ch. 1

Development of International Extradition in the United States

[§]1-1.

Brief History of Evolution of International Extradition in United States

1

[§]1-2.

Volume of United States International Extradition Activity

9

[§]1-3.

Reasons for Rapid Increase in United States International Extradition Activity

11

1.

Growth in International Criminal Activity Affecting United States

11

2.

Increasing Emphasis on Enforcement Programs Having International Ramifications

12

3.

Negotiation of Broader Extradition Treaties, Enactment of Amendments to Extradition Laws, and Entry Into Force of Multilateral Treaties Containing Extradition Provisions

12

4.

Centralization of Principal Extradition Implementation Responsibilities in the Department of Justice

15

5.

Assignment to Requested Country of Responsibility for Legal Representation

16

ch. 2

Extradition From the United States: Statutes

[§]2-1.

Historical Background of United States Extradition Statutes

19

[§]2-2.

Applicable Statutory Provisions

22

1.

Requirement of Existence of Treaty or Legislative Authorization

22

2.

Persons Authorized to File Complaint for Warrant of Apprehension

24

3.

Contents of Complaint for Warrant of Apprehension

25

4.

Judicial Officers Authorized to Issue Warrant of Apprehension

26

5.

Offenses for Which Warrant of Apprehension May Be Issued

27

6.

Effect of Place Where Offense Committed on Issuance of Warrant of Apprehension

29

7.

Effect of Location of Person Sought on Jurisdiction to Issue Warrant of Apprehension

30

8.

Persons Who May Execute Warrant of Apprehension

31

9.

Place of Execution of Warrant of Apprehension

31

10.

Procedure Upon Apprehension of Person Sought for Extradition

32

11.

Appointment of Counsel for Person Apprehended

33

12.

Release From Custody Pending Determination of Extraditability

34

13.

Judicial Officers Authorized to Conduct Extradition Hearing

35

14.

Place of Extradition Hearing

35

15.

Admissibility of Documentary Evidence in Extradition Hearing

37

16.

Admissibility of Testimonial Evidence in Extradition Hearing

39

17.

Quantum of Evidence Required for Finding of Extraditability

40

18.

Extraditability of United States Nationals

41

19.

Responsibilities of Extradition Magistrate Upon Finding Evidence Sufficient to Permit Extradition

44

20.

Release on Bail After Commitment for Extradition

44

21.

Review of Finding on Extraditability

45

22.

Issuance of Surrender Warrant by Secretary of State

46

23.

Scope and Content of Surrender Warrant

47

24.

Effect of Delay in Removal From United States

48

25.

Place of Surrender

50

26.

Powers of Agent of Foreign Government in Removing Extraditee From United States

51

27.

Escape After Apprehension, Commitment, or Surrender

52

28.

Expenses Associated With Extradition

53

[§]2-3.

Constitutionality of Extradition Statutory Scheme

53

ch. 3

Extradition From the United States: Treaties and Other Agreements

[§]3-1.

Applicable Treaties

57

1.

Treaties in Force

57

2.

Effect of Inconsistencies Between Statutes and Treaty

58

3.

Applicability of Treaty to Former Territory, Colony, or Possession of Treaty Partner

59

4.

Applicability of Treaty to Country Formed From Part of Treaty Partner

60

5.

Effect of Incorporation of Treaty Partner Into New Country

60

6.

Ability of United States to Enter Into Extradition Treaty With Non-Sovereign Government

60

7.

Effect of War on Extradition Treaty After Resumption of Relations Between Parties

61

[§]3-2.

Applicable Substantive Treaty Provisions

62

1.

Obligation to Extradite

63

2.

Definition of Extraditable Offenses

64

3.

Additions to List of Extraditable Offenses by Multilateral Conventions

70

4.

Inclusion of Fiscal Offenses as Extraditable Offenses

73

5.

Extraditability of Offenses Committed Outside Territory of Requesting Country

74

6.

Extraditability of United States Nationals

77

7.

Retroactive Effect of Treaty

83

8.

Effect of Entry Into Force of Replacement Treaty on Proceedings Pending Under Prior Treaty

85

9.

Effect of Pending Proceedings in United States for Different Offense

86

10.

Effect of Service of Sentence in United States for Different Offense

87

11.

Restrictions on Prosecution or Punishment in Requesting Country for Offense for Which Extradition Not Granted by United States: Principle of Speciality

87

12.

