Hu Yau-Leung v. Louis Soscia, United States Marshal for the Eastern District of New York

649 F.2d 914, 1981 U.S. App. LEXIS 12911

• Court: Court of Appeals for the Second Circuit
• Decided: May 26, 1981
• Docket: 855, Docket 80-2356
• Status: Published

Opinions

LUMBARD, Circuit Judge:

The United States Marshal appeals from the judgment of the District Court for the Eastern District of New York, Weinstein, Ch. J., granting a writ of habeas corpus and denying extradition of Hu Yau-Leung, a British subject and former Hong Kong resident now living in Brooklyn, New York. The district court held that because of Hu’s age at the time of the crime for which his extradition was sought, the requirement of the applicable extradition treaty that the crime “constitute a felony under the law of the United States” was not satisfied. 500 F.Supp. 1382. We disagree, and therefore reverse the judgment and deny issuance of the writ.

I.

Hu Yau-Leung was born in Hong Kong on February 18, 1963 and left Hong Kong on February 15, 1980 and came to the United States to join his parents. In June of 1980, the United States Attorney for the Eastern District of New York, acting on behalf of the government of the United Kingdom, filed a complaint requesting issuance of a warrant for Hu Yau-Leung’s arrest for his proposed extradition. The warrant was issued, and an arrest was made. After two hearings before a United States Magistrate to determine extraditability, a Certification of Extraditability and Order of Commitment was issued providing for Hu Yau-Leung’s return to Hong Kong upon the issuance of an extradition warrant by the Secretary of State.

Extradition had been sought because on June 2, 1980, Hong Kong authorities issued a warrant for Hu’s arrest. In the warrant, Hu was charged with participation in two robberies, each in violation of Hong Kong law. The first robbery occurred on January 30,1980 when three men armed with knives broke into an apartment, bound the occupants with wire and ransacked the premises. In the second robbery, on February 10, 1980, three men again armed with knives forced their way into another apartment, blindfolded and gagged the occupants and ransacked the premises. Eyewitness victims of each of the robberies identified Hu from his photograph as one of the perpetrators.

Based upon affidavits and other evidence presented, the United States Magistrate found probable cause to believe Hu had committed the crimes with which he was charged in Hong Kong. The Magistrate found that the requirements of the Treaty of Extradition between the United States and the United Kingdom, 28 U.S.T. 227, T. I.A.S. 8468 (1977) (“the Treaty”), made applicable to Hong Kong by Article II, section 2 of the Treaty and an exchange of notes dated October 21, 1976, had been satisfied and accordingly, he issued the Certificate of Extraditability.

In his habeas corpus petition, Hu sought to prevent his extradition on the ground that at the time of the robberies he was only sixteen years old. The Treaty provides for extradition only where the “offense constitutes a felony under the law of the United States.” Article III(l)(c). Hu argued that there had been no such felony, since under United States law, as expressed in the Federal Juvenile Delinquency Act, 18 U. S.C. §§ 5031-5042, Hu would have been treated as a juvenile and would therefore not have been charged or convicted as a “felon."

The district court, stating that this was a difficult case of first impression, agreed with Hu’s argument. The court held first that the Treaty phrase “the law of the United States” referred to federal — not state — law, and in determining whether the offense for which extradition was sought constituted a felony under federal law, the Federal Juvenile Delinquency Act had to be considered. The court stated that under the Act, where federal offenses are committed by persons under sixteen, juveniles are turned over to state juvenile programs unless the relevant state lacks or refuses to include the juvenile in an appropriate program. In that case, the district courts retain jurisdiction over the juvenile. Under the Act, according to the district court, a juvenile is not “convicted” of a crime but “adjudicated a juvenile delinquent.”

However, as the district court also noted, the Act provides that for those aged sixteen to eighteen who commit crimes which would be felonies if committed by an adult, the Attorney General may order that the juvenile be subject to the same criminal penalties as an adult would be. In order to effect this “transfer to the conventional criminal justice system” a district court judge must determine whether such a “transfer” is in the “interests of justice.” 18 U.S.C. § 5032. On the assumption that such a proceeding might have been initiated against Hu Yau-Leung, the district court held a hearing. At the hearing, the court determined “beyond a reasonable doubt” that Hu would not have been transferred, but would have been proceeded against as a juvenile delinquent under the Act, and would not therefore be charged with or convicted of a felony. Finally, the district court, reviewing the decisions under the Act, decided that extradition here would be contrary to the federal policies expressed in the Act.

II.

