Five considerations if your client faces extradition

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Jessica Ortiz
MoloLamken, New York
jortiz@mololamken.com

Lisa Bohl
MoloLamken, Chicago
lbohl@mololamken.com

Overview

Extradition is the formal process by which a person charged with a crime in a foreign country is sent to the requesting state for prosecution. Most commonly, the legal basis for extradition is a bilateral treaty. The United States, for example, has over 100 bilateral extradition treaties with other nations.^[1] These treaties define the extradition procedures, scope of extraditable crimes, and available defences.

Generally, extradition proceedings will commence with an extradition request, through diplomatic channels, to the sending state where the suspect or defendant is located. The requesting country must provide information about the suspect, details of the alleged crimes, and supporting documentation, including warrants, indictments or other charging documents, together with evidence of the crime. If those materials are sufficient, the authorities in the sending state will arrest the suspect and may hold a hearing to determine whether extradition is appropriate under the treaty.

In some instances, extradition may be carried out in the absence of a treaty, such as through general law enforcement cooperation. The case of Pakistan and the US is one example. Although there is a 1931 extradition treaty between the US and the United Kingdom,^[2] there is some dispute as to whether that treaty supplies a valid basis for extradition between the US and Pakistan, as the treaty was executed prior to Pakistan’s independence in 1947.^[3] Pakistan has nevertheless cooperated with US authorities in returning criminal suspects, such as in the cases of Ramzi Ahmed Yousef, who was involved in the 1993 Oklahoma City bombings,^[4] and Amer Ahmad, a former Ohio official who accepted bribes in return for awarding public contracts.^[5] Similarly, although the US does not have an extradition treaty with China, it has collaborated with Chinese law enforcement by deporting individuals facing charges of corruption and bribery, using the immigration laws as an alternative to extradition.^[6]

Recent extradition trends

Although many of the high-profile extradition cases often involve organised or violent crime, such as Joaquín Guzmán Loera (El Chapo), the leader of an international drug trafficking cartel,^[7] or Mostafa Kamel Mostafa, a cleric who orchestrated multiple acts of terrorism around the world,^[8] many extradition cases involve white collar crimes such as securities fraud, bribery, or corruption. Major white collar-related extradition cases to watch include: Meng Wanzhou, the CFO of Huawei facing extradition from Canada on charges of bank fraud and Iranian sanctions violations;^[9] Mike Lynch, the former CEO of Autonomy facing extradition from the UK on charges of fraud and conspiracy for inflating the company’s value before its acquisition by Hewlett-Packard;^[10] and Dmytro Firtash, a Ukrainian oligarch linked to Paul Manafort who is facing extradition from Austria on charges of bribery and corruption.^[11]

In recent years, the US has aggressively pursued extradition for those suspected of anti-competitive conduct. The first antitrust-related extradition, which involved a bid-rigging conspiracy, took place in 2014;^[12] since then, the number of antitrust extraditions has increased significantly. In the first quarter of 2020 alone, the government secured guilty pleas in two antitrust extraditions, including Maria Christina Ullings, a former cargo airline executive who was extradited from Italy in a price-fixing conspiracy,^[13] and Eun Soo Kim, a former automotive parts executive who was extradited from Germany in an international market allocation and bid-rigging conspiracy.^[14] Antitrust prosecutions are likely to remain a priority for the Department of Justice: in February, the agency submitted a request for a 13 per cent budget increase for its Antitrust Division for 2021.^[15]

Considerations in extradition cases

If a client faces extradition, whether to the US or elsewhere, there are several strategies and decisions to consider.

Retain counsel in the relevant jurisdictions

As early as possible, encourage your client to retain counsel in both the jurisdiction where they are located and the jurisdiction where extradition is being sought. Indeed, it can be most beneficial to obtain counsel in the requesting state before the client is aware of the commencement of extradition proceedings rather than waiting until an investigation has commenced or criminal charges have already been filed.

Lawyers in the sending state will be more familiar with the local extradition process, while those in the requesting state can handle the litigation and negotiations with authorities in the prosecuting forum. It is critical that both sets of lawyers collaborate to develop a cohesive defence strategy, as actions taken in one jurisdiction will affect decisions in the other. In criminal matters involving extradition proceedings, the development of defences and litigation strategy related to the underlying crime must be tackled at these early stages. If the client has liability insurance that involves a third jurisdiction, consider engaging counsel there as well.

Determine whether the client should contest extradition

Many factors go into the decision to contest or waive extradition. Waiving extradition may make it easier to enter into a cooperation deal with the government or ultimately negotiate a more favourable outcome. Any delay, however, will render the government far less likely to consider any deals.

On the other hand, challenging extradition may make sense if the client has viable defences. Many countries, for example, will deny an extradition request if the crime charged in the requesting state is not considered a crime in the sending state, if the suspect has already been tried for the crime elsewhere, or if the crime is a capital offence in the requesting country. And countries generally do not extradite for purely political crimes, such as treason, sedition, or espionage. WikiLeaks founder Julian Assange, for example, is challenging his extradition from the UK on the basis that the US charges against him, including obtaining and disclosing national defence information, are politically motivated.^[16]

Apart from those legal considerations, there may also be personal reasons to delay extradition, such as proximity to family. Some requesting states will credit time detained during extradition proceedings toward a future sentence. Many of these considerations will be informed by retaining counsel in the requesting state as early as possible.

Seek opportunities to obtain early discovery

Another factor to consider in deciding whether to waive or contest extradition is whether it is worthwhile to use the extradition proceedings to gain early insight about the government’s evidence and theory of the case. Determine what level of evidence the requesting state needs to provide in the extradition proceeding: is an affidavit by the government enough, or must the government present additional witnesses and evidence? Will there be an opportunity to cross-examine witnesses? If the extradition proceedings will involve an evidentiary hearing, this could be an opportunity to get a view of the government’s evidence far in advance of the criminal proceedings. Otherwise, it could possibly be years before the criminal case in the requesting state proceeds to discovery, when the government is required to turn over its evidence.

Consider joint defence agreements

Similarly, if a criminal case involves multiple co-defendants, it can be advantageous to have a joint defence agreement to get information from extradition proceedings to which you otherwise may not have access. In some countries, the extradition docket is not publicly available and can only be accessed by the parties. Having a joint defence agreement will make it easier for defendants to share information from the extradition proceedings, including the government’s filings, evidence, and theory of the case.

Retain evidence 

Before a client’s arrest or voluntary surrender to authorities in the sending state, identify and record any evidence that could be useful to your client’s defence, including digital devices, electronic records, or physical documents. Ensure that the client provides counsel with these records or stores them in a safe location.

Conclusion

The extradition process will vary greatly depending on the circumstances of the individual case and the countries involved. However, in most cases, it will be critical and beneficial in the long term to develop an early, coordinated legal strategy in both the sending and requesting states.