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n 1794, Chief Justice John

Treaty
Traps
I Jay went to London to ne-
gotiate a treaty with Great
Britain. Although its major
provisions called for the
withdrawal of British troops
from the Northwest Territory and
payment of pre - Revolutionary
debts, the Jay Treaty was also the
first Anglo-American extradition
treaty of the modern era. The two
How to get your client nations agreed to hand over to the
through the maze other any individual wanted on
counts of either murder or forgery.
of extradition Jay could not have foreseen the
developments in transnational
crime that have made international
extradition a growth industry two
centuries later. In the fifty years
By PAMELA B. STUART from 1795 to 1845, the United

124 Criminal Justice

 r
States extradited only one person,
Thomas Nash, a seaman accused of
murder aboard a British frigate . By
contrast, in 1987 the United States
processed about 600 extradition
requests from prosecutors here and
abroad . As of December 1990 there
were 1,500 active extradition cases
involving crim inals wanted in the
United States and located in other
countries or sought by the U .S.
government from its counterparts
abroad.
In the past ten years, major ad-
vances in transportation, commu-
nications, securities trading, and
data processing have made inter-
national crime possible on a scale
unimaginable in Jay's time. Partic-
ularly in narcotics trafficking (which
deals with a product that ordinarily
must be imported), money laun-
dering, terrorism, and export con-
trol violations, the nature of the
crimes almost demands that crimi-
nals cross national boundaries.
Also, because of provisions in re-
cent U.S. statutes that provide for
extraterritorial jurisdiction for tak-
ing hostages and other crimes, more
and more individuals have been
sought in the United States for fed -
eral offenses, such as fraud, that
were allegedly committed when the
defendant was outside the United
States. This approach has been
adopted in other countries, partic-
ularly in the money-laundering
field . The Swiss money-laundering
statute, Swiss Penal Code, Special
Part, Art. 305 bis, August 1, 1990,
for example, provides that "the
perpetrator will also be punished if
the main crime was committed in a
foreign country and if it is also pun-
ishable where it was committed ."
The Office of International Af-
fairs (OIA) at the Department of
Justice, which coordinates all ex-
tradition and mutual legal assist-
ance requests coming to or ema-
nating from the United States, has
grown from 5 attorneys in 1979 to
more than 40 in 1991 . This trend
toward the globalization of Ameri-
can criminal activities makes a fun-
damental awareness of the extra-
dition process a necessary tool in
the arsenal of the criminal defense
attorney.
Winter 1992
When your client is arrested in
the United States on an
international extradition
warrant
The government (nearly) always
wins. The first basic thing to un-
derstand about the international
extradition process is that the deck
is stacked in favor of the govern-
ment. Attorneys in the DOJ Office
of International Affairs review all
extradition requests, both incom-
ing and outgoing, to make sure they
are in compliance with the appli-
cable legal requirements before
they get filed in court. However,
because extradition cases are not
usually found in the typical assis-
tant U.S. attorney's caseload, the
government lawyer who handles
the case in the field may not be fa-
miliar with extradition law or pro-
cedure. Nevertheless, because in-
ternational extradition is governed
by bilateral treaties with foreign
governments and a federal statute
that enforces those treaties (18
U.S.C. § 3181-3196), courts will
generally resolve any doubts in fa-
vor of finding a person extradita-
ble. Courts need not be reminded
that these cases are important to the
foreign policy interests of the
United States .
A defense attorney has an uphill
battle from the beginning to con-
vince a federal magistrate or judge
that the requirements of the treaty
or the statute have not been met or
that his or her client's case falls
within some exception to the treaty
that would render him not extra-
ditable. The defense attorney's job
is more challenging than usual be-
cause many of the rights accorded
to criminal defendants in the United
States are not afforded to respon -
dents in international extradition
cases. Technically they are civil
cases because the respondents
have not been charged with an of-
fense under U.S. law.
Extradition treaties. The U.S.
government cannot extradite
someone to another country in the
absence of a valid extradition treaty.
