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UNITED STATES v. WAI HO TSANG

April 11, 1986

UNITED STATES OF AMERICA, against WAI HO TSANG, and PERRY HOO, Defendants


The opinion of the court was delivered by: SWEET

SWEET, D.J.

Pretrial motions in this 25-defendant RICO prosecution have been brought by Perry Hoo ("Hoo") and Wai Ho Tsang ("Tsang"). A factual description of the underlying indictment is set forth in this court's opinion of December 24, 1986, familiarity with which is assumed. In these motions, Hoo moves to strike the indictment against him for failure to allege acts of racketeering which are chargeable under state law, for lack of adult criminal jurisdiction and for prejudicial preindictment delay. Tsang has moved for the suppression of certain identification evidence. For the reasons set forth below, Hoo's motion will be denied except insofar as its requests a hearing on the issue of preindictment delay and Tsang's motion will be denied pending a hearing at the time of trial.

 I. Motion of Perry Hoo

 Hoo is charged with seven acts of racketeering in connection with his indictment on both a substantive and conspiracy count of violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"). He is also charged with an independent count alleging obstruction of interstate commerce by robbery. The acts of racketeering are each based on violations of state law and include conspiracy to extort property and extortion; operation of a gambling business; conspiracy to rob and robbery, and conspiracy to murder, attempted murder and murder..

 Hoo was born on December 14, 1963 and the predicate acts are alleged to have occurred from 1977 through 1982. Therefore, several of the acts are predicated on criminal conduct by Hoo when he was only 15, 16, and 17 years old. Hoo asserts that, due to his young age at the time of committing these acts, he either could not have been prosecuted as an adult under New York law or would have been entitled to judicial review of his status before being prosecuted as an adult, and therefore these acts do not constitute acts of racketeering within the meaning of RICO.

 Title 18, Section 1961(1)(A) of the United States Code, defines racketeering activity to include "any act . . . chargeable under state law and punishable by imprisonment for more than one year." There is no question that the conduct charged in each of the acts specified against Hoo constitute crimes punishable in New York by imprisonment for more than one year. However, Hoo argues that under the law of New York, he in particular could not have been charged and punished by imprisonment because of his juvenile status at the time he committed these acts. As pointed out by Hoo, the New York State Family Court Act provides not for "imprisonment," but merely for "placement" of those juveniles found to be delinquent. N.Y.Fam.Ct. Act § 353.3. See also United States v. Gonzalez-Cervantes, 668 F.2d 1073, 1076 (9th Cir. 1981) ("Adjudication of juvenile delinquency is not a conviction of a crime, but rather, a determination of a juvenile's status.")

 New York law provides that, except for certain specified offenses, a person less than sixteen years old is not criminally responsible for his conduct. N.Y. Penal Law § 30.00. Lack of criminal responsibility by reason of infancy must be raised by the defendant as a defense to a prosecution. Hoo argues that the predicate acts charging him with conspiracy, extortion, and perhaps robbery are insufficient since he could not be held criminally responsible for those acts under New York law.

 In addition, Hoo claims that with regard to the other predicate acts alleging criminal conduct before he became 18 years old, New York law would provide him with the opportunity to seek removal of an indictment to family court for proceedings as a juvenile delinquent rather than as an adult offender. Without having been afforded the opportunity to seek this judicial review, Hoo asserts that state law does not conclusively require "imprisonment" under the definition provided by RICO for these acts of racketeering.

 While Hoo has raised issues that might seriously challenge a New York state court prosecution for the acts described above, the most recent interpretations of RICO establish that such state law defenses and procedural requirements are not incorporated into the federal statute. The Second Circuit has conclusively stated that:

 We are satisfied that Congress did not intend to incorporate the various state's procedural and evidentiary rules into the RICO statute. The statute is meant to define, in a more generic sense, the wrongful conduct that constitutes the predicates for a federal racketeering charge.

 United States v. Paone, 782 F.2d 386 (2d Cir. 1986). In reaching the conclusion stated above, the court dismissed the defendants' claim that he could not be charged under the federal RICO statute since New York law barred conviction of certain offenses without corroboration of accomplice testimony. Other circuits have reached similar conclusions that state law restrictions on evidence and punishment are not relevant to a federal prosecution based on predicate acts chargeable under state law. See, e.g., United States v. Brown, 555 F.2d 407, 418 n.22 (5th Cir. 1977); United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir. 1984).

 Under these decisions, a defendant may not defend a RICO prosecution based on an alleged failure to adhere to all of particular elements of state law which a defendant could invoke in a state prosecution. Instead, a federal court may only look to state law to determine whether the conduct is punishable by more than one year, not whether this particular defendant may be punished for the conduct. Given this restriction on the incorporation of state law in a federal RICO prosecution, Hoo's motion for dismissal must be denied since it is premised on state law defenses and procedural remedies not contemplated by the definition of an act of racketeering in § 1961(1)(A).

 While the juvenile delinquency provisions of New York law are simply irrelevant to this federal prosecution, it is of course necessary to examine the Federal Juvenile Detention Act ("JDA"), 18 U.S.C. § 5031-42, which Hoo also raises as a defense to this prosecution. The JDA sets forth special procedures for federal prosecution and punishment for an act of juvenile delinquency, which is defined to be a violation of a federal law committed by a person before his eighteenth birthday. Not all acts of juvenile delinquency are subject to the restrictions of this Act, however, since jurisdiction is based on whether the person charged is a juvenile. Section 5031 states that:

 For the purposes of this chapter, a "juvenile" is a person who has not attained his eighteenth birthday, or for the purpose of proceedings and disposition under this chapter for an alleged act of juvenile ...


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