Case 1:22-cr-00673-LAK Document 138-8 Filed 05/08/23 Page 1 of 17
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`Exhibit H
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`Case 1:22-cr-00673-LAK Document 138-8 Filed 05/08/23 Page 2 of 17
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`Ch.VII Substantive Requirements: Dual Criminality,
`Extraditable Offenses, Specialty, and Non-Inquiry
`
`From: International Extradition: United States Law and Practice (6th
`Edition)
`M Cherif Bassiouni
`
`Content type: Book content
`Product: Oxford Scholarly Authorities on International Law [OSAIL]
`Published in print: 01 February 2014
`ISBN: 9780199917891
`
`Subject(s):
`Rule of law (cid:1922) (cid:58)ritings of publicists (cid:1922) State practice (cid:1922) Comity (cid:1922) Conflicts between (cid:1922) Consistent
`interpretation (cid:1922) (cid:39)ualism (cid:1922) Act of state (cid:1922) (cid:45)udicial review (cid:1922) Freedom from torture and cruel, inhuman,
`or degrading treatment (cid:1922) Customary international law (cid:1922) (cid:42)eneral principles of international law
`
`From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
`
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`Case 1:22-cr-00673-LAK Document 138-8 Filed 05/08/23 Page 3 of 17
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`International Extradition: United States Law and Practice, Ch. VIII, § 5, Grounds
`Relating to the Penalty: The Death Penalty and Cruel and Unusual Punishment at
`735(cid:1921)744 (4th ed.2002) (problems of enforceability of conditional extraditions(cid:30)
`discussion of leading international cases)(cid:30) 3 The Dept. of (cid:45)ustice Manual at 9(cid:1921)15,
`500 (2d ed. loose leaf current) (post extradition considerations); 4 The Dept. of
`Justice Manual at 1 ff. (2d ed. loose leaf current) (survey of death penalty cases in
`the federal courts).290
`290
`6.4. Variance in Prosecution and the Principle of Specialty
`In cases of extradition from the United States to another state, the crimes for which a
`relator may be tried by a requesting state are determined by the extradition warrant signed
`by the secretary of state or his/her designee. If there is a variance between the U.S.
`extradition warrant and the finding of the U.S. extradition magistrate or judge, the warrant
`will control in the requesting state until such time as it may be amended to conform to the
`decision of the extradition judge. The United States may waive variances by express
`authorization from the secretary of state, but only to the extent that the new crimes are
`based on the same facts that were presented at the relator(cid:1927)s extradition hearing, the new
`crimes satisfy dual criminality, and probable cause can be found. The relator is entitled to
`challenge this determination in court. This is usually raised in the context of ongoing
`criminal proceedings.
`(p. 557) With respect to the interpretation and application of the principle of specialty in the
`United States, it is a confused and unsettled part of extradition law. The reasons are in part
`because it poses several difficult legal questions that the circuits have approached in
`different ways. They are:
`
`1. in the last twenty years the United States has enacted complex criminal statutes
`291
`that for the most part have no counterpart in other legal systems; 291
`2. prosecutorial practice in United States frequently resorts to the use of superseding
`indictments whose substantive charges and factual recitations may vary from the
`original indictment on which extradition was secured;
`3. federal prosecutors in the ninety-four federal districts may be unfamiliar with this
`area of the law and more so with respect to the set of issues involved in specialty
`(even though it should be noted the Office of International Affairs [OIA] of the United
`States Department of Justice provides valuable assistance and advice to the United
`States Attorneys(cid:1927) offices throughout the country);
`4. some federal prosecutors tend to occasionally stretch the rules of permissibility
`with regard to their representations to the OIA, which are communicated to the
`requested state, and also stretch the limits of proper conduct in making
`representations to U.S. courts before which these issues are raised;
`5. as a consequence of all these factors, there is inconsistency and uncertainty among
`the circuits as to what constitutes a variance and how to deal with it, and the
`distinction between preclusion of prosecution under specialty and the use of evidence