Restrictions on Re-Extradition to Third Country

91

13.

Requests by More Than One Country for Extradition of Same Person

92

14.

Quantum of Evidence Required for Extradition of Person Charged in Requesting Country

94

15.

Quantum of Evidence Required for Extradition of Person Convicted in Requesting Country

99

16.

Quantum of Evidence Required for Extradition of Person Convicted in Absentia in Requesting Country

102

17.

Seizure and Surrender in United States of Evidence and Fruits of Offense for Which Extradition Requested

103

18.

Effect of Statutes of Limitations

105

19.

Effect of Prior Jeopardy in United States for Same Acts or Offense Non bis in Idem

107

20.

Effect of Pending Proceedings in United States for Same Acts or Offense

110

21.

Effect of Prior Jeopardy in Third Country for Same Acts or Offense

111

22.

Effect of Prior Jeopardy in Requesting Country for Same Acts or Offense

112

23.

Effect of Requested Offense Committed Within Territorial Jurisdiction of United States

112

24.

Effect of Request for Political Offense or Offense of Political Character

113

25.

Effect of Request for Military Offense

126

26.

Effect of Possibility of Trial Before, or Service of Sentence Imposed by, Extraordinary Tribunal in Requesting Country

127

27.

Effect of Possibility of Capital Punishment in Requesting Country

127

28.

Effect of Age, Health, and Other Humanitarian Considerations

129

29.

Effect of Delay by Requesting Country in Removing Extraditee

130

30.

Other Treaty Provisions Substantively Affecting Extradition From United States

131

[§]3-3.

Applicable Procedural Treaty Provisions

132

1.

Request for Person Charged in Requesting Country

133

2.

Request for Person Convicted in Requesting Country

137

3.

Request for Person Convicted In Absentia in Requesting Country

140

4.

Legalization of Extradition Documents

142

5.

Translation of Extradition Documents

145

6.

Request for, and Provision of, Supplementary Documentation

146

7.

Request for Provisional Arrest and Detention

148

8.

Simplified Extradition or Waiver of Extradition

155

9.

Representation of Foreign Extradition Requests Before United States Courts

159

10.

Notification of Decision on Request for Extradition

161

11.

Surrender of Requested Person

161

12.

Expenses

162

13.

Transit Through United States of Person Being Extradited by One Country to Another

163

14.

Other Procedural Provisions

167

[§]3-4.

Agreement on Extradition Between European Union and United States

167

[§]3-5.

Surrender of Persons Requested by Yugoslav and Rwanda War Crimes Tribunals

179

[§]3-6.

Extradition Under Compacts of Free Association

180

[§]3-7.

Status of Forces Agreements

182

ch. 4

Extradition From United States: Operation in Practice

[§]4-1.

Process Prior to Extradition Hearing

186

1.

Timing and Method of Transmission of Requests for Extradition

186

2.

Locating Requested Person

187

3.

Filing of Complaint and Issuance of Warrant of Apprehension

188

4.

Apprehension of Requested Person

189

5.

Initial Appearance Before Extradition Magistrate

190

6.

Appointment of Counsel for Person Apprehended

191

7.

Release on Bail Pending Extradition Hearing

191

8.

Review of Decision on Bail Pending Extradition Hearing

201

9.

Effect of Delay in Receipt of Extradition Documents

202

[§]4-2.

Extradition Hearing: Proof on Behalf of Requesting Country

203

1.

Existence of Formal Request for Extradition

203

2.

Existence of Extradition Treaty

204

3.

Existence of Warrant of Arrest or Judgment of Conviction

204

4.

Identity of Requested Person

205

5.

Extraditability of Requested Offense: Substantive

206

6.

Extraditability of Requested Offense: Jurisdictional

206

7.

Quantum of Evidence: Charged Person

207

8.

Quantum of Evidence: Convicted Person

208

9.

Quantum of Evidence: Person Convicted In Absentia

208

10.

Form of Evidence: Documentary

209

11.

Form of Evidence: Testimonial

210

[§]4-3.

Extradition Hearing: Defenses of Requested Person

211

1.

No Applicable Treaty

211

2.

Not Person Sought

213

3.

Not Extraditable Offense: Not Listed in Treaty

214

4.

Not Extraditable Offense: Lack of Dual Criminality

215

5.

Not Extraditable Offense: Other

216

6.

Lack of Necessary Jurisdictional Basis of Requested Offense

217

7.

