Authority for the Removal of Fugitive Felons

Apprehended Under 18 U.S.C. § 1073

An individual charged with a violation of the Fugitive Felon Act, 18 U.S.C. § 1073, which makes 

it a federal offense to travel interstate to avoid a state felony prosecution, among other things, 

may be “prosecuted” only in the federal judicial district in which the original state crime was 

committed, or from which he fled, and “only upon formal approval in writing by the Attorney 

General or an Assistant Attorney General of the United States, which function of approving 

prosecutions may not be delegated.”

Under Rule 40 of the FedeAl Rules of Criminal Procedure, an individual who is charged with a 

federal offense in one district and is apprehended in another may be brought back before the 

court in which the federal charges are pending against him. A court’s duty to order removal 

under Rule 40 is not dependent upon a subsequent federal prosecution.

The Department of Justice has interpreted the term “prosecution” in the Fugitive Felon Act to 

include all steps in the federal criminal process after a fugitive has been taken into federal 

custody, including removal to the district in which the federal charges against him are 

pending, pursuant to Rule 40. The Department has also determined that the formal approval 

required by 18 U.S.C. § 1073 may not be given if the federal prosecution is not to be 

subsequently pursued. Although nothing in the legislative history of the Fugitive Felon Act or 

relevant case law mandates this interpretation, it is not clear whether a court would require 

formal written approval before issuing a Rule 40 removal order.

Federal removal under Rule 40 has been upheld against a Fugitive Felon Act defendant’s claim 

that he was constitutionally entitled to extradition under state law. However, the Fugitive 

Felon Act was not intended to supplant state extradition procedures, and federal removal 

procedures should not be used to accomplish a Fugitive Felon Act defendant’s return for 

prosecution or other appropriate disposition by the State. The policy considerations involved 

in making such a determination underscore the wisdom o f the Department’s requirement for 

formal approval for Rule 40 removal of Fugitive Felon Act defendants.

The cost of transporting a Fugitive Felon Act defendant pursuant to a court order under Rule 40 

may be paid out of funds appropriated for the authorized activities of the United States 

Marshal. All or part of the cost of transportation may voluntarily be borne by the State seeking 

the fugitive’s return, although any monies received from a State must be deposited into the 

general fund of the Treasury.

March 21, 1983

M e m o r a n d u m O p i n i o n f o r t h e D i r e c t o r ,

E x e c u t i v e O f f i c e f o r U n i t e d S t a t e s A t t o r n e y s

This memorandum responds to your request for our opinion whether a 

fugitive apprehended by federal authorities under the Fugitive Felon Act, 18

75
U.S.C. § 1073, may be removed to the jurisdiction from which he fled, pursuant to Rule 40 of the Federal Rules of Criminal Procedure, if the sole purpose of 

removal is to return the fugitive to the custody of authorities in the State from 

which he fled. In the event federal removal is permissible in this situation, you 

wish to know the permissible source of funds to pay its costs.

Your request derives from an exchange of correspondence between the 

United States Attorney for the Eastern District of Pennsylvania and the Assistant Attorney General, Criminal Division. In 1982, the United States Attorney 

for the Eastern District of Pennsylvania wrote to the Criminal Division requesting reconsideration of the policy set forth in § 9-69.450 of the United States 

Attorneys Manual (Manual). That section provides that “removal proceedings 

under Rule 40” shall not be instituted in § 1073 cases without the written 

approval of the Assistant Attorney General, Criminal Division.1 The United 

States Attorney stated that “the present Department policy which prohibits 

routine federal removal of [§ 1073] defendants is inconsistent with the 

Department’s emphasis on federal-state law enforcement cooperation, and 

inhibits effective law enforcement.” The Criminal Division’s position is that 

the Department’s policy of requiring written approval before removal in § 1073 

cases is mandated by § 1073 itself. Furthermore, such approval may not be 

given where the government does not intend to pursue a federal prosecution 

under that statute. This latter position, as more fully developed in discussions 

with Criminal Division staff, is based not only upon an interpretation of the 

federal government’s authority under the Fugitive Felon Act, as amended in 

1961, but also upon a concern that a federal defendant removed under Rule 40 

for the sole purpose of facilitating a state prosecution could claim some 

constitutional or statutory entitlement to be processed under state laws governing interstate rendition.2

We have examined the legislative history of § 1073 and its judicial and 

administrative interpretations in the half century since its original enactment. 

