International extradition

Kim Bryant

Extradition ­Administrator in the Harris County ­District Attorney’s Office

Returning criminals who have fled the United States isn’t easy, but it’s a fight worth fighting.

On the night of February 4, 2010, Juan Castillo and his common-law wife, Monica Leija, had an argument in their home. Hours later, Castillo shot Monica in the head while she was sleeping—their children were lying in bed with her and witnessed the horrific crime. Within days of the murder, Castillo abandoned his children and fled to his home country of El Salvador. In January 2011, federal authorities reported Castillo’s whereabouts in El Salvador, and I was asked to assist in the arrest and extradition process.
    The U.S. has had an extradition treaty with the government of El Salvador since 1911. Our diplomatic relationship with this country, however, has always been strained. I knew that Harris County had never succesfully extradited anyone from El Salvador, and I learned from the Department of Justice (DOJ) that extradition from this country was so rare that DOJ officials could not tell me the last time it had happened. Regardless, I submitted my extradition package to the DOJ, and I “rattled their cage” every six to eight months to see if relations were changing between the two countries. For two and a half years I received the same discouraging response every time I inquired: El Salvador was denying all extradition requests. At some point, the DOJ stopped submitting extradition packages to El Salvador altogether, so Castillo’s extradition package was just sitting on the back burner in Washington D.C.
    Then, in the summer of 2013, I received a phone call from the DOJ’s Office of International Affairs. Officials there explained that diplomatic tensions between the U.S. and El Salvador were starting to ease, and they wanted to submit the Castillo extradition package as a test case. The request for provisional arrest to El Salvador was submitted immediately, and in April of 2014, we received official notification that the Salvadorian Supreme Court had granted the request and issued a warrant for Castillo’s arrest. Within seven months, he was arrested, extradited, and returned to us by December 2014. He is currently in custody pending prosecution in our jurisdiction. This was the first successful extradition from El Salvador in Harris County’s history.
in Harris County
The Harris County District Attorney’s Office created the formal position of extradition administrator in 2008, and I moved into that role. I had worked on U.S. state extradition cases, Interstate Agreement on Detainers, and federal writs since 1999, and I became adept at returning fugitives wanted in Harris County regardless of where they were within the U.S. In my new role, some of my focus shifted to international extradition. I soon realized a pattern among many of our murder cases: The fugitives fleeing to other countries were rarely extradited back. In some instances, I discovered case files with extradition paperwork—but no extradition was ever granted. I consulted the homicide divisions of our police department and sheriff’s office and found that detectives were operating on the assumption that if a fugitive fled the U.S., there was nothing that could be done to bring him back.
    Over the last 15 years, I have worked to change that mindset, and Harris County has extradited about 60 fugitives from other countries. On average, our jurisdiction works on 10 to 20 international extradition cases annually. These cases can be challenging, but the rewards are great.
    But what steps a prosecutor should take when she finds out that a defendant has fled to another country is not always clear. The pointers below can help when pursuing a defendant and seeing an international extradition case through to the end.

The Department of Justice is your BFF (best friend forever) with international ­extraditions.
The Department of Justice’s Office of International Affairs (DOJ OIA) is the county prosecutor’s tour guide and BFF. We need these folks to navigate international extradition waters, so do not alienate them. To stay on their good side, prosecutors and extradition officials need to  keep track of their deadlines and responsibilities concerning finalizing an extradition package—in other words, don’t wait until the last minute. An international extradition package goes through many agencies before it is in the asylum country; we need to give DOJ enough time to get its part of the package together to meet the treaty deadline.
    In the area of international extradition, the DOJ can make or break us in terms of success on these cases. The lawyers at the DOJ are specialized in international law, and they have very close working relationships with extradition teams on the other side of the world. The DOJ lawyers and their support staff are employed to help us draft an extradition package that gives us the best chance to get an affirmative ruling from the asylum country.
    No matter how frustrated you get with their numerous questions about your case—and you are going to get frustrated when they send back a package for the third time with revisions and questions that you feel are insignificant—do not throw in the towel. Their job is to make sure that the evidence and facts that you are presenting to the asylum country are concise and leave no room for confusion.
    The main number to the DOJ OIA is 202/514-0000. Ask the receptionist to transfer you to the lawyer who handles the country to which the fugitive has fled.

