Ryan Lochte Unlikely to be Extradited to Brazil to Face Charges

United States Olympic swimmer Ryan Lochte is facing accusations, in Brazil, that he lied to the police about being robbed a gunpoint.  (See http://www.nytimes.com/2016/08/19/sports/olympics/police-say-ryan-lochte-lied-about-gunpoint-assault.html). Having already returned to the United States from Brazil, this article discusses whether he could be extradited back to Brazil to face possible charges.  As the following argument demonstrates, it is unlikely Mr. Lochte would be extradited to Brazil because simply lying to the police is not an extraditable offense under the extradition treaty between the United States and Brazil.

In general, extradition requests are governed by treaty, federal law, and by executive branch/diplomatic considerations.  Under federal law, there are three requirements that must be met before a person can be extradited from the United States to a foreign country to face criminal charges:

(1)      There must be extradition treaty between the country seeking extradition and the United States;

(2)      The alleged offense must fall within the scope of the treaty;

(3)      A federal court must find that there is probable cause to believe that the individual committed acts alleged in the extradition request.

See 18 U.S.C. § 3184.

In Mr. Ryan Lochte’s case, the first requirement for extradition is easily satisfied because there is an extradition treaty in effect between the United States and Brazil.  See Treaty of Extradition between the United States of America and Brazil of January 13, 1961 (the “Treaty”).

However, whether the second requirement for extradition can be met is much less clear.  Article II of the Treaty lists 37 types of crimes that are extraditable.  The listed offenses include obvious crimes such as murder, rape, kidnapping, drug offenses, and certain financial crimes, inter alia.

In Mr. Lochte’s case, he is accused of giving false testimony about a crime when he allegedly reported that he had been robbed at gunpoint by people posing as police.

Although Article II, ¶ 22, of the Treaty makes perjury, and the subornation of perjury, extraditable offenses, it is not clear that Mr. Lochte’s alleged conduct constitutes perjury because it is unlikely that his statements to the police were made under oath.  Under the laws of the United States, perjury requires, generally speaking, that the person (1) makes a statement that he/she knows to be false (2) while under oath.  See e.g. 18 U.S.C. § 1621.  Similarly, subornation of perjury requires proof that a person procures another person to lie under oath.  See e.g., 18 U.S.C. § 1622.  While U.S. law does makes it a federal crime to lie to federal law enforcement officers, 18 U.S.C. § 1001, the Treaty does not identify this as an extraditable offense.

Thus, unless there is evidence that Mr. Lochte lied under oath, or convinced one of the other swimmers to do so, it is unlikely that the second or third elements of (probable cause to believe that an extraditable offense occurred) for extradition could be met.

Even if all the requirements of the extradition treaty are satisfied, the executive branch and the Secretary of State, in particular, can still decide whether to deny extradition on humanitarian grounds.  See Article VII; Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960).  Such relief is exceedingly rare, however.