`for proving other legal propositions than guilt of the precluded crime; and
`6. the conflicting positions of the circuits as to who can raise the issue of specialty,
`292
`when, and how. 292
`
`The Ninth Circuit, in United States v. Khan, established an important requirement of
`unambiguousness, whereby if the surrendering state is not unambiguous about the charges
`for which extradition has been granted, then the U.S. courts would be required to
`determine whether it was the intention of the surrendering state to allow extradition for a
`particular offense, and in so doing, to determine whether that offense exists in the
`
`From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
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`Case 1:22-cr-00673-LAK Document 138-8 Filed 05/08/23 Page 4 of 17
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`surrendering state. By implication, the Ninth Circuit suggested that U.S. courts, in cases of
`ambiguity, put themselves in the place of the surrendering state(cid:1927)s courts to determine first
`the existence of dual criminality and second, based on the first determination, what the
`limits of specialty are. The court held:
`
`As a matter of international comity, (cid:1930)[t]he doctrine of (cid:1926)specialty(cid:1927) prohibits the
`requesting nation from prosecuting the extradited individual for any offense other
`than that for which the surrendering state agreed to extradite.(cid:1931) Van Cauwenberghe,
`827 F.2d at 428 (quoting Quinn, 783 F.2d at 783). See United States v. Rauscher,
`119 U.S. 407, 419(cid:1921)421, 7 S.Ct. 234, 240(cid:1921)241, 30 L.Ed. 425 (1886).
`Khan contends that Pakistan agreed to extradite him on the basis of Count II, but
`not on Count VIII of the superceding indictment. Khan contends that the Pakistani
`extradition documents do not specifically refer to the allegations of Count VIII and
`therefore his conviction on Count VIII should be dismissed.
`The parties have provided two Pakistani documents, an Enquiry Report from a
`Deputy Commissioner Enquiry Officer dated February 14, 1990 ((cid:1930)commissioner(cid:1927)s
`report(cid:1931)) and a judgment (p. 558) from the Lahore High Court at Lahore dated
`March 4, 1990 (this document is incomplete). The commissioner(cid:1927)s report refers
`three times to 21 U.S.C. § 963 (the violation alleged in Count II) and makes no
`reference to 21 U.S.C. § 843 or 18 U.S.C. § 2 (the violations alleged in Count VIII).
`The Lahore judgment refers once to 21 U.S.C. § 963 and makes no reference to 21
`U.S.C. § 843 or 18 U.S.C. § 2.
`The Pakistani commissioner(cid:1927)s report lists the documents received from the United
`States in connection with the extradition request. These documents included copies
`of the Stewart affidavit, which described the charges in Counts II and VIII, and the
`superceding indictment. The list in the report specifically noted that (cid:1930)the indictment
`relating to [Khan] is with regard to count No. II and VIII.(cid:1931) In addition, the
`commissioner(cid:1927)s report reviews the factual background of the extradition request
`including the various telephone calls between Khan and his codefendants
`throughout the course of the conspiracy. The commissioner stated that he had
`carefully examined the evidence presented by the prosecution.
`The magistrate judge determined that the Pakistani commissioner had considered
`all the evidence presented by the United States, including the Stewart affidavit and
`Count VIII in the superceding indictment. Relying on United States v. Sensi, 879 F.
`2d 888, 896 (D.C Cir. 1989), the magistrate judge found the reference to the
`evidentiary materials sufficient to satisfy the doctrine of specialty. The district court
`found that it was (cid:1930)quite clear that the United States Government requested
`extradition on Count VIII, and that the Magistrate in Pakistan considered
`extradition on Count VIII and granted it.(cid:1931)
`The opinion in United States v. Sensi is not dispositive. In Sensi, 879 F.2d at 896,
`the D.C. Circuit focused on the evidence submitted with the United States(cid:1927) request
`for extradition and found it sufficient to support each count of the indictment. The
`British magistrate (England was the surrendering country) had not delineated the
`United States counts for which the defendant was extraditable, but had concluded
`that the defendant was extraditable. The magistrate found that 18 charges of theft
`were made out by the evidence under United Kingdom law. Id. at 892. The British
`magistrate had received a copy of the United States indictment. Id. at 896.
