                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0623n.06
                                                                                      FILED
                                          No. 12-4337                           Aug 13, 2014
                                                                            DEBORAH S. HUNT, Clerk

                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                  )
                                           )
      Plaintiff-Appellee,                  )
                                           )                    ON APPEAL FROM THE
               v.                          )                    UNITED STATES DISTRICT
                                           )                    COURT FOR THE NORTHERN
TERRANCE MACHEN, JR., aka Terrance Machen, )                    DISTRICT OF OHIO
aka Andy,                                  )
                                           )
      Defendant-Appellant.



BEFORE: SUHRHEINRICH, KETHLEDGE, AND WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.              A grand jury indicted defendant Terrance

Machen, Jr., for participation in a Racketeering Influenced and Corrupt Organization (RICO) Act

conspiracy that allegedly began when Machen was eleven and continued until he was indicted at

age nineteen. Under the Federal Juvenile Delinquency Act (FJDA), the government may not

proceed in federal court against a defendant under the age of twenty-one for acts the defendant

committed before turning eighteen unless the government “certifies” that certain conditions are

met and that federal jurisdiction is appropriate. 18 U.S.C. §§ 5031, 5032. However, a defendant

between the ages of eighteen and twenty-one charged with participation in a conspiracy that

spanned his eighteenth birthday may be proceeded against in federal court as an adult, for actions

committed as an adult, without certification.     In such cases, the government must make a

“threshold showing” that the defendant “ratified” his participation in the conspiracy after he

turned eighteen and the defendant’s guilt may not be premised on his conduct as a minor. See
No. 12-4337, United States v. Machen


United States v. Maddox, 944 F.2d 1223, 1233 (6th Cir. 1991). Machen argues that his RICO

conspiracy conviction must be vacated because (1) the government failed to plead ratification in

the indictment; (2) the government did not prove ratification at trial; and (3) the jury was not

instructed that it could not convict unless it first found ratification. We conclude that the

evidence was sufficient, if barely, for a properly instructed jury to have found that Machen

ratified his participation in the conspiracy after he turned eighteen; however, the district court’s

failure to instruct the jury on ratification was plain error requiring reversal.

                                                   I.

                                                  A.

        Machen was charged in an indictment targeting the alleged racketeering activity of a

Youngstown, Ohio street gang known as LSP (an initialism for the street names at the heart of

the gang’s territory). The indictment included 42 counts charged to 23 defendants, but charged

Machen only in count one, alleging participation in a RICO conspiracy that began on or about

January 1, 2003, and continued through March 15, 2011, in violation of 18 U.S.C. § 1962(d).

Counts two through forty-two charged Machen’s codefendants with multiple narcotics

distribution and firearms offenses, violent crimes in aid of racketeering, and theft.

        Under count one, the indictment listed 102 “overt acts” allegedly committed by the

coconspirators. With respect to Machen in particular, the indictment alleged:

       Between January 1, 2003 and March 15, 2011, Machen and several codefendants shot at
        rival gang members.
       On or about September 23, 2003, Machen along with two codefendants kicked and
        punched a person near the intersection of Canfield Road and Billingsgate Avenue in
        Youngstown.
       On or about May 17, 2006, Machen possessed a .25 caliber handgun and was present at a
        home where officers found marijuana.
       On or about July 12, 2007, Machen wore a bulletproof vest and possessed marijuana
        outside the Ohio Gas Mart in Youngstown.


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No. 12-4337, United States v. Machen


      On or about February 3, 2008, Machen and others followed a cooperating witness to a
       gas station, where Machen’s codefendant brandished a firearm and several LSP members
       threatened to harm the cooperating witness.
      On or about March 15, 2008, Machen and four others were in an automobile containing
       four firearms.
      On or about June 15, 2008, Machen possessed marijuana.

       Machen moved to dismiss the indictment for lack of subject-matter jurisdiction, arguing

that the uncertified indictment charged him only with acts committed before he turned eighteen

on April 18, 2009, and that, therefore, the district court did not have jurisdiction over his

prosecution under the Federal Juvenile Delinquency Act. The government replied that the

indictment’s allegation that Machen participated in a conspiracy that extended past his eighteenth

birthday was sufficient to support jurisdiction without certification and without implicating the

FJDA. The government acknowledged its burden to prove that Machen “ratified his membership

in the conspiracy after his eighteenth birthday,” and stated that it was prepared to do so at trial.

