Extradition 101: Extradition to the U.S. Is Not a Foregone Conclusion
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.
Extradition to the U.S. Is Not a Foregone Conclusion
Extraditions are no longer as rare as they once were. In fact, the number of extraditions to the United States has increased, with foreign nationals facing prosecution in stateside courts and near daily reports of Americans fleeing abroad to avoid investigation or prosecution.
The process of international extradition involves the surrender of an alleged criminal from one country to another and is commonly seen in cases involving drug trafficking, tax crimes, conspiracy, and so on. While it can be incredibly intimidating for clients, an experienced lawyer knows that extradition doesn’t always have to be an inevitability.
When the uncommon becomes commonplace
Consider this scenario: You receive a call from the lawyer of a potential client — a Russian national who has been detained in Greece. His pending indictment in your district alleges his participation in a multinational conspiracy that involved corrupt payments being made to politicians in Turkey some years ago. His only connection to the U.S. is that some of the co-conspirators, as part of the conspiracy, had provided tickets to a luxury hotel in your district and had traveled with the Turkish politicians to cover their expenses. The client has never been to the U.S. and the co-conspirators have not yet been arrested. Russia has now requested the client’s extradition from Greece to face money laundering charges and Greek counsel would like the U.S. charges dismissed to facilitate the client’s return to Russia.
Does this scenario seem far-fetched? Perhaps in the past, but extradition cases such as these no longer fall under an atypical, esoteric area of practice.
Don’t wait for the action to come to you
While attorneys often assume their representation of clients abroad will not commence until they appear in a U.S. court, this is not the case. As the numbers of extraditions grow, so too does the possibility of extradition denials from foreign courts — making it crucial for attorneys to play a role while these cases are still pending.
The precedent for a defendant to seek dismissal of U.S. criminal charges before they have appeared in the states exists. Additionally, while the likelihood of success might not be strong, it is possible for litigation to successfully defer an extradition or surrender to the defendant’s preferred country.
Depending on the factors of the case, consideration could be given to:
- The jurisdiction’s laws restricting extradition.
- Political events taking place in the country.
- The age of the case.
- Perception of U.S. government’s conduct.
- Whether a country’s ability to prosecute the defendant is being denied via extradition.
- Competing extradition requests.
Since country conditions are constantly evolving, it would be to a client’s advantage to have the opportunity to work with counsel that: speaks and reads the language of the arresting jurisdiction; is capable of appreciating the role of defense counsel in that country; and does not attempt to advise the client about scenarios for which they are not qualified. For those who are qualified, being proactive in extradition proceedings will significantly impact the possibility of a positive outcome.
Take the time to ask the right questions
One of the reasons extraditions to the states are increasing is the expansion of extraterritorial reach by federal law. There are now a multitude of federal statutes used to prosecute conduct abroad — the most widely utilized being the Foreign Corrupt Practices Act, which includes anti-bribery and accounting provisions to prevent corrupt payments to U.S. public officials. The U.S. also criminalizes certain conduct of American citizens while abroad, as well as internet or web-based crimes such as transborder fraud.
Not anyone can jump into these types of cases — this practice area demands that lawyers use the time and resources required to familiarize themselves with the political and legal landscape of the client’s home or extradition country. For instance, language may be a barrier, making it difficult to understand the background of the legal proceedings, legal documents, and to accurately review any publicity in the home country. Since clients are often high profile individuals, these cases often receive national or international media attention that requires a certain level of competency and fortitude.
There may also be a client with multiple extradition requests — for example, a client arrested in a country without an extradition treaty with the U.S., but is also sought by another country with a bilateral treaty. Be sure to ask the right questions, including:
- Is the client a national of the country where they are presently detained? Some countries, such as France, prohibit the extradition of their nationals.
- Has the client had any role in government or as an employee of an international organization that might provide diplomatic immunity?
- Other than the U.S. criminal charges, are there pending criminal charges in other jurisdictions? How does that affect the client’s consideration to consent to extradition?
- What is the current state of relationships between the U.S. and the surrendering country?
- What process is available in the home country to challenge the extradition?
While tempting, it may be problematic to advise a client who is facing competing extradition requests detained abroad without sufficient information and expertise — including any political forces at play.
Though the number of extradition cases is rising, extradition itself is not a foregone conclusion. By understanding the frequency of these once uncommon cases, being proactive in representation, and asking the right questions, you can confidently guide clients through the extradition process.
Look for more extradition practice area insight in the next article of the series.