International Extradition: Charged With a Crime in the United States – But Arrested in a Foreign Country

International extradition is the process in which an individual arrested in one country is surrendered to the requesting country for prosecution or, alternately, to serve a previously-imposed sentence.  Extradition requests are usually authorized by extradition treaties between the two countries; even without such a treaty, the countries can still agree to assist each other depending on circumstances which include political considerations.  While the Federal Rules of Criminal Procedure and Evidence do not apply here, an extradition proceeding still retains characteristics of criminal proceedings.  For these reasons – and because the defendant may ultimately extradited to the United States to face criminal charges – the target of the international extradition request should hire the best criminal defense lawyer and international extradition attorney he or she can find, whether the case is in New York, New Jersey, Connecticut or anywhere in the United States.

The Extradition Hearing and Bail Issues

The first step to determine is whether there exists a “treaty or convention for extradition between the United States and [the] foreign government.”  18 U.S.C. § 3184.  The experienced extradition attorney knows that the great majority of extradition treaties require that a person not be extradited unless the criminal conduct charged in the U.S. is also a crime in the foreign country where the person has been found.  This concept is called “dual criminality;” extradition treaties also require that the defendant to be extradited not be prosecuted for any crime beyond what is listed in the extradition request.

Next, the court hearing the extradition request must determine if the requesting government has satisfied its burden of establishing that the defendant is actually the person charged in the extradition request.  A bail hearing is scheduled as soon as possible after the target of the extradition request has been arrested; however, there is a presumption against bail in such proceedings and courts do not follow the rules contained in the Bail Reform Act of the United States which favors bail for those charged with a crime.  Regardless, bail in extradition proceedings is granted only upon a showing that the defendant is not a risk of flight nor a danger to the community and that “special circumstances” exist to allow bail.  “Special circumstances” are an abstract list of only the most extraordinary circumstances and are found solely in the discretion of the judge.  Clearly, any risk of flight is too significant a risk for any country’s national interest to accept.

At the extradition hearing, the main issue to be determined is whether there is enough evidence to establish probable cause that the extraditee committed the crimes which underly the extradition request.  The government presents evidence usually in affidavit form and hearsay is permitted at the hearing.  The fugitive’s right to offer evidence at this hearing is limited and not designed to determine guilt or innocence of the underlying charges – instead, the extraditee may introduce “explanatory” evidence to undermine the government’s showing of probable cause.  Evidence which undermines credibility of government witnesses or contradicts its proof is not permitted.

Defenses to Extradition

There are some defenses to extradition contained in most extradition treaties.  One such defense is that the extradition process is being used as a vehicle to achieve the political goals of the requesting country.  The fact that the offense was alleged to have been committed by a political figure does not convert the crime into a “political offense;” instead, the person whose extradition is sought bears the burden of proving a connection nexus between the crime contained in the extradition request and the alleged political activity.  In addition, many countries have clauses in their extradition treaties with the United States which prevents extradition back to the U.S. if the person would be facing a potential death sentence.

International Prisoner Transfer Program Allows Extradited Defendants To Serve Their Sentence In Their Home Country

Foreign defendants who are extradited to the United States from foreign countries may also be eligible for relief under the International Prisoner Transfer Program.  This program allows for the transfer to the prisoner’s home country to serve his prison sentence.  The program is designed to “relieve some of the special hardships that fall upon offenders incarcerated far from home, and to facilitate the rehabilitation of these offenders.”

Facing Extradition From the United States?

We have handled extradition requests from the United States to foreign countries as well.  The most important factor in such scenarios is obtaining bail prior to the extradition hearing.  During the hearing, we can challenge the government’s probable cause showing and possibly present our own evidence.  Ensuring that all of the legal formalities required in the extradition request are met is also important.  International extradition is a complex process and only experienced extradition attorneys should be used.  Attorneys at the Law Offices of Jeffrey Lichtman have had extradition cases all over the world in some of the most high profile cases.  Call us today to schedule a free consultation.