The district court never issued a decision on Machen’s motion to dismiss.

                                                B.

       Six defendants were jointly tried: Machen, Dominique Callier, Edward Campbell III,

Carlton Council, Jr., Daquann Hackett, and Derrick Johnson, Jr. Neither Machen’s counsel nor

the prosecution mentioned ratification at trial; and neither placed any special significance on

establishing the dates that incidents occurred for the purposes of determining Machen’s guilt.

       With respect to the conspiracy generally, the government introduced evidence that

between October 2008 and March 2009, LSP members committed drive-by shootings and a

Molotov-cocktail bombing in retaliation for Sherrick Jackson’s refusal to join the gang; and in

April 2010, gang members severely beat a confidential informant discovered wearing a wire. No

one testified that Machen was present at or participated in these incidents. The government also

introduced evidence that Hackett and Johnson each ran “dope houses” out of which they, and

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No. 12-4337, United States v. Machen


other LSP members, sold crack cocaine and other drugs. The evidence included a number of

video and audio recordings of drug purchases by confidential informants. Machen appeared in

none of the recordings.

       With respect to Machen in particular, substantial testimony described incidents that

plainly occurred before Machen turned eighteen on April 18, 2009. Shawn Jones, a former LSP

member testifying to events before he went to prison in 2008, stated that he, Machen, Johnson

and Hackett founded the gang in 2003 or 2004, and that Machen sold marijuana and participated

in gang-related shootings. LSP member Wayne Kerns testified that Machen sold Kerns his first

gun in 2008. Machen’s girlfriend Ashley Caulton, who started dating Machen in 2007 or 2008,

testified that when she “first met” Machen they smoked marijuana together and she saw him with

a handgun on one occasion. And several police officers testified to arresting Machen on four

occasions between May 2006 and April 2008 for possession of marijuana, firearms or both.

       Other evidence regarding Machen’s conduct was not tied to any specific date. The

government introduced multiple undated photographs of LSP members, including Machen,

making hand signs signifying membership in LSP and holding guns. Kerns, who had lived in

Youngstown since at least seventh grade and joined LSP in 2008, testified without providing

dates that he had purchased marijuana from Machen, had seen Machen sell marijuana at

Johnson’s dope house, and that Machen had told him of an incident during which Machen fired

his weapon at a rival gang member after an altercation at a party center called Krukausky Hall.

LSP member Terrance Royal, who “grew up with” Machen, testified without providing dates

that he had seen Machen buy marijuana from Corey Council, another LSP member, and had seen

Machen sell marijuana.




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No. 12-4337, United States v. Machen


       The parties identify only three pieces of evidence that specifically connect Machen to

LSP after he turned eighteen: Ashey Caulton and Wayne Kerns both testified that Machen was a

member of LSP when he was indicted in March 2011, and Terrance Royal testified that Machen

and four others “jumped him into” LSP in 2010, by fighting with him for about 60 seconds while

he fought back and “gained respect.”

       The case went to the jury without any instructions regarding the significance of Machen’s

age or the government’s burden to establish ratification. Machen was convicted, and the district

court sentenced him to 110 months’ incarceration and three years of supervised release.

                                                 II.

       Machen first argues that the government’s failure to plead that he ratified his

participation in the conspiracy after he turned eighteen deprived the district court of subject-

matter jurisdiction. We disagree. Machen’s jurisdictional argument stems from the FJDA,

which provides that the government may not proceed against juvenile offenders in federal court

unless it certifies that certain conditions are met. We have construed the FJDA as setting forth a

jurisdictional prerequisite to suit. See United States v. Chambers, 944 F.2d 1253, 1259 (6th Cir.

1991) (“[T]he certification requirement is a prerequisite to the district court’s subject-matter

jurisdiction.”). But we have long held that a defendant charged with participation in an age-of-

majority-spanning conspiracy can be proceeded against as an adult in federal court without

implicating the FJDA if he continued in the conspiracy after his eighteenth birthday. See United

States v. Odom, 13 F.3d 949, 957 (6th Cir. 1994) (“A defendant who enters a conspiracy prior to

his eighteenth birthday can be tried as an adult if he continues in the conspiracy after that time.”)

(citing United States v. Maddox, 944 F.2d 1223, 1233 (6th Cir. 1991)); see also United States v.

