The Long Arm of the Law

• Author: James E. Johnson
• Pages: 255-270

255

This chapter w ill focus on defendi ng agains t cross-border proceedings involvin g

the client’s arrest or t he seizure of his documents or assets. The hypothetical cl i-

ent is a person or entit y, whether a U.S. citi zen, a foreign corporat ion, or a foreign

national bein g extradited to or from the Un ited States.

HTHE GOVERNMENT WANTS YOUR CLIENT

Extradit ion is the formal proce ss by which an individual found oversea s is

removed to the re questing countr y to face crim inal invest igation, prosecut ion, or

punishment. With some exceptions, U.S. federa l law requires that extradit ion be

conducted in accordance with an ext radition treaty or convention. The process

for extraditing a person f rom the United States typically begins w ith the request-

ing state mak ing a formal request to the Depa rtment of State. If the State Depart-

ment determines that the request is w ithin the scope of the relevant extradition

treaty, a United States attor ney will obta in an ar rest warra nt for the person

sought.2 Once the warra nt is issued, a judic ial officer—usually a magist rate

judge—will conduct a heari ng to determi ne whether: () the court has jur isdic-

tion over the subject matter and person; (2) there is an extrad ition treaty i n full

force and effect bet ween the requesting state and the United States; (3) the crime

charged is an e xtraditable offense under t he treaty; (4) there is probable cause that

. The cu rrent practice of the Unite d States is to grant extrad ition requests exclusively

through ex tradition treat ies but to make extradition requests on t he basis of treaty oblig a-

tions, inter national comity, and the cu stodial state’s national laws.

2. A defenda nt in an extradit ion proceeding is refer red to as the “relator.”

CHAPTER 17

The Long Arm of the Law

James E. Johnson

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256 CHAPTER 7

the defendant comm itted the alleged offen se; and (5) the defendant has not shown

by a preponderance of the evidence a valid defense to t he extradition. If the judi-

cial off icer is satisfied that these requi rements are met, the officer certi fies to the

secretary of st ate that the defenda nt is extrad itable. The fina l determination

whether to surrender the defendant to the requesting nation is a decision for the

Department of State.3 The process for ext raditing a person to the United State s is

governed by the laws of the custodial count ry and the appl icable extradit ion

treaty. 4

Faced with the potentia l extrad ition of one’s client to or from the United

States, counsel must f irst determine whether the United States has a treaty with

the foreign country. More likely than not, there will be a treaty in operation, as

the United States has extradit ion treaties with over 00 countries.5 Counsel must

also determine whether a multilateral extradition treat y will a ffect the extradi-

tion proceeding s. The United States is a party to a numb er of multilateral extrad i-

tion treaties that make certai n offenses automatica lly extrad itable between state

parties.6

Issues for Defense Specific to the Extraditing Country

After deter mini ng whether the client’s extradition is gover ned by treaty, counsel

should then assess whet her the client has a basis for alleg ing a violation of t he

extradit ion treaty.7

Double Jeopardy

Many treaties embo dy the principle ne bis in idem, “not tw ice in the same thing,”

which protects t he accused from extrad ition where the custodial state h as already

tried or is in t he process of proceeding a gainst t he accused for the same of fense,

or where a third st ate has issued a judgment respect ing the same conduct.

3. 8 U.S.C. § 386 (2006). See 8 U.S.C. §§ 38–396 for the process by wh ich the United

States carr ies out its treaty ext radition obligations.

4. Thi s chapter will focu s on bilateral extrad ition treaties and not on forei gn domestic

extrad ition law.

5. See th is chapter’s Appendix 7-A for a complete list ing of current U.S. bilater al extradi-

tion treaties.

6. For a list of mu ltilateral ext radition conventions, see M. Che  B , I-

 E : U  S L  P  Appendix I (5th ed. 2007).

7. Several courts of app eals have held that a defenda nt has standing to as sert a violation

of an extrad ition treaty. See, e.g., United States v. Saccoccia, 58 F.3d 754, 767 (st Cir. 995);

United States v. Puentes, 50 F.3d 567, 575 (th Cir. 995) (“[A]n individua l extradited

pursuant to a n extradition tre aty has standin g under the doctrine of sp ecialty to raise

any objections wh ich the requested nation mi ght have asserted. The ext radited individ-

ual, however, enjoys thi s right at the suffer ance of the requested nation. A s a sovereign,

the requested nat ion may waive its right to object to a treat y violation and thereby deny

the defendant st anding to object to such an ac tion.”).

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