Appeal from a judgment of conviction in the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) following the entry of a conditional guilty plea to RICO charges. Because we hold that the appellant's rights under the Federal Juvenile Delinquency Act and due process clause were not violated by preindictment delay, we affirm.
Newman and Winter, Circuit Judges, and Bonsal,*fn* Senior District Judge.
Two weeks after his twenty-first birthday, Perry Hoo was indicted for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, 1962(c)-(d) (1982). Hoo moved to dismiss the indictment on the ground that the government's delay in filing it denied him the protections afforded juveniles under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (1982 & Supp. III 1985) and his rights under the due process clause of the fifth amendment. Judge Sweet denied the motion. Hoo subsequently entered a conditional plea of guilty to the RICO charges but reserved the right to appeal from the denial of his motion. We affirm.
On December 27, 1984, the government filed an indictment charging Hoo and twenty-four other defendants with operating as a RICO enterprise a youth gang known as the "Ghost Shadows." All twenty-five defendants were charged with at least one act of racketeering involving either murder or conspiracy to commit murder. Hoo was charged with seven acts of racketeering that involved gambling, conspiracy to commit extortion, extortion, conspiracy to commit robbery, robbery, conspiracy to commit murder, attempted murder and murder. All of these crimes allegedly occurred during his teenage years, and the government conceded in Hoo's plea agreement that it possessed no evidence that Hoo had participated in the racketeering enterprise between his eighteenth birthday and the end of the period covered by the indictment. Accordingly, had the indictment against Hoo been filed before his twenty-first birthday -- December 14, 1984 -- Hoo would have been entitled to the protection of the Juvenile Delinquency Act. See 18 U.S.C. §§ 5031-5042 (1982). Instead, however, the indictment was filed on December 27, 1984.
On January 2, 1986, Hoo moved to dismiss the indictment against him. He claimed, inter alia, that the government's delay in filing the indictment was prejudicial and violative of due process because it had caused him to lose procedural rights under the JDA. The district court held that Hoo did not have an absolute right to the procedural protections of the JDA because the statute did not require that prosecutions for acts of juvenile delinquency be initiated before the defendant's twenty-first birthday. United States v. Wai Ho Tsang, 632 F. Supp. 1336, 1339 (S.D.N.Y. 1986). Nevertheless, the court held that "were it to be established that the delay was due to 'unjustifiable Government conduct,' . . . or illegitimate prosecutorial motives," the preindictment delay would constitute a violation of Hoo's due process rights. Id. (citations omitted).
Accordingly, the court held a hearing to determine the reasons for government's delay in filing the indictment. The sole witness, Special Assistant United States Attorney Nancy E. Ryan, testified that the government had begun its investigation of the Ghost Shadows in April 1982 and had begun presenting evidence to a federal grand jury in January 1984. She also stated that from the outset of its investigation, the government had been aware of Hoo's criminal activities. Nevertheless, she testified that the government had been unable to obtain "the most important evidence against him" -- evidence of Hoo's participation in the murder of Puk Chui -- until December 13, 1984, the day before Hoo's twenty-first birthday. She further testified that, although she had at one point discussed with other prosecutors the general effect that the Juvenile Delinquency Act might have on the case, she did not realize until approximately December 19, 1984 that Hoo had just reached the age of twenty-one. Finally, she stated that the government had not sought a tactical advantage over Hoo by delaying the filing of the indictment.
After the hearing, Judge Sweet concluded that the government had engaged in "entirely appropriate investigatory conduct." In particular, he concluded that evidence of the murder of Puk Chui was "a significant part of the government's case," and that the government had not obtained detailed evidence about the murder until the day before Hoo's twenty-first birthday, when an important witness had agreed to cooperate with the government and had testified about the murder before the grand jury. Judge Sweet also found that "at no time during this period in late 1984 was there any consideration given to the effect of an indictment on Hoo's [juvenile] status." Accordingly, the court denied Hoo's motion to dismiss the indictment.
As amended in 1974, the Federal Juvenile Delinquency Act establishes certain procedural protections for juveniles, enumerated in the margin,*fn1 that may remove them from the ordinary criminal justice system and place them in a separate scheme of treatment and rehabilitation. The Act applies only to the prosecution of "juveniles" who are charged with having committed acts of "juvenile delinquency." See 18 U.S.C. § 5032 (Supp. III 1985). The terms "juvenile" and "juvenile delinquency" are defined in 18 U.S.C. § 5031 (1982), which provides 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 delinquency, a person who has not attained his twenty-first birthday, and "juvenile delinquency" is the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.
In applying Section 5031, the courts have consistently held that a defendant who is alleged to have committed a crime before his eighteenth birthday may not invoke the protection of the Juvenile Delinquency Act if criminal proceedings begin after the defendant reaches the age of twenty-one. See, e.g., In re Martin, 788 F.2d 696, 697-98 (11th Cir. 1986); United States v. Araiza-Valdez, 713 F.2d 430, 432-33 (9th Cir. 1983); United States v. Doe, 631 F.2d 110, 112-13 (9th Cir. 1980). Appellant nevertheless argues that we should construe the statute to extend its protection to ...