Article III(l) of the Treaty provides that extradition will be granted if the facts disclose an offense listed in the Treaty’s schedule of offenses and:

(a) the offense is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty;

(b) the offense is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies .. .;

(c) the offense constitutes a felony under the law of the United States of America.

The question here is whether, under subsection (c), the offenses alleged against Hu are felonies under United States law.

The parties agree that the purpose of Article III(l) was to adopt for the Treaty the principle of “double criminality” which underlies much of international extradition law. See Minutes of Extradition Negotiations, United States-United Kingdom, London, October 30, 1969 and December 1-4, 1969; see generally, 6 M. Whiteman, Digest of International Law § 13, at 773-79. According to that principle, extradition may be had only for offenses which are criminal under the laws of both the requesting and requested countries. Article III(l)(a) requires in addition that the crime be punishable by more than one year of detention or by death. This provision is common in extradition treaties, and is designed to assure that extradition will be allowed only for those charged with serious crimes.

Subsections (b) and (c) are relatively uncommon among extradition treaties. They appear to be counterparts. Subsection (b) allows the United Kingdom (or other territory for whom the Treaty is applicable) to adjust the list of crimes for which extradition will be allowed by amending its domestic extradition law. Just as subsection (b) would allow changes in attitude as to which crimes are of a sufficiently serious nature to warrant extraditability, subsection (c) assures the gravity of the offense under United States law and allows for changes in American law reflecting new attitudes toward the seriousness of various crimes.

The government argues that the district court was in error because the principle of double criminality as embodied in Article III(l) is concerned solely with the gravity of the crime itself and not the treatment of the particular offender. According to the government, under a double criminality standard, the test for extraditability is only whether the laws of both countries make criminal the commission of the specific acts with which the offender is charged. Thus, the government refers to the many cases in which claims by an extraditee that an alibi or other defense under American law existed have been held irrelevant to the extradition inquiry. See, e. g., Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Collins v. Loisel, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956 (1922); U. S. ex rel. Bloomfield v. Gengler, 507 F.2d 925 (2d Cir. 1974); United States v. Galanis, 429 F.Supp. 1215 (D.Conn.1977). In particular, the government points to those cases stating that even insanity, which might afford a defense to any crime under United States law, will not be considered in an extradition hearing. See, e. g., Charlton v. Kelly, supra, 229 U.S. at 462, 33 S.Ct. at 950; Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973). Thus the government concludes that the term “felony” in subsection (c) was intended to refer solely to whether the acts charged constituted a “felony” not whether the particular individual who committed those acts could avoid punishment for a felony on any ground, including age.

We find considerable merit in the government’s argument, given the limited nature of the inquiry in an extradition hearing. We also note that many other extradition treaties,¹ as well as the present Model Treaty,² include separate provisions relating to the treatment of juveniles, yet none was included here. Nevertheless, we need not determine whether age is completely irrelevant, because we believe it sufficient to satisfy Article III(l), that even if Hu’s age is considered, he could have been charged with and convicted of a felony in the United States.

The district court held, in interpreting subsection (c), only federal law need be consulted. It therefore examined the provisions of the Federal Juvenile Delinquency Act and, upon the assumption that Hu violated a federal law, and on the further assumption that the federal courts would take jurisdiction over Hu, and finally on the assumption that Hu’s “transfer” to the conventional criminal system would be attempted, it held a hearing and determined that Hu would be treated as a juvenile under federal law. We find this approach flawed for a number of reasons.

First, we disagree with the district court that under subsection (c) only federal law is relevant. The phrase “under the law of the United States of America” in an extradition treaty referring to American criminal law must be taken as including both state and federal law absent evidence that it was intended to the contrary. See Wright v. Henkel, 190 U.S. 40, 58, 23 S.Ct. 781, 785, 47 L.Ed. 948 (1903) (predecessor British extradition treaty’s requirement that offense be criminal “under the law of both countries” held to refer to both federal and state law).³ The district court apparently recognized this general view by accepting that state or federal law would determine the substantive offense, but also held that only federal law would govern the definition of a “felony.” We disagree. Only federal crimes are felonies under federal law, and therefore a reading limiting subsection (c) to federal felonies would prevent extradition for those charged with state crimes. Such a result is obviously incorrect, for in the United States most serious offenses are defined by state law, and those who commit those offenses are prosecuted by the states. The error of the district court’s interpretation can also be seen in that the court was thereby forced to analyze Hu’s extraditability under a law, the Juvenile Delinquency Act, which applies only to violations of federal law, and therefore would have had absolutely no bearing had Hu committed the alleged crimes in the United States (unless he committed the armed robberies on federal property).