Attorneys representing clients who
have been arrested on warrants
based upon a complaint seeking the
client's extradition must be familiar
with both the relevant extradition
treaty between the United States
(the "Requested State" in this in-
stance) and the country seeking the
return of the fugitive (the "Re-
questing State") and the applicable
U.S. Code provisions governing ex-
tradition proceedings. (18 U .S.C. §
3181 - 3196.) The citations to the
extradition treaties may be found
in an annual Department of State
publication called Treaties in Force,
available at U.S. government
bookstores or from the U.S. Gov-
ernment Printing Office. The trea-
ties themselves may be found in
one or more of the published com-
pilations of U.S. treaties which are
available in many law libraries (U.S.
Treaties and Other International
Agreements, U.S.T., 1950- ; and
Treaties and Other Internationa l Acts
Series, T.l.A.S., 1945- ). If time is
of the essence, ask the prosecutor
for a copy of the treaty.
The first article of an extradition
treaty defines the obligation to ex-
tradite those persons wanted for
trial or serving a sentence in the
other country. Typical of such treaty
language is the following from the
Treaty on Extradition between the
United States and the Republic of
Argentina:
The Contracting Parties agree to
extradite on a reciprocal basis to
the other, in the circumstances
and subject to the conditions es-
tablished in this Treaty, persons
found in the territory of one of
the Parties who have been
charged with or convicted by the
judicial authorities of the other of
the offenses mentioned in Arti-
cle 2 of this Treaty committed
within the territory of such other,
or outside thereof under the
conditions specified in Article 3.
(Treaty on Extradition, January
21, 1972, United States-Argen-
tina, 23 U.S.T. 3501, T.l.A.S. No.
7510.)
The remainder of the treaty may in-
clude a list or description of of-
fenses that are extraditable. Instead
of a list of categories of extraditable
offenses, more recent treaties in-
2s m
 I
elude a general requirement of dual
criminality-that is, that the offens-
es charged will be extraditable so
long as the acts charged would be
a criminal offense punishable by
more than a specified time (usually
one year) in prison in both coun-
tries. The treaty may also include a
statement about the extradition of
nationals, territorial jurisdiction, the
standard of proof, and certain ex-
ceptions to extraditability (such as
the political offense exception, the
military offense exception, and the
exception for offenses for which
prosecution has been barred by
lapse of time or that might lead to
a death penalty). The treaty will also
have provisions covering the defer-
ral of surrender pending the ser-
vice of a sentence in the Requested
State and the procedure to be fol-
lowed at each stage of the extra-
dition process.
The right to counsel in extradi-
tion cases. In paragraph 2.01 F(4) of
the Guidelines for the Administra-
tion of the Criminal Justice Act: Vol.
VII, Guide to Judiciary Policies and
Procedures, the Judicial Confer-
ence of the United States has said
the Act permits the appointment of
counsel for any person charged
with a violation of laws of a foreign
country and who is being held for
extradition if he or she is unable to
afford adequate representation.
Provisional arrest. Many bilater-
al extradition treaties provide that
in case of urgency, the parties may
Pamela B. Stuart was formerly a
senior trial attorney with the Office
of International Affairs of the U.S.
Department of Justice where she
represented foreign governments in
several high profile extradition cases,
including the Player, Gamarra, and
Lopez Rega cases mentioned in the
article. She also served as an Assis-
tant United States Attorney for the
District of Columbia. She is a mem-
ber of the firm of Lobel, Novins, La-
mont & Flug in Washington, D .C.,
and vice chairman of the Criminal
Justice Section's International Crim-
inal Law Committee.
126
request the provisional arrest of a
person to be held for a specified
period of time pending the arrival
of a formal extradition request with
supporting documents. Usually the
only requirement is a sworn com-
plaint from a government official
stating that the person sought is
wanted in the foreign country for
an extraditable offense committed
within the jurisdiction of the Re-
questing State under the relevant
extradition treaty. The complaint
must be accompanied by a state-
ment that an arrest warrant exists,
a summary of the facts surrounding
the offense, a physical description
of the person sought, and a state-
ment that the Requesting State will
undertake to make a formal, fully
documented extradition request. If
those requirements are satisfied, a
federal judge or magistrate may is-
sue a warrant for the provisional ar-
rest of the fugitive.
