September 1, 2005
By Facsimile: 011-612-6250-5457
Senior Legal Officer
International Crime Branch
RE: Extradition from Australia to the United States: Charles HERMANOWSKI
Dear Mr. Kristjanson:
In response to your letter of August 26, 2005, I am writing to address the concerns of your Office and the Federal Court of Australia concerning what constitutes “reasonable grounds to believe,” as contemplated by Article 11(3)(c) of the U.S.-Australia Extradition Treaty. In short, the “reasonable grounds” clause in the Treaty equates to the U.S. requirement for probable cause in criminal matters. In this context, probable cause is defined as “evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief in the guilt of the accused.” A more detailed analysis follows.
(1) Reasonable Grounds Equates to Probable Cause
The standard of proof for an extradition request under the 1974 U.S.-Australia Extradition Treaty, as amended by the Protocol signed on September 4, 1990, can be found in Article 7 of the Protocol, which provides in pertinent part:
(3) A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:
. . .
(c) a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.
The United States interprets this standard – “reasonable grounds for believing that an offence has been committed” – as equivalent to “probable cause,” as that term is used and understood in the United States criminal justice system.
Confirmation of this interpretation can be found from three sources: the history of the U.S.-Australia extradition treaty itself; the language of other U.S. extradition treaties; and case law in the United States addressing extradition requests. This memorandum will briefly cover each source.
(a) The U.S.-Australia Extradition Treaty.
The 1974 Extradition Treaty between the U.S. and Australia originally provided, in Article XI, that a request must be accompanied by “such evidence as, according to the laws of the requested State, would justify [the fugitive’s] trial or committal for trial if the offense had been committed there.” Although the United States was able to process incoming extradition requests from Australia under that treaty upon a showing of probable cause, under Australian law, this standard was interpreted as requiring that United States requests to Australia contain evidence establishing a prima facie case of guilt in order for extraditions to proceed.
The 1990 Protocol was intended to change that standard, and to establish a more reciprocal relationship under which extradition requests to both countries would be analyzed under similar burdens of proof. Specifically, the goal of Article 7 of the Protocol was to establish a “probable cause” type of standard in both countries, although Australian law does not use that terminology.
The analysis of the Protocol presented by the United States Executive Branch to the United States Senate during the ratification process for the Protocol confirms this interpretation. In the Senate Committee’s report on the Protocol, the Senate printed the “formal executive branch representation” as to the meaning of the Protocol, as follows:
The protocol will also reduce the evidentiary burden the United States must meet when making requests under the 1974 treaty. Article [XI] of the 1974 treaty states that extradition shall be granted only if the evidence is sufficient to justify the fugitive’s committal for trial. . . . Article 7 of the protocol should free the United States from this much higher standard by creating a new and different rule. . . . The negotiators anticipate that courts in the United States will continue to review Australian extradition requests for probable cause, while Australian courts will adopt a new standard of review which is much closer to probable cause than to a prima facie case.
Exec. Rpt. 102-30, 102nd Cong., 2d. Sess. (1992), at 8.
(b) Other U.S. Extradition Treaties
The “reasonable grounds” language or language substantially similar can be found in other United States extradition treaties as well, and in each of them it is interpreted as establishing a probable cause standard. For example, the United States-Paraguay treaty of November 9, 1998, states that requests shall be supported by “information or evidence that provides a reasonable basis to believe that the person sought committed the offense for which extradition is requested.” Art. VII(3). In explaining the meaning of this language, the United States Executive Branch stated that it “is consistent with fundamental extradition jurisprudence in the United States, in that it will be interpreted to require that Paraguay provide such information as is necessary to establish ‘probable cause.’” Exec. Rpt. 106-26, 106th Cong., 2d Sess. (2000), at 29. The same explanation was provided for “reasonable grounds” language in the United States-Republic of Korea treaty of June 9, 1998. See Exec. Rpt. 106-13, 106th Cong., 1st Sess. (1999), at 15-16 and n.24.
