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UNITED STATES v. DAVILLA

January 4, 1996

UNITED STATES OF AMERICA against PAULIE DAVILLA, ROBERTO DAVILLA, a/k/a "Robertico," and JIMMY DAVILLA, Defendants.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 In this multi-defendant criminal RICO and narcotics conspiracy prosecution, defendant Roberto Davilla moves for dismissal of the Third Superseding Indictment, in its entirety, pursuant to the Juvenile Delinquency Act, 18 U.S.C. §§ 5031, 5032 ("JDA"). Defendant Jimmy Davilla moves to dismiss Count Nineteen of the Indictment, or for a Bill of Particulars, on the basis of the JDA.

 A factual description of the Second Superseding Indictment is set forth in this Court's Memorandum Opinion of October 2, 1995, familiarity with which is assumed. Since the filing of the pretrial motions addressed in that opinion, a Third Superseding Indictment has been filed, adding another defendant, but not otherwise affecting the nature of the charges against the Davillas, whose trial was severed from that of their codefendants in the October 2, 1995 Opinion.

 DISCUSSION

 I. Roberto Davilla's Motion to Dismiss the Indictment

 Roberto Davilla moves to dismiss all five counts of the Indictment in which he has been charged, on the grounds that he was a juvenile at the time the offenses occurred, and that the Government has failed to satisfy all the jurisdictional prerequisites of the JDA. The five counts that include charges against Roberto Davilla are: Count One (RICO conspiracy); Count Two (RICO); Count Twelve (conspiracy to possess and distribute heroin and cocaine); Count Thirteen (possession and distribution of heroin); and Count Nineteen *fn1" (possession and distribution of heroin).

 According to his motion papers, Roberto Davilla was born in Puerto Rico on July 18, 1974. *fn2" Under § 5031 of the JDA, the relevant dates for the Court's inquiry are those when the defendant turned eighteen and/or twenty-one, respectively. In Roberto Davilla's case, he reached age eighteen on July 18, 1992, and age twenty-one on July 18, 1995.

 In United States v. Wong, 40 F.3d 1347 (2d Cir. 1994), the Second Circuit discussed RICO charges in relation to the JDA:

 
The relevant 'act' for purposes of determining federal jurisdiction under § 5032 is the crime charged in the indictment - - here, the substantive RICO and RICO conspiracy offenses alleged therein - - rather than the discrete predicate acts underlying those charges. . . . Accordingly, to determine whether the JDA governs a prosecution, a court should look to the defendant's age at the time of the offense or offenses charged in the indictment.
 
Wong and Ngo began committing the RICO offenses charged in counts one and two of the indictment while they were juveniles, but continued to do so after their eighteenth birthdays. Because the RICO offenses were not 'committed by a [defendant] prior to his eighteenth birthday,' § 5031, these offenses are not subject to the requirements of the JDA.

 Wong, 40 F.3d at 1365.

 After analyzing the issue by reference to conspiracy case law applying the JDA, and analogizing both the concept of contract ratification and precedent from the statute-of-limitations context, the Court continued:

 
We conclude that the defendant's age at the time the substantive RICO or RICO conspiracy offense is completed is the relevant age for purposes of the JDA, and that an adult defendant may properly be held liable under RICO for predicate offenses committed as a juvenile. Accordingly, the district court properly had subject matter jurisdiction over the substantive RICO and RICO ...

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