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United States v. Camez

United States Court of Appeals, Ninth Circuit

October 17, 2016

United States of America, Plaintiff-Appellee,
v.
David Ray Camez, aka Badman, AKA Doctorsex, Defendant-Appellant.

          Argued and Submitted August 10, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding D.C. No. 2:12-cr-00004-APG-GWF-23

          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.

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

         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.

          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 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 ...

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