Extradition Within the U.S.
Transfer of a fugitive between states, counties, or other jurisdictions for the purpose of prosecution
International Extradition to the U.S. from a Foreign Nation
From any country or territory outside the U.S. for Federal or State prosecution of a fugitive in the United States
International Extradition from the U.S. to a Foreign Nation
Removing and transporting a fugitive from the U.S. or its territories to a foreign government for prosecution in that country
Extradition is the process of the authorities one legal jurisdiction requesting cooperation with another such jurisdiction for the transfer of an individual they wish to prosecute.
In this instance, we most frequently get a call from a family member of someone who has been arrested and is being held in a Los Angeles County jail awaiting extradition proceedings to another state like Texas, Florida or New York for example.
In these situations, our California Extradition Attorney can do one of a couple things:
Other times, we receive a call from an attorney in another state who is already engaged locally in their jurisdiction for someone in custody there that is being held on an extradition warrant from Los Angeles, California.
In these situations, we may be able to help facilitate in several ways:
Our clients in this arena come from two possible sets of circumstances:
In either scenario, when we aren’t contacted by the would-be client or their family, we are usually contacted by a business or family attorney who was the first point of contact by the client or their representatives. Other times, an extradition law firm or extradition defense attorney in a foreign country will have already been engaged to work that end of the case and is now seeking an attorney from the United States for one or more of a couple reasons:
Some of our clients arrive alone, without other representation. We become central to assembling the necessary team for a comprehensive defense including attorneys and experts in the United States and Internationally. We have extensive experience and contacts around the world.
Others however reach us through their foreign counsel and engage our services to become part of the defense team they are putting together.
Fees and Expenses:
Every case has a completely different set of facts and circumstances that make quoting a case highly individual. Cases involving international extradition laws can be extremely expensive due to the time needed for long-distance travel. Cases within the United States on the other hand may involve little more work than the defense itself and so can sometimes be included in the defense fee itself.
Due to the nature of many extradition cases, significant time may be required to prepare for a meaningful consultation and often can also require travel. As such, attorney’s fees will likely be incurred for the consultation itself. All such fees will be applied in full to your retainer should you decide to engage our services.
Fighting & Negotiating International Extradition to or from the United States
SOME PRELIMINARY ISSUES TO CONSIDER
“Extradition” is the formal surrender of a person by a State to another State for prosecution or punishment. Extradition to or from the United States is a creature of treaty. The United States has extradition treaties with over a hundred nations, although there are many countries with which it has no extradition treaty. International terrorism and drug trafficking have made extradition an increasingly important law enforcement tool.” [1]
Because two countries so rarely become entangled in this issue, there is rarely reliable international legal authority to help settle differences of opinion, as such, “…resolution of international legal cases usually amounts to more of a freewheeling international negotiation than an actual trial or hearing.”[2]
Challenging an extradition will necessarily have at least two consistent aspects to it:
Extradition is not a given and on that premise all avenues of challenge must be exhausted. Both the country seeking the fugitive and the country where the fugitive is located must have a treaty that covers the specific crime alleged against them. There are exceptions of course, particularly when it comes to the United States and countries they have influence over. However, where a treaty exists, it may not include the offense alleged against the individual in question. A challenge must be mounted both as to the extradition being imperfect, due to the charge sought not being covered by the treaty, and that those charges are not what the person is actually accused of. In other words, beware of subterfuge and challenge all issues as unchallenged issues are often lost forever.
Further, should an extradition be approved, the collateral issue of enforcing the extraditing state to only prosecute for the offense or offenses appearing on the four corners of the extradition document can and should be enforced. In other words, the country cooperating with the extradition request must be hounded to require that the extraditing country continue to adhere to the terms of the treaty even after the extradition has been ascended to and the party in interest has left their jurisdiction. A not so uncommon sneaky ploy for example would be for the extraditing country to base their request on charges of fraud, naturally covered by a treaty, and then once the transfer has occurred, add political charges which are decidedly not covered by the treaty.
Making it clear to both states that they will be monitored and challenged at every step can function as something of a deterrent for states who might otherwise play fast and loose with the rules. Like an unsupervised child in a candy store.
In addition to holding the party nations to the terms of the treaty, jurisdiction is also an important factor to study and mount a challenge to. This analysis involves examining the extraditing nation’s local laws, often using a local expert on the issues in controversy. The warrant itself or INTERPOL Red Notice may at times similarly provide a basis for a successful challenge.
Challenging the treaty and or differences in the laws between the countries involved in the extradition may buy valuable safety for the subject of the extradition. In some cases, persistence by legal counsel has prevented additional or separate prosecution by including in the extradition agreement specific time allowances after completion of the case which provides corridors of safe passage out of the prosecuting country. Such proactivity can prevent the risk of arrest for other alleged crimes that were not detailed in the extradition. This supports the notion that even when a challenge is barred or fails in one of the countries involved, seeking intervention in the courts of the other nation may make all the difference.
Even in such a situation where the relief sought has been granted, it is necessary for counsel to “on watch” to ensure that every protection won is adhered to.
To prevent prosecution for charges not revealed in the extradition notice, the notion of the Specialty doctrine provides that the subject may only be prosecuted for the charge or charges listed in the extradition. As before, the client continues to need an advocate well-schooled in these treaties for the duration of their time within the grasp of the prosecuting nation. An additional defense may be raised if the specialty doctrine is not strictly adhered to. The defense may be raised directly in the United State, or if that fails, the nation that granted extradition may need to be lobbied to challenge the prosecution as a violation of the treaty. This can be a lengthy challenge requiring assistance in that country as well. The team can be built and adjusted over time as the needs changes. Only the quarterback and their immediate team need be involved from beginning to end.
