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605

Prosecutor's Affidavit

The form of the prosecutor's affidavit depends on the country to which 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 mind when drafting the prosecutor's affidavit.

Generally the affidavit should be captioned as a formal pleading with the name of the court and the style of the case. It should explain the facts of 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 simple, straightforward language, avoiding technical legal terms that will be unfamiliar 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 unique to United States law. The prosecutor must also avoid jargon in the affidavit 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, or the law of the State, if applicable.

Next, the affidavit should set out the procedural history of the case, 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 name 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 alleged to have been violated and the applicable statute of limitations. The affidavit should declare that the statutes were in effect at the time charges were brought and still in full force and effect. The prosecutor should aver that neither prosecution nor punishment is barred by the statute of limitations. The text of 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 investigator or witnesses establishing the commission of the crime and the fugitive's identity 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 been convicted, the affidavit should recite that fact, explain why the sentence has not been served, and set out the sentence time remains to be served. Attach the 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 procedures, are not used to seeing extradition requests that lack the signature of a judge 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]