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If an American citizen murders another American citizen abroad in a country which an extradition treaty exists, but is first arrested back in the United States where they have since returned to - where does the prosecution occur?

Specifically I ask the question because this happens in the fictional HBO show Search Party. After committing murder in Canada and returning home, the defendants are tried in U.S. court. I'm wondering if this is what would actually happen in real life.

18 U.S. Code § 1119 - "Foreign murder of United States nationals" seems to cover this topic but from my limited understanding it seems to imply that since the U.S. and Canada have a treaty the defendant(s) would be extradited to Canada for trial.

Aside from this it also states:

"...the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present"

and I'm wondering what that process actually looks like. Does the Attorney General have to petition the other government for permission to prosecute them in the home country? Does it make a difference if the key witnesses are also all Americans, therefore arguing that chances of conviction are more likely if tried within the U.S. where all participants reside and are available to testify?

Either way - does anyone know any famous/well known examples of this happening? I assume it must be well precedented in U.S. border regions.

Sorry if this question is woefully unaware, that's why I'm seeking out expertise.

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  • Broadly speaking the place of prosecution will be the country whose law it is claimed has been broken, and who it is who is bringing the prosecution. As for famous cases, you may wish to look at the whole imbroglio surrounding Julian Assange (the Wikileaks man).
    – WS2
    Jun 28, 2020 at 19:49

2 Answers 2

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where does the prosecution occur?

Prosecutions generally occur where a crime is committed. The area where a crime or other wrongdoing is committed is considered the proper "forum" for adjudicating the case.

With respect to the law you cited, you should take note of the statutory limitations imposed upon the Attorney General in pursuing such a case (called a § 1119 prosecution). When considering the limitations, it is unlikely a trial of an American who killed an American in Canada would be tried in the United States.

Those limitations begin with a prosecutor seeking written permission by the AG. This permission cannot be granted if the other country has already prosecuted the individual for the same conduct. Also, the AG can only give that permission if, after consulting the Secretary of State, he or she determines that the killing occurred in a jurisdiction where the suspect is "no longer present" and that the country is unable to "lawfully secure the person's return."

and I'm wondering what that process actually looks like.

This would be a consultation between Justice Department attorneys and the Assistant Secretary(ies) of State whose portfolio contains the foreign country in question. From the DOJ in particular, the Assistant AG for the Criminal Division is in charge of considering the above criteria and granting approvals. The Human Rights and Special Prosecutions Section handles these issues within the Criminal Division.

Does the Attorney General have to petition the other government for permission to prosecute them in the home country?

No. The statutory limitations listed above necessitate that the suspect has already left that country and part of the AG's determination must be that it is unlikely that country will be able to secure the person's return. That said, might that country petition the United States that it wants the suspect to be returned to stand trial there? Potentially.

Does it make a difference if the key witnesses are also all Americans, therefore arguing that chances of conviction are more likely if tried within the U.S. where all participants reside and are available to testify?

This is, of course, a general consideration when determining which jurisdiction should handle a matter. It isn't clear to what degree it comes into consideration in this type of prosecution.

does anyone know any famous/well known examples of this happening?

Famous/well-known? I can't be sure, but see, e.g., United States v White, 51 F. Supp. 2d 1008 (E.D. Cal. 1997), United States v. Nipper, 198 F. Supp. 2d 818 (W.D. La. 2002), United States v. Wharton, 320 F.3d 526 (5th Cir. 2003), and United States v. Brimager, 123 F.Supp.3d 1246 (S.D. Cal 2015).

Interestingly, the statute gets substantial discussion and review in this Department of Justice White Paper entitled, Legality of a Lethal Operation by the Central Intelligene Agency Against a U.S. Citizen, in the context of whether the CIA could kill an American citizen in Yemen who has been reasonably determined to be a senior leader of al-Qaida.

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  • Who's laws get applied in this case and of which US state? E.g. Joe, an American resident of Texas kills Bob, a resident of NY, in Sweden, but the US government tries him(where BTW? TX or NY?). Joe claims self defense under circumstances that are permissible in NY and TX, but not Sweden. Or more extremely, Joe claims that he killed to defend his property in a way that is allowable in TX, but not NY or Sweden? Or conversely, if this was in a country where it's permissible to kill to defend the honor of your wife(or similar), but not allowed in TX or NY.
    – Eugene
    Oct 31, 2023 at 17:58
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Let’s say you are a US citizen and are at least under strong suspicion that you murdered another US citizen while in Germany. Germany would take you to court for the crime (as for any murder on German ground), and the USA would also take you to court I believe - because it is a special case of US citizen murdering US citizen. Both countries obviously only can take you to court if they got you.

Since you are in the USA, only Germany can ask for extradition. Normally such requests would be granted, but in this special case the USA would likely reject it, because they would rather charge you themselves. So you would go to court in the USA. If you were in Germany, the USA would ask for extradition which would also be rejected because Germany wants to take you to court. So you would end up in court in Germany.

If you escaped to Australia, they would receive two extradition requests. Unless they have the same rule as the USA about Australians killing Australians, they would reject the US request and send you to Germany.

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  • What's your source for claiming that the US would likely (and could legally) refuse the extradition request?
    – blues
    Apr 19, 2023 at 13:01

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