436. See Treaty Between the United States and Mexico, entered into force, 25 January 1980, U.S.T. T.I.A.S. No. 9656, art. 17; Treaty Between the United States and the U.S.T. Cosgrove v. Winney, 174 U.S. 64 (1899); Johnson v. Brown, 205 U.S. 309 (1907); Greene v. United States, 154 F.2d 401 (5th Cir. 1907); Collins v. O'Neil, 214 U.S. 113 (1909); United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962); Fiocconi v. United States, 464 F.2d 475 (2d Cir. 1972); Shaprio v. Ferrandina, 478 F.2d 894 (2d Cir.), cert. dismissed, 414 U.S. 884 (1973); McGann v. U.S. Board of Parole, 488 F.2d 39 (1973); United States v. Rossi, 545 F.2d 814 (2d Cir. 1976); United States v. Flores, 538 F.2d 939 (2d Cir. 1976); Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga. 1977); Berenguer v. Vance, 473 F. Supp. 1195 (D.D.C. 1979). 437. See generally 1 Bassiouni, U.S. International Extradition, supra note 12, at Chap. VII, S 6. 438. See S. 220, supra note 7, S 3193; S. 1940, supra note 5, 3193; S. 1639, supra note 1, § 3193; H.R. 2643, supra note 8, § 3193; H.R. 6046, supra note 5, $ 3193; H.R. 5227, supra note 2, S 3193. See also House Judiciary Report on H.R. 6046, supra note 23, at 12. The section regarding waiver is discussed at notes 187-212 supra. 439. The "Act" provides for conditional extradition as part of the Secretary of State's executive discretion. See S. 220, supra note 7, § 3196 (a) (3) (B); S. 1940, supra note 5, S 3194 (g) (2); S. 1639, supra note 1, § 3194 (a); H.R. 2643, supra note 8, § 3194 (a) (4) (B); H.R. 6046, supra note 5, S 3194 (e) (3) (B); H.R. 5227, supra note 2, § 3194 (e) (1) (B). It is discussed at notes 338-90 and accompanying text supra, and also discussed with respect to the rule of non-inquiry at notes 424-35 and accompanying text supra. See 440. These suggestions were made by this writer at congressional hearings on various versions of the "Act." Senate Judiciary Hearings on S. 1639, supra note 24, at 20; House Judiciary Hearings on H.R. 5227, supra note 4, at 103; House Foreign Affairs Hearings on H.R. 6046, supra note 27. 30-993 0-84--25 Thank you for requesting my comments on H.R. 2643, the Extradition Act of 1983. I would request that this letter be treated as my prepared statement at the subcommittee hearing on Thursday, May 5, 1983. On the whole, I believe the provisions of H.R. 2643 represent a reasonable attempt to define the scope of the political offense exception in international extradition proceedings. Although I believe that the judiciary has adequately and fairly defined and interpreted the political offense doctrine, I recognize that some statutory definitional language is probably unavoidable. If that is the case, H.R. 2643 provides a structure for the political offense exception which appears to be reasonable and flexible enough to permit the judiciary to discharge its decisionmaking responsibility in that area. The following observations are keyed to those sections of H.R. 2643 which I believe deserve further comment or modification. $3192(a)(2): While this provision is not equivalent to a double jeopardy bar, it will discourage judge shopping where the first extradition request is denied and no new facts can be offered in support of a second extradition request. I think this provision is essential to a fair extradition process and is the best method to prevent prosecutorial forum shopping. §3192(c): This provision sensibly incorporates mandatory venue transfer to the district where the accused is found and eliminates the unfair burden of a District of Columbia forum for persons residing or found elsewhere. §3192(d)(2): As a practical matter, to obtain release on bail at any time the accused in an extradition proceeding must always make a substantial showing that he is not a flight risk and is not going to endanger another person or the community. Codification of those concepts in $3192(d)(2)(A) and (B) is certainly desirable to ensure that all federal judges and magistrates recognize that the accused may be entitled to immediate bail release. However, I object to $3192(d)(2)(C) as being irrelevant to and unworkable in fair bail release decisionmaking. The accused is rarely, if ever, in a position to offer evidence on the question of jeopardy to foreign state relationships. Furthermore, the wording of that subsection is so vague (i.e., "with respect to a treaty concerning extradition") that there would be substantial confusion about precisely what type of jeopardy to a foreign state relationship is referred to in §3192(d)(2(C). I urge eliminating subsection (d)(2)(c). $3192(d)(3): I oppose an extension beyond 10 days of the provisions of §3192(d)(2). Such extensions, which have no maximum limitations, can be abused by overzealous prosecutors. $3192(e): The 60 day provisional arrest period is appropriate. A shorter provisional arrest period of 30 or 45 days would, in my opinion, not be desirable for either the government or the accused in most cases. I object to the provision for an unlimited number of 15 day extensions, upon a showing of good cause. As a practical matter, virtually any "cause" will be "good" enough for most judges to order such extensions, irrespective of the dilatoriness of the demanding country or the Justice Department in filing the required extradition documents. In my experience, I have never known a situation where the demanding country was unable to have its documents filed with the court within 60 dayus. In these days of instant communication, the demanding country should not be provided with statutory authority for potentially lengthy extensions which could even go beyond the 90 day provisional arrest period now authorized under 18 U.S.C. §3187. §3194 (d)(1)(C): This provision is somewhat peculiar. There is no question that dual criminality is established if the conduct for which the extradition is sought constitutes an offense under the law of the United States and the demanding country. Incorporation of the reference to the law of the state where the fugitive is found has precedential support in numerous early international extradition decisions which placed far greater emphasis on state law than does modern extradition law. In light of those precedents, inclusion of that provision [(C)(iii)] is not objectionable, although it seems to reintroduce state law concepts that have been largely abandoned in modern federal decisions. I do object to the (C)(ii) provision concerning "the majority of the States". Such a provision strikes me as unreasonably mechanical. I doubt that many magistrates (or, for that matter, many prosecutors) are going to be willing to analyze the law of the fifty states to determine if twenty-six or more states agree on the criminality of particular conduct. If such scrutiny is needed to determine criminality, it strikes me as highly unlikely that the framers of the particular treaty in question (at least on the United States' side) intended that such conduct be a basis for extradition. If it is the intent of the bill to allow extradition where the present trend in state or federal law is to criminalize the conduct which is the subject of the extradition request, using a mechanical test such as "majority of the States" is unfair to both the government and the accused. For example, is it fair to the government if 25 states (but not 26) criminalize particular conduct? Likewise, is it fair to the accused if 26 states have criminalized particular conduct by statute but most of those states either have not prosecuted under those statutes because the statutes are archaic, or because the statutes have not been interpreted, or have been given conflicting interpretation? I believe that the magistrates are capable of interpreting the trends in the law to determine if the conduct is viewed as criminal in this country. I would therefore suggest a more flexible provision than (C)(ii) which would allow the courts to interpret trends in the criminal law without being obligated to rule on the basis of numerical majorities. §3194 (d)(2)(A): As I read this section, if the applicable treaty does not specify a statute of limitations defense, the §3194(d)(2)(A) statute of limitations defense will only be measured by the law of the requesting party. In view of the jurisdictional nature of the statute of limitations in all federal criminal cases where a statute of limitations applies, I believe that the five year federal statute of limitations should also be incorporated into this section. I find it unfair to eliminate the bilateral statute of limitations feature from this section when that bilateral feature has almost always been included in the treaties. |