Although we find no basis on which to disagree with the Criminal Division’s 

position with respect to its policy of requiring written approval for removal in 

§ 1073 cases, we do not believe the situations in which such approval may be 

given are limited to those in which a decision has been made to pursue a federal 

prosecution under that statute. For reasons more fully discussed below, we 

believe the federal government’s broad authority under § 1073 to assist local

' The reference in § 9-69.450 to “removal proceedings under Rule 40” does not appear to reflect the 1979 

am endm ents to Rule 40 o f the Federal Rules of Criminal Procedure. See Pub. L. No. 96-42, 93 Stat. 326 

(1979). The 1979 am endm ents abolished the “warrant of rem oval” by which a federal court previously 

directed return o f a defendant arrested in “a distant district,” i.e., on a w arrant issued in another State at a 

place 100 m iles o r more from the place of arrest. Although a warrant of removal is no longer required under 

R ule 40 in order to accom plish the transfer o f prisoners in federal custody from one district to another, the 

term “rem oval" is used throughout this memorandum to indicate the judicial procedure whereby a federal 

defendant is returned to the jurisdiction of the court in which the federal charges against him are pending.

2 As we understand it, the Criminal D ivision’s position is based upon its interpretation o f federal authority 

under § 1073, and not upon some independent limitation upon a court’s authority under Rule 40 to order 

rem oval if federal charges are not to be pursued.

76
law enforcement agencies in the apprehension of fugitive felons or witnesses 

permits it to return a fugitive to the jurisdiction from which he fled for 

prosecution or other appropriate disposition by the State. Furthermore, a defendant subject to removal under Rule 40 has no federal constitutional or statutory 

right to be extradited under state law. Federal removal should, however, be 

sought only in those situations where existing interstate rendition procedures 

cannot be relied upon to bring a fugitive to justice.

Finally, the cost of transporting a federal § 1073 defendant pursuant to a 

federal court order under Rule 40 may be paid from funds appropriated for the 

authorized activities of the United States Marshal responsible for carrying out 

the court’s order. Although all or part of this cost may be reimbursed by the 

State seeking the fugitive’s return, any monies received from the State must be 

deposited directly into the general fund of the Treasury.

I. Section 1073, Rule 40, and Current Departmental

Practice in Fugitive Cases

A. Section 1073

Section 1073 of Title 18, the so-called Fugitive Felon Act, makes it a federal 

offense to travel interstate for the purpose of avoiding a state felony prosecution, or custody or confinement after conviction, or to avoid giving testimony 

in a state criminal prosecution or investigation.3 Under the venue provisions of 

§ 1073, an individual charged with a violation may be “prosecuted” only in the 

federal judicial district in which the original state crime was committed, or 

from which he fled, and “only upon formal approval in writing by the Attorney 

General or an Assistant Attorney General of the United States, which function 

of approving prosecutions may not be delegated.”

