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Procedure When Provisional Arrest is Requested

A. Provisional arrest is appropriate when the country making the demand for extradition believes that there is a risk the fugitive will flee. Requests for provisional arrest must be handled quickly for the United States to fulfill its treaty obligations. After receiving a request for provisional arrest, the Office of International Affairs (OIA) contacts the prosecutor in the district where the fugitive is located. OIA provides information about the name, identity and whereabouts of the fugitive, the crime with which he or she has been charged, the foreign warrant issued for the fugitive's arrest and the demand for provisional arrest. This information will be confirmed in writing, but in urgent cases, the prosecutor immediately drafts a complaint for provisional arrest and executes it before a magistrate judge or district judge in the district where the fugitive is located. The judicial officer issues a warrant under the authority of the treaty and 18 U.S.C. § 3184. The fugitive is arrested and brought before the magistrate judge, who informs him or her of the reason for the arrest. Although the Federal Rules of Criminal Procedure expressly do not apply to extradition proceedings (see Fed. R. Crim. P. 54(b)(5)), this appearance is similar to a proceeding under Fed. R. Crim. P. 5. The magistrate judge may appoint counsel for indigent fugitives, although there appears to be no basis for so doing, given the inapplicability of the rules, including Fed. R. Crim. P. 44 and 18 U.S.C. § 3006A, which limits representation to criminal defendants. The magistrate judge may also set a hearing on bail, although the Bail Reform Act does not apply. See this Manual at 618. The magistrate should schedule the hearing required under 18 U.S.C. § 3184. The date will depend on the time allotted in the treaty for submission of the documents in support of the formal request and should allow for transmitting the documents from the Department of State to the court and counsel. [cited in Criminal Resource Manual 617]