Requested Person Not Extraditable by Reason of Nationality

218

8.

Expiration of Applicable Statute of Limitations

219

9.

Unreasonable Delay in Bringing Charges, Requesting Extradition, or Initiating Extradition Proceeding

223

10.

Requested Person Convicted or Acquitted in United States of Same Act or Offense

224

11.

Requested Person Being Proceeded Against in United States for Same Act or Offense

226

12.

Requested Person Granted Immunity by United States for Same Acts or Offense

227

13.

Promise by United States Not to Extradite Requested Person

229

14.

Requested Person Convicted or Acquitted in Third Country for Same Act or Offense

231

15.

Requested Person Previously Acquitted or Convicted for Same Act or Offense in Requesting Country

231

16.

Requested Person Unlawfully Arrested in United States or Request Based on Evidence Obtained Unlawfully in United States

232

17.

Extradition Requested for, or in Connection With, Political Offense

233

18.

Extradition Requested for Purpose of Prosecuting or Punishing Requested Person for Offense of Political Character

243

19.

Extradition Requested for Purpose of Prosecuting or Punishing Requested Person Because of Race, Religion, Nationality, or Political Opinion

245

20.

Extradition Requested for Purely Military Offense

246

21.

Requested Person Would Be Prosecuted in, or Was Convicted by, Ad Hoc or Extraordinary Tribunal

246

22.

Extradition Requested for Purpose of Prosecuting or Punishing Requested Person for Offense for Which Extradition Not Requested or Granted

247

23.

Extradition Requested for Purpose of Re-Extradition Requested Person to Third Country

249

24.

Insufficiency of Evidence

250

25.

Technical Deficiencies in Request and Supporting Documentary Evidence

255

26.

Evidence in Support of Request Obtained Unlawfully by Requesting Country

258

27.

Lack of Jurisdiction of Extradition Magistrate

260

28.

Mental Incompetency of Requested Person

261

29.

Requested Person a Juvenile

263

30.

Requested Person's Health Too Poor to Permit Extradition

263

31.

Lack of Due Process Safeguards in Requesting Country

264

32.

Requested Person Convicted In Absentia

266

33.

Possible Risk of Physical Harm in Requesting Country

268

34.

Possible Imposition of Death Penalty in Requesting Country

270

35.

Lack of Reciprocity by Requesting Country in Similar Circumstances

270

36.

Miscellaneous Defenses

271

[§]4-4.

Extradition Hearing: Procedural Rules Affecting Defense Against Extradition

272

1.

Purposes for Which Evidence Admissible

272

2.

Ability to Obtain Discovery

276

3.

Ability to Call Witnesses

276

4.

Ability to Take Depositions or Obtain Evidence Abroad

278

5.

Admissibility of Evidence Obtained Abroad

279

6.

Extent of Permissible Cross-Examination of Requesting Country's Witnesses

280

7.

Retroactivity of Defenses in Replacement Treaty

280

[§]4-5.

Decision of Extradition Magistrate

281

1.

Finding of Extraditability

281

2.

Certification of Finding and Transmission of Evidence and Testimony to Secretary of State

281

3.

Release on Bail After Finding of Extraditability

282

[§]4-6.

Judicial Review of Finding of Extraditability

283

1.

Lack of Direct Appeal

283

2.

Review by Petition for Writ of Habeas Corpus

284

3.

Scope of Review on Habeas Corpus

286

4.

Appeal of Ruling on Habeas Corpus

288

5.

Petition for Writ of Certiorari

289

6.

Stay of Surrender Pending Review on Habeas Corpus

289

[§]4-7.

Judicial Review of Finding of Non-Extraditability

292

1.

Lack of Review by Direct Appeal, Habeas Corpus, Mandamus, or Declaratory Judgment

292

2.

Alternative to Judicial Review

293

[§]4-8.

Processing by Department of State After Determination of Extraditability by Extradition Magistrate

294

1.

Timing of, and Responsibility for, Consideration of Issuance of Warrant of Surrender by Department of State

294

2.

Scope of Review of Determination of Extraditability by Extradition Magistrate

297

3.

Consideration of Discretionary Grounds for Refusal to Issue Surrender Warrant

300

4.

Imposition of Conditions on Surrender

303

5.

Ability of Requested Person to Bring Views to Attention of Department of State

304

6.

Effect of Delay in Issuance of Surrender Warrant

305

7.

