The Akron Legal News

Court vacates convictions of gang member charged as adult

ANNIE YAMSON
Special to the Legal News
Published: September 2, 2014

A divided panel of judges in the 6th U.S. Circuit Court of Appeals recently issued an opinion reversing the judgment of the U.S. District Court for the Northern District of Ohio and vacating a defendant’s convictions for taking part in a conspiracy.

The majority ruled that the district court failed to properly instruct the jury in the trial of Terrance Machen, warranting a reversal.

Machen was indicted by a grand jury for participating in a Racketeering Influenced and Corrupt Organization Act conspiracy for his role in the Youngstown gang, LSP. Machen was alleged to have been one of the founding members of the gang when he was 11 and participated until his indictment when he was 19.

“Under the Federal Juvenile Delinquency Act, the government may not proceed in federal court against a defendant under the age of 21 for acts that the defendant committed before turning 18, unless the government certifies that certain conditions are met and that federal jurisdiction is appropriate,” wrote Judge Helene White on behalf of the three-judge appellate panel.

The statute specifies that a defendant who took part in a conspiracy that spanned his 18th birthday may be charged as an adult, however, as in Machen’s case, the government is required to make a “threshold showing” that Machen “ratified” his participation in the conspiracy after he turned 18.

“The defendant’s guilt may not be premised on his conduct as a minor,” wrote Judge White, noting that Machen turned 18 on April 18, 2009.

Machen was charged in an indictment that included 42 counts and 23 defendants. He was charged only in the first count, which listed 102 “overt acts” committed by gang members.

The indictment alleged that Machen and several codefendants shot at rival gang members, kicked and punched a person, possessed a .25 caliber handgun, wore a bulletproof vest and possessed marijuana.

In 2008, the indictment stated that Machen and others followed a cooperating witness to a gas station, where several gang members threatened to harm him.

Machen moved to dismiss the charges, arguing that the indictment only charged him with acts committed before he turned 18. The district court never ruled on that motion and the case went to trial where six defendants were jointly tried: Machen, Dominique Callier, Edward Campbell, Carlton Council, Daquann Hackett and Derrick Johnson.

According to a summary of the proceedings, neither the defense 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.”

The government presented evidence that LSP gang members committed drive-by shootings and a Molotov-cocktail bombing.

In April 2010, LSP members severely beat a confidential informant discovered wearing a wire, though no one testified that Machen was present.

Through a number of video and audio recordings, the government also demonstrated that Hackett and Johnson each ran drug houses. Machen did not appear in any of the recordings.

“With respect to Machen in particular, substantial testimony described incidents that plainly occurred before Machen turned 18,” wrote Judge White.

Shawn Jones, a former LSP member, testified that he, Machen, Johnson and Hackett founded the gang in 2003 and that Machen sold drugs and participated in shootings.

Another LSP member testified that Machen sold him his first gun in 2008.

Other evidence, including photos of Machen making gang hand signs and holding guns, were not tied to any specific date.

Only three pieces of evidence connected Machen to LSP after his 18th birthday. His girlfriend and a gang member both testified that Machen was a member of LSP at the time of his indictment in 2011.

Terrance Royal also testified and stated that Machen and four others “jump him into” LSP in 2010.

The jury began deliberation without any instructions regarding the significance of Machen’s age or the government’s burden to establish ratification. A guilty verdict and 110-month prison sentence followed.

On appeal, Machen claimed that the trial court’s failure to even mention ratification was plain error and the appellate panel’s majority agreed.

“Reversal is warranted here,” wrote Judge White. “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 18, and the defendant’s liability may not be premised on his conduct as a minor.”

In a case like Machen’s, the appellate panel held that 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 all,” Judge White noted.

The court of appeals found that a rational jury could have found that Machen ratified his participation in LSP after he turned 18, but “it is far from clear” that the jury would have reached that conclusion with the instruction.

Judge White noted that the majority of the government’s evidence against Machen concerned Machen’s conduct as a minor, but the evidence of Machen’s post-majority conduct was “meager in comparison.”

“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 both of United States v. Maddox and the FJDA,” wrote Judge White.

Because the district court’s failure to instruct the jury on ratification affected Machen’s substantial rights, the circuit court reversed Machen’s conviction and remanded the case.

Judge Richard Suhrheinrich dissented, arguing that the lack of jury instructions did not cause substantial prejudice. He wrote that he did not see how the error affected Machen’s rights. He contended that there was plenty of evidence to establish ratification and that the jury would have found Machen guilty even with the instruction.

Judge Raymond Kethledge joined Judge White to form the majority and reverse the judgment of the district court.

The case is cited United States v. Machen, Case No. 12-4337.

[Back]