The Dual Criminality Defense In Extradition Cases

Dual criminality is a defense that can stop an extradition when the conduct a foreign country wants to prosecute is not a crime in the United States.

If the same acts would not be illegal here, a federal court in Texas can refuse to certify the person for surrender.

Most modern U.S. treaties are built on this requirement, and courts look at what the person actually did rather than the name of the foreign charge.

That one comparison decides whether a case is even extraditable, and it is the question many people facing a foreign request never think to ask.

When Does Dual Criminality Block an Extradition?

Dual criminality blocks an extradition when the conduct described in the foreign request would not be a crime under U.S. law.

A person can only be surrendered to a foreign government if the acts they are accused of are punishable in both the requesting country and the United States.

This is a threshold requirement that the conduct must be a crime under the laws of both the requesting and the requested country, which is how the U.S. State Department describes it in its Foreign Affairs Manual.

If that test fails, the foreign government has no path to take the person, no matter how serious the charge sounds abroad.

For people arrested in the Dallas area on a foreign warrant, this is often the first and most important thing to examine.

Do the Two Countries Have to Use the Same Crime Name?

No, the two countries do not have to use the same name for the crime, and the offenses do not have to match element for element.

The U.S. Supreme Court settled this more than a century ago in Collins v. Loisel, holding that it is enough if the particular act charged is criminal in both places.

In that case, India charged the man with “cheating,” while Louisiana had no crime by that name and instead punished obtaining property by false pretenses.

The Court found dual criminality was met because the underlying act was a crime in both legal systems, even though the labels were different.

This means the defense is not as simple as pointing to a foreign statute that does not exist word for word in Texas, and it also means a clever match of labels by the government is not the end of the analysis.

Which Treaties Use Dual Criminality, and Which List Specific Crimes?

Most current U.S. extradition treaties are dual criminality treaties, while some older ones instead list the specific offenses that qualify.

Treaties may either name the extraditable crimes in a list or provide more broadly that any crime meeting the dual criminality test can be extradited.

The table below compares how these two treaty types decide what is extraditable.

The practical takeaway is that the treaty governing the case sets the ground rules before the conduct is ever compared.

With a modern treaty, the fight is usually about whether the conduct is a crime here at all.

With an older list treaty, the offense may need to appear on the list and pass the dual criminality test, which can give a person two separate ways to challenge surrender.

How Do Courts Compare the Conduct in a Texas Extradition Case?

A federal judge in Texas compares the acts described in the foreign request and asks whether those same acts would be a crime under U.S. federal law or Texas law.

The focus is on what the person is said to have done, not on the foreign legal doctrines or the specific proof the other country would need.

In a Northern District of Texas extradition case, the court found dual criminality satisfied because the Mexican charge of aggravated homicide matched murder under U.S. law.

The defense succeeds when there is no real U.S. equivalent for the foreign conduct, as when a court found that nothing in another country’s law was close enough to a U.S. statute that criminalized using a telephone to commit a drug felony.

That is why a careful reading of the foreign papers matters so much, since the comparison rises or falls on the exact conduct the request describes.

How and When Is the Dual Criminality Defense Raised?

The dual criminality defense is raised at the extradition hearing in front of a federal judge or magistrate judge, under 18 U.S.C. § 3184.

This hearing is the formal stage where the court decides whether the evidence is enough to sustain the charge under the treaty.

It is not a trial on guilt or innocence, so the goal of the defense is to show the conduct fails the dual criminality test rather than to prove the person did not do it.

Raising the issue early and in writing gives the judge a clear reason to deny certification before the case moves to the State Department.

Working with a Dallas criminal defense lawyer as soon as a foreign warrant surfaces can make the difference in how that argument is built and timed.

What Happens at the Extradition Hearing?

At the extradition hearing, the judge decides only whether there is probable cause and whether the request meets the treaty, including dual criminality.

The normal Federal Rules of Evidence do not apply, and the government’s case usually consists of the formal request and its supporting documents.

A person’s chance to present evidence is limited, so the strongest arguments are legal ones, such as the conduct not being a crime in the United States.

If the judge agrees the request is sufficient, the court issues a certification of extraditability and sends the matter to the Secretary of State.