The most reasonable interpretation of subsection (c) is that for conduct that would have violated any federal statute, federal law determines whether the conduct would have been a felony, and for conduct that would have violated only a state statute, state law governs the felony determination. This is consistent with the proper “double criminality” inquiry: if the individual had committed the same acts in the United States, would a crime have been committed and would it have been a felony? Nevertheless, as far as Hu is concerned the law of the state in which he was found, New York,⁴ is not very different from federal law in the areas relevant to his offenses.⁵

As Hu is charged with forcibly stealing property while armed with a deadly weapon, his acts would amount to first degree robbery, a class B felony under New York law, carrying a penalty of up to twenty-five years of imprisonment. N.Y.Penal Law §§ 160.15, 70.00 (McKinney’s 1975). New York law defines a felony as an offense punishable by more than one year of detention. Id. § 10.00.5. New York law provides that any person of age fourteen and over may be criminally responsible for first degree robbery. N.Y.Penal Law § 30.00.2 (McKinney Supp.1980). As a sixteen year old, who is alleged to have committed a first degree robbery, however, Hu would be considered an “eligible youth” for purposes of New York’s youthful offender system. N.Y.Crim.Proc. Law § 720.10.2 (McKinney’s Supp.1980). Under that system, although an “eligible youth” is charged and tried as any other accused, upon conviction, the sentencing court must order a presentence investigation. After reviewing the investigation, the court determines whether “the interest of justice would be served by relieving the eligible youth from the onus of a criminal record,” and if the court so finds it treats the eligible youth as a “youthful offender.” Id. § 720.20.1. Proceedings against eligible youths may be granted greater privacy. Id. § 720.15. A youthful offender adjudication “is not a judgment of conviction for a crime.” Id. § 720.35.

We believe that the requirements of Article III(l)(c) are satisfied by the fact that, even considering Hu’s age, he could have been charged with, convicted of,⁶ and sentenced for a felony under New York law.⁷ The definition of a felony under New York law, like that under federal law, see 18 U.S.C. § 1, is an offense punishable by more than a year of detention. Clearly, Hu’s offense, even taking note of his age, falls within this certain definition, for Hu could have been so punished. This reading also comports with the structure of Article III(l), which appears concerned not with the penalties received by any criminal, but with the possible penalties, since such penalties supply a measure of the seriousness with which the crime is regarded. Thus, it has been held to be no defense, under an extradition treaty provision similar to Article III(l)(a), that the particular individual whose extradition was sought, was tried in abstentia in the requesting country and given a sentence for less than one year. United States v. Clark, 470 F.Supp. 976 (D.Vt. 1979).

Moreover, as noted earlier, we do not believe that the framers of the British Extradition Treaty intended that minitrials would be held to determine whether individuals might in some way receive more lenient treatment under the criminal law. The Treaty, like most other treaties, explicitly limits the type of hearing in the requested country to determine extraditability. Such hearings have been held to have limited scope, both as to the type of defenses which may be raised and the type of evidence which may be received. It would be contrary to this policy against protracted extraditability hearings to allow extradition courts to consider how other courts might exercise their discretion in determining whether an individual such as Hu should be treated as within a juvenile justice system.

Finally, our conclusion is buttressed by comparison with other extradition treaties of the United States. As noted earlier, many of these treaties contain special provisions relating to treatment of juveniles, yet no such provision appears in the British Treaty. This is quite striking considering that the Treaty was renegotiated at approximately the same time that the new Model Treaty on Extradition, which includes a provision for treatment of juveniles, was proposed. Moreover, these provisions are always distinct from the provisions, such as Article III(l), which set forth the double criminality principle. Thus we see no reason to interpret this Treaty’s double criminality principle to exclude extradition on account of age of a person who could be treated as a felon.

In addition, except for the juvenile provisions of extradition treaties with Scandinavian countries, provisions relating to juveniles, including the one in the Model Treaty, only give the requested country discretion to recommend that the extradition request be withdrawn. The Scandinavian countries are required by their domestic extradition laws to include treaty provisions granting a requested nation absolute discretion to refuse to allow extradition on any “humanitarian” grounds, including age. Thus, aside from those treaties, even where specific provisions for treatment of juveniles are included, exemption from extradition lies only within the discretion of the executive branch, and even then, the executive is only given power to recommend that extradition not occur. It would be inconsistent then to interpret a treaty which makes no provision for juveniles as allowing the federal judiciary to undertake proceedings to determine that an individual’s age, family background, school or employment record, and social circumstances warrant treatment as a juvenile and therefore preclude extradition.