The information needed for a
provisional arrest may be submit-
ted either through the diplomatic
channel (a diplomatic note sent to
the State Department) or, if the
treaty authorizes the procedure,
through a direct request for a pro-
visional arrest from the Ministry of
Justice of the requesting country to
the Office of International Affairs of
the U.S. Department of Justice.
Following the arrest, the respon-
dent will be presented in open
court, the charges will be read, bail
will be determined (ordinarily re-
spondents are held without bond),
and a hearing date will be set fol-
lowing the expiration of that period
of time specified by the treaty (the
time periods range from 30 days to
three months) within which the Re-
questing State must submit a for-
mal extradition request with
supporting documents.
There is an open question as to
whether a provisional arrest for ex-
tradition must be supported by
probable cause. (Caltagirone v.
Grant, 629 F.2d 739 (2d Cir. 1980);
Spatola v. United States, 741 F.
Supp. 362, 366 (E.D.N.Y. 1990).)
Ordinarily, a complaint supported
by an affidavit of an assistant U.S.
attorney, reciting what he or she has
been told about the person sought
and about the extraditable offense
allegedly committed in the territo ry
of the Requesting State, will sup-
port a provisional arrest. Because
of urgent circumstances, often only
the barest essentials of the facts are
available. Courts do not generally
second-guess the urgency of the
arrest, because that term, as it is
used in the treaties, "is not merely
temporal in nature . . . [but] in-
volves other considerations includ-
ing importance to the country
seeking extradition and foreign
policy concerns of the United
States." (United States v. Leitner, 784
F.2d 159, 161 (2d Cir. 1986) per
curiam.)
As a practical matter, the De-
partment of Justice will seek to ob-
tain a provisional arrest warrant
after receiving a request from a
treaty partner if there is some dan-
ger that the respondent will learn
of the extradition request and flee
the jurisdiction, or if he or she is
about to be released from custody
on a U.S. charge and is likely to flee.
If the respondent's whereabouts
are unknown but he or she is be-
lieved to be somewhere in the
United States, the provisional war-
rant may be obtained in the District
of Columbia.
Receipt of the documents con-
stituting the formal request for ex-
tradition by the State Department
or a U.S. embassy stops the run-
ning of the time period permitted
under the treaty for filing the for-
mal extradition documents follow-
ing a provisional arrest. If the formal
documents are not filed on time,
the provisional arrest must be ter-
minated and the respondent must
be released from custody. How-
ever, if the documents are later re-
ceived by the U.S. government, the
extradition process may begin
anew. In fact, even if the extradi-
tion request is denied by the court
for insufficiency, a new request may
be submitted by the Requesting
State. There is no protection against
double jeopardy in international
extradition proceedings.
Arrest following receipt of a for-
mal extradition request. When
Criminal Justice
there is little danger that the ac-
cused will flee, or the formal extra-
dition documents are unlikely to
arrive within the time limits set forth
in the treaty for receipt of the doc-
uments after a provisional arrest,
the U.S. government will await a
formal request for extradition
through the diplomatic channel
before obtaining an arrest warrant
from a federal judge. The formal re-
quest consists of: (1) a certified copy
of the foreign arrest warrant or
charging document (depending on
the language of the treaty) or of the
judgment and sentence if the per-
son has already been convicted; (2)
sufficient and properly authenticat-
ed evidence to sustain the charge
under the treaty (usually affidavits
or statements showing reasonable
grounds or probable cause to be-
lieve the respondent committed the
offense); and (3) evidence that the
person arrested is the one sought
by the Requesting State (a photo-
graph, physical description, or fin-
gerprints).
The evidence does not have to
be sworn. However, the "deposi-
tions, warrants, or other papers or
copies thereof offered in evidence
upon the hearing of any extradition
case shall be received and admit-
ted as evidence" if they are:
... properly and legally authen-
ticated so as to entitle them to be
received for similar purposes by
the tribunals of the foreign coun -
try from which the accused party
shall have escaped, and the cer-
tificate of the principal diplomat-
ic or consular officer of the
United States resident in such
foreign country shall be proof
that the same, so offered, are au-
thenticated in the manner re-
quired. (18 U.S.C. § 3190.)