3 Section 1073 provides in full as follows:

§ 1073. Flight to avoid prosecution or giving testimony

W hoever moves or travels in interstate or foreign commerce with intent either (1) to avoid 

prosecution, or custody or confinement after conviction, under the laws o f the place from which 

he flees, for a cnm e, or an attempt to commit a crime, punishable by death or which is a felony 

under the laws of the place from which the fugitive flees, or which, in the case of New Jersey, is 

a high misdemeanor under the laws o f said State, or (2) to avoid giving testimony in any criminal 

proceedings in such place in which the commission of an offense punishable by death or which is 

a felony under the laws o f such place, or which in the case o f New Jersey, is a high misdemeanor 

under the laws of said State, is charged, or (3) to avoid service of, or contempt proceedings for 

alleged disobedience of, lawful process requiring attendance and the giving of testimony or the 

production o f documentary evidence before an agency o f a State empowered by the law of such 

State to conduct investigations of alleged crim inal activities, shall be fined not more then $5,000 

or imprisoned not more than five years, or both.

Violations of this section may be prosecuted only in the Federal judicial district in which the 

original cnm e was alleged to have been committed, or in which the person was held in custody or 

confinement, or in which an avoidance of service of process or a contempt referred to in clause 

(3) o f the first paragraph o f this section is alleged to have been committed, and only upon formal 

approval in writing by the Attorney General or an Assistant Attorney General of the United 

States, which function of approving prosecutions may not be delegated.

77
The Fugitive Felon Act has been sustained against constitutional challenge 

as a valid exercise of Congress’ power to regulate interstate commerce, U.S. 

Const, art. I, § 8, cl. 3. See, e.g.. United States v. Bando, 244 F.2d 833 (2d Cir. 

1957); Barker v. United States, 178 F.2d 803 (5th Cir. 1949); Hemans v. 

United States, 163 F.2d 228 (6th Cir.), cert, denied, 332 U.S. 801 (1947); 

United States v. Brandenburg, 144 F.2d 656 (2d Cir. 1944); Simmons v. Zerbst,

18 F. Supp. 929 (N.D. Ga. 1939). The “general purpose of the Act was to assist 

in the enforcement of state laws,” United States v. Brandenburg, 144 F.2d at 

659, and its enforcement has been held not to violate the rights of the States 

under the Tenth Amendment. See United States v. Miller, 17 F. Supp. 65, 68 

(W.D. Ky. 1936); Lupino v. United States, 185 F. Supp. 363, 368 (D. Minn. 

1960). In Miller, the district court explained that

[Congress] may make a crime the use of interstate commerce by 

a fleeing criminal in order to aid the states in the apprehension of 

the guilty and make certain, swift, and sure the punishment of 

those who commit crimes against the states. If such power be 

not lodged in the Congress, then the unity of our people to deal 

with crime is destroyed and the states crippled in punishing 

those who violate their laws and flee to another state.

17 F. Supp. at 68.

The venue provisions of § 1073 have been interpreted consistently with this 

general purpose of assisting state law enforcement:

[T]he primary purposes of the venue section of § 1073 [are] to 

return the felon to the state where the original flight occurred in 

order to assist state officials in combating organized crime 

there, and to vindicate the federal interest in punishing acts 

committed in the judicial district where the original flight took 

place.

United States v. Thurman, 687 F.2d 11, 13 (3d Cir. 1982).

B. Rule 40

Rule 40 of the Federal Rules of Criminal Procedure (“Commitment to 

Another District”) describes the process whereby a person who is charged with 

a federal offense in one district, and is apprehended in another, may be brought 

back before the court in which the federal charges are pending against him. 

Rule 40(a) provides that “if a person is arrested in a district other than that in 

which the offense is alleged to have been committed, he shall be taken before 

the nearest available federal magistrate.” Preliminary proceedings are held 

before the magistrate to determine that the apprehended fugitive is the individual named in the arrest warrant. If no indictment has been returned against 

him in the district where the warrant was issued, the magistrate must also 

determine that there is probable cause that he committed the crime for which he

78
is to be “held to answer in the district court in which the prosecution is 

pending.”4

Rule 40 does not explicitly provide for a federal prisoner’s transportation to 

the jurisdiction in which the charges against him are pending. If a defendant is 

admitted to bail, or released on his own recognizance, he is expected to present 

himself in the proper court at the proper time. If the magistrate has not 

approved the prisoner’s release, however, he remains in the custody of the U.S. 

