New York Federal Criminal Practice Blog
May 4, 2009

EDNY Judge Grants Certifies Extraditability of Defendant to Canada

Guest contributor Brian Larkin, Esq., writes:

Foreign extraditions are likely to become more and more frequent in an increasingly globalized world, so United States v. Samuels, 2009 WL 367578 (E.D.N.Y. February 10, 2009), is an interesting primer on the procedure and criteria for granting a certificate of extraditability.  In Samuels, EDNY Magistrate Mann granted the government’s request on behalf of Canada for such a certificate.  The court rejected the defendant’s primary claim – that the government had failed to establish probable cause to believe that Samuels had committed the charged acts of murder and attempted murder (but he did get an impressive amount of discovery in the process). 

Facts and Procedure

Defendant Kushi Samuels was charged in Canada with one count of first degree murder and two counts of attempted murder.  Samuels was allegedly one of two gunmen who entered a Montreal nightclub in 1995.  While Samuels allegedly shot at an individual inside the club, two other men were shot outside, one fatally. 

Under 18 U.S.C. § 3184, before issuing a certificate of extraditablity, the the court must examine the evidence to confirm that (1) there is a valid extradition treaty between the United States and the requesting state; (2) there are criminal charges pending in the requesting state; (3) the individual before the court is the individual sought by the requesting state; (4) the charges are extraditable offenses under the applicable treaty and (5) there is probable cause to believe that the individual before the court committed the crimes charged. 

Probable Cause Challenge

The key issue in Samuels was the existence of probable cause.  In making this determination, the court noted that it may consider hearsay evidence and summarizations, as the court’s task is essentially a “preliminary examination” to determine if there is sufficient evidence to hold the defendant to await trial.

Samuels argued that if he was, in fact, inside the dance hall when the shootings outside the club occurred, then he could not have been outside the club and a participant in those shootings.  This argument invoked the “principle of speciality.”  The court observed: “Under the principle of speciality, a judicial determination of extraditability must be made for each separate offense, as the extraditing country may not punish an individual for any crimes committed prior to extradition other than those for which he was extradited.”

Rejecting the argument, Judge Mann pointed out that both the U.S. and Canada have accomplice liability statutes, and further noted that because aiding and abetting is a theory of responsibility, not a separate crime, it need not be separately charged.  Here, the government made an adequate showing that Samuels and the alleged shooter acted with a common intent.

Samuels also challenged the reliability of certain witness statements – including contradictory eye witness descriptions of the fleeing gunman.  But the court held that “[t]he inferences to be drawn in the face of conflicting proof present an issue to be resolved at trial in the requesting country.”  In addition, as to his arguments that certain witnesses were inherently incredible, she noted that the right of the defendant to introduce evidence at an extradition hearing is “limited to evidence that explains rather than contradicts the demanding country’s proof.”  The extradition court may consider evidence that “obliterates” probable cause (such as evidence of a forced confession) but not evidence, like that offered by Samuels, which merely challenges the credibility of government witnesses.

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