Review of Secretary of State's Decision to Authorize Surrender

305

[§]4-9.

Deportation From United States in Lieu of Extradition

307

ch. 5

Extradition to United States: Statutes

[§]5-1.

Historical Background of Statutes Regulating Extradition to United States

312

[§]5-2.

Applicable United States Statutory Provisions

312

1.

Transport and Physical Protection of Requested Person Surrendered to United States

312

2.

Responsibility and Powers of Agent Appointed to Receive Custody of Requested Person Surrendered to United States

313

3.

Offenses for Which Requested Person Is Prosecutable or Pubishable in United States

314

4.

Purpose for Which United States May Accept Surrendered Person

315

[§]5-3.

Applicable Foreign Statutory Provisions

316

1.

Existence of Extradition Statutes in Requested Country

316

2.

Effect of Inconsistencies Between Statutes and Applicable Treaty

317

ch. 6

Extradition to United States: Treaties

[§]6-1.

Applicable Treaties

319

1.

Treaties in Force

319

2.

Applicability of Treaty to Extradition From Former Territory, Colony, or Possession of Treaty Partner

320

3.

Applicability of Treaty to Country Formed From Part of Treaty Partner

320

4.

Effect of Incorporation of Treaty Partner Into New Country

320

5.

Effect of War on Extradition Treaty After Resumption of Relations Between Parties

321

[§]6-2.

Applicable Substantive Treaty Provisions

321

1.

Obligation to Extradite

322

2.

Definition of Extraditable Offenses

322

3.

Additions to List of Extraditable Offenses by Multilateral Conventions

324

4.

Inclusion of Fiscal Offenses as Extraditable Offenses

324

5.

Extraditability of Offenses Committed Outside United States

325

6.

Extraditability of Nationals of Requested Country

327

7.

Retroactive Effect of Treaty

329

8.

Effect on Entry Into Force of Replacement Treaty on Proceedings Pending Under Prior Treaty

329

9.

Effect of Pending Proceedings in Requested Country for Different Offense

330

10.

Effect of Service of Sentence in Requested Country for Different Offense

331

11.

Restrictions on Prosecution or Punishment in United States for Offense for Which Extradition Not Granted: Principle of Speciality

331

12.

Restriction on Re-Extradition From United States

332

13.

Effect of Request by Another Country for Extradition of Same Person

333

14.

Quantum of Evidence Required for Extradition of Person Charged in United States

334

15.

Quantum of Evidence Required for Extradition of Person Convicted in United States

336

16.

Seizure and Surrender to United States of Evidence and Fruits of Offense for Which Extradition Requested

337

17.

Effect of Statutes of Limitations

337

18.

Effect of Prior Jeopardy in Requested Country for Same Acts or Offense

338

19.

Effect of Pending Proceedings in Requested Country for Same Acts or Offense

339

20.

Effect of Prior Jeopardy in Third Country for Same Acts or Offense

339

21.

Effect of Prior Jeopardy in United States for Same Acts or Offense

340

22.

Effect of Requested Offense Committed Within Territorial Jurisdiction of Requested Country

341

23.

Effect of Request for Political Offense or Offense of Political Character

341

24.

Effect of Request for Military Offense

342

25.

Effect of Possibility of Capital Punishment in United States

342

26.

Effect of Age, Health, and Other Humanitarian Considerations

344

27.

Effect of Delay by United States in Removing Extraditee From Requested Country

346

28.

Other Treaty Provisions Substantively Affecting Extradition to United States

347

[§]6-3.

Applicable Procedural Treaty Provisions

347

1.

Request for Person Charged in United States

348

2.

Request for Person Convicted in United States

349

3.

Legalization of Extradition Documents

350

4.

Translation of Extradition Documents

352

5.

Request for, and Provision of, Supplementary Documentation

352

6.

Request for Provisional Arrest and Detention

353

7.

Simplified Extradition or Waiver of Extradition

354

8.

Representation of United States Requests Before Foreign Courts

355

9.

Notification of Decision on Request for Extradition

356

10.

Imposition of Conditions on Extradition

357

11.

Surrender of Requested Person

359

12.

Expenses

359

13.

Transit Through One Country of Person Being Extradited to United States by Another Country

359

14.

Other Procedural Provisions

360

[§]6-4.

Agreement on Extradition Between European Union and United States

361

ch. 7

Extradition to United States: Operation in Practice

[§]7-1.

