged in unlawful trafficking
of means of identification, real and counterfeit; access
devices; and associated equipment. The enterprise’s
hierarchy included an administrator, moderators, reviewers,
vendors, and members. Defendant was a “member” whose
criminal activities in furtherance of the enterprise included
production of, and trafficking in, counterfeit identification

    1
      In an unpublished disposition filed concurrently with this opinion,
we reject Defendant’s other challenges to his convictions and sentence.
4                   UNITED STATES V. CAMEZ

documents, possession of counterfeit and unauthorized access
devices, and conspiracy to possess device-making equipment.

    The government indicted Defendant on two RICO counts:
(1) a substantive RICO count of participation in a criminal
enterprise, in violation of 18 U.S.C. § 1962(c); and (2) a
RICO conspiracy count of conspiring to participate in a
criminal enterprise, in violation of § 1962(d). Because the
government alleged both pre-majority and post-majority
conduct, the district court instructed the jury on the effect of
Defendant’s age:

         You may not convict Mr. Camez of RICO or
         RICO conspiracy based solely on his juvenile
         acts. You may convict him only if you find
         beyond a reasonable doubt that Mr. Camez
         continued to participate in the Carder.su
         organization or the RICO conspiracy after he
         turned 18 years of age.[2]

     With respect to his pre-majority conduct, Defendant
challenges his conviction on the substantive RICO count
only. A “violation of 18 U.S.C. § 1962(c) is established by
proof of (1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.” United States v. Fernandez,
388 F.3d 1199, 1221 (9th Cir. 2004) (internal quotation marks
omitted). “A pattern of racketeering activity, in turn, requires
at least two predicate acts . . . .” Id.




    2
       We reject, as foreclosed by the plain wording of the instruction,
Defendant’s argument that the instruction is confusing or that it allowed
the jury to convict Defendant solely for pre-majority acts.
                 UNITED STATES V. CAMEZ                      5

    The indictment alleged that Defendant committed three
predicate acts: one when he was 17 years old, and two when
he was 18 years old. In the special verdict form, the jury
selected “proven” for the act committed when Defendant was
17; selected “proven” for one of the acts committed when
Defendant was 18; but declined to select “proven” or
“unproven” for the other act allegedly committed by
Defendant when he was 18.

    The JDA “creates a special procedural and substantive
enclave for juveniles accused of criminal acts.” United States
v. Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir. 1980).
“The purpose of the Act, as amended in 1974, was to enhance
the juvenile system by removing juveniles from the ordinary
criminal justice system and by providing a separate system of
‘treatment’ for them.” Id. “A successful prosecution under
the Act results not in conviction of a crime but rather in
adjudication of a status.” United States v. Araiza-Valdez,
713 F.2d 430, 432 (9th Cir. 1980) (per curiam) (internal
quotation marks omitted). “The Act 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.” Id. (internal quotation marks and
brackets omitted).

    Chapter 403 of Title 18, entitled “Juvenile Delinquency,”
sets forth the procedures for adjudicating juveniles alleged to
have committed acts of juvenile delinquency. “A juvenile
who is alleged to have committed an act of juvenile
delinquency and who is not surrendered to State authorities
shall be proceeded against under this chapter unless [certain
6                UNITED STATES V. CAMEZ

requirements are met].” 18 U.S.C. § 5032. Section 5031
defines the terms “juvenile” and “juvenile delinquency”:

           For the purposes of this chapter, a
       “juvenile” is 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” is 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 or a violation by such
       a person of section 922(x).

    In nearly all cases, the application of those definitions is
straightforward. We must look first to the defendant’s age at
the time of indictment. United States v. Doe, 631 F.2d 110,
113 (9th Cir. 1980). If the defendant is under 18, then the
JDA applies. 18 U.S.C. § 5031. If the defendant is 21 or
older, then the JDA does not apply. See Araiza-Valdez,
713 F.2d at 433 (holding that the JDA does not apply to a
defendant indicted at age 24, even though the crimes were
committed when the defendant was 17). If the defendant is
18, 19, or 20 at the time of indictment, then we must ask
whether the alleged crime occurred “prior to his eighteenth
birthday.” 18 U.S.C. § 5031. For most crimes, the age of the
defendant is not subject to dispute and the answer to that
inquiry is simple. If the defendant was under 18 at the time
of the crime, then the JDA applies; if not, then the JDA does
not apply. But for continuing crimes alleged to have occurred
both before and after the defendant turned 18, the statute
provides no clear answer to the question whether the JDA
                 UNITED STATES V. CAMEZ                      7

applies. We face that situation here, because Defendant was
20 at the time of indictment and because the government
alleged that he committed the crime when he was both 17 and
18.