`
`From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
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`In Sensi, however, the operative extradition treaty contained the following
`language: (cid:1930)(cid:1926)A person extradited shall not be [prosecuted]...for any offense other
`than an extraditable offense established by the facts in respect of which his
`extradition has been granted.(cid:1927)(cid:1931) Id. at 895 (quoting 28 U.S.T. 233). The operative
`treaty in this case contains the following language: (cid:1930)A person surrendered can in no
`case be [prosecuted]...for any other crime or offence, or on account of any other
`matters, than those for which the extradition shall have taken place.(cid:1931) Extradition
`Treaty, December 22, 1931, art. 7, 47 Stat. 2124. We are not convinced that the
`doctrine or specialty is satisfied under all treaties as long as the prosecution is
`based on the same facts as those set forth in the request for extradition.
`Language from our opinions in Van Cauwenberghe and Quinn, (cid:1930)for any offense
`other than that for which the surrendering state agreed to extradite,(cid:1931) suggests the
`need for an affirmative statement by the surrendering country of the counts upon
`which extradition is based. In United States v. Merit, 962 F.2d 917, 923 (9th Cir.),
`cert. denied, 506 U.S. 85, 113 S.Ct. 244, 121 L.Ed.2d 178 (1992), the South African
`Supreme Court affirmatively found the defendant extraditable on Count 1 and
`Count 14 of the indictment. The South African Supreme Court(cid:1927)s ruling was initially
`ambiguous regarding the other 12 counts for which the defendant was indicted. The
`United States requested clarification and the South African Department of Justice
`confirmed that the defendant was extraditable on Counts 1 and 14. Id. at 920. We
`found that the United States had adhered to the specialty requirement of the treaty
`because the defendant was tried and convicted of only those two counts. Id. at 923.
`The extradition materials do not indicate that Pakistan unambiguously agreed to
`extradite Khan on both Counts II and VIII. The magistrate judge found it persuasive
`that (cid:1930)the commissioner(cid:1927)s report does not suggest that Khan ought not to be
`extradited on the charge contained in Count VIII.(cid:1931) But we will not infer an
`agreement to extradite from Pakistan(cid:1927)s silence concerning Count VIII. [Citation
`omitted.]
`(p. 559) The government notes that the Pakistani commissioner directed that Khan
`could be (cid:1930)surrendered over to the authorities in the U.S.A. for trial under the
`relevant American Law.(cid:1931) It is possible that the Pakistani commissioner was referring
`to the relevant American law of 21 U.S.C. § 963 (in Count II). It is also possible that
`Pakistan did not find the charges in Count VIII worthy of extradition. See generally
`United States v. Rauscher, 119 U.S. 407, 420(cid:1921)21, 7 S.Ct. 234, 241, 30 L.Ed. 425
`(1886) (defendant extradited on murder charges could not be prosecuted for lesser
`offense of cruel and unusual punishment, which was not listed in the extradition
`treaty).
`Because Pakistan did not unambiguously agree to extradite Khan on the basis of
`Count VIII, the doctrine of specialty has not been satisfied. Khan(cid:1927)s conviction on
`293
`Count VIII should be reversed and dismissed.293
`
`Another factor that adds to the present state of confusion is that U.S. judicial decisions
`frequently combine several issues arising under specialty without clearly distinguishing
`them for purposes of the ruling. Some cases also confuse issues of dual criminality and
`evidence in the context of specialty, while also discussing standing without clearly
`separating these different legal questions. The discussion of relevant cases that follows in
`this section reveals the extent to which these issues can are interrelated.
