Federal Extradition Law
If you are fighting extradition to or from the United States, our federal defense lawyers can help. Oberheiden, P.C. is a team of highly-experienced federal defense attorneys and former federal prosecutors who have a proven record of success in high-stakes negotiations and litigation.
Edward Snowden. Roman Polanski. Joaquín “El Chapo” Guzmán Loera. These individuals have been at the center of some of the most high-profile court proceedings in the past decade; and, in each case, the central issue – at least initially – was extradition.
Extradition proceedings are uniquely complicated. Involving a blend of federal and international law as well as bilateral and multilateral treaties, these proceedings present substantial risks for the targets of criminal prosecutions in the United States and abroad. Successfully fighting extradition requires an in-depth understanding of these sources of legal authority and the complex legal procedures involved, as well as the ability to convince prosecutors or the Department of State that extradition is impermissible under the circumstances at hand.
Experienced Federal Defense Attorneys for U.S. Extradition Matters
Oberheiden, P.C. is a federal defense law firm with a nationwide presence. Our attorneys have represented clients in complex and high-stakes cases in federal jurisdictions across the country. Firm founder Dr. Nick Oberheiden is a widely sought-after commentator for media coverage of highly-publicized federal cases, and several of our other senior attorneys spent decades as federal prosecutors with the U.S. Attorney’s Office prior to entering private practice.
Meet our team of senior federal defense lawyers.
Grounds for Extradition to or from the United States
The grounds for extradition to or from the United States are determined principally by the terms of the particular treaty under which extradition is sought. The specific criminal allegations at issue determine whether the subject individual (referred to as a “fugitive”) may be extradited, provided that there are various defenses that can prevent extradition even in cases involving allegations of an extraditable offense. While certain bilateral U.S. extradition treaties contain a listing of extraditable offenses, the more-modern treaties adopt the principle of “dual criminality,” which states that a fugitive may be subject to extradition if he or she has allegedly committed an act that would conduct a criminal offense in both the extraditing country and the country seeking to pursue charges.
The U.S. Department of State maintains a list of countries that have extradition treaties with the United States. If you are currently residing in a country with which the U.S. has an extradition treaty or seeking to avoid extradition from the United States to one of these countries, our attorneys can quickly assess your risk of extradition under the applicable treaty provisions.
In certain cases, the United States will extradite an individual to a country with which no treaty is in place. However, this is limited to extradition of non-citizens, non-nationals, and non-permanent-residents who have committed violent crimes against U.S. nationals in foreign countries.
Defense Strategies for Federal Extradition Proceedings in the United States
As with the criminal allegations underlying nations’ requests for extradition, there are a number of potential defenses that are specific to the extradition process itself. Once you engage our firm to represent you, our attorneys will begin gathering the facts and evidence required in order to determine which defenses you have available. Once we have this information, then we can then develop a comprehensive and cohesive defense strategy, and then we can begin working with the authorities involved in your case to try to protect you against being extradited.
While all extradition cases are highly unique, some of the potential defense strategies in U.S. and international extradition cases include:
1. Treaty Exceptions
All U.S. extradition treaties contain exceptions to the party nations’ extradition requirements. These exceptions can protect potential defendants in cases where they would otherwise be subject to extradition under the treaty’s list of extraditable offenses or its dual criminality provisions. Although specific exception language varies between treaties, some of the types of exceptions that are common among many of the United States’ extradition treaties are:
- Double-Jeopardy – Many of the United States’ extradition treaties prevent extradition where prosecution in the requesting country would result in the target facing double jeopardy for a crime for which he or she has already been convicted or acquitted.
- Exposure to Capital Punishment – Some treaties allow countries that do not have laws authorizing capital punishment to refuse extradition unless the United States agrees not to pursue the death penalty.
- Foreign Crimes – Many of the United States’ extradition treaties also prevent extradition where the alleged offense was committed outside of the requesting country’s territorial jurisdiction.
- Military Crimes – Individuals accused of military crimes often will not be subject to extradition under U.S. extradition treaties.
- Politically-Motivated Crimes – Similarly, many U.S. extradition treaties also prevent extradition for politically-motivated crimes (often with exceptions for serious violent and terroristic crimes).
2. Statute of Limitations
Although not universally uniform, the majority of the United States’ extradition treaties state that a request for extradition will not be granted if the statute of limitations for the alleged crime in the requesting country has expired.
3. Doctrine of Specialty
Under the “doctrine of specialty,” once extradited, a person may only be prosecuted for the alleged crimes that were the basis for the request for extradition. In some cases, it will be possible to prevent extradition based upon evidence of an apparent intent to violate the doctrine of specialty. In others, it may be possible to prevent prosecution for certain offenses based on the language of the extradition request.
4. Lack of Probable Cause
In order to grant an extradition request, the United States must find that the Constitution’s “probable cause” requirement would be satisfied in a domestic prosecution based on the information supplied by the requesting country. If this standard is not met, then extradition from the United States should not be permitted.
5. Procedural Defenses
In addition to these and other substantive defenses, in extradition cases, individuals will often be able to assert various procedural defenses as well. Failure to satisfy any of the procedural requirements for extradition can potentially provide a complete or partial defense, and our attorneys will carefully scrutinize all aspects of the extradition request, response, and other steps and documentation to determine if one or more of these defenses may be available.
6. Sixth Amendment Violations
Extradition may also be prevented in cases where a delay in apprehension or in seeking extradition implicates the target’s Sixth Amendment right to a speedy trial. If it can be shown that government authorities have not actively and consistently pursued the steps necessary to extradite, then this Sixth Amendment defense may be available as well.
Q&A with Oberheiden, P.C.’s Federal Defense Attorneys: Extradition Law
Q: Can I be arrested and detained pending a request for extradition?
Potentially, yes. Once a request for extradition has been received by the U.S. Department of State or the foreign agency handling extradition requests in the country where you are currently located, the agency may seek to detain you pending the outcome of the extradition proceeding. However, it is also possible for the requesting country to seek to have you placed in custody pending the issuance of a formal extradition request, pursuant to what is known as a “provisional arrest.”
Q: What is the Office of International Affairs (OIA)?
The Office of International Affairs (OIA) is part of the Criminal Division of the U.S. Department of Justice (DOJ). When the Department of State receives an expedition request, it will forward the request to the OIA, and the OIA is then responsible for initiating a provisional arrest. The OIA also assists the Department of State and other federal authorities with other aspects of foreign requests for extradition of individuals located in the United States.
Q: Who decides if I should be extradited?
In the United States, the Secretary of State makes the final determination as to whether an individual should be extradited, acting on the advice of the OIA. In foreign nations, final decisions regarding extradition are made by the agencies and entities granted authority under the country’s extradition laws.
Q: What is the process for challenging extradition?
If the Secretary of State has determined that you should be extradited, in order to challenge the determination you must file a writ of habeas corpus in federal district court. From here, any subsequent appeals will follow the standard path through the appropriate Circuit Court of Appeals and the U.S. Supreme Court.
Q: Where can I learn more about fighting extradition to or from the United States?
If you are facing extradition to or from the United States, you should seek legal representation immediately. Our senior federal defense attorneys are available 24/7; and, once you contact us, we will make arrangements for you to speak with one of our attorneys in confidence as soon as possible.
Contact Oberheiden, P.C.
To speak with a member of Oberheiden, P.C.’s federal defense team, please call (214) 692-2171 or contact us online. With offices in Dallas and Houston, Texas, we represent clients in federal extradition matters nationwide.