    In these circumstances, courts uniformly have held that
adult prosecution is warranted. See, e.g., United States v.
Wong, 40 F.3d 1347, 1365 (2d Cir. 1994) (“It is well
established that federal courts have jurisdiction over
conspiracies [and other continuing crimes] begun while a
defendant was a minor but completed after his eighteenth
birthday.”); United States v. Cruz, 805 F.2d 1464, 1475 (11th
Cir. 1986) (“‘The [JDA] does not, of course, prevent an adult
criminal defendant from being tried as an adult simply
because he first became embroiled in the conspiracy with
which he is charged while still a minor.’” (ellipsis omitted)
(quoting United States v. Spoone, 741 F.2d 680, 687 (4th Cir.
1984))); accord United States v. Strothers, 77 F.3d 1389,
1392 (D.C. Cir. 1996); United States v. Doerr, 886 F.2d 944,
969 (7th Cir. 1989). Indeed, Defendant here does not
challenge the fact that he was adjudicated as an adult.
Instead, he argues only that the JDA implicitly forbids a jury
from considering any of his pre-majority conduct as
substantive proof of the crime.

    The District of Columbia Circuit has adopted the view
advanced by Defendant. In United States v. Thomas,
114 F.3d 228, 265–67 (D.C. Cir. 1997), the court held that the
jury may consider only the post-majority acts as proof of
guilt; pre-majority acts may be admitted, if at all, only under
Federal Rule of Evidence 404(b) to help the jury understand
post-majority acts. “[I]t is the adult participation that gives
the district court jurisdiction over the eighteen to twenty-one
year old defendant . . . .” Id. at 266. Accordingly, a
8                UNITED STATES V. CAMEZ

conviction that rests “in whole or in part on acts committed
as a juvenile” is invalid. Id.

   Following the lead of most circuit courts to have
considered the issue, we disagree with the D.C. Circuit’s
analysis and conclusion for at least two reasons. First, as the
Tenth Circuit held:

       The problem with Thomas . . . is evident:
       Any decision denying the admissibility of
       evidence of an adult defendant’s pre-eighteen
       conduct to prove his guilt for continuing
       crimes incorrectly suggests that the JDA
       changes the substantive standard of criminal
       liability for a racketeering enterprise or
       conspiracy spanning a defendant’s eighteenth
       birthday. We do not read the JDA so broadly.

United States v. Delatorre, 157 F.3d 1205, 1210 (10th Cir.
1998). Similarly, our own caselaw strongly suggests that the
JDA does not impose substantive requirements on an adult
prosecution. In Frasquillo-Zomosa, 626 F.2d at 101, we
rejected the defendant’s argument that the government must
prove the defendant’s age: “[N]othing in the legislative
history of the [JDA], its purpose or structural scheme
suggests that Congress intended to add an additional
substantive element to the government’s burden of proof.”
Compare also Araiza-Valdez, 713 F.2d at 432 (our holding
that 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”
(internal quotation marks omitted)), with Thomas, 114 F.3d
                 UNITED STATES V. CAMEZ                      9

at 266 (the D.C. Circuit’s holding that “it is the adult
participation that gives the district court jurisdiction”).

   Second, we agree with the Eleventh Circuit’s analysis:

           Common sense suggests that Congress did
       not intend to bifurcate the prosecution of any
       continuing offense which began prior to the
       defendant’s reaching the age of eighteen and
       continued thereafter. The rule proposed by
       [the defendant] would have just this effect. In
       the instant case, for example, the government
       would have been required to prosecute [one of
       the defendants] as an adult for those activities
       in which he engaged after his eighteenth
       birthday, and, in a separate proceeding before
       the juvenile courts, prosecute [him] for those
       acts which he did before his eighteenth
       birthday. Neither the efficiency of judicial
       administration nor the congressional purpose
       of extending constitutional protections to
       juveniles would be served by such a result.

Cruz, 805 F.2d at 1477.

    This case, too, illustrates why Congress could not have
intended the result for which Defendant advocates. The jury
found that Defendant committed two acts of racketeering,
proof that ordinarily suffices for a conviction. Defendant
committed one act when 17 and another act when 18. Under
Defendant’s and the D.C. Circuit’s approach, he would not be
guilty as either a juvenile or an adult. He committed only
one act as a juvenile and therefore never established a pattern
for purposes of a juvenile delinquency proceeding; and he
10               UNITED STATES V. CAMEZ

committed only one act as an adult and therefore never
established a pattern for purposes of an adult prosecution.
Nothing in the JDA or in any other statute suggests that
Congress intended to create a loophole resulting in no
rehabilitation or punishment whatsoever for persons who
indisputably committed a serious continuing crime, merely
because the crime happened to span the defendant’s
eighteenth birthday.