Spoone, 741 F.2d 680, 687 (4th Cir. 1984), cert. denied, 469 U.S. 1162 (1985) (“The [FJDA]



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No. 12-4337, United States v. Machen


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

. . . .”). Such defendants “cannot be held liable for pre-eighteen conduct, but [pre-eighteen]

conduct can, of course, be relevant to put post-eighteen actions in proper context.” Maddox,

944 F.2d at 1233. Because the government charged Machen with participation in an age-of-

majority-spanning conspiracy and did not seek certification, it necessarily proceeded against

Machen as an adult and the FJDA’s jurisdictional bar to the prosecution of juveniles in federal

court is not implicated.

                                              III.

       Second, Machen argues that the evidence was insufficient for the jury to find that he

ratified his membership in the conspiracy after he turned eighteen. The question whether the

government proved ratification is relevant only when a defendant is charged as an adult with

participation in an age-of-majority-spanning conspiracy. Requiring the government to prove

ratification when prosecuting age-of-majority-spanning conspiracies ensures that a defendant

charged as an adult is not punished solely “for an act—the agreement to join the conspiracy” that

he committed as a minor. Maddox, 944 F.2d at 1233.

       To prove that Machen participated in the RICO conspiracy, the government had to show

that he “agreed that either he or someone else would commit at least two RICO predicate acts.”

United States v. Lawson, 535 F.3d 434, 445 (6th Cir. 2008) (citing United States v. Saadey,

393 F.3d 669, 676 (6th Cir. 2005)). A defendant’s agreement may be inferred from his conduct.

United States v. Hughes, 895 F.2d 1135, 1141 (6th Cir. 1990). And a defendant may be liable

under the RICO conspiracy provision without ever having committed any overt act. Salinas v.

United States, 522 U.S. 52, 65 (1997).



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No. 12-4337, United States v. Machen


       This court has never articulated exactly what evidence suffices to prove that a defendant

ratified his agreement to participate in a RICO conspiracy. We know from Maddox that “a

person who does absolutely nothing to further the conspiracy or to reaffirm membership in it

after his eighteenth birthday can[not] be held criminally liable as an adult in federal court.”

Maddox, 944 F.2d at 1233.       On the other hand, Maddox’s statement that ratification is a

“threshold showing,” suggests that evidence showing ratification may fall short of the evidence

required to prove an agreement. Decisions reviewing the question have not been close calls—

courts have always been able to point to evidence of some specific post-majority conduct of the

defendant evincing participation in the underlying racketeering activity. See, e.g., United States

v. Burns, 298 F.3d at 537 (testimony that defendant sold crack and helped others sell crack after

he turned eighteen was sufficient for jury to find ratification of his membership in a drug

conspiracy); Maddox, 944 F.2d at 1233 (testimony that defendant sold drugs and stated that he

was “still rolling—meaning that he was still selling cocaine” after he turned eighteen was “more

than sufficient for a jury” to find ratification); United States v. Gjonag, 861 F.2d 143, 144 (6th

Cir. 1988) (evidence of defendant’s “participation in a proposed cocaine transaction” was

sufficient to show defendant was properly convicted as an adult); see also, e.g., United States v.

Thomas, 114 F.3d 228, 238 (D.C. Cir. 1997) (finding that jury’s conviction of defendant for two

post-majority substantive offenses in furtherance of the narcotics and RICO conspiracies

demonstrated that it found the facts necessary to show ratification); United States v. Cruz,

805 F.2d 1464, 1476 (11th Cir. 1986) (“The government presented evidence from which a jury

could infer that Stephen’s involvement in the conspiracy continued after he turned eighteen—

namely, Brantley’s testimony that subsequent to Stephen’s eighteenth birthday Stephen invited

him down to Miami to purchase cocaine.”).



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No. 12-4337, United States v. Machen


          Here, the question is much closer, but we think the evidence nonetheless sufficient. As

Machen argues, Kerns’s and Caulton’s testimony that Machen was still a gang member in 2011

is not, standing alone, sufficient to prove ratification because it is not evidence that Machen did

anything to further or reaffirm his membership in the conspiracy after he turned eighteen.

Maddox, 944 F.2d at 1233 (“[A] person who does absolutely nothing . . . after his eighteenth

birthday can[not] beheld criminally liable . . . .”) (emphasis added). But the jury also heard

evidence that Machen participated in Royal’s initiation into the gang after he turned eighteen.