Thus, if the papers bear a certifi-
cate of authenticity signed by a U .S.
consular officer in the Requesting
State, they should be received in
evidence. With respect to some
countries (Sweden, for example),
even this authentication procedure
has been waived. Other technical
requirements for the supporting
documents vary with each treaty.
Winter 1992
Most require that the papers be
submitted in the language of both
the Requesting and the Requested
States. The papers must include the
text of the statute alleged to have
been violated and the applicable
statute of limitations.
Bail is ordinarily not available to
respondents in international extra-
dition cases. The Bail Reform Act of
1984 is applicable only to persons
charged with an offense within the
meaning of 18 U .S.C. § 3156. The
term applies only to offenses under
U.S. law that are triable in federal
courts. (18 U .S.C. § 3156(a)(2).) Be-
cause the U.S. government has an
obligation to turn over the person
sought by a foreign nation if the na-
tion has complied with the condi-
tions specified in the treaty and
because the person sought is al-
ready an international fugitive, most
extradition respondents are de-
tained following arrest until the ex-
tradition proceeding has ended .
Ever since the Supreme Court ruled
in Wright v. Henkel, 190 U.S. 40,
61-63 (1903), that bail "should not
ordinarily be granted in cases of
foreign extradition," successful ef-
forts to gain the release of alleged
transnational criminals in U .S.
courts have been "an unusual and
extraordinary thing." (United States
ex rel. McNamara v. Henkel, 46 F.2d
84 (S.D.N. Y. 1912).) The Court in
Wright said:
The demanding government,
when it has done all that the
treaty and the law require it to
do, is entitled to the delivery of
the accused on the issue of the
proper warrant, and the other
government is under obligation
to make the surrender; an obli-
gation which it might be impos-
sible to fulfill if release on bail
were permitted. The enforce-
ment of the bond, if forfeited,
would hardly meet the interna-
tional demand; and the regaining
of the custody of the accused
obviously would be surrounded
with serious embarrassment. (Id.,
190 U .S. at 62.)
The presumption against bail in
international extradition cases ap-
plies both after a provisional arrest
and after the filing of the formal ex-
tradition request. Only in cases
where the respondent can show
"special circumstances" will the
courts favorably entertain a request
for bail. (Id. at 63.) While the term
"special circumstances" has elud-
ed precise judicial definition, those
courts that have granted bail have
limited those instances to the "most
pressing circumstances" and those
in which the court finds that the
"requirements of justice are abso-
lutely peremptory." (United States
v. Williams, 611F.2d914, 915 (1st
Cir. 1979), quoting In re Mitchell,
171 F. 289 (S.D.N.Y. 1909) (Learned
Hand, J.).)
The fact that a respondent does
not pose a risk of flight and was liv-
ing openly in the United States will
not overcome the strong presump-
tion against bail in international ex-
tradition cases. (United States v.
Leitner, supra; United States v. Wil-
liams, supra, 611 F.2d at 915; Kam-
rin v. United States, 725 F.2d 1225
(9th Cir. 1984).) The need to con-
sult with an attorney about pend-
ing civil litigation or the extradition
proceeding is not a special circum -
stance that justifies bond. Financial
and emotional hardships are pres-
ent in every extradition case, so
these do not constitute special cir-
cumstances either. (Matter of Extra-
dition of Russell, 805 F.2d 1215,
1216-1 7 (5th Cir. 1986).)
The courts have found special
circumstances to exist in some cas-
es. In Hu Yau-Leung v. Soscia, 649
F.2d 914 (2d Cir. 1981), no suitable
facility could be found for a 16-
year-old respondent's detention, so
he was allowed to remain at home
with his parents. In In re Mitchell,
supra, Judge Learned Hand permit-
ted the respondent to be free on
bond for the duration of a civil trial
on which his entire fortune de-
pended, but required that he re-
turn to prison at the conclusion of
the civil trial. In United States v.
