Opinion
P-00-CR-315 (21)
February 6, 2001
ORDER DENYING DEFENDANT'S MOTION TO STRIKE SURPLUSAGE FROM INDICTMENT
Before this Court is the Defendant's Motion to Strike Surplusage from Indictment. After due consideration of this Motion, the Court is of the opinion that Defendant's Motion should be DENIED.
FACTS AND PROCEDURAL HISTORY
By superceding indictment filed on December 12, 2000, the Defendant Guadalupe Sanchez Galindo, Jr., along with some other sixteen defendants, is charged with conspiring to distribute and to possess with intent to distribute marijuana in an amount greater than 1,000 kilograms, in violation of 21 U.S.C. 841(a)(1). Count One identifies several overt acts committed by several defendants to effect the objects and purposes of the conspiracy. Under Paragraph `u,' Defendant is charged with renting a property owned by co-defendants Robert Sanchez Galindo and Nadia Piedra Solis, located at 608 East 56th Street, in Odessa, Texas. Under Paragraph `dd,' Defendant is charged with possessing a quantity of marijuana and a scale at his 608 East 56th Street residence, on January 20, 2000.
Count Thirteen of the Superceding Indictment further charges Defendant and Robert Sanchez Galindo with knowingly possessing with intent to distribute, aided and abetted by each other, marijuana in an amount less than 50 kilograms on January 20, 2000, in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2. Defendant is not named in any other count of the forty-two count indictment.
The Defendant was born on October 12, 1981 and did not turn eighteen until October 12, 1999. The Defendant has not been certified to stand trial as an adult. As, Defendant argues that he cannot be prosecuted as an adult for any act of conspiracy occurring prior to October 11, 1999. Accordingly, Defendant moves to strike from the indictment any allegations of the Defendant's overt acts that occurred prior to October 11, 1999.
DISCUSSION
Although the crime of conspiracy is "complete" at the moment the agreement is struck, it is a continuing crime. See, e.g., United States v. Stewart, 879 F.2d 1268, 1272 (5th Cir. 1989). Accordingly, all circuits recognize that the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031-42, does not prevent an adult defendant from being tried as an adult merely because he first began to participate in the criminal conspiracy as a minor. See United States v. Thomas, 114F.3d228, 410 (D.C. Cir. 1997) (recognizing that all circuits that have addressed the issue allow an adult defendant to be tried for conspiracy so long as some of the overt acts were committed when defendant was over eighteen); United States v. Doerr, 886 F.2d 944, 969-70 (7th Cir. 1989) ("[O]nce it is established that certain acts of the charged offense [of conspiracy] occurred after the defendant's eighteenth birthday, it is appropriate for the entire case to be tried in adult court"); United States v. Gjonaj, 861 F.2d 143, 144 (6th Cir. 1988) (finding agreement from both the Eleventh and Fourth Circuits that an adult defendant can be tried as an adult for conspiracy where some acts were committed while defendant was an adult); cf. United States v. Tolliver, 61 F.3d 1189, (5th Cir. 1995), vacated on other grounds by, 516 U.S. 1105 ("The majority rule, which we now adopt, is that after he turns 18, a defendant may be tried for a conspiracy which temporally overlaps his eighteenth birthday-if the government can show that the defendant ratified his involvement in the conspiracy after reaching the majority."). The Court finds that so long as the government can establish that the Defendant engaged in some affirmative or overt act in furtherance of the conspiracy after turning eighteen, the FJDA does not preclude the trial and conviction of the Defendant for the offense conspiracy under 21 U.S.C. 841(a)(1).
In addition, the portions of the indictment that refer to overt acts allegedly committed by the Defendant as a minor need not be stricken from the indictment as surplusage. A motion to strike surplusage should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial. United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971); 1 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 127 (1969). Though the overt acts done by Defendant as a minor in furtherance of the conspiracy may not be the sole predicate for the Defendant's conviction for conspiracy, evidence of the Defendant's involvement in the conspiracy as a juvenile is probative on relevant issues including the Defendant's "knowledge of the conspiracy, when the defendant joined it, the scope of the conspiracy agreed to and the fore see ability of the acts of co-conspirators." Thomas, 114 F.3d at 266.
CONCLUSION
It is therefore ORDERED that the Defendant's Motion to Strike Surplusage from Indictment is DENIED.