How to Fight An Extradition Request

Mr. Feldman is an extradition defense attorney with experience representing individuals in extradition proceedings. An extradition defense attorney can assist persons detained in the United States on a provisional arrest warrant. Below is a summary of what one might expect in an international extradition proceeding.

Definition of Extradition. Extradition is the formal surrender of a person by a Country to another Country for the purposes of prosecution or punishment.[i]

Issues Decided at Extradition Hearing. At a minimum, courts generally must decide the following issues before issuing a certification of extraditability:

• Is there an extradition treaty?
• Is the person in custody the person being sought?
• Has the defendant been charged with an offense that falls within the treaty?
• Is there dual criminality?
• Is there probable cause to believe that a crime was committed based on a careful review of the documentary evidence submitted by the requesting country?

Extradition Treaty

• The starting point for the entire extradition analysis is the applicable extradition treaty.

Extraditable Offense

• The offense for which extradition is requested pursuant to the extradition treaty must be an “extraditable offense,” including a conspiracy or an attempt to commit an “extraditable offense.”
• An extradition treaty generally contains a provision or article outlining the categories of extraditable offenses.

Dual Criminality

• A Crime in Both Countries. While the treaty itself may proscribe certain “extraditable offenses,” the requesting country must show that the extraditable offense is a crime in the requesting country and the requested country.[ii] Without making this showing, the requesting country has not demonstrated what is commonly referred to as “dual criminality.” [iii]
• Relaxed Requirements. Importantly, some extradition treaties may relax or eliminate the requirement of complete parity between the offense in the requested country and the offense in the requesting country. [iv] For example, although many federal offenses involving economic crimes require the government to prove a jurisdictional nexus, g., that an act affected interstate commerce, in some cases, the requesting country may satisfy its dual criminality requirement without making such a showing.
• Tax and Customs. Treaties may also contain special provisions which govern when the offense alleged in the request is a violation of a law relating to taxation, customs, or duties.
  

Required Supporting Documentation

• Required Documents. A request must generally include the following documents:
  • A summary of facts of the offense and the procedural history of the case.
  • The text of laws describing offense for which extradition is requested and the applicable penalty;
  • The arrest warrant;
  • The charging document; and
  • Any other documents or information that further support the detention of the requested person.
• Requesting Country’s Submission Must Include Specific Documents. The requesting country must also submit specific, required documents with the request, according to the treaty.
• Admissible and Authenticated. The above-described documents must also be admissible and properly authenticated pursuant to either the treaty’s admissibility provisions (if the treaty contains one) or pursuant to 18 U.S.C. Section 3190 which permits the requesting country to admit the documents submitted with the request as long as they are accompanied by a “certificate of the principal diplomatic or consular officer of the U.S. resident in the requesting country.”[vi]

Probable Cause

• Probable Cause Requirement. Assuming that the requesting country faithfully follows the provisions in the treaty, the magistrate is still required to find that there is probable cause to believe the offense alleged in the request was committed.[vii]
• Probable Cause. Probable cause is generally defined as “evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief in the accused’s guilt.”[viii]
• Probable Cause Hearing. The probable cause hearing is akin to a preliminary hearing. The purpose of the hearing is not to determine whether the accused is guilty or innocent. At the hearing, the rules of evidence and of criminal procedure also do not apply.

Explanatory Evidence

• Courts may Consider Explanatory Evidence. In deciding probable cause, courts may consider explanatory evidence. [ix]
• Explanatory Evidence. Explanatory evidence is “[e]vidence explaining away or completely rebutting the existence of probable cause” opposed to evidence which “merely controverts the government’s probable cause evidence.”[x]
  1. Explanatory evidence may be viewed as “evidence that provides an innocent explanation for the matters which the government contends point toward guilt” and if the “government relies upon circumstantial evidence, the accused is generally permitted to introduce evidence that helps explain it away.” [xi]
  2. Courts have also previously considered evidence of an alibi defense[xii] or a coerced confession,[xiii] or witness recantation evidence in deciding whether the requesting country demonstrated probable cause. [xiv]

Court Decisions Denying Probable Cause. Courts have previously denied probable cause under the following circumstances:

