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603

Determination of Extraditability

The following factors are relevant to determining whether an individual is extraditable in a given case. Please be prepared to discuss these questions before telephoning the Office of International Affairs (OIA):

  1. Location: The country in which the fugitive is believed to be located, and his or her address there, if known. As noted above, generally extradition is not available unless there is a treaty in force between the United States and the country where the fugitive is located.

  2. Citizenship: The citizenship of the fugitive, including in particular whether he or she is a dual citizen. Many countries will not extradite their own citizens.

  3. Offense Charged: The crime with which the fugitive has been charged or of which he or she has been convicted. Some extradition treaties limit extradition to offenses specified in the treaty. The more recent treaties allow extradition in any case where the conduct is criminal and punishable as a felony in both countries. In either event, OIA must know the offense to determine whether an individual is extraditable.

  4. Docket Information: The name of the court in which the criminal proceeding is pending or was concluded, the docket number of the case, and the name of the judge or magistrate who signed the warrant or judgment of conviction.

  5. Current Status of Case: Whether and when a warrant was issued, an indictment returned, a complaint filed, or the defendant was convicted.

  6. Facts of Offense: The facts of the case in brief, i.e., who did what to whom, when, and where. The date of the offense is needed because many treaties bar extradition in cases where the foreign statute of limitations has run. The place of the offense is also essential since some treaties exclude extradition in cases where the United States asserts extraterritorial jurisdiction.

  7. Potential for Trial or Retrial: If the fugitive has not been convicted, confirmation that the case is triable, i.e., that all necessary witnesses and evidence are still available and that the substantial costs involved in completing an extradition request are justified by the nature of the case.

  8. Time constraints in the preparation of Extradition documents: Affiant's unavailability, difficulties in gathering supporting documentation, and complexity of the extradition case may be a factor in determining whether to proceed first as an urgent provisional arrest or a formal, fully documented extradition request. In a provisional arrest situation, a treaty deadline may make it impossible to prepare the necessary documentation and have it translated in time.

[cited in USAM 9-15.220]