Eleventh Circuit Court of Appeals Avoids Rule of Specialty in Federal Criminal Extradition Case… Again

Last week, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, decided U.S. v. Marquez, a federal criminal RICO case involving two extradition rules, the rule of specialty and the rule of dual criminality. The Court held that those rules concern the court’s personal jurisdiction over the defendant, rather than subject matter jurisdiction. Because personal jurisdiction is subject to waiver, the Court held that Marquez waived the protections provided by the rules by failing to timely assert them.

As we explained in this post last July, the rule of specialty requires countries that request extradition of a person to prosecute that person only for the offenses for which the foreign country surrenders the person. In other words, if the United States asks Spain to extradite someone for charges A, B, and C, once Spain extradites that person, the United States can’t turn around and charge the person with X, Y, or Z. Marquez argued that a superseding indictment changed the basis under which Spain agreed to extradite him.

The rule of dual criminality allows extradition only where the defendant’s actions constitute a crime in both the requesting and surrendering countries. Marquez argued that the extradition request was too vague, rendering it impossible for Spanish courts to determine whether the rule of dual criminality was satisfied.

Because the rules limit the crimes that may be prosecuted, they appear to limit the court’s subject matter jurisdiction. However, the Court held that the extradition process is a means of obtaining personal jurisdiction over a defendant, so a violation of these extradition rules raises the question of personal jurisdiction. Thus, claims of such violations must be raised in a pretrial motion pursuant to Rule 12.

Because Marquez did not assert the rules of specialty or dual criminality until nearly 2.5 years after the final deadline for submission of pretrial motions, the Court held that he “waived his right to assert the protection of the rules of specialty and dual criminality” and failed to show good cause to warrant relief from that waiver.

In U.S. v. Valencia-Trujillo last year, the Eleventh Circuit issued an opinion declining to address the rule of specialty. Our commentary on that decision is available here. We hope that the Court decides to address this important issue in future cases.

The Court’s opinion in Marquez is available here.