Taitz, 130 F.R.D. 442, 445-46
(S.D.Cal. 1990), the court found
special circumstances because the
defendant was sought to be tried in
South Africa on 434 counts of fraud ,
and South Africa would have grant-
27 m
ed bail in a similar situation. The re-
spondent also had health problems,
was not a flight risk, and was unable
to carry out the rituals of his Ortho-
dox Judaism in prison. In Salerno v.
United States, 878 F.2d 317 (9th Cir.
1989), the court denied a motion
for bail pending appeal of a denial
of a petition for a writ of habeas
corpus and commented that · spe-
cial circumstances include "the
raising of substantial claims upon
which the appellant has a high
probability of success, a serious de-
terioration of health while incar-
cerated, and unusual delay in the
appeal process." Defense attor-
neys representing respondents at
presentment should argue that
special circumstances exist as well
as make a terrific case on the ab-
sence of a risk of the client's flight,
if they are to have any hope of pre-
vailing.
It is important to interview the
client to determine what, if any,
evidence was seized from the client
at the time of arrest. Most treaties
permit such evidence to be for-
warded to the Requesting State
along with the extraditee, and the
evidence may be used against the
client in connection with the extra-
dition proceeding.
For example, when William Play-
er, the mastermind of the largest
fraud ever committed in Canadian
history, appeared in court in Ft.
Lauderdale, Florida, for present-
ment and a bail hearing in 1986, his
four attorneys argued that he was
indigent (the Canadian govern-
ment had seized all of his assets),
he was not a flight risk, he had been
living openly in Florida, and he
wanted nothing more than to par-
ticipate in th e proceedings and fight
his extradition. One of the attor-
neys assured the court that the law-
yers were representing Player
without fee to prevent him from
being "railroaded" by the govern-
ment of Canada. At the bail hearing
the government introduced the
contents of Player's briefcase,
which included check stubs show-
ing payments to his attorneys, a full
set of fake IDs, a used airline ticket
in the same name as the false iden-
tification, and a Florida driver's li-
cense with a fictitious address .
Player was detained without bond .
(Matter of the Extradition of William
Player, Docket No. 86-6927-Civ-
Snow (S.D. Fla. 1987).)
Waiver of the extradition hear-
ing. Attorneys for respondents
should consider whether or not it
is in their client's best interest to
waive a hearing and essentially
consent to the extradition. This may
enhance the chances of getting bail
or a favorable disposition or sen-
tence after the return of the ac-
cused for trial. It may also be done
as part of a plea arrangement with
prosecutors from countries that
recognize and participate in plea
bargaining. However, the attorney
should consider the advantages of
proceeding with the extradition
process, if one or more of the
charges against the client are not
extraditable offenses under the
treaty. The rule of specialty (or spe-
ciality) contained in the treaty pro-
hibits the subsequent trial of the
respondent on any offenses not
found to be extraditable and spec-
ified in the surrender warrant is-
su ed by the Secretary of State, un-
less the extraditee returns vol-
untarily to the Requesting State af-
ter the disposition of the extrad it-
able charges. In practice, this rule
of specialty may be of particular
benefit to persons arrested abroad
for extradition on U.S. charges un-
der some of the more recent crim-
inal statutes (RICO, CCE) that do
not have an analogue in the crim i-
nal code of the foreign country
where the arrest takes place and
thus cannot meet the dual-crimi-
nality requirement for the offense
to be extraditable.
The extradition hearing
Once the documents are re-
ceived by the U .S. government,
they are filed with the court that will
hold the hearing. In most cases,
pursuant to the treaty, the local U.S.
attorney's office represents the for-
eign government at the hearing. In
cases of unusual complexity or in-
ternational significance, an attor-
ney from the Office of International
Affairs at the Department of Justice
will represent the Requesting State.
Generally the hearings are held be-
fore a U .S. magistrate, although in
some districts they are held before
a district judge. The local rules
should be consulted in case of
doubt as to who will preside.
