Extradition is the process by which a person wanted for (or convicted of) a crime in another country is seized by local law enforcement and delivered to the nation seeking to prosecute. The United States has extradition treaties with most of the other nations of the world. See 18 U.S.C. 3181. Each of these treaties is unique, however. So, before determining whether a person on American soil can or will be apprehended and extradited, the applicable treaty must be read and examined.
Generally speaking, if a foreign nation suspects that a person it wants to prosecute is currently on American soil, it will send a request for an arrest of that person to American federal law enforcement. If the U.S. government determines that its treaty with the other nation requires it to deliver to that nation a person currently on American soil, an American federal prosecutor will seek an arrest warrant and then an extradition certification for that person.
Once the person is in custody, the accused can attempt to prevent the transfer to the requesting nation. As a practical matter, it is normally difficult to succeed in preventing the transfer. The trial of the person’s guilt or innocence is not had on American soil – that happens in the requesting nation. In deciding whether to certify an extradition, an American court’s review is limited to determining: (1) whether the court has jurisdiction; (2) whether the offense charged is covered by the applicable treaty; (3) whether that treaty is in force; and (4) whether there is sufficient evidence to support a finding of probable cause for the charges. 31 U.S.C. § 3184.
The first three categories are almost never contestable. The fourth option presents perhaps the only avenue to defend against the transfer. That being said, it is fairly easy for the prosecutor to meet the burden of proof. The prosecutor can simply present documents from the requesting nation explaining the proof of the suspect’s guilt. The prosecutor need not actually present any witnesses or present any proof, and may proceed by way of proffer (much like a bail hearing, for example). See e.g. In re Extradition of Breyer, 32 F.Supp. 3d 574 (E.D. Pa. 2014); U.S. v. Malcolm, 1999 U.S. Dist. LEXIS 9235 (E.D. Pa. 1999). Courts also use a low burden of proof equivalent to that of a preliminary hearing. In short, it is usually an easy hurdle for the prosecutor to clear. Many defendants choose to simply waive the extradition hearing to save themselves the time in American custody and speed up the process in the requesting nation. Of course, that might not be in every defendant’s best interests.
Matthew Galluzzo is a criminal defense attorney based in New York City. He defends individuals in American law enforcement custody facing extradition to foreign countries. He focuses primarily on individuals in custody in New York, New Jersey, and Connecticut, but assists individuals in other locations in special cases. Additionally, Mr. Galluzzo speaks fluent French and maintains relationships with criminal defense attorneys throughout Europe. If you or a loved one have been detained in American custody pursuant to an international or foreign extradition request, you should give him a call immediately.