In a recent extradition ruling by the Colombian Supreme Court, I noticed that there was a “condition” that was included that time spent in Colombian custody awaiting extradition MUST be credited to any U.S. sentence. U.S. law requires this credit anyway but it is good to know that Colombia is insisting on this credit. The problem is the U.S. ambassador did not accept this condition. Your lawyers should insist upon this acceptance.
Many judges don’t even know whether or not they can credit time served in foreign custody, and the prosecutors also are not sure. Each one has a different opinion. The prosecutors routinely state that the Bureau of Prisons (“BOP”) should be the first to make that decision, but in cases where the defendant has already served his time, your lawyer should urge the court to sentence you to time served instead of a fixed sentence “with credit for time served.”
Case in point: A Colombian extradited recently wrote a judge in desperation asking for help. The Colombian defendant had been sentenced to 66 months which was the time he had already served “taking into consideration the time he had spent in Combita Prison in Colombia” and was still in custody. Actually a 66 month sentence is really five years when “good time” is considered. Credit for good time is 54 days a year. So this defendant had really been in more than a year longer than his sentence required. Now if the judge had given the defendant “time served” his nightmare would never have occurred.
The problem was that the judge gave a definite sentence of “66 months with credit for time served in foreign custody” expecting the defendant to be released immediately. But the BOP must “verify” the “time spent in foreign custody” to determine if he did spend time in foreign custody and what amount of time. In order to do that, it must ask the U.S. Department of State to ask the Colombian Foreign Ministry to request verification. BOP authorities estimate that this could take three months, which means three months more in custody. This defendant was sentenced in November 2007 after serving the entire 66 months. He is still in custody.
Don’t let that happen to you. Whatever plea bargain you make, make sure you address the issue of “credit for foreign custody” before you enter the plea. Educate the prosecutor and the judge about this issue of credit. They usually do not know, and as you can see serious consequences can flow from this ignorance.
The law requires credit for time served in foreign custody so long as that time was not applied to a Colombian sentence. The BOP acknowledges this. It actually goes further. It states that even if the U.S. charge is not identical to the Colombian charge, but substantially the same, the BOP will give the defendant credit. So for example if the Colombian charge is “acting in concert” to distribute cocaine, and the U.S. charge is “conspiring” to distribute cocaine, credit will be given so long as the time was not applied to another charge.
Now if the defendant has served 10 months in foreign custody but he will be sentenced to five years, there is no problem in letting the BOP make the “credit” determination because that determination will certainly be made long before the defendant is released. But if you are a defendant who has already served the time the judge wants to impose, you need to get him to give you “time served” instead. Beg him if you have to.
I actually give the judge several telephone numbers of the BOP that he can call to verify what I am saying. If your attorneys want to know these numbers, have them call me.