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Federal Code on Extradition
18 USC 3181 et. seq
What is the Rule of Specialty?
The rule of specialty is a legal principle recognized by the United States in extradition matters. See United States v. Rauscher, 119 U.S. 407, 30 L. Ed. 425, 7 S. Ct. 234 (1886). Pursuant to the rule of specialty, an individual may not be prosecuted for an offense in the country that requested extradition absent the extraditing country's grant of extradition for the offense. Id. at 430 (holding "a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."). Thus, the crimes for which Defendant may be prosecuted depend on the extradition agreement and the extradition treaty between the United States and the surrendering nation.
Recent Developments in Extradition Law
Defendant''s conviction remanded to determine whether rule of specialty violated.
United States v Anderson, (9th. Cir. Court of Appeals, 2006).
Defendant must be resentenced based on extradition agreement.
Benitez v Garcia, (9th Cir. Court of Appeals, January 22, 2007.) Court remanded to District Court. Defendant's sentence of 15 years to life violated clearly established federal law. The court found that the Extradition Treaty and the extradition activities of the parties provided for a clear limitation of 30 years imprisonment on the punishment that petitioner could face.
Defendant's extradition did not fall within the political exception.
Ordinola v Hackman (4th Cir. 2007). Formerly paramilitary accused by Peru of homicides during Fujimori's alleged campaign against the Shining Path. Appellate court upheld trial court's certificate of extradibility.
Vo v Benov, (9th Cir. Court of Appeals, May 22, 2006,) discusses the Political Offense Doctrine and rejected it application in the case of Vo, who faced charges in Thailand for a plot to bomb the Vietnam Embassy. For further discussion of the concept, see below:
"A. The Political Offense Doctrine
The political offense doctrine covers two types of crimes. ... The first are "relative" political offenses, which are "'otherwise common crimes committed in connection with a political act,' or 'common crimes . . . committed for political motives or in a political context.'"...For this type of crime, we use the two-prong "incidence" test to decide whether a crime falls under the political offense exception. Id. The second are "pure" political offenses, such as treason, sedition, and espionage. Because these crimes are by definition political, courts generally do not apply the incidence test to them.... Vo's offense is of the first type, and thus the incidence test applies.
For a crime to qualify for the political offense exception under the incidence test, there must be "(1) the occurrence of an uprising or other violent political disturbance at the time of the charged offense, and (2) a charged offense that is 'incidental to' 'in the course of,' or 'in furtherance of' the uprising. "
The uprising prong constitutes the critical part of the incidence test. ("[I]t is the 'uprising' component that plays the key role in ensuring that the incidence test protects only those activities that the political offense doctrine was designed to protect."). This prong has a number of facets that must be satisfied in order for an individual's conduct to be protected by the political offense exception. First, a "certain level of violence" must exist for the uprising prong to be satisfied. Second, the prong involves a geographic limitation. An uprising "can occur only within the country or territory in which those rising up reside," and the charged offense must take place in that geographic area. ("[T]he uprising component serves to exclude from coverage under the exception criminal conduct that occurs outside the country or territory in which the uprising is taking place."). This limitation ensures that the political offense exception will not serve to protect international terrorism. ("[T]he word 'uprising' . . . does not cover terrorism or other criminal conduct exported to other locations."). n4 Third, the individual charged with the offense must be "seeking to change the form of the government under which [he] live[s]." If the individual's conduct does not meet these criteria, the individual does not qualify for the political offense exception. n5 Because the level of violence in Vietnam falls far short of that required to qualify as an uprising, we hold that Vo's
offense is not protected by the political offense exception to the Treaty. In the alternative, we hold that Vo does not qualify for the exception because his conduct does not satisfy the geographic requirment of the uprising test.
Although no relief warranted, attorney ineffective for failing to object to prosecution of one count of Indictment nor included in extradition order.
In USA v Baramdyka, 95 F.3d 840 (9th Cir. 1996), the court found that both the government and prosecutin were under the erroneous impression that the Defendant was extradited on Count 8 (travel in interstate commerce with intent to carry on an unlawful activity.); in fact the Chilean extradition order were limited to Counts 1 and 2 of the indictment.
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