Appeal from a judgment of the District Court for the Eastern District of New York, Weinstein, Ch. J ., granting a petition for habeas corpus in favor of Hu Yau-Leung, whose extradition to Hong Kong is sought by the government of the United Kingdom. Reversed with directions to dismiss the petition.
Before Lumbard, Newman, Circuit Judges, and Tenney,*fn* District 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.
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(1)(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.
Article III(1) 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(1) 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(1)(a) requires in addition that the crime be punishable by more than one year of detention or by ...