Federal Removal Hearings

Rule 5 of the Federal Rules of Criminal Procedure is where it all Removal actions begin. Rule 5 requires that any person who is detained or arrested on a Federal criminal charge, whether by indictment or arrest warrant, must be brought, without “unnecessary delay” before a Federal criminal magistrate. Under Rule 5(c)(3), if the arrest or detainment is made in a district other than one where the offense was allegedly committed, the magistrate must, after initial appearance, transfer defendant to the district where the offense was allegedly committed.

Rule 40 of the Florida Rules of Criminal Procedures applies if the person is wanted in another Federal jurisdiction by summons. This all falls under the area of extradition, or removal, for prosecution in another Federal criminal court. Rule 40 applies for those wanted in the United States and persons being sought for removal to another nation by an extradition warrant.

The Rule requires that the following occur at the initial appearance:

  1. You must be informed of the charges by the Federal magistrate in open court;
  2. You must be given the arrest affidavit (which contains the relevant facts of the accusation);
  3. You must be told of your right to counsel, and the Federal criminal magistrate must hold a hearing and determine conditions of pre-trial release.
  4. You must be advised by the Federal magistrate of your right to remain silent and advised that you should not make any statement as it can and will be used against you in a Federal criminal prosecution.
  5. The prosecutor from the local jurisdiction (here in Miami, it would be a Federal prosecutor from U.S. Attorney’s Office in Miami) would advise the magistrate and you of your rights to oppose removal (extradition) and the time limits of which the Federal courts must abide by.

The time limitations for extradition will vary, depending if your Federal arrest warrant is issued by another Federal court in the U.S. or if the extradition hold has been placed upon a State criminal court. You cannot, and will not, be tried in Miami Federal Court if the warrant was issued outside of the Federal Southern District of Florida. The only thing to do is to demand an attorney and contest the extradition warrant in the Federal court from which it arose.

By example, if you are wanted in New York’s Southern or Middle Federal District and you are arrested in Miami and brought before a Miami Federal magistrate, you can only fight the criminal charge in New York. Often the wisest action to take is to seek to quash the warrant and have an evidentiary hearing before the Federal magistrate locally here in Miami or Fort Lauderdale.

The possibility of having the extradition quashed is remote, but as a tactical step it is very important. The reason for this is that the local prosecutor in Miami or Fort Lauderdale will go to extraordinary lengths to make sure that you are held and removed. By doing this, the prosecutor will reveal in open court more about the facts alleged by the government at an extradition hearing than you are likely to get under Federal discovery rules.

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