International Extradition Defense
International extradition cases from the United States can be highly complex matters that require careful, clear-eyed analysis from an experienced federal criminal defense attorney.
If you or a loved one are facing extradition to another country from the United States, it is important to understand the process and the issues before making a decision whether to waive extradition or whether to stay and fight.
How does international extradition work?
The Extradition Process:
All international extradition cases are held in federal courts. The most important thing to know is that international extradition is controlled by an extradition treaty between the United States and the requesting country. The courts are rather limited in both their authority and the scope of inquiry.
Request for Extradition or Request for Arrest. First, the requesting country sends the State Department either a provisional request for extradition or a provisional request for arrest with intent to extradite. This is reviewed by State Department lawyers.
Department of Justice Review. After confirming the validity of the request, the State Department forwards the request to the Department of Justice who forwards it on to the United States Attorney’s Office.
Issuance of Arrest Warrant. Once the target of the extradition is located, the US Attorney then issues an arrest warrant for the extraditee.
Detention Hearing Before the Magistrate. This is where the action starts. At this hearing, the magistrate judge informs the extraditee of his/her rights under the constitution (this includes the right to counsel). The magistrate will also consider the issue of bail pending the extradition hearing.
Bail in International Extradition Proceedings
Let’s talk about Bail in an extradition proceeding. First things first. It is critical for anyone to realize that neither the Bail Reform Act nor Federal Rules of Criminal Procedure do not apply in an extradition proceeding. These are technically civil proceedings in which the Federal Rule of Criminal Procedure can provide guidance, but the court is not required to follow these rules. But there is a body of case law that is used in determining bail:
- There is a presumption that bail should not be granted. This means the extraditee has to prove that he or she is eligible for bail. What does this mean?
- Presenting sufficient evidence that he or she is not a flight risk.
- Presenting sufficient evidence that he or she is not a danger to the community.
- Showing that there are “special circumstances” which lead lend themselves to bail.
Whether special circumstances exist is taken on a case by case basis and are fact specific. These circumstances truly must be compelling. For instance, if the person facing detention is the sole caregiver to a young child or dependent adult, that’s often a compelling special circumstance.
What happens at an extradition hearing?
Extradition hearings are conducted before a judge, there is no right to a jury and the rules of evidence are relaxed. Hearsay is permitted. The government will present evidence in an effort to establish the following:
- The validity of the extradition treaty between the United States and the requesting country.
- The identity of the person to be extradited.
- That the crime for which the person is accused of in the requesting country is a crime covered under the extradition treaty.
The defenses available at an extradition hearing are limited to refuting to those that refute probable cause for extradition. This is not a trial, so alibi defenses are contesting the elements of the offense are not allowed.
Recognized defenses include:
- The requesting country did not follow its own law in requesting extradition
- Challenging “dual criminality.” The crime for which the extraditee is being extradited is not a recognized crime in the United States.
- Humanitarian Concerns. The court is limited in how they can address severe humanitarian and human rights concerns. However, in certain instances these issues can be raised.
The standard of proof at an extradition hearing is “probable cause.” This is an extremely low burden of proof. Consider that “beyond a reasonable doubt” is the highest level of proof (which is what is used in a criminal trial) then “probable cause” is the lowest. Not much evidence is required to meet this burden.
Waiver of Extradition
At any point during the process, the accused can choose to waive extradition proceedings. This means agreeing to be extradited to the requesting country without a hearing. This is achieved by signing a written waiver and appearing at a hearing before the magistrate judge affirming your desire to forego a formal hearing.
Grounds to Fight Extradition – Appealing an Extradition Order
The only avenue for appealing an extradition order is filing a writ of habeas corpus. The issues considered in the writ are limited to:
- Whether the court had jurisdiction to hear the extradition request
- Whether the charged offense was included in the extradition treaty
- Whether there was probable cause to believe the accused was guilty of the charged offense.
Speak to an Experienced International Extradition Attorney
If you or a loved one are facing international extradition in any federal court anywhere in the country, you need a lawyer who knows how to navigate these complex issues. First and foremost, you need a lawyer who will honestly assess whether there is a viable defense or whether extradition should be waived.
For a free and confidential consultation, call Los Angeles criminal defense attorney Jerod Gunsberg at (323) 633-3423 or get in touch via the secure contact form on this page. Help is available 24 hours a day, 7 days a week.