Second Bites and International Extradition

• Publication year: 2022

44 Creighton L. Rev. 953. SECOND BITES AND INTERNATIONAL EXTRADITION

SECOND BITES AND INTERNATIONAL EXTRADITION

Roberto Iraola(fn*)

I. Introduction

Extradition from the United States is governed by treaty(fn1) and statute (18 U.S.C. §§ 3181, 3184, 3186, 3188-3191 (2006)).(fn2) There is no appeal from an order denying or certifying extradition.(fn3) This means that a fugitive(fn4) customarily will challenge an extradition order through a petition for a writ of habeas corpus.(fn5) By contrast, if the government is not successful in its initial attempt to extradite the fugitive, the government can file a new complaint seeking the fugitive's extradition.(fn6)

This Article examines the developing case law on the number of bites the government can take at the "extradition apple."(fn7) By way of background, this Article first provides an overview of the foreign extradition process.(fn8) Next, this Article discusses some of the earliest reported cases recognizing the legal principle that the government may file a new complaint seeking a fugitive's extradition if the court denied the initial extradition request. An analysis of the United States Supreme Court's ruling in Collins v. Loisel,(fn9) which firmly established this rule, ensues. Lastly, this Article analyzes the developing case law on renewed requests for a fugitive's extradition.

II. OVERVIEW OF EXTRADITION

Extradition involves "the surrender by one nation of an individual accused or convicted of an offen[s]e outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender."(fn10) The process starts when the Department of State receives a request from a foreign country.(fn11) Upon review of the request to insure that it conforms to the treaty, the Department of State will then prepare a declaration authenticating the request and send it to the Department of Justice's Office of International Affairs, which will also review it and, if sufficient, send it to the United States Attorney for the district where the person sought to be extradited is located.(fn12) The United States Attorney then files a complaint in support of an arrest warrant for the fugitive in federal district court.(fn13)

After the fugitive is arrested, a magistrate judge holds a hearing under 18 U.S.C. § 3184(fn14) 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."(fn15)

While an extradition hearing is not considered a criminal proceed-ing,(fn16) it can be compared to a preliminary hearing in a criminal case,(fn17) and the governing standard at such hearing is probable cause,(fn18) "meaning that the magistrate's role is merely to determine whether there is competent evidence to justify holding the accused to await trial."(fn19) The Federal Rules of Evidence, the Federal Rules of Criminal procedure, and the Federal Rules of Civil procedure do not apply.(fn20) Under 18 U.S.C. § 3190,(fn21) the demanding country is permitted to introduce properly authenticated evidence collected there,(fn22) and "the court shall exclude evidence [by the fugitive] that is proffered to contradict testimony, challenge the credibility of witnesses, or establish a defense to the crimes alleged."(fn23) Further, the evidence at the extradition hearing may consist of hearsay evidence(fn24) as well as unsworn statements.(fn25)

A certificate of extradition ultimately will issue if several requirements are met. First, the judge or magistrate must have jurisdiction over the subject matter and over the person sought to be extradited. Second, the offense for which extradition is sought must be an extraditable offense under a treaty in effect at the time of the request. Third, the requesting state must provide competent evidence establishing probable cause that the fugitive committed the alleged of-fense.(fn26) Upon the issuance of a certificate of extraditability, the Secretary of State will review the case and determine whether to issue a surrender warrant for the fugitive.(fn27) As noted previously, however, although a fugitive may not directly appeal a district court judge or magistrate's extradition ruling certifying him as being extraditable,(fn28) prior to the Secretary of State's consideration of the matter, a fugitive may seek a limited review of the certification order through a petition for a writ of habeas corpus under 28 U.S.C. § 2241.(fn29)

III. EARLY BITES AT THE EXTRADITION AppLE

In re MacDonnell(fn30) appears to be one of the earliest reported cases recognizing the legal principle that the government may file a new complaint seeking a fugitive's extradition if the court denied the request based on the initial complaint.(fn31) In that case, Great Britain sought petitioner's extradition for the forgery and uttering of two bills of exchange.(fn32) The commissioner had originally denied the request on the grounds that the evidence proffered failed to sustain the charge, and, in turn, the government filed a new request based on the forgery and uttering of eleven different bills of exchange.(fn33)

In response to petitioner's contention that the earlier discharge amounted to an "acquittal" and precluded the filing of a new complaint, the circuit court first observed that while the two bills of exchange involved in the first request fit the description of two of the eleven bills identified in the second request, they were not identical to those two, and the other nine bills were "plainly distinct and separate forgeries."(fn34) Furthermore, the court "purposely refrain[ed] from ... affirming, or admitting, that, if the offence charged had been identical in both complaints, the prior discharge would have operated as a necessary legal bar to a subsequent arrest, commitment and surrender, when the demanding government was able to produce proper evidence to sustain it."(fn35)

Expounding on the principle that a second request for extradition is permissible if the first one fails based on the sufficiency of the evidence presented, the circuit court in In re Kelly(fn36) held that this rule applied even if it was the Secretary of State who, after a judicial finding of extraditability, declined to surrender the fugitive.(fn37) And in Ex Parte Schorer,(fn38) where a third extradition complaint was filed following the dismissal of the first two on procedural and evidentiary grounds, the district court reiterated the evolving rule that a subsequent "arrest and examination is always permissible where the first discharge arose through a default, either by reason of a failure to comply with established rules of procedure, or through a failure to produce competent evidence sufficient to move the commissioner or the court to hold the accused as an offender liable to extradition."(fn39)

IV. supreme court precedent

In Collins v. Loisel,(fn40) the Supreme Court of the United States squarely addressed the question of successive extradition requests.(fn41) In that case, Great Britain sought the extradition of Charles Glen Collins ("Collins") for three counts of obtaining property under false pretenses.(fn42) On review by way of a habeas petition, the district court entered an order finding Collins extraditable as to only one of the three charges.(fn43) While the order also remanded the case for further proceedings, with respect to the two charges for which the habeas petition had been granted, neither party took any further action,(fn44) and a judgment was entered on the writ discharging Collins on those two charges.(fn45) Great Britain filed a new extradition request for the two charges which had been denied (accompanied by new affidavits), and the magistrate entered an order finding him extraditable on those offenses.(fn46) Collins then challenged that ruling in a petition for a writ...