Marshal, who is responsible for seeing that the magistrate’s removal order is 

carried out by transporting the defendant to the court in which the charges 

against him are pending. See 28 U.S.C. § 567; 28 C.F.R. § 0.1 ll(j).

The procedural protections embodied in Rule 40 are not constitutionally 

required, but were developed as a matter of sound judicial policy. Unlike 

extradition, which involves a demand of one sovereign upon another, and 

implicates “the protection owed by a sovereign to those within its territory,” 

United States ex rel. Kassin v. Mulligan, 295 U.S. at 396, 400 (1935), the 

process by which a federal defendant is returned for trial theoretically involves 

only a physical transfer from one judicial district to another within a single 

sovereign’s territory. See United States v. Godwin, 97 F. Supp. 252, 255 (W.D. 

Ark.), a jfd , 191 F.2d 932 (5th Cir. 1951) (“the several judicial districts are not 

foreign to each other . . . but are simply convenient subdivisions . . . of one 

sovereign, the United States”). The purpose of Rule 40 is “to afford defendants 

reasonable protection, to safeguard them against improvident removal to a 

distant point for trial and to curb a defendant’s opportunity for delay and 

obstruction of prosecution.” United States v. McCord, 695 F.2d 823, 826 (5th 

Cir.), cert, denied, 460 U.S. 1073 (1983). See also Notes of the Advisory 

Committee on the 1945 Rules, 18 U.S.C. app. (1976).5

4 Rule 40(a) provides in full as follows:

(a) Appearance Before Federal Magistrate

If a person is arrested in a district other than that in which the offense is alleged to have been 

committed, he shall be taken without unnecessary delay before the nearest available federal 

magistrate. Preliminary proceedings concerning the defendant shall be conducted in accordance 

with Rules 5 and 5 1, except that if no preliminary examination is held because an indictment has 

been returned or an information filed or because the defendant elects to have the preliminary 

exam ination conducted in the distnct in which the prosecution is pending, the person shall be 

held to answer upon a finding that he is the person named in the indictment, information or 

warrant. If the defendant is held to answer, he shall be held to answer in the district court in which 

the prosecution is pending, provided that a warrant is issued in that district if the arrest was made 

without a warrant, upon production of the warrant or a certified copy thereof. 

s A federal court's authonty and duty to effectuate a federal prisoner’s commitment to the distnct in which 

federal charges against him are pending was first set forth m § 33 of the Judiciary Act of 1789. That section 

provided that “it shall be the duty of the judge of the district where the delinquent is impnsoned, seasonably 

to issue, and o f the Marshal of the same district to execute a warrant for the removal of the offender,... to the 

district in which the trial is to be had.” 1 Stat. 73, 91 (1789). This provision was later codified virtually 

unchanged in § 1014 of the Revised Statutes, and brought forward as § 591 o f Title 18 of the United States 

Code (1940). It was repealed in 1948, three years after the Supreme Court’s promulgation o f Rule 40. In the 

early years of the Republic, it was the frequent practice for many district courts to issue a warrant of removal 

at the same time they issued a warrant of arrest. Upon his apprehension, the defendant was immediately 

returned to the district which had issued the warrant, and was thus effectively deprived of any hearing on the 

question of his removal. This practice was disapproved as a matter o f judicial policy in such cases as United

Continued

79
Ordinarily, a court has no discretion to refuse to order removal, provided the 

requisite showing of identity and probable cause has been made. A removal 

order is not appealable. See Galloway v. United States, 302 F.2d 457 (10th Cir. 

1962). Neither the sufficiency of the charges nor the constitutionality of the 

statute on which those charges are based can be raised in a removal hearing, 

though these may of course be challenged in the district court in which the 

charges are pending. See United States v. Winston, 267 F. Supp. 555 (S.D.N.Y. 