Processing of Request by United States

363

1.

Decision to Seek Extradition

363

2.

Locating Requested Person

365

3.

Decision on Type of Request

368

4.

Contents and Preparation of Request for Provisional Arrest

369

5.

Contents and Preparation of Formal, Fully Documented Request for Charged Person

370

6.

Contents and Preparation of Formal, Fully Documented Request for Convicted Person

372

7.

Transmission of Request for Provisional Arrest

373

8.

Transmission of Formal, Fully Documented Request

373

9.

Monitoring of Execution of Extradition Request

374

10.

Handling of Surrender of Requested Person to United States

375

[§]7-2.

Alternatives to Extradition Pursuant to Treaty

376

1.

Extradition Pursuant to Statute

376

2.

Revocation of United States Passport

377

3.

Formal Deportation

378

4.

Informal Deportation

379

5.

Abduction by United States Agent

381

6.

Abduction by Private Persons

382

7.

Transfer of Proceedings

383

ch. 8

Effect of Extradition on Subsequent Prosecution in United States

[§]8-1.

Effect of Failure of United States to Seek Extradition

385

[§]8-2.

Effect of Principle of Speciality

388

[§]8-3.

Effect of Return to United States After Waiver of Extradition

397

[§]8-4.

Ability to Challenge Foreign Extradition Proceeding in United States

399

[§]8-5.

Effect of Obtaining Custody of Defendant by Method Other Than Extradition

399

[§]8-6.

Effect of Flight on Ability of Convicted Person to Challenge Conviction

402

ch. 9

International Transfer of Proceedings in Criminal Matters: United States Perspective

[§]9-1.

General Description and Rationale

403

[§]9-2.

Precedents and Treaties

403

[§]9-3.

Potential Application for the United States

405

1.

Transfer of Proceedings From United States

405

2.

Transfer of Proceedings to United States

406

[§]9-4.

Interrelationship of International Transfer of Criminal Proceedings, Extradition, and Transfer of Prisoners

407

Appendices

Appendix A

United States Code: Statutes Regulating Extradition From United States

409

Title 18---Crimes and Criminal Procedure

411

Appendix B

United States Code: Statutes Regulating Extradition to United States

417

Title 18---Crimes and Criminal Procedure

419

Executive Order No. 11517

421

Appendix C

List of United States Extradition Treaties in Force and Signed

423

Countries With Which United States Has Extradition Treaties in Force or Has Signed Extradition Treaties

425

Countries With Which United States Extradition Relations Are Governed by 1935 United States-United Kingdom Treaty

433

Appendix D

Examples of Evolution of United States Extradition Treaties

435

Supplemented Early Treaty---Ecuador

437

Late List-Based Treaty---Japan

445

Modern Dual Criminality Treaty---India

455

Appendix E

Agreement on Extradition Between European Union and United States

467

Agreement

469

Explanatory Note

469

Council Decision of 6 June 2003 Concerning the Signature of the Agreements Between the European Union and the United States of America on Extradition and Mutual Legal Assistance in Criminal Matters

481

Appendix F

Examples of Provisions of Multilateral Conventions Affecting Extradition to Which United States Is Party

483

Convention for the Suppression of Unlawful Seizure of Aircraft

485

Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

487

Appendix G

Legislation and Agreements Relating to Extradition to War Crimes Tribunals

489

Legislation Implementing Agreements on Surrender of Persons to International Tribunals

491

Agreement on Surrender of Persons Between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia

493

Agreement on Surrender of Persons Between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rawanda and Rawandan Citizen Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring [ect.]

497

Appendix H

Agreements on Relating to Extradition to and From Marshall Islands, Federated States of Micronesia and Palau

501

Extradition Pursuant to Compacts of Free Association Between the United States and the Federated States of Micronesia, the Marshall Islands and Palau

503

Appendix I

United States Attorneys Manual and Criminal Resource Manual Materials Relating to Extradition to and From United States

505

United States Attorneys Manual: Extradition

507

Criminal Resource Manual: Extradition

517

Appendix J

Department of State Extradition Surrender Warrant Form

535

Appendix K

Department of State Certification Form for Extradition Documents Submitted by Foreign Countries

539

Appendix L

Department of State Form Authorizing United States Agent to Receive Person Being Extradited to United States

543

Appendix M

Useful Extradition Websites

547

Table of Cases

553

Index

571