`
`From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
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`Case 1:22-cr-00673-LAK Document 138-8 Filed 05/08/23 Page 6 of 17
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`As stated above, in order to prosecute a relator in the United States for an offense at
`variance with the offense for which the extradition request was granted, the United States
`must obtain the consent of the requested state while the relator is still in U.S. custody for
`294
`the offense for which extradition was granted.294 But the United States does not proceed
`that way. Instead, it proceeds with prosecution based on other charges arising out of
`superseding indictments, and then argues that these charges satisfy specialty and dual
`criminality. It is this unfortunate hasty practice that brings about so many problems. The
`better practice would be for the prosecutor to convey his/her intentions to the Department
`of Justice(cid:1927)s OIA, and let that office seek a supplemental extradition request or ask the
`surrendering state for clarification and authorization to proceed. That additional procedural
`demarche would clearly improve judicial economy and prevent unnecessary delays.
`295
`In United States v. Diwan,295 the court held that the relator could be prosecuted on a
`conspiracy count notwithstanding her original extradition for only theft-related offenses, as
`the record of the case showed that the United Kingdom consented to the prosecution for the
`other lesser or related offenses. The Magistrates(cid:1927) Court in London had dismissed the
`conspiracy charge after conducting an evidentiary hearing to determine whether the
`offenses charged were triable (p. 560) offenses in the United Kingdom. The magistrate
`rejected the United States(cid:1927) argument that the conspiracy alleged in the indictment would
`justify committal in the United Kingdom if the offenses charged had been committed there.
`The extradition was, however, granted after the magistrate determined that the offense of
`mail fraud is analogous to the crime of theft.
`The relator challenged prosecution on the conspiracy charges by arguing that the offenses
`for which she was extradited did not include conspiracy, as the UK magistrate had only
`detained her for the theft-related offenses. The court found this argument to be without
`merit because diplomatic correspondence between the two states indicated that the United
`Kingdom did not regard the prosecution of Diwan on the conspiracy count a breach of the
`extradition treaty. A letter from the UK(cid:1927)s Secretary of State for the Home Office, who had
`the ultimate authority to determine whether extradition would be allowed, responded to a
`request for confirmation that the United Kingdom did not object to the prosecution of the
`defendant on all counts in the indictment by stating:
`
`I can therefore confirm your understanding of that decision and of the surrender
`warrant subsequently signed by the Secretary of State. Accordingly...I am able to
`confirm that the United Kingdom has no objection to the indictment of Ms. Diwan as
`296
`proposed.296
`
`The court held that the diplomatic correspondence between the two states unequivocally
`showed that the United Kingdom consented to the prosecution of Diwan on the conspiracy
`count. Therefore, the government could proceed with the prosecution of the relator on all
`counts in the original indictment.
`
`297
`A 2009 case elucidating this practice was United States v. Iribe,297 where the relator
`challenged his prosecution under a second superseding indictment. The Mexican Supreme
`Court granted the relator(cid:1927)s extradition for conspiracy to maim a person in a foreign country,
`but not for conspiracy to kill and kidnap a person in a foreign country insofar as those
`298
`crimes carried the potential for a life sentence.298 Nonetheless, a U.S. federal grand jury
`returned a second superseding indictment including conspiracy to kidnap and attempted
`299
`kidnapping.299 The government of Mexico delivered a diplomatic note in which it specified
`that:
`
`From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
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`The Foreign Ministry does not object to the reclassification of the crime pursuant to
`Article 17.2, paragraphs a) and b) of the Extradition treaty between the United
`300
`Mexican States and the United States of America.300
`
`The court read this diplomatic note and the Mexican Supreme Court decision to show that
`Mexico had explicitly agreed to prosecution on the new charges, which did not carry a life
`sentence.