                                                   IV.

          Finally, Machen contends that the district court’s failure to instruct the jury on ratification

was plain error. “We review jury instructions as a whole to determine whether they adequately

inform the jury of relevant considerations and provide a sound basis in law to aid the jury in

reaching its decision.” United States v. Layne, 192 F.3d 556, 574 (6th Cir. 1999). Under the

plain-error standard, “we may reverse if (1) there was error that (2) was plain, (3) affected a

substantial right, and (4) ‘seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” United States v. Martin, 520 F.3d 656, 658 (6th Cir. 2008) (quoting United States

v. Oliver, 397 F.3d 369, 378 (6th Cir. 2005)); see also United States v. Olano, 507 U.S. 725, 734

(1993).

          Reversal is warranted here.      The law is clear that when the government charges a

defendant with participation in an age-of-majority-spanning conspiracy, the government must

prove that the defendant “ratified” his participation in the conspiracy after he turned eighteen,

and the defendant’s liability may not be premised on his conduct as a minor. Maddox, 944 F.2d

at 1233. In such a prosecution, the defendant’s age at the time of his actions is as dispositive of

his guilt as the actions themselves; yet Machen’s jury was not instructed to consider the issue at



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No. 12-4337, United States v. Machen


all. Layne, 192 F.3d at 574. This was “error” that was “plain” under the first two elements of

the plain-error test.

        The third and fourth elements are also satisfied. To determine whether the error affected

Machen’s substantial rights, we ask whether the error affected the outcome of the district court

proceedings.    United States v. Knowles, 623 F.3d 381, 386 (6th Cir. 2010) (citing Olano,

507 U.S. at 734).       Although a rational jury could have found that Machen ratified his

participation in the conspiracy after he turned eighteen, it is far from clear that a properly

instructed jury would have reached that conclusion. The majority of the government’s evidence

against Machen concerned Machen’s conduct as a minor. The jury heard testimony that Machen

was a founding member of LSP, sold Wayne Kerns his first gun, followed and threatened a

cooperating witness, and was arrested four times for possession of firearms, marijuana or both.

In one of those incidents, Machen was wearing a bulletproof vest. In another, he was caught

attempting to hide seven bags of marijuana between his butt cheeks. This conduct all took place

before Machen’s eighteenth birthday.       The evidence of Machen’s post-majority conduct is

meager in comparison.       Because the evidence of Machen’s pre-majority conduct was so

substantial and the jury was never instructed, or advised in any manner, that it could not base a

guilty verdict on these actions and had to find post-majority ratification, it is highly likely that

the jury convicted Machen based on his conduct as a minor, in violation of both Maddox and the

FJDA. Under these circumstances, the district court’s failure to instruct the jury on ratification

affected Machen’s substantial rights and the fairness and integrity of the proceedings, and

requires correction.    We VACATE the conviction and REMAND for further proceedings

consistent with this opinion.




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No. 12-4337, United States v. Machen


       SUHRHEINRICH, J., dissenting: The majority finds the evidence sufficient for the

jury to have found that Machen ratified his membership in the conspiracy after he turned

eighteen because two other members of the conspiracy testified that he was still a gang member

in 2011 and the government offered evidence that “Machen participated in Royal’s initiation into

the gang after he turned eighteen.” Nonetheless, the majority holds that the district court erred

by failing to instruct the jury on ratification despite Machen’s failure to request such an

instruction because “[t]he evidence of Machen’s pre-majority conduct was so substantial,” and

the evidence of Machen’s post-majority conduct was so “meager in comparison,” that the jury

must have based the guilty verdict on the pre-majority conduct. This reasoning ignores the

majority’s own finding that there was sufficient evidence to establish that Machen ratified his

membership in the conspiracy after he turned eighteen by participating in a gang initiation. The

act of participating in a gang initiation is not an insubstantial act. Indeed, it is clearly an act that

furthers the conspiracy and reaffirms membership in the conspiracy. In light of this substantial

fact, I do not see how the error affected Machen’s substantial rights, because, as the majority

found, this evidence was sufficient for the jury to conclude that Machen had participated in the

conspiracy after his eighteenth birthday. See United States v. Maddox, 944 F.2d 1223, 1234 (6th

Cir. 1991). For this reason, I would affirm Machen’s conviction.




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