If the judge agrees the conduct fails dual criminality, the court can refuse to certify the person for that charge.

Can You Appeal If the Judge Certifies Extradition?

There is no direct appeal from a certification of extradition, but the person can challenge it by filing a writ of habeas corpus under 28 U.S.C. § 2241.

On habeas review, the court looks only at narrow questions, such as whether the judge had jurisdiction, whether the offense is covered by the treaty, and whether any evidence supported the finding.

This narrow review is why the dual criminality argument should be fully developed at the hearing itself, where the record is made.

Even after a court finds someone extraditable, the Secretary of State still holds the final decision on whether to hand the person over.

That last step is a policy decision, not another chance to relitigate dual criminality, so the legal fight is won or lost earlier in the process.

Why Do Uniquely American Charges Like RICO Sometimes Fail Dual Criminality?

Charges built on uniquely American statutes can fail dual criminality because the foreign country may have no equivalent crime for that conduct.

Federal racketeering law and continuing criminal enterprise law package together activity in a way that many other legal systems do not recognize as a single offense.

When the conduct behind a U.S. style RICO charge has no match abroad, that mismatch can become a real obstacle to surrender.

The same idea cuts both ways, since a foreign charge with no U.S. counterpart can be challenged here on the same ground.

This is one of the sharpest tools in the defense, because it turns the structure of the charge itself into a reason the case may not be extraditable.

How Is International Extradition Different From Interstate Extradition?

International extradition runs on a treaty and the dual criminality test, while interstate extradition between U.S. states does not use dual criminality at all.

Moving a person from one state to another, such as an out-of-state arrest on a Texas warrant, runs through a governor’s warrant process rather than a foreign treaty.

In that domestic setting, the courts do not ask whether the conduct is a crime in both states, because state lines do not raise the same sovereignty concerns that borders do.

The dual criminality defense belongs to international cases, where two different countries and two different legal systems are involved.

Knowing which kind of extradition is in play tells a person right away whether dual criminality is even an option.

Need Help Fighting an Extradition Request in Texas?

Dual criminality can stop a surrender when the conduct is not a crime in the United States, and the argument is usually won at the extradition hearing through a careful look at the treaty and the foreign papers.

As an international extradition defense lawyer serving Dallas and federal matters across Texas, Michael Lowe can review the request, test it for dual criminality, and build the defense.

Michael Lowe is board certified in criminal law by the Texas Board of Legal Specialization, is a former prosecutor, and has handled federal and international matters in Texas courts.

Contact Michael Lowe today by calling 214-526-1900.

Frequently Asked Questions

Does dual criminality apply to every U.S. extradition treaty?

Dual criminality applies to most modern U.S. extradition treaties, which require that the conduct be a crime in both countries. Some older treaties instead list specific offenses that can be extradited. Because the treaty controlling the case sets the rules, the first step is always to identify which treaty applies and how it defines extraditable conduct.

Does the conduct have to be a crime under Texas law or federal law?

The conduct generally must be a crime under U.S. federal law or the law of the state where the hearing is held, which would be Texas in a Dallas case. Courts compare the acts in the foreign request against U.S. law. If those acts would be a crime here under either body of law, the dual criminality requirement is usually met.

Can dual criminality stop extradition if the foreign charge has a different name?

A different crime name alone does not defeat extradition, because courts compare the underlying conduct rather than the label. Under Collins v. Loisel, it is enough that the act charged is criminal in both countries. The defense works when the conduct itself has no real U.S. equivalent, not simply when the foreign statute uses unfamiliar wording or a different title.

Where is the dual criminality defense decided in a Texas case?

The dual criminality defense is decided at the extradition hearing before a federal judge or magistrate judge under 18 U.S.C. § 3184. The hearing is a limited proceeding focused on the treaty and probable cause, not a full trial. If the court certifies extradition, the person may seek review by filing a writ of habeas corpus, which examines only narrow legal questions.

Does winning on dual criminality end the case for good?

Winning on dual criminality can stop surrender on the charges that fail the test, but it does not always end every issue. A foreign government may try again on different charges or with a corrected request. The Secretary of State also holds final authority over surrender. Because of this, the legal argument should be fully developed and preserved at the hearing.