requested State's judges and magistrates, it may be necessary for the U.S. State seeking extradition to hire a private attorney in the requested state to represent the United States Government on its behalf. The Department of State can seek to supply names, addresses and fee estimates of foreign attorneys in the area where the fugitive is found or believed to be located.

Translations

If the official language of the country from which extradition is to be requested is other than English, translations of all the documents may have to be prepared. This matter should be discussed with the office of the Department of State referred to below.

Expenses of Extradition

States or territories applying for requisitions will be required to pay all expenses attending the apprehension and delivery of the fugitive, whether or not the extradition is granted. (Certain services of the Department of State and its diplomatic or consular officers are provided without cost.) These expenses will vary depending on the treaty but may include translation of the documents; the services of foreign attorneys who will represent the United States Government on behalf of the requesting State or territory; the court and reporters' costs; the food and lodging of the person sought while he is in custody during the extradition proceedings; the travel expenses of the agent or agents to receive the fugitive; and transportation of the fugitive back to the State or territory.

Return of Fugitive

The Deputy Secretary of State is the officer who has been authorized to issue the warrant authorizing the agents who have been designated by the requesting U.S. State or the competent Federal agency to take custody abroad of the person sought and return him to the United States. Such a warrant is required for those agents to be able to establish their authority to the state granting extradition and to Federal and State authorities in the United States en route to the jurisdiction that requested extradition.

If the offense charged is a violation of the law of a State or territory, the agent authorized by the Secretary of State to receive the fugitive will be required to deliver him to the authorities of such State or territory. If the offense charged is a violation of a law of the United States, the agent will be required to deliver the fugitive to the proper authorities of the United States for the judicial district having jurisdiction of the offense.

III

Care should be taken to observe the provisions of the particular treaty under which extradition is sought, and to comply with any special provisions contained therein. Copies of particular treaties will be furnished by the Department of State upon application. Strict compliance with the requirements set forth above may save much delay and expense to the party seeking the extradition of a fugitive criminal.

Officers contemplating the extradition of a fugitive located abroad are encouraged to write or telephone for advice to the Office of the Assistant Legal Adviser for Management Affairs, Department of State, Washington, D.C. 20520.

This memorandum revises and updates similar memoranda issued by the Department of State July 1949, May 1969, and August 1974, and is intended to replace all three.

IV

Once the Department of State, through an embassy or consulate, has requested the cooperation of a foreign state pursuant to an extradition treaty, a request originating in a State of the United States becomes an official foreign relations matter of the United States. The Department of State thus must be kept informed of all developments affecting a pending extradition request. Withdrawal of Request or Voluntary Return of Fugitive

If the requesting State of the United States for any reason wishes to withdraw its extradition request, the Office of the Governor should immediately so notify the Department of State so that if withdrawal of the extradition request is deemed possible, the requested foreign state can be informed that the United States is withdrawing its extradition request.

If the person sought agrees to waive extradition or voluntarily to return to the United States, the requesting State of the United States should immediately notify the Department of State. The Department will thereupon seek to have its embassy confirm the intention of the person sought and will explore the legal possibilities, if any, under the law of the requested state for the voluntary return of the fugitive in a manner most likely to preclude his escape. It is possible in some foreign states for the U.S. extradition request to be withdrawn with effect only as of the time the person sought departs that country on a non-stop, direct flight on a U.S. carrier bound for the United States. When such return is possible, the Department believes that due precautions must be taken to ensure the safety of the plane, passengers and crew by means of escort officers.

Dept. of State File No. P76 0090-259.

Standards for Evidence

The U.S. Court of Appeals for the First Circuit, in Greci v. Birknes, 527 F.2d 956 (1976), held on January 9, 1976, that (1) the Federal probable cause standard, rather than State law, was applicable in determining the sufficiency of evidence under article V of the 1973 Treaty of Extradition between the United States and Italy (TIAS 8052; 26 UST 493; entered into force March 11, 1975), and (2) the more restrictive standards for evidence contained in article XI of that treaty prevail over the pre-existing statutory standards in 18 U.S.C. 3190.

Josephine Greci, a naturalized U.S. citizen, was accused of murder in Italy. The Italian Embassy in Washington submitted a formal

request in 1973 for extradition under the 1868 U.S.-Italy extradition convention (TS 174; 15 Stat. 629), as amended. A magistrate in Boston issued a warrant for her arrest, based on the 1973 treaty which had subsequently come into force, and she was brought before another U.S. magistrate for full hearing.

Taking the standards of evidentiary competence laid down in 18 U.S.C. 3190, the magistrate accepted the documents submitted and found that while the evidence would be insufficient to convict, it did establish probable cause. He certified that the evidence warranted extradition and ordered Greci committed to Federal custody. The U.S. District Court for the District of Massachusetts denied her petition for habeas corpus, holding that the documentary evidence rose to the bare minimum for extradition under § 3190, even though it would not warrant conviction under the laws of the United States. Article V of the 1973 treaty provides:

Extradition shall be granted only if the evidence be found sufficient, according to the laws of the requested Party . . . to justify his committal for trial if the offense of which he is accused had been committed in its territory.