`
`Specialty also means that if the relator is acquitted of the extradition offense, he/she must
`be allowed to leave the country without hindrance, and he/she cannot be charged or even
`302
`served with additional criminal charges while in the country.302 The relator must be given a
`reasonable amount of time to leave voluntarily, and cannot be denied the right to return to
`his/her (p. 561) country of nationality, the state from which he/she was extradited if that
`state gives him/her permission, or any other state of his/her choice that gives him/her
`permission. The individual cannot be forced to go to a state that he/she does not wish to go
`to, nor can the United States use immigration laws to deport him/her or force (cid:1930)involuntary
`departure(cid:1931) upon him/her to send him/her to a country that may be seeking him/her for
`303
`further prosecution.303 The same rules apply to situations where the relator was tried and
`convicted for the extradition offense and has served the required sentence and been
`released. In these cases, he/she must be given the opportunity to leave the requesting state
`before he/she can be detained or tried for another offense, except for any offense he/she
`may have committed while in the United States after his/her surrender. In either case, when
`the relator has served the required sentence or been acquitted of the extradition offense,
`the requested state loses jurisdiction over the relator. Thus, if the requesting state seeks to
`obtain consent after acquittal or after completion of the sentence to prosecute the relator
`for an unrelated offense, such consent would be invalid as the requested state can no longer
`exercise any authority over the relator. Even in cases in which a timely request for the
`consent of the requested state is made, the requesting state should determine whether
`consent has been granted by the appropriate authority of the requested state. Thus, if the
`proper authority in the originally requested state is a judicial one, the authorization cannot
`be granted by an administrative authority. For example, the appropriate authority in France
`is the chambre de mises en accusation of the Court of Appeals, and in Italy it is the
`counterpart chamber of the Court of Appeals of the judicial district where the relator was
`found. Only that judicial authority can grant a supplemental extradition request. But in one
`case, involving Italy, the United States requested and obtained a purported supplemental
`authorization from an official in the ministry of justice to prosecute the relator in formal
`extradition proceedings for another crime after the relator was acquitted of the original
`charges. But because the official, a judge in the ministry, was not the appropriate legal
`authority, the purported authorization was deemed invalid and the relator was allowed to
`304
`leave the country.304
`A question arises, however, as to whether the requesting state may, subsequent to the
`prosecution of an accused surrendered for a particular crime, re-extradite such a person to
`another state that may request his/her extradition, without seeking permission from the
`305
`state that originally extradited him/her.305 In other words, if State A requests the
`extradition of an individual from State B for crime X and extradition is granted, can State A
`re-extradite such a person to State C, which requests his/her extradition from State A for
`crime Y, without first securing the permission of State B? The answer depends on whether
`State B has a continuing interest in the accused. Such an interest could be that he/she is a
`citizen of State B or that State B granted the request of State A even though it could have
`prosecuted that individual for a crime in State B, or that State B waived its opportunity to
`retain jurisdiction over him/her for a criminal investigation or as a witness in another trial.
`Presumably once the individual is extradited, State B loses jurisdiction over him/her and its
`only surviving interest is to ensure that its processes have been used in a manner that
`
`From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
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`complies with the principle of specialty. However, as extradition depends on a treaty and
`the requested state may grant it on the basis of certain policy considerations in those
`interests described above, its interest in such a person may survive with respect to re-
`extradition. However, such a survival of interest theory should depend on the condition that
`State A knew (p. 562) or had reasonable grounds to know that State C would ask it for the
`re-extradition of the relator at the time it made its request to State B. Otherwise the
`process of re-extradition would always be subject to the approval of the originally requested
`state, which would render the process of re-extradition too cumbersome. A better approach
`would be to regulate such practices by treaty, which is not the case under existing U.S.
`extradition treaties.