Extradition from another country is a judicial process.
It is important to understand that an international extradition is a judicial process that takes place in the asylum country. The demanding jurisdiction (that’s us) is asking a sovereign country to take a look at the facts and evidence of a case and make a judicial determination that it will allow the extradition of a person from their country. Sometimes this is a hard pill to swallow on our end because it’s our case and this person committed a crime in our jurisdiction. That fugitive, however, is now in another country/jurisdiction, and we have to play by their rules.
    The demanding jurisdiction has to meet certain elements, just like any other judicial process within the U.S. The proving elements for an international extradition are not the same as a U.S. state extradition. In a state extradition, the demanding jurisdiction has to prove just that the person in custody is a fugitive; that valid charging documents exist to formally charge the fugitive; that the fugitive has violated the law in your state; and that the person in custody is the person sought for the prosecution. In an international extradition, we have to prove those same elements in addition to presenting facts and evidence proving that probable cause exists to move forward with a trial in our jurisdiction.
    Additionally, that probable cause standard has to meet the standard of the asylum country, not just the U.S. standard of probable cause. For example, Australia has a higher standard of probable cause for a theft charge than the Texas’ standard of probable cause. In this scenario, a Texas prosecutor may find it challenging to have enough evidence to move forward with an international extradition simply because the burden of proof cannot be met in the asylum country. This is something important to consider when assessing a case for international extradition because no one wants to do all that work just to find out the facts don’t meet the asylum country’s standard of probable cause. Consult with your BFF at DOJ for more about this.

Consider other options.
Before embarking on the challenges of an international extradition, consider the other options. Extradition is not always the best choice, and it is certainly not the only choice we have to return the fugitive back to the U.S. If the fugitive is a U.S.-born citizen with family ties to the U.S., deportation could be a viable option. A U.S. Marshal or FBI contact should be able to assist with a deportation because they work closely with the immigration services in other countries. I always attempt a deportation first and then proceed with an international extradition if the deportation attempt fails.
    It is also important not to do both at the same time. If you submit an extradition package to the DOJ while a deportation is being attempted and that deportation happens to be successful, there could be diplomatic ramifications with that asylum country. When we submit an extradition package, we enter into a “good faith” relationship with that country committing to its officials that we intend to go forward with the judicial process of extradition and giving them a chance to review the facts and evidence to make a judicial finding. In other words, submission of an extradition package to another country is a formal request to arrest and consider that fugitive for extradition. We risk alienating that country by going back on our commitment to extradite.
    In a capital murder case in which the death penalty is being considered, international extradition most likely will not be an option. Depending on the asylum country, you’ll have to assure that country that you will not seek the death penalty, and that assurance is binding under the extradition treaty. If you’re not willing to take death off the table, don’t bother sending an extradition package to the DOJ.
    INTERPOL can be a good option when dealing with a country where we don’t have good extradition relations. Diplomatic relations between the U.S. and countries such as Venezuela, China, and Russia are often strained and challenging, and filing a Red Notice in countries such as these can be beneficial for many scenarios. A Red Notice alerts member countries of INTERPOL that we are interested in seeking the location and arrest of a wanted person with a commitment that we’ll seek extradition or similar lawful action if we receive a notification. Some member countries will even temporarily detain a fugitive on a Red Notice until we get a provisional arrest warrant in place. If I do not have a specific location on a fugitive but I have good information that he is in a city or state of a particular country, I will file a Red Notice. Or if I receive information that a fugitive has fled to a country where the U.S. has no extradition treaty, I will file a Red Notice. Just remember that a Red Notice is a formal commitment that you will seek extradition if the fugitive is located.