Similarly, the United States-Sri Lanka treaty of September 30, 1999, states that requests must include sufficient information to support “a reasonable basis to believe that the person to be extradited committed the offense for which extradition is requested.” Art. 8(3). As explained by the United States Executive Branch, this “evidentiary requirement is consistent with fundamental U.S. extradition jurisprudence, which mandates sufficient evidence to establish probable cause before finding a fugitive extraditable. The delegations agreed that the language ‘a reasonable basis to believe . . .’ in Article 8(3)(c) should not be interpreted to require a higher burden of proof for extradition than the probable cause standard.” Exec. Rpt. 106-26, 106th Cong., 2d Sess. (2000), at 57 (emphasis added).
(c) United States Case Law
United States courts interpreting extradition treaties with evidentiary standards such as the “reasonable grounds” standard in the U.S.-Australia treaty have consistently interpreted them as requiring a showing of probable cause. So, for example, in Ntakirutimana v. Reno, 184 F.3d 419, 427 (5th Cir. 1999), the court was presented with the issue of interpreting the amount of evidence required for requests under the agreement between the United States and the International Criminal Tribunal for Rwanda. That agreement contained the familiar standard that the tribunal present, to support its requests, “information sufficient to establish that there is a reasonable basis to believe that the person sought has committed the violation or violations for which surrender is requested.” See id. at 427 (quoting Agreement, art. 2, cl. 3). The court explained that this “requirement is designed to meet our constitutional ‘probable cause’ standard in reviewing the sufficiency of the evidence in extradition proceedings. In reviewing a request for surrender, the committing court must determine whether probable cause exists to sustain the charges against the accused.” Id. See also Valencia v. Limbs, 655 F.2d 195, 198 (9th Cir. 1981) (equating “reasonable grounds” with probable cause).
* * *
In sum, there is no doubt that the “reasonable grounds” standard in the U.S.-Australia treaty equates to probable cause.
(2) Probable Cause
The probable cause standard applicable in U.S. extradition proceedings is defined in accordance with federal law and has been described as “evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.” Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir.1973). See also Sidali v. INS, 107 F.3d 191, 199 (3rd Cir. 1997) (“a reasonable belief that the defendant was guilty of the crime charged”); Austin v. Healy, 5 F.3d 598, 605 (2d Cir. 1993) (same). In other words, probable cause is defined as a reasonable basis to believe that the person whose extradition is requested committed the offenses for which extradition is sought.
This is consistent with longstanding U.S. law, under which the courts have made clear that an extradition hearing is not a criminal trial; its purpose is merely to decide “probable cause,” not guilt or innocence. See, e.g., Fernandez v. Phillips, 268 U.S. 311, 312-14 (1925); Glucksman v. Henckel, 221 U.S. 508, 512 (1911); Simmons v. Braun, 627 F.2d 635 (2nd Cir. 1980); Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976). In Benson v. McMahon, 127 U.S. 457, 462-63 (1888), the U.S. Supreme Court explained:
the proceeding before the commissioner is not to be regarded as in the nature of a final trial by which the prisoner could be convicted or acquitted of the crime charged against him, but rather of the character of those preliminary examinations which take place every day in this country before an examining or committing magistrate for the purpose of determining whether a case is made out which will justify the holding of the accused, either by imprisonment or under bail, to ultimately answer to an indictment, or other proceeding, in which he shall be finally tried upon the charge made against him.
Thus, when reviewing foreign extradition requests, U.S. courts will review the request to see if it demonstrates that reliable evidence exists in the requesting state to prove that the fugitive committed each offense for which extradition is requested. This demonstration must include more than just a statement of the facts. The specific source of evidence for the facts must also be described or included so that the U.S. court can evaluate its reliability. But the evidence need not be of the same quality or quantity as would be required to support a conviction after trial.
Please contact me if you have further questions and thank you again for your assistance in this matter.
Mary Ellen Warlow
 Article 7 of the Protocol replaced Article XI of the 1974 Treaty.