`Another problem arises with respect to cases involving extradition by comity, in whole or in
`306
`part. In 1972, the Second Circuit in Fiocconi v. Attorney General of the United States306
`affirmed the specialty principle even in cases of surrender by comity, by holding that the
`principle (cid:1930)reflects a fundamental concern of governments that persons who are
`surrendered should not be subject to indiscriminate prosecution by the receiving
`307
`307 But the Second Circuit held that the application of the principle, when
`government.(cid:1931)
`surrender is by comity, is primarily designed to inure to the benefit of the requested state.
`Thus, in such cases (in the Second Circuit) the surrendered person lacks standing to raise
`the issue unless the surrendering state protests, or when the prosecution breaks faith with
`the purposes of the surrender by comity. In that case, appellants, both French nationals,
`were originally indicted in the District Court of Massachusetts for conspiring to import
`heroin in violation of 21 U.S.C. § 171. Warrants at that time could not be executed, but the
`appellants were later found in Italy. The appellants were extradited from Italy to the United
`States on charges of importing heroin into the United States. Acknowledging that there was
`no provision for narcotic offenses in the 1868 Extradition Convention with Italy, 15 Stat.
`269 and subsequent amendments, the Italian government granted extradition as an act of
`comity, independent of the treaty.
`After the appellants were returned to the United States and released on $250,000 bail in
`the District of Massachusetts, they were subpoenaed to appear before a grand jury in the
`Southern District of New York. When they appeared, they were arrested under an
`indictment issued that day charging them with receiving, concealing, selling, and
`facilitating the transportation, concealment, and sale of thirty-seven kilograms of heroin in
`New York. Bail was set at $100,000, which neither could post. Appellants filed a petition for
`a writ of habeas corpus on the ground that their detention was on charges other than those
`for which they were extradited. The Southern District of New York, meanwhile, returned a
`superseding indictment charging appellants with conspiracy to violate the narcotics laws
`and two other substantive offenses. The petition for their release was denied, and they were
`tried on these charges and found guilty.
`When the Second Circuit revisited the Supreme Court(cid:1927)s decision in United States v.
`308
`Rauscher,308 it stated:
`
`(p. 563) Rauscher(cid:1927)s conviction of an offense for which he was not and could not
`have been extradited did not violate the treaty, which was silent as to the rights of a
`person extradited thereunder; it violated a rule of what we would now call United
`309
`States foreign relations law devised by the courts to implement the treaty.309
`
`Judge Henry Friendly saw no reason in principle to apply specialty when extradition has
`been granted by an act of comity by the surrendering nation, unless the prosecuting state
`acted in a way that would be deemed a breach of an implicit or explicit understanding
`between the United States and the surrendering state.
`
`From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
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`310
`The court found that the remedy enunciated in Rauscher310 must be applied in the context
`for which it was designed, in that the principle of specialty imposes limitations upon the
`requesting state not to prosecute the relator for any offense other than that for which he
`was surrendered in the context of extradition. The object of this rule is to prevent the
`requesting state from violating its international obligations vis-à-vis the surrendering state.
`311
`By analogy, therefore, it was essential in Fiocconi311 to determine whether the surrendering
`state would regard the prosecution at issue as a breach of its relations with the United
`States. In the absence of any affirmative protest from Italy, the court did not believe that
`the government would regard as a breach of faith by the United States the prosecution of
`appellants for subsequent offenses of the same character as the crime for which they were
`extradited.
`Although the United States had not made a preliminary showing in Italy with respect to the
`New York indictment, as it did concerning the one in Massachusetts, the court noted:
`
`[W]e presume the United States is willing to submit such proof if Italy desires it,
`and with appellants now having been found guilty, there can scarcely be doubt that
`312
`sufficient proof to warrant extradition exists.312
`
`Fiocconi was later followed by the Fifth Circuit in United States v. Kaufman. In that case,
`two relators, the Franks brothers, were originally brought to the United States after an
`arrest in Mexico by DEA agents and Mexican federal judicial police to face charges in
`Louisiana under a January 1986 indictment for participating in a drug conspiracy. After a
`trial conviction of one brother and dismissal of charges against the other, both brothers
`were transferred to Texas to face charges pursuant to a July 1986 indictment for various
`other drug offenses.