1967); Wright v. Cartier, 10 F.R.D. 21 (D. Mass. 1950).6

A district court’s authority and responsibility under Rule 40 and its statutory 

predecessors has never been held to depend upon the likelihood of subsequent 

federal prosecution. There is, for example, no requirement that an indictment 

be returned in the court to which removal is sought. See Fetters v. United

States, 283 U.S. 638 (1931); Greene v. Henkel, 183 U.S. 249 (1902). This is 

evident on the face of the Rule, which requires that the government prosecutor 

establish probable cause only if no indictment has been returned or information 

filed in the district to which removal is sought. A court’s duty to order removal 

is thus not conditioned upon the government prosecutor’s declared willingness 

to seek an indictment and proceed to trial.

C. Departm ental Enforcement Policy in § 1073 Cases

The Department’s policy on enforcement of § 1073 is set forth in the United 

States Attorneys Manual at §§ 9-69.400 et seq. As stated in the Manual, that

3 (. . . continued)

States v. Shepard, 27 F. Cas. 1056 (E.D. M ich. 1870) (No. 16,273); United States v. Jacobi, 26 F. Cas. 564 

(W .D. Tenn. 1871) (No. 15,460); and U nited States v. Yarborough, 122 F. 293 (W.D. Va. 1903). In these 

early cases, the courts recognized the im portance of ensuring against mistaken identity or the absence of 

probable cause before ordering a defendant transported what m ight be hundreds o f miles for trial. At the same 

tim e, how ever, they were unwilling to allow a defendant to force a trial on the merits at the removal stage, at 

best delaying his return and potentially frustrating prosecution entirely. In promulgating Rule 40 in 1945, the 

Suprem e C ourt sought to strike a balance between these tw o concerns. See generally Holtzoff, Removal o f

D efendants in Federal Crim inal Procedure, 4 F.R.D. 455 (1945); 8B M oore's Federal Practice *2 40.04 at 

40 -2 4 (1 9 8 0 ).

As originally prom ulgated in 1945, Rule 40 distinguished between persons taken into federal custody in a 

“nearby district” {i.e., on a warrant issued in the same State or within 100 miles) and persons arrested in a 

“distant district.” Persons in the latter category could be returned for prosecution only upon the issuance of a 

“w arrant o f rem oval” by a district judge. N o warrant o f removal was necessary to return a person arrested in 

a “nearby district,” w ho, like a state prisoner transported across the State for trial, was “transported by virtue 

o f the process under which he was arrested.” See Notes of the Advisory Committee on the 1945 Rules, Rule 

40(a), 18 U.S.C. app. (1976). The 1979 am endments to Rule 40 abolished the “warrant of removal” and 

elim inated the distinction between the procedures applicable to arrest in “distant” and “nearby” districts. The 

Notes o f the A dvisory Committee on the 1979 am endments to the Rules explained that the preliminary 

proceedings previously applicable under R ule 40(a) to persons arrested in a “nearby” district were “adequate 

to protect the rights o f an arrestee wherever he might be arrested,” and would henceforth apply in all cases of 

com m itm ent to another district. See Rule 40(a), 18 U.S.C. app. (1980).

6 W e are aware o f two cases in which a district court declined to order removal on grounds that “special 

facts w ere disclosed that seemed to make questionable the propriety o f removal.” United States v. Johnson,

63 F. Supp. 615, 616 (D. Or. 1945); United States v. Parker, 14 F.R.D. 146 (D.D.C. 1953). In Johnson, the 

district court in Oregon refused to order the defendant's removal to the District of Columbia, declining to 

give the latter jurisdiction's criminal child support statute “extraterritorial application.” In Parker, the court 

refused to order rem oval in a situation suggesting government harassment o f the defendant.

