Extradition 101: Can an Attorney in the United States Challenge a Pending Extradition While the Client Is Abroad?
In this series, I dive into what’s needed to navigate the complexities of international law in order to secure the best possible outcome — whether that is avoiding extradition altogether or easing the transition into the American judicial system.
Can an Attorney in the United States Challenge a Pending Extradition While the Client Is Abroad
The amount of time and effort the United States government puts forth to initiate and proceed with any extradition case is substantial. Numerous factors must be considered in order to determine the feasibility of extradition — followed by an abundance of necessary documentation and requests involving multiple federal departments. So it should come as no surprise that a challenge to a pending extradition while a client is still abroad can be a complex, but not a completely futile endeavor.
The precedent for extradition challenges
When a client has not yet physically appeared for a hearing, courts do not appear particularly amenable to a defendant’s pretrial challenge of criminal charges. Despite this precedent, attempts have been made to issue challenges, though it is difficult to predict in advance if a court might consider a motion to dismiss in a case that seems egregiously thin.
Consider two more recent high-profile cases — those of Dmitry Firtash and Alex Nain Saab Moran.
Firtash, a Ukrainian citizen, is charged in a multi-defendant indictment in the Northern District of Illinois. He has never appeared for the case in the U.S. and is currently released from custody in Austria after posting bail. While pending extradition, he brought a motion to dismiss the indictment — alleging that the court’s exercise of jurisdiction violated his right to due process. Though the court considered various arguments and ultimately ruled against the defendant, it is noteworthy that it was willing to entertain the motion and rule on the merits in a lengthy order.
In comparison, Saab, a Colombian national detained for extradition in Cabo Verde on charges related to money laundering, brought a similar motion to dismiss while still abroad. Saab claimed that he was entitled to diplomatic immunity as an envoy of Venezuela and provided substantial documentation to that effect. However, the trial court declined to consider any argument challenging Saab’s indictment based on the fugitive disentitlement doctrine. While the court’s denial was pending before the 11th Circuit, Saab was surrendered by Cabo Verde and brought to the U.S. The appeals court remanded the matter to the district court, which held an evidentiary hearing and then denied the motion.
If a challenge to a pending extradition is under consideration, there are a few questions to ask prior to engaging the courts:
- What are the statutes the defendant is charged with?
- Does the indictment or charging instrument specify whether the defendant was present in the U.S. at the time of the alleged offense?
- Does the indictment or charging instrument allege that the defendant is a U.S. citizen in cases in which it is an element of the offense.
- Does the statute state whether it applies extraterritorially?
- Has the defendant already been convicted in another country for the same facts?
Aside from the possibility that a foreign government might not want to extradite its national on U.S. criminal charges for offenses that did not occur within the territory of the U.S., there are due process considerations. A highly publicized case is that of Lawrence Hoskins, a French national prosecuted pursuant to the Foreign Corrupt Practices Act. The defendant’s acquittal by the court was ultimately sustained by the Court of Appeals, on the basis that since Hoskins did not fall within the statutory language, he could not be prosecuted.
As cases increase, so too may scrutiny
While some issues can be raised post extradition, it is now common to see international campaigns in an effort to oppose extradition. In the case of Saab, his team posted videos discussing the legal issues to explain why Saab should not be extradited, including interviews with the defendant’s attorney. While these types of campaigns create exposure for the case and client, the degree to which an American lawyer might be able to further assist is not clear.
Consider the case of Daniel Duggan, an Australian national facing extradition on charges of arms trafficking and money laundering, arising from his alleged training of Chinese fighter pilots during the period of 2009-12. Originally indicted in September 2017, Duggan has been held in solitary confinement since his arrest in Australia on Oct. 21, 2022. Though Duggan’s family claims the prosecution by the U.S. is politically motivated and his case has received wide publicity in Australia and the U.S., there has been no discernible effect on the extradition decision.
While publicity could eventually prove beneficial to an extradition case, U.S. counsel should focus on the one important role they have — to advise about the elements of an offense, evidentiary issues, potential sentences, and conditions of incarceration. Scrutiny over extradition requests will likely become the norm among foreign courts as the number of cases calling for extradition continue to rise. These courts will take the time to assess the appropriateness of each case, whether it’s related to transnational business, internet based fraud, etc.
A recent example of the increased foreign scrutiny of U.S. extradition requests is that of Nikos Bogonikolos, a Greek businessman facing charges related to conspiracy and the smuggling of sensitive technologies to allegedly aid the Russian military. Instead of immediately handing over Bogonikolos, the French court has asked for assurances regarding the proposed length of sentence and conditions of confinement, noting that they view the provided evidence as insufficient to support the charges. The French court has given the U.S. one month to provide a guarantee specifying the maximum potential jail sentence for Bogonikolos and ensuring appropriate treatment for any health issues he may have — a promising measure for the future of other extradition challenges.
Though the precedent has been for extradition challenges to be defeated rather easily, the recent increase in the number of requests from the U.S. may also give rise to the ability of U.S. attorneys to successfully postpone or acquire dismissals — even while the client is still abroad.
Look for more extradition practice area insight in the next article of the series.