Dual citizenship could be a hurdle we have to jump over.
Dual citizenship means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based on its own policies. For example, the U.S. government recognizes the existence of dual citizenship and its citizens may possess dual citizenships. Other countries do not allow dual citizenship.
    This difference can present a problem in international extradition because some countries will not allow extradition of their citizens even if they have an extradition treaty with the U.S. (for example, Venezuela). So a naturalized U.S. citizen who was born in Venezuela, committed a murder in Texas, and fled to his home country of Venezuela would likely not be extradited to the U.S. Venezuela would consider that fugitive a Venezuelan national.
    You could also be dealing with dual-citizenship issues with a U.S.-born citizen who flees to a country where her parents were citizens. Mexico, for example, would likely consider that U.S. citizen a dual-citizen if she had family ties in Mexico. In this instance, a Texas prosecutor could not deport this individual even though the fugitive is a U.S. citizen. We would have to go through the judicial process of an extradition to get the fugitive back on U.S. soil.

The Rule of Specialty really is special.
The Rule of Specialty is a principle of international law that is included in most extradition treaties. It states that a person who is extradited to a country to stand trial for criminal offenses may be tried only for those offenses, not for any other offenses.
    If a prosecutor’s office desires to seek further charges on a defendant who has already been extradited internationally, prosecutors can submit a new extradition package to the DOJ detailing the evidence and facts in the new violation. However, this always becomes a logistical nightmare once the defendant is already returned to your jurisdiction simply because his cases are already going through the court system, and an extradition package can take six months to even three years to receive the judicial answer from the asylum country to move forward. Inevitably, the case will get to trial in Texas before we receive an answer from the asylum country as to whether we have permission to move forward with the new prosecution. It’s much better to indict the defendant with anything for which we possibly intend to prosecute him on the front end of an international extradition package. Do not risk violating an extradition treaty. It is not worth the diplomatic trouble that would follow.

Dual Criminality is a ­consideration.
As with the Rule of Specialty clause, the Dual Criminality clause is a principle of international law that is included in most extradition treaties. According to the dual-criminality principle, a person may be extradited only when his actions constitute an offense in both the asylum and demanding countries. This means that the absence of a potential defense does not establish the absence of dual criminality. So if you are evaluating a question of dual criminality, you must look at the accused person’s conduct and determine if that conduct falls within the parameters of the asylum country’s own statutes. Consult with the DOJ about this because it may require some “out of the box” thinking.
    It’s important to note that the charge of bail jumping, for example, is not an extraditable offense in many countries, including Mexico. However, sometimes we can get around this challenge depending on the charge. Interference with child custody is not recognized as a criminal violation of Mexico’s criminal statutes either; however, we may be able to present a case of kidnapping in the extradition package, depending on the facts of the case, and potentially get an affirmative ruling from the Mexican courts.

The statutes of limitations vary from country to ­country—and that ­matters.
Under Texas statutes, as long as we indict a case before the time limit runs under statute, we are not barred from prosecution. This helps prevent a fugitive from escaping prosecution by merely evading law enforcement for a period of time. But dual criminality does come into play when dealing with international extradition. In some countries the statute of limitations is based solely on how old a case is. If the statute of limitations for that particular charge has run in the asylum country, we may be barred from extraditing the fugitive.
    For example, did you know that Mexico has different degrees of murder with a different range of statutory limitations for each? If the facts in your case include both the defendant and victim having a weapon, it’s considered a dual fight homicide in Mexico with a five-year statute of limitation. A general fight homicide has an eight-year statute of limitation. A general homicide has an 18-year statute of limitation. Homicide of a relative carries a 25-year statute of limitation. A general homicide with aggravating factors defined under Mexico’s Constitution carries the highest statute of limitation for murder in Mexico: 45 years.
    This means Mexico’s court system will likely deny an extradition request where the crime was a typical nightclub murder involving one weapon and the case is older than eight years. We are dealing with a sovereign nation that has its own rules, and we are forced to play by those rules under the extradition treaty agreed to by both countries.
The U.S. Marshals Service and FBI are invaluable resources.
Offense reports often include information about where a defendant may have fled, and murderers and sex offenders almost always go home to family. That is when U.S. Marshals or FBI agents and their resources and contacts in other countries can help confirm information for a local prosecutor. Crime victims calling to ask if we can pursue the defendant can also be valuable resources for information as to the defendant’s whereabouts that we can pass along to federal authorities. In fact, the DOJ will require that a federal law enforcement agency (U.S. Marshals or FBI) be assigned to the case because those agencies coordinate with authorities on the ground in the asylum country to return that fugitive back to the U.S.
    Many jurisdictions have fugitive task forces in their area. For example, the Houston area has two: one sponsored by the U.S. Marshals Service and another by the FBI. They generally are made up of federal, state, and county agencies that all work together to catch bad guys. Utilize any fugitive task force that is available because they are a great resource on both the front and back ends of an extradition and throughout the process.

