BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 7 - Miscellaneous Proceedings

    7.05 Foreign Extradition Proceedings (18 USC 3181–3196)

        7.05.1 Foreign Extradition Proceedings: Inquiries And Procedures

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

A. Ascertain

1. the identity of the detainee as the individual being demanded by a foreign nation; and

2. whether the detainee is represented by counsel (see supra section 1.02: Assignment of counsel or pro se representation). 18 USC 3006A(b).

Note: The Federal Rules of Criminal Procedure are not applicable to extradition proceedings. FRCP 1(a)(5)(A).

B. Inform the detainee

1. of the charge or charges upon which extradition is sought and by which foreign nation;

2. of the right to a public extradition hearing, 18 USC 3189;

3. under what circumstances the United States will pay the costs for subpoenaing material witnesses for the detainee’s defense to extradition, 18 USC 3191;

4. that at the hearing it will be determined:

(a) whether the detainee is charged with a crime or crimes for which there is a treaty or convention for extradition between the United States and the demanding country, 18 USC 3181, 3184; see also Collins v. Loisel, 259 U.S. 309 (1922);

(b) whether the warrants and documents demanding the prisoner’s surrender are properly and legally authenticated, 18 USC 3190; and

(c) whether the commission of the crime alleged is established by probable cause such as would justify commitment for trial if the offense had been committed in the United States, 18 USC 3184.

C. Obtain a waiver of hearing, hold the hearing, or grant a continuance if necessary (see supra section 1.03: Release or detention pending trial).

D. If a hearing is held, determine whether the detainee is extraditable.

E. If the detainee is found extraditable:

1. Commit the detainee to jail under surrender to the demanding nation, unless "special circumstances" justify his or her release on bail. Wright v. Henkel, 190 U.S. 40 (1903); Hu Yau-Leung v. Soscia, 649 F.2d 914 (2d Cir.), cert. denied, 454 U.S. 971 (1981).

2. Notify the Secretary of State by filing a certified copy of your findings and a transcript of the proceedings.

F. If the detainee is found not extraditable, notify the Secretary of State by filing an appropriate report certifying to that effect.