The form of the prosecutor's affidavit depends on the country to
it is submitted and on whether the fugitive is sought for trial or just to
complete a sentence. The Office of International Affairs (OIA) will provide
guidance on format.The prosecutor should keep the following instructions in
when drafting the prosecutor's affidavit.|
Generally the affidavit should be captioned as a formal pleading
the name of the court and the style of the case. It should explain the
the case and its procedural history and identify the remaining documents
submitted in support of the request, which are attached to the affidavit as
exhibits. Because it is explanatory, the affidavit must be drafted in
straightforward language, avoiding technical legal terms that will be
to the foreign court or agency that will decide on the fugitive's
extraditability. The prosecutor must set out with particular clarity the
underlying criminal conduct, particularly since some United States statutory
crimes (like mail fraud, RICO, and Travel Act violations) contain elements
to United States law. The prosecutor must also avoid jargon in the
that might present translation difficulties.
The affidavit should begin with a description of the prosecutor's
background. For requests directed to common law countries, this information
should suffice to qualify the affiant as an expert on Federal criminal law,
the law of the State, if applicable.
Next, the affidavit should set out the procedural history of the
including in particular the name of the court, the date of the complaint or
indictment, the docket number of the case, the date of the warrant, and the
of the judge or magistrate. The complaint and/or indictment and the arrest
warrant should be referred to as exhibits, and certified copies should be
attached if the fugitive has not been convicted.
The affidavit should cite by name and code section the statutes
to have been violated and the applicable statute of limitations. The
should declare that the statutes were in effect at the time charges were
and still in full force and effect. The prosecutor should aver that neither
prosecution nor punishment is barred by the statute of limitations. The
the statutes may be incorporated in the body of the affidavit or attached as
exhibits. If attached, they should be referred to in the affidavit.
The affidavit should describe the facts of the case succinctly and
plainly. If the fugitive has not been convicted, affidavits of the
or witnesses establishing the commission of the crime and the fugitive's
should be mentioned and attached to the affidavit as exhibits. A photograph
and/or fingerprints will be needed to prove identity. If the fugitive has
convicted, the affidavit should recite that fact, explain why the sentence
not been served, and set out the sentence time remains to be served. Attach
exhibits described in this Manual at 609.
The affidavit should be executed before a judge or magistrate.
Execution of the affidavit before a judicial officer is helpful because,
especially in civil law countries, magistrates prepare extradition requests.
Courts in civil law countries, being unfamiliar with United States
are not used to seeing extradition requests that lack the signature of a
or magistrate. Moreover, the original signature of a judge or magistrate is
needed to certify the documents properly.
[cited in Criminal Resource Manual 506; Criminal Resource Manual 609; USAM 9-15.240]