The usual rules of procedure and
evidence are irrelevant in an inter-
national extradition proceeding.
They are controlled by a self-con-
tained body of law consisting of the
applicable treaty and 18 U.S.C. §
3181 et seq. Federal Rule of Evi-
dence 1101 (d)(3) renders the Fed-
eral Rules of Evidence, except with
respect to the assertions of privi-
leges, inapplicable in cases of ex-
t radition or rendition . Hearsay,
even unsworn hearsay under cer-
tain circumstances, is the accepted
fo rm of supporting evidence in in-
t ernational extradition proceed-
ings . Federal Rule of Criminal
Procedure 54(b)(S) makes the Fed-
eral Rules of Criminal Procedure
inapplicable to an international ex-
tradition case. Thus, for example,
t here is no right to a preliminary
hearing or statutory right to discov-
ery of evidence beyond that which
is set forth in the papers filed by the
gove rnment in court. (Matter of Ex-
tradition of Singh, 123 F.R.D. 108
(D .N.J. 1987).) However, some
co urts have ruled that they have
di scretion or inherent authority to
o rd er discovery in extradition cas-
es . (Matter of Extradition of Kraisel-
burd, 786 F.2d 1395 (9th Cir. 1986);
Quinn v. Robinson, 783 F.2d 776,
81 7 n. 41 (9th Cir. 1986); Jhirad v.
Ferra ndina, 377 F. Supp. 34, 37
(S.D .N. Y. 1974).)
M ost extradition hearings consist
of legal arguments concerning the
su fficiency of the evidence ad-
du ced in the papers filed on behalf
of the Requesting State. Because
t he translated documents submit-
ted by foreign governments are fre-
quentl y subject to multiple
interpretations and difficult to fol-
low, it is advisable in appropriate
cases to prepare and submit a sum-
mary of the evidence written in
standard, readable English to assist
the court.
Criminal Justice
 I
If the papers submitted by the
foreign government need clarifica-
tion, explanation, or corroboration
that may be supplied by live testi-
mony, courts may permit witnesses
to appear. For example, in a case
involving an alleged fraud involving
violations of complex Brazilian laws
governing the use of hard currency
to pay for imported goods·, the
magistrate hearing the case permit-
ted the government to present an
economist from the Brazilian Em-
bassy in Washington who testified
about the regulatory scheme that
was violated, and a Brazilian lawyer
who testified about criminal law
and procedure in Brazil. The de-
fense presented a law professor
from Brazil. (Jn the Matter of the Ex-
tradition of Nicolas Crispin Gamar-
ra, Docket No. 86-1282-Civ-Turnoff
(S.D . Fla. 1986).) In another case in
which Argentina sought to extra-
dite Jose Lopez Rega, the former
private secretary to Presidents Juan
and Isabel Peron, for murder, mal-
versation, and other offenses, the
government presented Joseph
Page, an expert on the history of
the Per6nist movement in Argen-
tina, to counter the defense asser-
tion that Lopez Rega was wanted
for political offenses that were not
extraditable under the treaty. (Jn the
Matter of the Extradition of Jose Lo-
pez Rega, Docket No. 86-421-Civ-
Smargon (S.D. Fla. 1986).)
Witnesses may be subpoenaed
to testify on behalf of indigent fu-
gitives (18 U.S.C. § 3191) in extra-
dition cases, but the defense may
not contradict the evidence from
the Requesting State; it may only
explain the evidence. (fain v.
Wilkes, 641 F.2d 504, 511 (7th Cir.
1981 ); Hooker v. Klein, 5 73 F.2d
1360, 1368 (9th Cir. 1978), Collins
v. Loisel, 259 U.S. 309, 315-317
(1922).) The distinction between
contradictory evidence and ex-
planatory evidence is one that is
difficult to draw. The intent is to
give the accused a chance to pre-
sent clear-cut proof of limited sco-
pe that has some reasonable
chance of negating probable cause.
Despite the fact that extradition
cases are often the most interesting
Winter 1992
thing on· a magistrate's docket, the
defense will not be permitted to
turn the extradition proceeding into
a full-blown trial on the merits or to
present evidence of the respon-
dent's insanity at the time of the of-
fense . (Matter of Sindona, 450 F.