80
policy is grounded in the theory that “the primary purpose of the [Fugitive 

Felon] Act is to permit the Federal Government to assist in the location and 

apprehension of fugitives from State justice.” Accordingly, federal § 1073 

charges are rarely pursued beyond the point of a fugitive’s apprehension by 

federal law enforcement authorities.7 Ordinarily, after the federal § 1073 prisoner has been taken before the nearest available federal magistrate pursuant to 

Rule 40(a), he is turned over to authorities in the State of arrest for extradition 

to the State from which he fled.8

Occasionally, however, a federal § 1073 prosecution will be pursued. In 

such a case, once preliminary proceedings under Rule 40 have been completed 

(or waived), the magistrate is requested to issue an order under Rule 40(a) 

directing that the apprehended fugitive be committed to the jurisdiction of the 

federal court in which the § 1073 charges are pending against him. It is this 

latter court which, under the venue provisions of § 1073, has jurisdiction over 

the federal criminal case.

Section 9-69.450 of the Manual restates the statutory requirement that 

§ 1073 “prosecutions” may be “initiated” only upon the written approval of the 

Attorney General or an Assistant Attorney General:

The 1961 amendment to the Act incorporated existing administrative practice by requiring approval by the Attorney General 

or Assistant Attorney General, in writing, before initiation of 

prosecution for unlawful flight to avoid prosecution, or custody 

or confinement after conviction, or to avoid giving testimony. 

Accordingly, under no circumstances should an indictment under the Act be sought nor an information be filed nor should 

removal proceedings under Rule 40, F. R. Crim. P., be instituted 

without the written approval of the Assistant Attorney General, 

Criminal Division.

Section 9-29.450, as interpreted by the Criminal Division, incorporates two 

legal conclusions: (1) The statutory term “prosecution” in the final paragraph

7 We understand from the Criminal Division that there have been only two or three federal § 1073 

prosecutions since 1961.

8 Under Rule 40(a) it is the m agistrate’s responsibility to conduct preliminary proceedings to determine that 

the defendant is the person named in the federal arrest warrant, and that there is probable cause to believe that 

a violation o f § 1073 was committed. See supra note 5. The fugitive “should remain in Federal custody or on 

bail or other conditions o f release only so long as is necessary to permit his commitment to the authorities in 

the State where apprehended.” See § 9-69.430. Asylum state authorities are generally w illing to take custody 

o f the fugitive, and the magistrate is willing to approve release from federal custody with this understanding. 

The demanding State may already have begun the extradition process by the time custody has shifted. The 

United States Attorney in the district where the federal com plaint was filed then moves for its dismissal, and 

there is no further federal involvement. See § 9-69.431; see also 8B M oore's Federal Practice, 1 40.04 at 4 0 - 

23(1980).

The process o f extradition is not always a smooth one. The Manual notes the possibility that the demanding 

State will be unwilling to extradite, or that extradition will be attempted but fail. See § 9-69.431. The same 

section also m entions the possible difficulties associated with the return o f fugitive witnesses, to whom State 

extradition procedures do not apply. In addition, State courts may release the fugitive on low bail before the 

extradition process can be completed, providing a new occasion for interstate flight and federal involvement 

under § 1073.

81
of § 1073 for which written approval is required includes all steps in the federal 

criminal process after a fugitive has been taken into federal custody, including 

removal to the district in which the federal charges against him are pending; 

and (2) such approval may not lawfully be given if the federal prosecution 

under § 1073 is not to be subsequently pursued. Accordingly, the Criminal 

Division’s position on the questions hereinafter considered is that § 1073 itself 

precludes removal of a defendant in a § 1073 case unless there has been a 

formal departmental decision, approved in writing by the Assistant Attorney 

General, to indict and bring to trial on the federal charges.

The text of § 1073 affords no clear guidance on the scope to be given the 

statutory term “prosecution,” or more generally on the permissibility of using 

federal removal procedures to secure the return of § 1073 defendants in aid of a 

state prosecution. Accordingly, we must review the legislative history of 

§ 1073 to determine whether the Criminal Division’s position on these issues, 

as described above, is correct.