The Appeals Court rejected petitioner's contention that "laws of the requested Party" refers to the laws of Massachusetts, where the hearing was held, and not to laws of the United States. It considered the negotiating history of the treaty provisions as indicating a clear intention to replace the traditional State standard on sufficiency of evidence with a Federal one.

The Court agreed, however, with petitioner's contention that, although the materials submitted by Italian authorities were sufficient to comport with the requirements of 18 U.S.C. 3190, they must be considered in the light of the more restrictive standards imposed by article XI of the new 1973 treaty. The Government argued, with State Department support, that the negotiating history of the 1973 treaty showed no intention to go beyond the requirements of § 3190; but the Court ruled that such an interpretation was "contrary to both the plain language of the treaty and the available history." It interpreted article XI as requiring either that depositions or other evidence be❝given under oath" or that the person deposing be warned of the penal sanctions for false or incomplete statementsrequirements which were not present in § 3190. The Court said:

Under the circumstances the treaty, being both more recent and more specific than the statute, provides the controlling requirements. . . .

The case was remanded to the magistrate for reconsideration as to the competency and sufficiency of the documents in light of the 1973 treaty and the Appeals Court's opinion.

Jhirad v. Ferrandina, 536 F.2d 478 (1976), cert. denied Oct. 4, 1976, was another round in a protracted international extradition proceeding involving the Government of India's request for extradition of Elijah Ephraim Jhirad, former Advocate General of the Indian Navy, for prosecution on charges of embezzlement from a Naval Prize Fund. Petitioner had sought a writ of habeas corpus and appealed from an order of the District Court denying him relief, 355 F. Supp. 1155 and 362 F. Supp. 1057. The Court of Appeals reversed and remanded, 486 F.2d 442. On remand, the District Court denied the third petition, 401 F. Supp. 1215(1975), and an appeal was taken. See also the 1973 Digest, pp. 8-10, 111-113, and the 1975 Digest, pp. 159-160.

On April 12, 1976, the U.S. Court of Appeals for the Second Circuit affirmed the order of the District Court denying Jhirad's request for habeas corpus relief from a writ of extradition requiring his return to India for trial. The Court of Appeals held that to make out a prima facie case the Government of India was not required to show that some bona fide claimant was denied his right to share in the Naval Prize Fund which petitioner was charged with administering, that the statute providing for a tolling of limitations period when the subject is fleeing from justice encompasses the notion of "constructive flight," (i.e., a decision not to return to the jurisdiction to avoid prosecution as well as to initially leave the jurisdiction), and that India was required only to show by a preponderance of the evidence that the statute of limitations had been tolled.

The Court of Appeals' opinion stated, in part:

Orders of extradition are sui generis. They embody no judgment on the guilt or innocence of the accused but serve only to insure that his culpability will be determined in another and, in this instance, a foreign forum. . . . The rule has long been accepted that a habeas judge can only "inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty."

It is well to remember that Jhirad's ultimate culpability will not be determined in the United States. It is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation. Such an assumption would directly conflict with the principle of comity upon which extradition is based. Factor v. Laubenheimer, 290 U.S. 276, 54 S. Ct. 191, 78 L. Ed. 315 (1933).

it is surely beyond dispute that the embezzlement of money from a Naval Prize Fund, which Jhirad as a public servant was responsible for administering, is not in any sense a political offense. The record shows enough to indicate that India was not without a substantial basis for prosecuting Jhirad for his failure to account for funds entrusted to his control. Cf. In re Gonzalez, 217 F. Supp. 717, 722 (S.D.N.Y. 1963).

On November 5, 1976, U.S. District Judge Gerard L. Goettel, Southern District of New York, certified Jhirad to the Department of State for final determination whether to extradite. On December 29, 1976, Acting Secretary of State Charles W. Robinson decided not to grant extradition of Jhirad to India. George H. Aldrich, Deputy Legal Adviser of the Department of State, communicated the determination to Judge Goettel in a letter dated December 30, 1976, which stated, in part:

While the Acting Secretary has the greatest respect for the findings of the courts in this matter, he found it necessary to differ in the interpretation of article 5 of the Treaty between the United States and the United Kingdom as applied to India. This involved the application of the United States statute of limitations and specifically its being tolled by constructive flight from India. The Acting Secretary concluded that in the circumstances of this case, the evidence relied upon to support the finding of constructive flight was too fragile to grant extradition; he took into consideration the long period of time elapsed, which would make it difficult for Mr. Jhirad to defend himself in India, and the novelty of the constructive flight concept.

The Acting Secretary, however, accepted the conclusion of the courts that it had not been proved that India's motives in seeking Mr. Jhirad's extradition were such that article 6 of the Treaty was applicable.

The Department of State informed the Embassy of India in Washington of the Determination in a note dated December 30, 1976, which stated:

In accordance with the laws of the United States and the extradition treaty in force between the two countries, the Acting Secretary of State has reviewed the record in the case of Elijah Ephraim Jhirad, as certified by the Magistrate on November 5, 1976, and has decided that extradition of Mr. Jhirad would not be consistent with the extradition treaty in force between the United States and India.

Article 5 of the treaty provides that "extradition shall not take