This doctrine is becoming common in replacing the Specialty Doctrine. This allows more flexibility for countries where wording of charged offenses differs between the two providing loopholes for those resisting extradition. Under Dual Criminality, only a determination that both countries view the alleged conduct as serious is required to avoid the differences being a bar and permit the extradition and prosecution to proceed.
In the United States, as well as in many other western countries, a law exists called a statute of limitation. The law or statute exists to place a time limit on the government to bring a criminal case against a defendant. In many cases such laws only provide a three-year window to prosecutors. Regardless of the length of the statute, there may be an argument as to whether or not the statute has tolled. In effect, when a statute is deemed to be tolled, the clock stops. Prosecutors may argue this clock stoppage by stating that they were ready to prosecute the person, but they were a fugitive. In such situations, the U.S. Attorney may also attempt to argue that while location was known, attempting to acquire would have been futile until circumstances changed. Successful arguments against this tolling of the statute would include the fact that the location of the “fugitive” was known, but no effort was made to apprehend him. A good defense will raise every bar to such an argument, as a win here means there will be no extradition and no prosecution.
Generally, there are few bars to admission of evidence by the extraditing authority. The use of evidence at these hearings is often found to be analogous to a preliminary or probable cause hearing in the United States, because the standard is generally the same. In such cases, a police report or other circumstantial evidence including hearsay may be submitted without additional authority.
A surrendering state may also grant extradition outside of an extradition treaty as an act of international comity. United States courts have held that “a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he had fled. Such an act can circumvent many of the challenges otherwise available to a defendant. A challenge barring the exercise of comity may still be brought in the state attempting to grant comity.
Asylum or protection from the host country may be granted on its own accord or sought by the subject of the extradition. Whether an extradition treaty exists between two nations, a nation may choose not to surrender the fugitive, because of political or social reasons in addition to those governed under a treaty thereby declining to surrender or grant asylum. Sometimes a country who refuses to surrender one of their own citizens will prosecute the fugitive in their own courts. Differences in law and punishment between nations can make this a point of contention between the two nations. In such cases where the requesting country has as a possible punishment an option that the surrendering country finds unconscionable as is often the case with the death penalty in the United States, the surrendering country will require a commitment from the U.S. not to pursue death in the event of a conviction before turning over the fugitive.
If an argument can be advanced that the crime for which extradition is sought is political in nature, the application of the treaty may be found to be invalid. This is often the grounds for a successful defense in extradition proceedings.
As in most cases, law enforcement may use a ruse or lure to expose the fugitive. Invitations to parties or events, notices of prizes won or inheritances awarded along with faux drug or arms deals in international waters are all deemed good police work and are not readily challengeable. As with forcible transnational abduction,
The United States has been corrected a number of times for overusing this designation (as opposed to lawful combatants), as an excuse to extradite or perform an extraordinary rendition (or forced transnational abduction), and then detain without affording their due constitutional rights. These individuals find themselves deprived of the right to counsel and reasonable contact with the outside world. The law requires that in order to be labeled as an unlawful combatant, a competent tribunal must make such a declaration. Until such time, a detainee must be assumed to be a lawful combatant and therefore accorded the legal protection required by the constitution.
The first step in fighting an extradition request is to obtain a copy of the relevant treaty between the two countries and review it for the specific requirements. An experienced California extradition attorney will make sure that the alleged criminal conduct is actually covered by the treaty and that the requesting country has complied with all legal formalities in making the extradition request.
For any extradition request, the government bears the burden of proving that the person arrested is actually the person who is accused of committing the crime in the foreign country. If the government cannot sufficiently prove identity, then the extradition request is dismissed.
A skilled California extradition attorney can also convince the judge at the extradition hearing that there is not sufficient “probable cause” that the person being sought actually committed a crime. Generally, the government will attempt to establish probable cause by using affidavits from witnesses without requiring the witness to actually appear in court. A person who is fighting an extradition request has a right to present their own evidence and may testify at the hearing. In cases where the accusations are unreliable, or where there is evidence of an alibi, judges have refused to honor extradition requests and have dismissed the complaint and arrest warrant in California.
If extradition is granted, an experienced California extradition lawyer may still successfully petition the State Department to refuse extradition based on political or human rights concerns. At the very least, the State Department may be willing to place limitations and conditions on the extradition so that the person being extradited has some legal protections that they may not otherwise be entitled to in the foreign country.
It is near the bottom of the list, but there are times where fighting extradition may be a tremendous waste of resources for you and for the government’s involved, and agreeing or surrendering to the extradition may be a bargaining chip that can improve your negotiating power for a plea agreement.
You wouldn’t be reading this article if you didn’t need help, and you wouldn’t have gotten to the bottom of this page if you hadn’t already decided that we are the right firm for you, your loved one or your associate. We are always prepared to make your case our priority. We understand that nobody plans for this to happen, and timing and circumstances are never convenient. While extradition is a process that can drag on, these moments may be precious in terms of not exercising one’s right to a particular remedy. We believe in exhausting options in order to best safeguard our clients.
[1] Congressional Research Service 7-5700 www.crs.gov 98-958 Extradition To and From the United States: Overview of the Law and Recent Treaties Michael John Garcia Legislative Attorney Charles Doyle Senior Specialist in American Public Law March 17, 2010
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