Supp. 672, 685 (S.D.N.Y. 1978),
aff'd, 619 F.2d 167 (2d Cir. 1980);
Hooker v. Klein, supra; Charlton v.
Kelly, 229 U.S. 447, 457-462
(1913).) If the defense is one that
relies on the credibility of witness-
es or an alibi, the court will gener-
ally say its a matter best left for trial
in the Requesting State. (Hooker v.
Klein, supra; Shapiro v. Ferrandina,
478 F.2d 894, 905 (2d Cir. 1973).
Defenses to extradition
Each treaty leaves a number of
areas for technical or substantive
defense. Most treaties have a re-
quirement that for an offense to be
extraditable it must be within the
category of offenses listed in the
treaty or the acts alleged must be
criminal offenses that are punisha-
ble in both countries by a term of
imprisonment exceeding one year.
Each case is different and requires
a careful reading of the treaty in or-
der to determine whether the re-
quirement of dual criminality has
been met according to the relevant
treaty provisions. In some cases the
dual-criminality requirement is met
because an applicable multilateral
convention, such as the 1961 Pro-
tocol Amending the Single Con-
vention on Narcotic Drugs, will add
an offense to the list of extraditable
offenses contained in bilateral trea-
ties between countries that are par-
ties to the relevant multilateral
convention.
Most treaties do not cover mili-
tary offenses, tax evasion, or other
fiscal offenses such as violations of
export control or currency-ex-
change control laws. Assertions of
extraterritorial jurisdiction may be
acceptable under some treaties but
not others. When the prosecution
would be barred by lapse of time
under the laws of either the Re-
quested State, the Requesting State,
or both (depending on the treaty),
the accused will not be extradited.
Similarly, if the accused has already
been tried and acquitted or pun-
ished or pardoned for the offense,
he or she cannot be extradited to
be tried on the same offense.
Offenses of a political character
are not extraditable. In general, po-
litical offenses are not common
criminal offenses and were com-
mitted incidental to or in further-
ance of an ongoing rebellion against
the established government. The
theory behind the political-offense
exception to extradition is that the
Requested State should not be
forced by treaty to deliver up a re-
bellious patriot for trial to the gov-
ernment he or she is rebelling
against.
Courts generally will not enter-
tain objections to extradition based
upon the alleged improper moti-
vation of the Requesting State, the
lack of due process awaiting the ac-
cused in the foreign country, or the
lack of a speedy trial. (But see Ah-
mad v. Wigen, 726 F. Supp. 389
(E.D.N.Y. 1989)(Weinstein, J.) (the
court accepted evidence but ruled
that the accused failed to show that
if extradited to Israel he would be
subjected to inhuman treatment,
indecent prison conditions, or an
unfair criminal justice system).)
Rather, the magistrate will compare
the evidence submitted to the re-
quirements of the treaty. If the
treaty requirements are met, the
magistrate will certify to the Sec-
retary of State that the respondent
is extraditable.
Judicial review of
extradition findings
In general, appellate review of an
extradition finding by a magistrate
or district court is not available to
either the foreign government or to
the respondent. If the respondent
is found extraditable, he or she may
challenge the constitutionality of his
or her continued custody by filing
a petition for a writ of habeas cor-
pus. Since the filing of such a pe-
tition does not stay the extradition
process, it is also customary to file
(Continued on page 41)
 I
ard of review, indicate that unless
a particular jury-selection practice
is rejected by a substantial number
of states, it will be difficult to change
the practice on constitutional
grounds. The fact that this was a
capital case did not appear to re-
qu,ire any heightened level of sen-
sitivity on the part of the judge
during voir dire.
