Due Process, the Sixth Amendment, and International Extradition

• Publication year: 2021

90 Nebraska L. Rev. 752. Due Process, the Sixth Amendment, and International Extradition

Due Process, the Sixth Amendment, and International Extradition

Roberto Iraola(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 752

II. Overview of Extradition ............................... 753

III. Delay and Extradition .................................. 757
A. Straightforward Application of the Fifth and Sixth Amendments ...................................... 759
B. Incorporation by Reference-"Remedies and Recourses" Provision .............................. 762
C. Incorporation by Reference-"Lapse of Time" Provision .......................................... 766

IV. Overview of the Sixth Amendment's Speedy Trial Guarantee ............................................ 767

V. Blame, Reasonable Diligence, and Extradition ......... 770
A. Imprisoned Defendants ............................ 771
B. No Need to Submit Extradition Request if Futile to Do So ............................................. 774
C. Reasonable Diligence and Requests for Surrender as a Matter of Comity ................................ 778
D. Contesting an Extradition Request May Lead to a Finding that Defendant Waived His Right to a Speedy Trial and Delays Caused by Proceedings in Compliance with Treaty are Attributed to Defendant ......................................... 781

VI. Conclusion ............................................ 782

I. INTRODUCTION

Fugitives whose extradition from the United States is sought by foreign countries at times argue that the delay between the commission of the alleged crime for which they are wanted and the submission

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of the request for their extradition violates their rights to a speedy trial or extradition under the Sixth Amendment, and/or their right to due process under the Fifth Amendment. In a similar vein, defendants who are returned to the United States from abroad to face criminal charges often argue that their right to a speedy trial under the Sixth Amendment was violated because the government failed to exercise "reasonable diligence" in procuring their presence.(fn1)

This Article discusses the developing case law on these questions. First, by way of background, the Article provides an overview of the process governing international requests for extradition.(fn2) The Article then analyzes how courts have treated challenges by fugitives to extradition requests on the grounds that the timing of the request violates interests protected under the Fifth and Sixth Amendments. This is followed by a discussion of the law governing the right to a speedy trial under the Sixth Amendment. The Article then analyzes how courts have treated efforts by defendants to dismiss the charges against them on the grounds that the delay in securing their presence before the court to face said charges-because of the government's decision not to seek their extradition-violated their right to a speedy trial under the Sixth Amendment.(fn3) A conclusion follows.

II. OVERVIEW OF EXTRADITION

Broadly speaking, in the international context, extradition involves "the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender."(fn4) In the United States,

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the process is governed by statute (18 U.S.C. §§3181, 3184, 3186, 3188 - 3191) and treaty.(fn5) The process begins when the Department of State receives an extradition request from a foreign country.(fn6) After reviewing the request to ascertain that it complies with the particular treaty's requirements, the Department of State will prepare a declaration authenticating the request and send it to the Department of Justice's Office of International Affairs, which will in turn review it more thoroughly and, if sufficient, send it to the United States Attorney in the district where the person sought to be extradited is located.(fn7) The United States Attorney in that judicial district then files a complaint in support of an arrest warrant for the fugitive.(fn8)

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After the fugitive is apprehended,(fn9) a judicial officer(fn10) holds a hearing under § 3184 to determine whether the evidence presented by the foreign government is "sufficient to sustain the charge under the provisions of the proper treaty or convention."(fn11) At this hearing, which is not deemed a criminal proceeding(fn12) but is "akin to a preliminary hearing" in a criminal case,(fn13) the governing standard is probable cause,(fn14) "meaning that the magistrate's role is merely to determine whether there is competent evidence to justify holding the accused to await

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trial."(fn15) Neither the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, nor the Federal Rules of Civil Procedure apply in extradition proceedings.(fn16) Under 18 U.S.C. §3190, properly authenticated evidence submitted by the requesting country in support of the extradition request must be received into evidence at the extradition hearing(fn17) and a fugitive "is not permitted to introduce evidence on the issue of guilt or innocence, but can only offer evidence that tends to explain the government's case of probable cause."(fn18) In addition, the evidence at the extradition hearing may consist of unsworn statements and reports containing hearsay evidence.(fn19)

After the hearing, the judicial officer will issue a certificate of ex-traditability if he determines that he had jurisdiction over the subject matter and the person sought to be extradited, the offense for which extradition was sought was an extraditable offense under a treaty in effect at the time of the request, and competent evidence was presented sufficient to establish probable cause that the fugitive committed the alleged offense.(fn20) Upon the issuance of a certificate of extraditability,

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the Secretary of State will review the case and determine whether to issue a surrender warrant for the fugitive.(fn21)

While there is no direct appeal from a ruling certifying a fugitive as extraditable, a limited review of the certification order is available to the fugitive through a petition for a writ of habeas corpus under 28 U.S.C. §2241.(fn22) The review of the findings of the judicial officer who presided over the extradition hearing, typically a magistrate, is "narrow in scope."(fn23) That is to say, the review is limited only to "whether the magistrate had jurisdiction, whether the offence charged [wa]s within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty."(fn24) Lastly, under 28 U.S.C. §2253, a final order in a habeas proceeding is subject to appellate review.(fn25)

III. DELAY and EXTRADITION

In our domestic criminal justice system, delay in bringing charges against one suspected of committing a crime and in trying him after he has been officially charged may implicate constitutional rights under the Fifth(fn26) and Sixth Amendments.(fn27) Most extradition treaties

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currently in force contain a provision barring the surrender of a fugitive if prosecution of the offense(s) for which extradition is sought is barred by the statute of limitations of the requested state,(fn28) the requesting state,(fn29) or either the requested or the requesting state.(fn30)

When contesting extradition requests, fugitives at times have argued that, independent of the application of any statute of limitations provision in the treaty, the delay associated with the submission of the request for their extradition triggers interests protected under the Fifth and Sixth Amendments, which preclude the grant of the request. At times, fugitives have maintained that liberty interests protected by these amendments-standing alone-confer rights to them as putative extraditees. In other instances, they have argued that certain protections in these amendments are incorporated by reference in the

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extradition treaty itself, either under a "lapse of time" (i.e., statute of limitations) or a "remedies and recourses" provision. As shown by the discussion below, courts consistently have rejected these contentions.

A. Straightforward Application of the Fifth and Sixth Amendments

In In re Extradition of Burt,(fn31) petitioner, a serviceman in (then) West Germany, shot and killed a cab driver.(fn32) He then travelled to the United States without authorization where, shortly after his return, he was arrested and later pled guilty to the commission of an armed robbery and murder in Wisconsin.(fn33) Petitioner was sentenced to life imprisonment for the murder and up to thirty years' imprisonment for the armed robbery and the Army filed a detainer with the state authorities based on the murder of the West German cab driver.(fn34) The Army thereafter notified West Germany of petitioner's involvement in the murder of the cab driver pursuant to a status of forces agreement.(fn35) After being assured by the Army that petitioner would be tried by the military authorities for the murder, West Germany notified the American authorities, within the time prescribed under the status of forces agreement, that it would not seek to exercise jurisdiction over the murder of the cab driver.(fn36)

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