M. LegisDative Hnstory of § 1®73

A. The 1934 Act

The Fugitive Felon Act, Pub. L. No. 73-233,48 Stat. 782 (1934), was one of 

a series of thirteen major crime bills proposed by the Roosevelt Administration 

and passed by Congress in 1934. As originally enacted, the Act made it a 

federal offense to travel interstate to avoid prosecution for certain specified 

state felonies, or to avoid giving testimony in certain state criminal proceedings. The Act originated in a series of hearings on organized crime held in 1933 

in different parts of the country by a subcommittee of the Senate Committee on 

Commerce. Investigation o f So-Called “Rackets": Hearings Pursuant to S.

Res. 74, 73d Cong., 2d Sess. (1933) (1933 Senate Hearings). The hearings 

explored the difficulties which state law enforcement agencies were experiencing in dealing with interstate crime. One of the frequently mentioned problems 

was the complicated and inefficient process of state extradition. See, e.g., 1933 

Senate Hearings at 177 (statement of Hon. William M ’Kay Stillman, Judge of 

the Criminal Court in Detroit); 210 (statement of John P. Smith, Chief of Police 

of Detroit, Michigan); 293 (statement of H.D. Harper, Chief of Police of 

Colorado Springs, Colorado).

During the course of the hearings, Harry S. Toy, the Prosecuting Attorney of 

Wayne County, Michigan, introduced into the hearing record a legislative 

proposal which would make interstate flight a federal crime. 1933 Senate 

Hearings at 198. Mr. Toy was particularly concerned with the problem of 

fugitive witnesses, to whom most state extradition procedures did not apply.9 

Senator Copeland, who chaired the subcommittee, questioned Mr. Toy closely

9 Id 1934, only ten States had enacted statutes providing for the interstate rendition of witnesses in criminal 

proceedings. See C om m issioner’s Prefatory Note to 1936 R evision o f Uniform Act to Secure the Attendance 

o f W itnesses from W ithout the State in Crim inal Proceedings, 11 U.L.A. 2 (1974).

82
about the possibility whether, under the legislation he had proposed, “a witness 

brought back by the Federal court might then be turned over to the State court 

for such action as it proposes.” Id. at 199. He was concerned that Mr. Toy’s 

proposed legislation would be held unconstitutional because it would “evade 

the extradition clause of the Constitution to bring this man back into the 

jurisdiction of the Federal court,” only to “serve the papers upon him for action 

in the State court.” Id. at 204.10 Senator Vandenburg disagreed on the constitutionality of the proposed legislation. Significantly, however, both Senators 

believed that the legislation would permit federal return of a fugitive felon or 

witness for state prosecution.

On January 11, 1934, Senator Copeland introduced Mr. Toy’s proposed 

legislation, with certain changes in its venue provisions." In his floor statement, he again expressed his reservations about the constitutionality of a bill 

which would permit the “circumvention” of state extradition procedures:

[Senator Vandenburg] thinks he sees in this an opportunity to 

help the State courts .... He hopes that a witness to a crime 

against the State law may, by the operation of this proposed law, 

be brought back by the United States district court, and then, 

when the witness is returned and within the jurisdiction of the 

State court, that he may be turned over to the State court for the 

benefit of the State authorities in carrying on the prosecution. Of 

course, I do not think that can be done ....

78 Cong. Rec. 453 (1934). The Attorney General, in comments on the bill 

prepared for the House Committee on the Judiciary, appeared to explain that 

the bill would assist the States in providing an alternative to extradition to 

secure the return of fugitives:

This bill will not prevent the States from obtaining extradition 

of roving criminals but the complicated process of extradition 

has proved to be very inefficient. . . . By an amendment in the 

Senate this bill was clarified to assure that the defendant shall be 

tried only where the ‘original crime is alleged to have been 

committed.

