Can Brazil get Ryan Lochte extradited?

Story highlights

  • Brazilian authorities say a video four U.S. Olympic swimmers upends their story of being robbed
  • There should be four sincere apologies from the Olympians; charges should be conditionally dropped.
  • Can Brazil get Ryan Lochte extradited? It depends.

Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Brazilian authorities say at least one of the American Olympic swimmers involved in a stranger-by-the-minute incident in Rio has now confirmed the account that a surveillance video appears to show: four swimmers committing acts of vandalism at a gas station when confronted by security guards

That's the closest thing we have to clarity (and it's not much) in the development of a murky tale that began Sunday night in the Barra da Tijuca neighborhood.
    First, the swimmers said they were stopped in a taxi by fake police and robbed at gunpoint. But that story has changed continually since. Now we learn they may have vandalized a gas station and given false statements to the Rio de Janerio police.
    One version of the story suggests someone may have forced the Olympians at gunpoint to hand over cash for the property damage ... which actually still sounds a lot like a robbery. But at minimum, it seems the swimmers' version of the story is rife with inconsistencies. And, even with the new emerging videos of the incident, there are still a lot of questions about what actually happened.
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    Olympic swimmer Ryan Lochte returned to the United States two days before a Brazilian judge's issuance of a search and seizure warrant for him, federal authorities said.
    Two other American swimmers, Jack Conger and Gunnar Bentz, were removed from a plane leaving Brazil and have been ordered to stay to give a statement to police.
    The whereabouts of the fourth swimmer, James Feigen, were unknown as of Wednesday night, but the message is clear: Brazilian authorities want all four swimmers held to answer questions about their statements to police about being robbed. They want to hold the Americans responsible for supposedly reporting a fake crime.
    It's very possible that this was a case of some obnoxious, frat-guy antics involving a 32-year-old Lochte—hardly a child. It's possible the swimmers represented everything we hate about "bro" culture. And, it's possible they lied to Brazilian authorities, which is, and should be, a crime.
    Still, Rio authorities should not prosecute this case. If the "false report" reports are not false, then the diplomatic thing for both sides to do is arrange restitution. There should be four sincere apologies from the Olympians, and the charges should be conditionally dropped.
    It happens all the time in juvenile and adult court, through diversionary programs and conditional discharge, even where the evidence shows a crime was committed.
    It avoids the international incident, and saves face for all parties. And that's really what Brazil is after: vindication.
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    It must be said: Lochte and friends didn't singlehandedly humiliate Rio's law enforcement by faking a crime report.
    Rio's law enforcement is still responsible for preventing the rest of the robberies that give Rio a bad reputation. The swimmers' reports were initially plausible for a reason, after all. And if Rio authorities are going to start scrutinizing crime reports, then they should follow up on all the other crime reports from non-famous visitors and their own citizens.
    They're apparently not throwing up any roadblocks or mobilizing the SWAT team in response to all the online videos of brazen Brazilian street crime against regular folks.
    So where does this situation stand legally?
    As of this writing, Lochte is in the States, but other swimmers are in Brazil. Even if each swimmer was charged with identical crimes arising out of these statements, their cases will have drastically different results, based just on their geographic location.
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    If a normal American citizen is arrested or detained abroad, the State Department will not bust them out of jail, assert their innocence to a court, or provide legal advice or representation. Olympians may be the ultimate "ambassadors" of their country, but this is only a symbolic appellation. They do not have the immunities of actual diplomats from arrest and criminal prosecution while serving abroad, protections provided by a treaty known as the Vienna Convention on Diplomatic Relations.
    If these swimmers are detained, arrested, or prosecuted in Brazil, they are not immune. They will enjoy the same rights not enjoyed by other Brazilians.
    Lochte is a different story. He's back in the States. If the Brazilian government really wants him, they're going to have to extradite him. Can they? Yes ... but probably not. Here's what I mean:
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    In evaluating an extradition request like this from Brazil, our federal courts would determine whether: (1) the offenses charged are extraditable; (2) the requirement of "double criminality" is satisfied; (3) there is probable cause to believe the individual committed the offenses charged.
    First, depending on the charges brought, it's possible that making a false report might be "extraditable." These crimes are listed or defined by the treaty between Brazil and the United States.
    That treaty does list some very general crimes, like perjury or falsification of public records, but it doesn't specifically mention making a false report of a crime to police.
    Even if Lochte were charged with a crime on that list, there's an additional requirement: the crime must be punishable in both Brazil and the United States by imprisonment for more than one year. In Brazil, false communication of a crime carries a maximum sentence of three years in jail.
    In the United States, many federal crimes are also punishable by more than a year, including making a false statement to government agents. That can get you up to five years. At least initially, the relative punishment terms satisfy the "dual criminality" standard of the treaty.
    Still, it's not likely that the United States will extradite Lochte to Brazil.
    First, the treaty gives the U.S. some discretion in choosing to return its own nationals.
    Second, well, countries ultimately only honor extradition treaties if they feel like it. Especially superpowers. In fact, extradition treaties are actually a lot like the Olympics themselves. As spectators, we tend to automatically side with our own country. We're reluctant to send "our" American boys to face Brazilian justice even if they did flat-out lie to the Brazilian police.
    To our biased, Pollyanna minds, it's just some wholesome kids on an innocent night out, who maybe mixed up a few details to police with a language barrier. You see? There's a criminal defense attorney in all of us—especially when it comes to our "own" children.
    It's a natural instinct to side with our own country and against others—it's why an average 27 million viewers per night are cheering on complete strangers because they have a familiar flag stitched to their uniforms.
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    But ultimately, there is a potential international conflict here: The State Department could deny Brazil's request for Lochte, but it will be awkward when State simultaneously asks Brazil to "pretty please" return the other American swimmers still in Brazil.
    Brazilian officials really have two distinct problems with the Americans' conduct here. First, the alleged boorish behavior and criminal vandalism. Second, the swimmers may have given false reports — another crime — to Rio law enforcement. There's a third issue that Rio officials probably won't admit. Fake robbery is embarrassing for the city.
    Bottom line: Rio's authorities want confirmation that Rio is actually one robbery safer than we all thought it was before. As for all the other actual robberies in Rio, well, those really happen. Just subtract one robbery from the final tally for 2016. As for that one "robbery," don't blame it on Rio.