• Poland’s extradition request was riddled with conclusory statements and unsubstantiated evidence, and “admitted lies.”[xv]
• Testimony and statements from many different sources supporting Trinidad’s extradition request failed to demonstrate probable cause to believe relator committed conspiracy. [xvi]
• Newly discovered evidence found by relator which was admissible “casts such serious and substantial doubt upon the validity of the allegations of the requesting country [Dominican Republic] as to now obliterate probable cause.”[xvii]
• Czech Republic’s submission of unsworn affidavits to support its request in contravention of its own Treaty requirements constituted a “material deficiency.”[xviii]
• Submissions by Germany failed to establish fraudulent intent in a bank fraud case.[xix]
• France submitted insufficient evidence to demonstrate that defendant possessed the requisite criminal intent to commit theft by fraud in a case involving a “faith healer.”[xx]
• Materials submitted by Switzerland, namely a Zurich Supreme Court decision, failed to establish probable cause because they failed to “set forth facts from which both the reliability of the source and probable cause can be inferred.”[xxi]
• Bolivia’s extradition request based on charges of fraud, illegal association, and breach of trust, including a witness affidavit with “speculative” statements and the summary of the proceedings before the Bolivian judge, was insufficient to demonstrate probable cause.[xxii
• Spain’s extradition request was not supported by probable cause when Spain used a statement that defendant recanted to support their request and there was additional evidence that defendant’s confession was elicited through coercion.[xxiii]
• Czech Republic submitted two documents, a written statement from citizen and a photocopy of wire transfer, in support of extradition request.[xxiv]
• Italy submitted a Florence court opinion, which referenced documents allegedly implicating relator in a drug trafficking conspiracy in support of its extradition request.[xxv]

Treaty Defenses

• Ex Post Facto: Identify the applicable law governing the lapse of time defense, g., the law of the requesting country, the law of the requesting and requested countries, before raising that defense.
• Affirmative Defense to Extradition. Even if the requesting country demonstrates probable cause, there are several treaty defenses, which operate as affirmative defenses to a request for extradition.
  1. Prior Prosecution: Treaties generally permit the prior prosecution defense when there was an acquittal in the requested [xxvi]
  2. Lapse of Time: This defense may be problematic depending on the nature and character of the offense.
• Military Offense Exception
  1. The military offense exception – that the crime alleged in the request is only a crime under military law – is rarely invoked.[xxvii]
• Political Offense Exception.
  1. Two Prong Test. Federal courts have established a two-pronged test to determine whether an offense is sufficiently political to qualify for the exception. First, the offense involved an uprising or some other” violent political disturbance” such as “war, revolution, insurrection, or rebellion.”[xxviii] A court may allow an attorney to judicially notice evidence of this first prong by referencing newspaper articles or other sources whose accuracy cannot be reasonably questioned.[xxix] Second, the person from whom extradition is requested must show that the “offense was committed “in the course of and incidental to that uprising or violent political disturbance.”[xxx]. In deciding whether the petitioner has satisfied the second prong of the exception, courts have focused on several factors including: the violent character of the victims, if any, of the offense,[xxxi] whether the methods used to commit the alleged offense were excessive, e.g., the offense did not involve torture,[xxxii] and whether the offense was closely connected to the violent political disturbance at issue.[xxxiii]
  2. Politically Motivated. A politically motivated extradition request does not entitle the defendant to invoke the political offense exception unless the treaty bars requests “made for the purpose of prosecuting of punishing the person sought on account of his political opinions.”[xxxiv] Requests for extradition based on economic crimes, for example, are generally not politically motivated and fraud is usually not committed incident to a violent uprising or civil war either. [xxxv]
  3. Burden Shifting. At the extradition hearing, if it is shown that both prongs of the political offense exception apply, then the government must rebut that showing either by introducing their own witnesses or through cross examination.[xxxvi]

If you have been arrested on a provisional arrest warrant and are being detained in the United States based on criminal charges filed in another country, an extradition defense attorney can help you.

[i] See Harvard Research in International Law, Draft Convention on Extradition, 29 AM. J. INT’L L. 21 (Supp. 1935)

[ii] Factor v. Laubenheimer, 290 U.S. 276 (1933) (“dual criminality exists when he offense charged in the country seeking extradition is generally recognized as criminal in both countries.”); But see Melia v. United States, 667 F.2d 300, 303-04 (2d. Cir. 1981) (certifying Canada’s extradition request and finding dual-criminality in the United States and Canada based on relator’s single phone call from the U.S. to a co-conspirator in Canada in furtherance of a murder for hire conspiracy).

