Strategic Considerations for Foreign Arrests and Extraditions in U.S. Cases

Recent developments suggest that the U.S. Department of Justice (DOJ) will continue to pursue extraterritorial criminal cases relevant to broader government programmatic goals. For example, as the private sector strives to implement the sanctions recently imposed in response to Russia’s invasion of Ukraine, prosecutors will likely seek to investigate violations of these measures and efforts to circumvent by foreign actors, including in the cybersecurity and cryptocurrency spaces. Foreign targets are also likely part of the “robust pipeline” of FCPA cases referenced by senior DOJ official Nicholas McQuaid in January 2022. As the DOJ looks overseas to support national security and justice of the Biden administration, the defense bar will continue to be called. to advise foreign clients, with the assistance of local lawyers, on the risks of arrest and extradition (as well as the merits of investigations). This article discusses some issues to consider, including overseas arrest procedures, contesting extradition, and contacting prosecutors before an accused arrives in the United States.

Arrest procedures abroad

The DOJ initiates many foreign arrests by seeking provisional arrest warrants through INTERPOL or through diplomatic channels, then pursuing extraditions under existing treaties once the accused is detained abroad. Nonetheless, attorneys evaluating the possibility of a foreign arrest in a U.S. prosecution should be aware that the DOJ may coordinate arrests in countries where a bilateral treaty does not exist. In June 2020, the DOJ secured the arrest of Venezuelan national Alex Saab in Cabo Verde despite the absence of such an agreement. The United States relied primarily on the United Nations Convention against Transnational Organized Crime. After much litigation, Cabo Verde transferred Saab to the United States to face charges of international money laundering.

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