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  1. Private practitioners in the U.S. may be retained to represent clients in connection with a cross-border government investigation. For example, a client might retain a U.S. lawyer to oppose a foreign nation’s request to extradite the client to answer for crimes charged abroad. In addition, a client could retain a U.S. lawyer to assist in responding to a foreign nation’s request via treaty for evidence located in the U.S. This section discusses practice points and legal issues to consider in these types of cases.

  2. Obtaining Evidence Located In Another Country

    The means for obtaining evidence described in Section II.C above may be applicable to government investigations as well.

    1. Hague Convention. See discussion of Hague Convention above.

    2. Letters Rogatory. In addition to the difficulties of using letters rogatory to obtain evidence as previously mentioned in Section II.C.2, letters rogatory are often insufficient for U.S. prosecutors because they can only be issued if there is a related judicial proceeding before a U.S. court and cannot be used prior to the grand jury stage of a criminal investigation. Obtaining Evidence Abroad in Criminal Cases, Michael Abell, Transnational Publishers, Inc., (updated in 2007), p 3-10. To confront some of the difficulties relating to the circuitous transmission and time lag involved with letters rogatory, the U.S. Department of Justice has arranged with a number of countries for the direct transmission of letters rogatory in criminal matters with the prosecutorial authorities in those countries. Obtaining Evidence Abroad in Criminal Cases, p. 3-6, 3-10.1.
    3. Mutual Legal Assistance Treaties (“MLAT”). MLATs are treaties of general application by which the United States and a foreign country agree to assist one another in criminal law enforcement matters. MLATs generally include the power to summon witnesses, compel the production of documents in a manner that is admissible at trial, to issue search warrants, to serve process, to immobilize assets and to provide assistance in forfeiture proceedings.

      1. Under all of the U.S.’s MLATs relating to criminal matters, the country seeking evidence may specify the procedures through which its request for such evidence is executed. The requesting country’s suggested procedures will be followed, unless they violate or are incompatible with the laws of the country from where the evidence is requested. Obtaining Evidence Abroad in Criminal Cases, p. 4-48.

      2. Although an MLAT can be enforced by the Department of Justice in federal district court as necessary pursuant to statutory authority (28 U.S.C. §1782), MLATs have been found to be self-executing and the scope of evidence available pursuant to an MLAT is not substantively limited by the terms of 28 U.S.C. §1782. In re Commissioner's Subpoenas, 325 F.3d 1287, 1291 and n. 8 (11th Cir. 2003) (MLAT with Canada); see also, In re Request from Canada, 2001 U.S. Dist. LEXIS 12070, 3-4 (M.D.N.C. 2001)(MLAT with Canada found to be self-executing); United States v. Erato (In re Erato), 2 F.3d 11, 15 (2d Cir. 1993) (MLAT with the Netherlands found to be self-executing).

      3. In addition, the terms of an MLAT are not automatically subject to a foreign discoverability requirement, meaning that one seeking documents is not limited to evidence that would be discoverable in that person’s jurisdiction. See In Re: Commissioner’s Subpoenas, 325 F.3d 1287 (Subpoenas to compel testimony of persons in the jurisdiction of the United States in a criminal investigation out of Canada prior to the initiation of formal criminal proceedings were held to be proper under the United States’ MLAT with Canada, although such a practice was not proper pursuant to § 1782 in the U.S. or Canadian law relating to discovery.)

      4. MLATs are a preferred method for obtaining evidence in a foreign jurisdiction because they require the two countries to the MLAT to provide evidence in criminal cases, unlike letters rogatory which are discretionary. Id. at 1290. In addition, MLATs provide a streamlined and effective process to obtain evidence located in another country. Id. However, only a government attorney can use an MLAT to obtain evidence located abroad

      5. The two countries that are parties to an MLAT appoint a central authority in each country, usually the Justice Departments, and communicate through those authorities to facilitate the exchange of evidence. Mutual Legal Assistance (MLAT) and Other Agreements, U.S. Department of State, Bureau of Consular Affairs, http://travel.state.gov/law/info/judicial/judicial_690.html.

      6. The United States has signed MLATs with over sixty countries, including Anguilla, Argentina, Bahama, British Virgin Islands, Canada, Cayman Islands, Italy, Mexico, Montserrat, Morocco, Holland, Spain, Switzerland, Thailand, Turkey, Turks and Caicos Islands, and Uruguay. See Obtaining Evidence Abroad in Criminal Cases, at 4-3.

      7. Practice Tip: A private practitioner may be called on to assist U.S. clients in responding to MLAT requests from other nations. Proskauer's Los Angeles office, for example, have helped a client to respond to an MLAT request from the nation of Italy on behalf of a museum and trust located in Los Angeles.

  3. Extradition of Fugitives

    1. Overview. Extradition is the legal means by which a nation may compel a fugitive located outside the jurisdiction to answer for crimes charged. U.S. Const., Art. IV, Section 2; 18 U.S.C. §§ 3181 et seq. Extradition is one area of jurisprudence where different nations’ laws intersect to address the practical reality of apprehending fugitives attempting to evade prosecution. The starting point in extradition cases is the applicable treaty between the requesting nation and the asylum nation.