An international extradition can be complex and is ­oftentimes consuming, but do not be dissuaded.
Tenacity and patience are important qualities to possess when working an international extradition case. This isn’t a situation where you’ll always do A, B, and C and get X result.
    One defendant in a brutal 1993 capital murder case, for example, immediately fled to Mexico and evaded law enforcement until 2013. A formal extradition package was submitted a couple of months after his arrest and over two years later Mexico has still not reached a judicial decision. Needless to say, I’m frustrated, but I keep “rattling the cage” at the DOJ, asking my contacts there to follow up with Mexico for an update on this case.
    I’ve waited up to six years to get a fugitive back from another country. Keep being the squeaky wheel, and it will eventually happen.

If a fugitive is arrested on a provisional arrest warrant, don’t miss the treaty deadline.
Caseloads must be prioritized, and extradition matters tend to be placed on the back burner, but it is important not to let this happen. Once a defendant is arrested in another country, the clock is ticking, and we are bound by the treaty to fulfill all of its obligations, including the deadlines. Depending on the asylum country, we may have only a few weeks to finish the formal extradition package. At best, we will have 30 days to finalize everything.
    At the point of arrest, we will have already submitted an application for provisional arrest and completed a first draft of the affidavits. It’s time to get those affidavits into final form, have them executed, and put your exhibits together. Don’t miss the treaty deadline. Think of it this way: You have formally asked a country to locate and arrest a fugitive for you. That country has housed and fed that fugitive only to release him months later because you didn’t fulfill the treaty obligations and missed the deadline. Violating the treaty never makes for a great day. It makes the U.S. look foolish and discredits our character as a nation and as a jurisdiction. Put these cases on the front burner once a fugitive is arrested. If you follow the DOJ’s timeline, you’ll be in good shape.

If an international extradition is denied by the asylum ­country, is it over?
I adhere to the hard and fast rule that it is never really over. But if your extradition request is denied, what do you do?
1) Consider requesting a foreign prosecution. In many countries, we can surrender a case to the asylum country and ask authorities there to prosecute and sentence the fugitive in their jurisdiction. I have had a handful of extradition requests denied out of Mexico and each time, Mexico has automatically prosecuted that fugitive under its laws and sentencing guidelines. Those fugitives received significant time and to my knowledge are still serving their sentences. Foreign prosecution can be a beautiful thing, but we must understand the limitations. We are surrendering our case to that country, which means we will have no control over the outcome.
2) File a Red Notice with INTERPOL. As mentioned previously, a Red Notice is an international request for cooperation allowing police in member countries to share critical, crime-related information. It is basically a collateral sent to all member countries of INTERPOL asking them to attempt to locate a fugitive on our behalf. If an extradition request is denied, filing a Red Notice can help. For example, if a fugitive takes a vacation to a neighboring country, he can be arrested in that country on the Red Notice and put into extradition proceedings.

Why it’s worth it
The absolute best part of my job is being able to call crime victims and tell them we arrested the person who murdered their loved one. The day that Juan Castillo was extradited back to the U.S., the victim’s family was so elated that the joy was palpable. There is nothing like that feeling. Don’t give up on arresting the criminals that flee the United States just because it is hard. I can assure you that the time, patience, and perseverance that it took to apprehend and extradite Juan Castillo was paid back to me tenfold when I saw the relief on the faces of Monica’s family. Your elected official is depending on you. Federal authorities are depending on you. Most of all, the crime victim is depending on you. You are their main advocate in an international extradition case, and it is a fight worth fighting.