The Court may be more sympa-
Treaty Traps I I I I I I I I I I I I I I I I I I I I I I I 111111111111111111111111111111i111111111111
(Continued from page 29)
an application for a stay of extra-
dition along with the habeas peti -
tion. As a matter of policy, the
Department of Justice and the State
Department will not proceed with
the extradition until the habeas pe-
tition has been decided by the dis-
trict court. However, if the petition
is denied and further review is
sought in the Court of Appeals, and
if that Court of Appeals denies the
application for a further stay of the
extradition (essentially signalling
that there is little, if any, merit to
the habeas petition), the U.S. gov-
ernment will proceed to extradite
the respondent despite the pen-
dency of the appeal.
The role of the Secretary of
State and the U.S. Marshal
Once the hearing is concluded
and the court has made its finding
that the respondent is extraditable,
the statute requires that the court
certify its findings to the Secretary
of State, who is the official charged
with ultimately deciding whether or
not to extradite the person. Specif-
ically, the court certifies that: (1) a
valid extradition treaty is in force
between the two countries; (2) the
offenses with which the respon-
dent is charged are extraditable of-
fenses under that treaty; (3) the
person before the court is the same
individual named in the charges;
and (4) the evidence presented es-
tablishes probable cause to believe
that the respondent committed the
Winter 1992
thetic to instituting changes in voir
dire practice in federal court pur-
suant to its supervisory powers,
particularly in capital cases. Mu'Min
recognized that more latitude ex-
ists in setting federal voir dire stan-
dards and noted that a number of
circuits already require questioning
concerning pretrial publicity that
exceeds the demands of the Four-
teenth Amendment. (111 S. Ct. at
crimes for which he or she is being
sought. The court also certifies the
record of testimony and its findings
so that the Secretary of State may
review the matter and, if satisfied,
issue a warrant for the surrender of
the respondent to the authorities of
the Requesting State.
The Secretary of State acts like
the court of last resort for a poten-
tial extraditee. The Secretary of
State retains the right to refuse to
extradite someone, but such a re-
fusal would be an extraordinary
event. This discretion is almost
never exercised, as the United
States wants to effect the purpose
of the treaties-to surrender fugi-
tives so that they may be tried for
their alleged offenses. Defenses
against extradition that are techni-
cal are rejected as inappropriate in
dealings with foreign nations.
The Law Enforcement and Intel-
ligence Section of the Legal Advis-
er's Office at the State Department
reviews the court's findings initial-
ly. If all is in order and no habeas
proceeding is pending along with a
stay of extradition, the staff then
obtains the names of the law en-
forcement officers who are author-
ized by the Requesting State to take
custody of the respondent from the
Department of Justice, prepares the
surrender warrant, and sends it and
the record of the extradition pro-
ceeding for review and signature to
the Secretary of State or his desig-
nee. Then the signed warrant is
transmitted to the embassy of the
Requesting State along with a dip-
1904-06.) The Court has previously
exercised its federal supervisory
powers concerning exposure to
news reports in Marshall v. United
States, 360 U.S. 310, 312 - 13 (1959).
Marshall granted a new trial be-
cause jurors read articles during trial
that contained the very same infor-
mation which the judge had spe-
cifically excluded as being prej-
udicial to the defendant. CJ
lomatic note informing the Re-
questing State that the person
sought has been found extraditable
under the treaty and that arrange-
ments may be made for his or her
surrender. The authorized law
enforcement officers whose names
are on the warrant must present the
surrender warrant to the U.S. Mar-
shals at the time that they take cus-
tody of their prisoner. The foreign
authorities may take custody at an
international airport that offers di-
rect flights to the Requesting State
by prearrangement with the U.S.
Marshals or, upon request, the U.S.
Marshals will accompany the ex-
traditee to his or her destination .
Conclusion
International extradition pro -
ceedings are sui generis. They pro-
ceed under their own body of law.
Each case presents its own unique
circumstances and traps for th e un-
wary. Attorneys defending respon -
dents in international extradition
proceedings should study the treaty
and the law carefully. While th e ex-
tradition proceedings afford a great
deal of discovery of the prosecu-
tor' s case , the advantages of
waiving extradition should be con-
sidered. If the attorney is inexperi-
enced in international extradition
proceedings, he or she should con-
sider enlisting the assistance of an
experienced extradition practition-
er. CJ
41 m