    2. Dual Criminality. Historically, extradition treaties identified by name the crimes for which the signatories would extradite a fugitive. More modern treaties have diverted from this policy because the elements for proving a crime between jurisdictions could differ too substantially. Now, extraditable offenses are defined by the “dual criminality” provision. These provisions state that extraditable offenses are those punishable under the laws both nations and have similar degrees of punishment for commission of the offense. See generally 11 Wm. & Mary Bill Rts. J. 209, 214-220.

      Practice Tip: Possibly in recognition of the differences in cultural norms incorporated into the law, there is a large degree of flexibility in the application of the dual criminality doctrine. For example, extradition cannot be defeated based on differences in the intent of the nations’ laws or even that the laws have different elements or severity of punishment. See generally 31A Am. Jur. 2d §§ 39-40.

    3. Extradition In U.S. Courts. A U.S. private practitioner may be retained to represent a client combating extradition sought by a foreign nation. Outlined below are practical guidelines for how an extradition proceeding functions and strategies to respond to an extradition request.

      1. The purpose of the extradition proceeding is to determine whether a person located in the asylum country must be remanded to a foreign country to face charges.

      2. Laws governing extradition are enacted in the U.S. Code. Title 18, United States Code, Sections 3181 et seq. govern extradition proceedings in U.S. courts. The extradition of fugitives located in the U.S. to another country is governed by 18 U.S.C. § 3184. These statutes are, essentially, enabling laws that empower courts to interpret and apply the terms of the applicable treaty.

    4. The Extradition Process. The following subsections discuss the specific steps involved in an extradition request.

      1. Receiving A Request From A Foreign Nation. The extradition begins when a foreign nation submits a formal request to the U.S. Department of State for extradition of a fugitive. The Department of State and Department of Justice then evaluate the merits of the request to determine if it falls within the scope of the treaty. See Barapind v. Reno, 225 F.3d 1100, 1105 (9th Cir. 2000).

      2. Arrest Warrant. After the extradition request is approved, the United States Attorney for the District in which the fugitive is located files a request for an arrest warrant.

      3. Hearing. After the fugitive is arrested the court must hold a hearing to determine whether there is probable cause to support the charge and whether the crime is extraditable under the treaty. 18 U.S.C. § 3184; Mironescu v. Costner, 480 F.3d 664, 665 (4th Cir. 2007); Hoxha v. Levi, 465 F.3d 554, 560-61 (3d Cir. 2006); Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005).

        Practice Tip: In most Districts, magistrate judges handle the extradition proceedings rather than District Judges.

      4. Practice Tip: Defeating the showing of probable cause is extremely difficult because the standard for admitting evidence is so low. So long as witness statements are certified, they are admissible to show probable cause. 18 U.S.C. § 3190. (The evidence is generally certified by a government officer in the requesting state or a U.S. consular officer stationed in the requesting state.) Courts of Appeals have upheld probable cause findings based on an investigator’s affidavit summarizing witnesses’ statements (Barapind v. Enomoto, 360 F.3d 1061, 1068 (9th Cir. 2004)) or an unsworn indictment signed by the investigator and certified by a consular officer. Afanasjev v. Hurlburt, 418 F.3d 1159, 1164-65 (11th Cir.), cert. denied 546 U.S. 993 (2005).

      5. Bars to extradition. Even if there is probable cause to believe the offense was committed, a practitioner may challenge extradition on other grounds. Most treaties prohibit extraditions for political offenses, where the statute of limitations has run, and where the alleged fugitive has already been tried of the crime charged. 11 Wm. & Mary Bill Rts. J. 209, 214-20. The court must resolve these issues before the case can be concluded.

        Practice Tip: Given the low threshold for admissibility, the above-mentioned bars to extradition are better means to challenge extradition than attacking probable cause.

    5. Appellate Review. There is no direct review of a court’s decision on extradition. Limited collateral review is available, however, through a writ of habeas corpus.

    6. Certification Secretary of State. After a finding of probable cause, absence of applicable defenses, and habeas review is exhausted, the case is certified to the U.S. Secretary of State. At that point, the Secretary of State determine whether there is a humanitarian reason not to extradite the fugitive to the requesting state. Historically, courts follow the doctrine of non-inquiry and abstain from determining whether there are humanitarian reasons to deny the foreign nation’s extradition request because that inquiry raises non-legal political questions pertaining to the relations between nations.

      Practice Tip: One of the authors handled an extradition request from the Government of Mexico in United States v. Galvez Novoa, CV 03-732-TJH (CWx) while working as a federal prosecutor. Galvez-Novoa fled to he United States after he was accused of murdering a business rival. One of the unique facts in that case was that the victim was allegedly shot by Galvez-Novoa, but did not die until a substantial time later. The author worked with the Office of the Mexican Attorney General in Los Angeles to obtain forensic reports showing the victim died of a gunshot wound. Once the forensic evidence (which was certified) was introduced into the record, Galvez-Novoa stipulated to a finding of extraditability.