    Had Congress intended to allow all persons effectively to
start with a clean slate on the occurrence of their eighteenth
birthday, then the D.C. Circuit’s conclusion might have more
support. But we have rejected that reading of the JDA by
holding that a person who is indicted after turning 21 must be
charged as an adult, even for crimes committed when he was
17. Araiza-Valdez, 713 F.2d at 433. That is, criminal acts
committed before turning 18 are not, for that reason alone,
necessarily immune from adult prosecution. In sum, we
adopt the prevailing view that, for prosecution of a defendant
indicted at age 18, 19, or 20, pre-majority acts may be
admitted as substantive proof of a continuing crime such as
the substantive RICO count here.

    Our sister circuits have explained why pre-majority
conduct is admissible by analogy to the “contract
‘ratification’ doctrine.” Wong, 40 F.3d at 1366; accord
United States v. Welch, 15 F.3d 1202, 1211–12 (1st Cir.
1993); United States v. Maddox, 944 F.2d 1223, 1233 (6th
Cir. 1993). “[J]ust as a minor legally incapable of entering a
contract may nonetheless be found to have ‘ratified’ a
contract by taking actions after attaining majority consistent
with an intent to be bound by it, so a defendant may ratify his
pre-eighteen participation in a conspiracy [or other continuing
crime] by continued participation after attaining majority.”
                 UNITED STATES V. CAMEZ                      11

Wong, 40 F.3d at 1366 (citations omitted); see also id. at
1367 (analogizing to the fact that otherwise time-barred acts
may be used in a prosecution so long as the defendant has not
withdrawn from the conspiracy during the limitations period).

    The sister circuits that have rejected the D.C. Circuit’s
restrictive interpretation of the JDA have offered differing
descriptions of what, if any, limitations the JDA imposes on
an adult prosecution of a majority-spanning continuing crime.
The First Circuit has held that the jury must be instructed that
it may convict the defendant only if it finds that the defendant
participated in the continuing crime after turning 18. Welch,
15 F.3d at 1211–12; accord Delatorre, 157 F.3d at 1209.
This is the most restrictive of the various approaches. The
Eleventh Circuit has held that no special jury instruction is
required but that the government must introduce sufficient
evidence that the defendant continued to participate in the
continuing crime after turning 18. Cruz, 805 F.2d at 1476–77
& n.15; accord Doerr, 886 F.2d at 969–70.

    The Second Circuit appears to have held that it is enough
for a court to “look to the defendant’s age at the time of the
offense or offenses charged in the indictment”; no evidentiary
inquiry is required by the court or the jury. Wong, 40 F.3d at
1365. That approach finds support in the text of the JDA,
which focuses on the government’s allegations and nowhere
suggests that Congress intended to impose a post-indictment
evidentiary burden. See 18 U.S.C. § 5031 (defining a
“juvenile” “for the purpose of proceedings and disposition
under this chapter for an alleged act of juvenile delinquency”
(emphasis added)); id. § 5032 (“A juvenile alleged to have
committed an act of juvenile delinquency [shall be transferred
to state court unless certain conditions are met].” (emphasis
added)); id. (“[N]o criminal prosecution shall be instituted for
12               UNITED STATES V. CAMEZ

the alleged act of juvenile delinquency except as provided
below.” (emphasis added)); id. (“A juvenile who is alleged to
have committed an act of juvenile delinquency [shall be
prosecuted under the JDA unless certain conditions are met].”
(emphasis added)). Our own caselaw, too, is consistent with
the Second Circuit’s approach. See Frasquillo-Zomosa,
626 F.2d at 101 (“[N]othing in the legislative history of the
[JDA], its purpose or structural scheme suggests that
Congress intended to add an additional substantive element
to the government’s burden of proof.”); see also Doe,
631 F.2d at 113 (holding that “it is important” that the
juvenile/adult determination “be established at the beginning
of a proceeding and that once fixed it endure throughout”).

    We need not—and do not—determine which of those
approaches is correct. The district court here instructed the
jury that it could convict Defendant only if it found that
Defendant continued his participation after turning 18, and
the jury’s special verdict form makes clear that the jury found
that Defendant, in fact, continued his participation after
turning 18. Under any of the three approaches used by our
sister circuits, Defendant’s conviction must stand.

     AFFIRMED.