Because we find that under New York (and even federal) law, Hu could have been charged with and convicted for the felony of robbery, we reverse the judgment of the district court and deny issuance of the writ.

The government also asks us to review and vacate the district court’s grant of Hu’s release on bail. We agree with the government that the standard for release on bail for persons involved in extradition proceedings is a more demanding standard than that for ordinary accused criminals awaiting trial. Wright v. Henkel, supra, 190 U.S. at 62, 23 S.Ct. at 786; Beaulieu v. Hartigan, 554 F.2d 1 (1st Cir. 1977). We recognize that, because of the treaty obligations of the United States, there is a presumption against bail in the former situation, and only “special circumstances” will justify bail. Wright v. Henkel, supra; United States v. Williams, 611 F.2d 914 (1st Cir. 1979); Beaulieu v. Hartigan, supra; In Re Mitchell, 171 F. 289 (S.D.N.Y.1909).

Nevertheless, our reading of the transcript of the proceedings in which the district court granted bail convinces us that the district court was well aware of the proper standard in determining whether to grant bail in these circumstances and correctly applied that standard. The court listed the “special circumstances,” as involving Hu’s age and background along with the lack of any suitable facility in which Hu could be held. We find no error in Hu’s release on bail.

Reversed with directions to dismiss the petition.

1 . See, e. g., Art. 5 of Extradition Treaty with Canada, 27 U.S.T. 985, T.I.A.S. 8237 (1974); Art. 7 of Treaty with Denmark, 25 U.S.T. 1293, T. I.A.S. 7864 (1974); Art. 7 of Treaty with Finland, - U.S.T. -, T.I.A.S. 9626 (1978); Art. 7 of Treaty with Italy, 26 U.S.T. 493, T.I. A.S. 8052 (1975); Art. 6 of Treaty with Paraguay, 25 U.S.T. 967, T.I.A.S. 7838 (1974); Art. 6 of Treaty with Spain, 22 U.S.T. 737, T.I.A.S. 7136 (1971); Art. 5 of Treaty with Sweden, 14 U. S.T. 1845; T.I.A.S. 5496 (1963).

2 . The Model Treaty was offered for public comment by the State Department on November 12, 1976. See Model Treaty on Extradition, Federal Register (Nov. 24, 1976), reprinted in 1976 Digest of United States Practice in International Law § 5, at 132-37. Article VII BIS contains the provision relating to treatment of juveniles.

3 . The district court’s interpretation is also contrary to the Extradition Treaty with Australia, 27 U.S.T. 957, T.I.A.S. 8234 (1976). Article II of that Treaty, in a slight variation of the British Treaty’s Article III, provides for extradition in section (1) for all listed offenses punishable in both countries by more than a year of imprisonment or by death, and in section (2) for other offenses made extraditable under Australian extradition law “and which are felonies under the laws of the United States of America.” Section (3), however, states that extradition will also be granted for an offense against “a federal law of the United States of America” where the offense is a substantial element of the crime. Thus the phrase in section (2) “felonies under the laws of the United States of America,” a phrase almost identical to that in Art. III(l)(c) of the British Treaty, was clearly intended to refer to both federal and state law.

4 . Under extradition treaties, where state law applies, the law of the state in which the ex-traditee is found will be consulted. There may be an exception to this rule where the state law is contrary to the weight of law in other American jurisdictions, see Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933), but New York’s system of juvenile justice, at least as concerns Hu, does not appear out of line with those of the other states and, as noted below, is almost identical to the federal juvenile system.

5 . As noted below, as to both the definition of a felony and the treatment of juveniles, New York and federal law are quite similar. See, e. g., United States v. Canniff, 521 F.2d 565, 569-70 (2d Cir. 1975). Thus our result in this case would be the same under either law.

6 . Indeed, under the New York procedures outlined above, Hu would have necessarily been charged with a felony and could not have avoided conviction on the basis of his age. Having been convicted, the court would then consider whether Hu was to be afforded “youthful offender” status, in which case his conviction would be substituted by a “youthful offender adjudication.”

7 . It is interesting to note that in the only reported case in which juvenile status was raised as a defense to extradition under a treaty silent on the issue, the Secretary of State permitted extradition to Canada of a sixteen and an eighteen-year-old charged with murder after ascertaining from the governor of New York that there was no age limit under which a person could not be tried for first degree murder. See 6 G. Hackworth, Digest of International Law § 338, at 190-91. It is also relevant that at the time of the extradition, 1924, extradition to Canada was governed by a predecessor to the present extradition treaty with the United Kingdom, and that the present Canadian extradition treaty contains a specific provision relating to juveniles, see note 1 supra, although the British Treaty does not.