[iii] In Republic of France v. Moghadam, 617 F. Supp. 777, 783 (N.D. Cal. 1985) (finding that France’s request failed to satisfy the dual-criminality requirement reasoning that the alleged acts of conspiracy were committed outside of the country and relator neither conspired with anyone in France nor committed any overt acts in France).

[iv] See Extradition Agreement with European Union, art. (4)(2), Feb. 1, 2010, S. TREATY DOC. 109-14 (“Early U.S. extradition treaties confined extraditable offenses to those specifically listed in the treaty itself.  Such an approach limits extradition for newly emerging forms of criminality that the United States has a strong interest in pursuing, such as antitrust, cybercrime, and environmental offenses. Modern extradition treaties, however, have developed a new approach, which is frequently referred to as the principle of ‘dual criminality.’ Dual criminality provides that a crime is extraditable if it is punishable as a crime under the criminal law of both parties to the treaty.”).

See South African Treaty, Art. 2(6), June 25, 2001, S. TREATY DOC. 106-24 (“extradition may not be refused on the ground that the law of the Requested State does not impose the same kind of tax or duty or does not contain a tax, customs duty, or exchange regulation of the same kinds as the Requesting State.”)

[vi]  18 U.S.C. Section 3190.

[vii] 18 U.S.C. Section 3184

[viii] Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973) (defining the probable cause standard); see also Sidali v. INS, 107 F. 3d 191, 197 (3d. Cir. 1997) (same).

[ix] In Re Cervantes-Villa, No. M-02-008 — 268 F. Supp. 2d 758, 772-773 –  (S.D. Tex. Mar. 31, 2003) (holding that Mexico did not satisfy probable cause and that evidence of petitioner’s alibi defense was admissible); see In Re Zhen-Le Ye Gon, No. 08-596-JMF  —  2010 WL 169468 — (D.D.C. Jan. 8,. 2010) (noting that the due process clause of the constitution requires that the US Government hand over exculpatory evidence in their possession that may negate probable cause that relator committed the crime(s) for which he is charged).

[x] In Re Cervantes-Villa, 268 F. Supp. 2d at 772-73; see also In Re Sindona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978) (district court found probable cause, but noted that, “[i]n admitting ‘explanatory evidence,’ the intention is to afford an accused person the opportunity to present reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause.”).

[xi] In Re Cervantes-Villa, at 772-73; see also Shapiro v. Ferrandina, 355 F.Supp. 563, ,572 (S.D.N.Y. 1973) (“While the process of definition is difficult in the area of ‘probable cause’ perhaps it is enough to say that what tends to obliterate probable cause may be considered but not what merely contradicts it.”) (emphasis ours)

[xii] In Re Gonzalez, 52 F. Supp. 2d. 725, 739 (W.D. La. 1999) (court was permitted to consider evidence of an alibi defense).

[xiii] Maguna-Celaya v. Haro, 19 F. Supp. 2d 1337 (S.D. Fla. 1998), rev’d on other grounds (court was permitted to evaluate evidence showing that relator’s confession was coerced).

[xiv] In Re Extradition of Contreras, 800 F. Supp. 1462, 1464 (S.D. Tex. 1992) (court was permitted to consider evidence that the witness recanted his testimony).

[xv] United States v. Mazur, – 2007 WL 2122401 – at *27 (N.D. Ill. July 20, 2007). The district court underscored that“[t]his court is not charged with determining guilt or innocence; nor is this Court permitted to simply hand over a United States citizen on the word of a prosecutor, coupled with conclusory allegations, and unsubstantiated, unreliable evidence. The court is not merely a rubber stamp for a foreign government’s decision that probable cause exists, such that an American citizen should be held to answer criminal charges in that country. In our system of justice, each case must be decided based on the particular evidence presented therein. And, in this case, the evidence presented fell short of the mark.” Mazur, at *27.