    7. Rule of Specialty. Under the rule of specialty a person extradited may only be prosecuted for the crimes for which he was extradited. This rule prevents a state from extraditing on a lesser offense and once extradition is accomplished, prosecuting on a distinct and more aggravated offense. The rule of specialty was first recognized under U.S. law by the Supreme Court in U.S. v. Rauscher, 119 U.S. 407 (1886); see generally 24 J. Legis. 111 (1998).

      1. Determining whether a violation occurred. To determine whether the rule was violated, courts look at whether the surrendering country would view the charged crimes as interconnected with the crimes for which he was extradited. For example, if a defendant were extradited for drug distributing offenses and was charged with attempted murder. The First Circuit found no violation where the defendant was extradited for conspiracy to murder and was charged with attempted murder because the facts underlying the offenses were interconnected. See U.S. v. Tse, 135 F.3d 200, 205-06 (1st Cir. 1998).

      2. Standing to raise an objection to the rule of specialty. There is a divide among the Circuits whether standing to raise a violation of the rule of specialty is held by the defendant or by the extraditing country. Compare United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir. 1995) (holding defendant may object to violation of rule of speciality) with Matta-Ballestros v. Henman, 896 F.2d 255 (7th Cir. 1990) (holding extraditing nation may waive objections to rule of specialty allowing prosecution to go forward).

      3. Practice Tip: Persons facing extradition to the U.S., sometimes consent to be extradited on the least aggravated charges. In some jurisdictions where defendants have standing, this strategy can act as a bar to prosecution for the more aggravated offense. Even in jurisdictions where the extraditing country has standing to waive a violation of the rule of specialty, this strategy can impose heavy burdens on the government to obtain a waiver from the extraditing country. United States v. Najohn, 785 F.2d 1420 (9th Cir. 1986).

      4. Notable case. In one controversial example, a defendant fled the U.S. to Brazil to avoid charges of arson and murder. Brazil extradited the defendant on the arson charge, and the Washington State Supreme Court concluded based on the rule of specialty that defendant could not be prosecuted for murder. State v. Pang, 940 P.2d 1293 (Wash. 1997); see generally 24 J. Legis. 111.

      5. The rule of specialty’s origin is the doctrine of international comity, but current extradition treaties often incorporate rule of specialty bars, thus, courts need not rely on general doctrine to apply the rule. See U.S. Mexico Treaty, 31 U.S.T. 5059.

    8. Remedies For Violating an Extradition Treaty

      1. In one well-documented example, U.S. law enforcement acted outside the extradition treaty and forcibly abducted a Mexican citizen from Mexico to stand trial in the U.S. The United States Supreme Court ruled that despite this outrageous conduct, the abductee could not recover damages for personal injury against the federal government under the Alien Tort Statute or the Federal Tort Claims Act.

      2. In 1990, Dr. Alvarez Machain was indicted for assisting in the 1985 murder of Drug Enforcement Administration (“DEA”) special agent Enrique Camarena outside Guadalajara, Mexico. Federal law enforcement were unable to persuade Mexican officials to extradite Machain, a Mexican national, to the U.S. As a result, the DEA approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States to stand trial. The district judge dismissed the case because of the government’s conduct in obtaining and asserting jurisdiction over Alvarez which the court found to be outrageous. The Ninth Circuit affirmed the dismissal, but the Supreme Court reversed. At trial, the court acquitted Alvarez of the charges. After he returned to Mexico in 1992, he brought suit to recover for his personal injuries. (One of the authors represented Alvarez in his suit against the government.) The Court concluded Alvarez could not recover against the government under either than Alien Tort Statute of the Federal Tort Claims Act. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); see also, U.S. v. Pelaez, 930 F.2d 520 (6th Cir. 1991), State v. Greenleaf, 591 N.W.2d 488 (Minn. 1999), State v. Sanders, 648 So. 2d 1272 (La. 1994), cert. denied 517 U.S. 1246 (1996).

    9. Deportation instead of extradition. Where applicable, it can be much faster for the asylum country to deport, rather than extradite, a fugitive. Frequently, the U.S. seeks the extradition of fugitives located in Latin America who do not have legal statute in the asylum country. In 2003, during a recess in his criminal trial for 87 criminal counts of rape, sodomy, and poisoning, Andrew Luster fled the U.S. to Mexico. A well known Hawaii-based bounty hunter Duane “Dog” Chapman apprehended Luster in Mexico. Mexican authorities thereafter expelled Luster due to his illegal status rather than allowing him to contest extradition proceedings. Southwestern Journal of Law and Trade in the American, fn.95.

  4. SEC Investigations On Behalf of Foreign Nations

    1. Practitioners may be retained in the U.S. to represent a person before the SEC in a matter investigated on behalf of a foreign country involving facts that are not violations of U.S. law.

      Practice Tip: The absence of a dual criminality provision in SEC investigations is actually not very controversial because U.S. securities laws are substantially broader than other counties’ securities laws.

    2. When conducting an investigation on behalf of a foreign nation, the SEC may issue subpoenas for testimony and documents. Likewise, all the defenses normally available to a subpoena are also available.

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