`
`As in Fiocconi, the relators argued their detention and trial on the second Texas indictment
`were in violation of the CIL principle of specialty. The Franks brothers argued that because
`they had been extradited to the United States for the Louisiana charge, the district court in
`Texas lacked personal jurisdiction to detain or prosecute them, as Mexico had not granted
`extradition on the basis of these offenses. The court rejected this contention and followed
`Fiocconi for the basic principle that specialty preserves the requesting state from a breach
`of faith by the requested state whether or not the surrendering state acted pursuant to a
`treaty. The remedy required a determination of whether Mexico would regard the
`prosecution for the Texas indictment a breach of the United States(cid:1927) international obligations
`toward Mexico.
`The court held that, given the nature of the charges alleged in Louisiana, the indictment
`was identical in character to the nature of the charges alleged in the Texas indictment.
`Given that (p. 564) Mexico made no protest against the prosecution of the Franks brothers
`in Texas, the court concluded that no basis existed to conclude that Mexico was or had
`reason to be offended by the Texas prosecution, and therefore no breach of the treaty(cid:1927)s
`provisions existed.
`This view of specialty fails to take into account the relator as a participant in the extradition
`process and his/her right to uphold such a doctrine when a requested state acts at variance
`with an extradition order, regardless of whether the surrendering state deems such actions
`a breach of trust, or a breach of international relations. But it is important to note that if the
`relator is given the right (i.e., standing) to raise the question, and the Court(cid:1927)s legal standard
`is whether the variance constituted a breach of faith with the surrendering state or of a rule
`314
`of CIL, then the rights of the relator are properly guaranteed.314 Thus, Fiocconi stands for
`
`From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
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`the proposition that comity can supplement existing treaty practice, but by implication,
`comity does carry with it the same limitations as does treaty-based extradition.
`315
`United States v. Najohn315 is a further example of a case in which specialty did not bar the
`prosecution of the defendant for an additional offense not contained in the original
`indictment, but to which the surrendering state agreed. Indeed it is well-established that a
`surrendering state can waive specialty without the relator(cid:1927)s consent or knowledge unless
`the law of the surrendering state requires it. In Najohn the defendant was convicted in
`Pennsylvania on the charges for which he was extradited, namely interstate transportation
`of stolen property in violation of 18 U.S.C § 2314. While serving his sentence, the Northern
`District of California indicted Najohn for the same charge as well as for the receipt of stolen
`property and conspiracy.316 The defendant moved to dismiss the indictment, arguing that
`316
`the California charges were barred by the extradition treaty between the United States and
`Switzerland, as well as by specific language in the Swiss court(cid:1927)s extradition order.
`The principle of specialty, as contained in the extradition treaty between the United States
`and Switzerland, however, contained a specific provision relating to specialty, which
`defeated the defendant(cid:1927)s argument, namely that (cid:1930)[T]he extradited party may be tried for a
`317 Two
`317
`crime other than that for which he was surrendered if the asylum country consents.(cid:1931)
`letters regarding the original charge from the Magistrate of the District Court of Zurich and
`from the Swiss Embassy to the United States asking and agreeing that the principle of
`specialty be suspended were deemed to have authorized the waiver of the rule. In response
`to the defendant(cid:1927)s argument that this was not sufficient proof of consent, the court stated:
`(cid:1930)Najohn suggests no reason why the requirement for Swiss consent to prosecution for these
`318 The
`318
`crimes should be more rigorous now that he is already in United States custody.(cid:1931)
`defendant(cid:1927)s motion was thus denied.
`The legislative requirement that the United States grant extradition only by virtue of a
`treaty provides a guarantee to the relator that the provisions of the treaty will be applied.
`319
`This