[xvi] In Re Extradition of Joseph Ben-Dak, 2008 WL 1307816 (S.D.N.Y. April 11, 2008. The Court also called the description of the scheme, from the affidavits, “vague” and “disjointed” providing no competent evidence of what the scheme actually was. Ben Dak, at *16; see also Gill v. Imundi, 747 F. Supp. 1028, 1041 (S.D.N.Y. 1990) (“the magistrate judge does appear to have been mistaken to the extent he expressed on occasion the understanding that the extradition court lacked the authority and discretion to go beyond the face of the government’s affidavits for purposes of determining credibility or reliability.”); see  Freedman v. United States, 437 F. Supp 1252, 1265 (N.D. Ga. 1977) (stating “magistrate should involve himself in a determination as to the reliability of the affidavits presented and not merely blindly believe such statements without regard to the underlying facts upon which the officer believed that the information was reliable.”); But see United States v. Zanazanian, 729 F. 2d 624 (9^th Cir. 1984) (report summarizing unsworn witness statements was admissible and sufficiently reliable to demonstrate probable cause); United States v. Emami, 834 F.2d 1444 (9^th Cir. 1987) (hearsay statements presented by German prosecutor in affidavit were sufficient to support probable cause finding); United States v. Afanasjev, 418 F.3d 1159 (11^th Cir. 2005) (bill of indictment submitted by Lithuanian Government was competent evidence sufficient to support finding of probable cause to extradite even though it was unsworn and contained unsworn hearsay statements by witnesses and victims).

[xvii] In Re Extradition of Schlomo Ben-Tov, 05-22201-CIV-Garber (S.D. Fla. February 22, 2006) (Garber J.) (reversing the original certificate granting extradition request reasoning that the newly discovered evidence found by relator which was admissible “casts such serious and substantial doubt upon the validity of the allegations of the requesting country as to now obliterate probable cause.”). The court further noted that the newly discovered evidence included exculpatory evidence which was not originally in the possession of relator.  Schlomo, at *18.

[xviii] In Re Platko, No. 02-MG-07980-LAB – 213 F.Supp. 2d 1229 – (S.D. Cal. July 26, 2002) (“Authentication of the documents not themselves sworn does not suffice to establish a foundation for the factual content asserted in the documents. The papers presented in support of extradition contain no affidavit, declaration, or other form of sworn statement by any person with knowledge of the underlying facts to support the charging papers, or even certifying representations contained therein were actually made as recorded here.”).

[xix] In Re Extradition of Lehming, 951 F. Supp. 2d. 505 (D. Del. 1996) (finding that the evidentiary submissions did not establish probable cause that the fugitive committed offenses related to bank fraud because submissions did not establish fraudulent intent. Lehiming, at *514-515. In support of that holding, the court reasoned “recital of sufficient underlying circumstances is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp.” Lehming, at 517 (other citation omitted); see also United States v. Santos, 473 F. Supp. 2d 1030, 1038 (C.D. Cal. 2006) (granting bail pending appeal finding ‘special circumstances’ and also concluded that “this case is shrouded in so much uncertainty that any assessment of probability of success on the merits is simply not feasible.”); But see In Re Sindona, 450 F. Supp. 672, 688 (S.D.N.Y. 1978) (granting Italy’s extradition request for a fugitive accused of fraudulent bankruptcy under Italian law by unlawfully taking hundreds of millions of dollars from Italian banks and falsifying books and records). Significantly, in making its determination, the court in Sindona underscored that documents supporting Italy’s request, including bank and liquidator reports detailing relator’s fraud, were the products of thorough and “obviously careful investigations,” were corroborated by other testimony and were entitled to “great weight.” Sindona, 450 F. Supp. at 688.

[xx] Petition of France for Extradition of Sauvage, 819 F.Supp. 896 (S.D. Cal. 1993). The court further noted that, under local law, representation that some of the money obtained from patients was used for charitable purposes was not false and there was no evidence to demonstrate that relator did not believe in his power to cure people or that his claims to healing people were false. Sauvage, at 903-04.

[xxi] In Re Ernst, – 1998 WL 395267 – at *9 (S. D. N. Y. July 14, 1998) (denying Switzerland’s request for extradition finding that the materials submitted by Switzerland, namely a Zurich Supreme Court decision, fail to establish probable cause and noting that “materials submitted must set forth facts from which both the reliability of the source and probable cause can be inferred.”)

[xxii] United States v Fernandez-Morris, 99 F. Supp. 2d 1358, 1372 (S.D. Fla. 1999) (Garber J.) (finding that “the lack of process afforded to relators in this case is shocking to this court” and noted that the procedural notice requirements, even by Bolivian standards, were completely deficient.) Judge Garber continued and stated that “[magistrate judges] must, under Article III of the Constitution, exercise their independent judgment in a case or controversy to determine the propriety of an individual’s extradition. The executive may not foreclose the courts from exercising their responsibility to protect the integrity of the judicial process.” Fernandez-Morris, at 1336, quoting Aguilar v. Texas, 378 US 108, 111 (1964)

[xxiii] Maguna-Celaya, 19 F. Supp. 2d at 1343 (“When an individual seeks to present evidence that negates all bases for probable cause, such evidence must be admitted, because if the individual can successfully show the court that all bases for charging him are unreliable, then there is no evidence to support his extradition.”).

[xxiv] United States v. Peterka, 307 F.Supp.2d 1344 (M.D. Fla. 2003)

[xxv] In Re Ribaudo, 2004 WL 213021 at * 5-6 (S.D.N.Y. Feb 3, 2004) (“the only evidence presented in support of extraditability is the decision of the Florence Court of appeal” which references other documents (including wire-taped conversation). The court also noted that, even if it were to give “some weight” to the referenced documents in its analysis of this case, it cannot make an independent probable cause determination because those documents are not available to the Court. Ribaudo, at*6.

[xxvi] See Bolivian Extradition Treaty, Art. V. (2), Nov. 21, 1996, S. TREATY DOC. 104-22

[xxvii] In Re Ezeta, 62 F.972 (N.D. Cal. 1894) (finding that the offenses committed constituted military offenses under the Treaty).

[xxviii] Ordinola v. Hackman, 478 F.3d 588, 596-97 (4^th Cir. 2007) (noting that “we—like the magistrate judge and district court—have little trouble in agreeing that the alleged actions here occurred during the course of a violent political uprising,” but finding that, under the totality of the circumstances, the offense was not committed incident to the violent political uprising.)

[xxix] In Re Extradition of Suarez Mason, 694 F. Supp. 676, 707 (N.D. Cal. 1988) (finding that the offense was committed during a period of intense violence in Argentina but concluding that the offense was not “incident to” the political turmoil or uprisings occurring in Argentina); see Barapind v. Enomoto, 400 F.3d 744, 753 (9^th Cir. 2005) (noting that “[t]here is no real doubt that the crimes Barapind is accused of committing occurred during a time of violent political disturbance in India,” but finding that the offense of murder was not committed incident to the political uprising).

[xxx] Ordinola, 478 F.3d at 596-97.

[xxxi] In Re Roberto Guillermo Bravo, No. 10-20559-MC (Nov. 2, 2010), DE-62 at 4-5 (denying Argentina’s request for extradition finding that the victims of the alleged massacre were violent, extremist terrorists)

[xxxii] In Re Ezeta, 62 F.972 (N.D. Cal. 1894)

[xxxiii] See International Extradition: United States Law and Practice, M. Cherif Bassiouni, (Fifth Ed. 2007), at p. 672 (“with the application of the political incidence test, only an attenuated connection need be shown between the common crime and the political act.”)

[xxxiv] See Jamaican Extradition Treaty, Art. III (2), July 7, 1991, S. TREATY DOC. 98-18.

[xxxv] See Gallina v. Fraser, 278 F.2d 78-79 (2d. Cir. 1960) (“we have discovered no case authorizing a federal court, in a habeas corpus proceeding challenging extradition from the United States to a foreign nation, to inquire into the procedures which await the relator upon extradition.”). However, the Second Circuit also admitted that “we confess to some disquiet at this result. We can imagine situations where the relator, upon extradition, would be subject to procedures or punishment so antipathetic to a federal court’s sense of decency as to require reexamination of the principle [non inquiry] set out above.” Gallina, 278 F.2d at 79; see Jihrad v. Ferrandina, 536 F. 2d 478, 485 (2d. Cir. 1976) (rejecting appellant’s argument that the extradition request from India was “politically motivated” by “India’s desire to punish him for his outspoken advocacy of Israeli causes at a time when India’s national policy favored the Arab bloc” and finding that his “embezzlement of money” from a fund he was responsible for administering was “not in any sense a political offense” and there was a “substantial basis” for prosecuting appellant.); see Sindona, 619 F.2d at 173-74 (rejecting relator’s claim that the extradition request was “politically motivated” when the record before the magistrate judge provided a “substantial basis” for relator’s prosecution for bankruptcy fraud); see also Italy Extradition Treaty, Article V, TIAS 10837 (Sept. 24, 1984) (“Extradition shall not be granted when the offense for which extradition  is requested is a political offense, or if the person whose surrender is sought proves that the request for surrender has been made in order to try or punish him or her for a political offense.”) (emphasis ours).

[xxxvi] Ramos v. Diaz, 179 F. Supp. 459, 463 (S.D. Fla. 1959) (“These established facts placed the burden on the demanding government to prove that the crime charged in the Complaints was not of a political character. The demanding government failed to sustain this burden.”).