H.R. Rep. No. 1458, 73d Cong., 2d Sess. 1-2 (1934).

The “amendment in the Senate” to which the Attorney General referred was 

an addition to the bill’s venue provisions made on the floor of the Senate. 

Senator Steiwer had expressed concern about whether the venue provisions in

10 It is not clear whether Senator Copeland* s constitutional concern related to possible rights of States under 

the Extradition Clause, or to the possible right of an individual to be extradited, or to both. Charles F. Boots, 

Legislative Counsel to the Senate, who also commented for the record on the constitutionality of M r. T oy's 

draft legislation, was concerned that “such procedure could well be challenged as withholding from the 

defendant the right to a speedy trial on the Federal charge.” 1933 Senate Hearings at 200-03.

11 The venue provisions in Mr. Toy’s bill would have permitted federal prosecution in any federal district 

“from, through, o r into which any person shall flee.” 1933 Senate Hearings at 1989. The analogous provisions 

o f S. 2253 lim ited venue to the “Federal judicial district in which the cnm e was com m itted.”

83
the bill as originally introduced could be construed to require trial on the 

federal charges in the district where the fugitive was apprehended. Senator 

Copeland agreed to a clarifying amendment, explaining that the bill’s purpose, 

at least in the case of fugitive witnesses, was to facilitate state prosecutions by 

securing their return to the jurisdiction from which they had fled:

O f course the State could make it a felony for a witness to flee 

the jurisdiction of the court, but the State would have no power 

to bring the witness back. In this case, however, if he is an 

important witness to a murder, or to a gang operation, and flees 

to another State, he becomes guilty of a felony, and may be

brought back by the district court or by the Federal Government. So there can be no doubt that in apprehending criminals 

and in bringing them to book this is an important bill, and one 

which should be passed.

78 Cong. Rec. 5736 (1934) (emphasis added). Senator Steiwer responded that 

“I think the purpose just explained by the Senator is a very proper purpose,” 

and that “I agree thoroughly that the accused ought to go back to the State from 

which he flees .. . .” Id. at 5936-39.

The foregoing legislative history indicates that the sponsors of the 1934 Act 

expected that it could be used to assist state authorities by securing the return of 

fugitives. Although existing state rendition procedures might have been available to obtain the return of fugitives from another State’s criminal justice 

system, those procedures were often “inefficient,” and in any event did not 

always apply to fugitive witnesses. To be sure, there was disagreement among 

the sponsors of the bill as to how far federal law enforcement agencies could 

constitutionally go in “assisting” the States in this regard, if state extradition 

procedures were otherwise available. But there seems little doubt that its 

sponsors intended the bill which passed in 1934 to authorize federal removal to 

the extent constitutionally permissible.12

B. The 1961 Amendments to § 1073

In 1961 the Kennedy administration proposed amendments to the Fugitive 

Felon Act which brought within its scope all felonies or offenses punishable 

under state law by more than one year in prison.13 See Pub. L. No. 87-368, 75 

Stat. 795 (1961). The purpose o f the amendments was to “permit the Federal 

government to give greater aid and assistance to the States.” The Attorney

G en eral’s Program to Curb O rganized Crime and Racketeering: Hearings

12 There is no suggestion in the legislative history of the 1934 Act that Congress considered the scope o f a 

federal c o u rt's authority and obligation to o rd er a federal prisoner's commitment to another district under 

then-existing law. In 1934, federal removal w as governed by the provisions o f 18 U.S.C. § 591, which made 

it the “duty" of a federal court to execute a w arrant for a prisoner's removal “to the distnct where the trial is 

to be had." See 18 U .S.C. § 591 (1934)

13 As originally enacted, the Fugitive Felon Act applied only to specifically enumerated crimes. See S. Rep. 

No. 586, 87th C ong., 1st Sess. 2 (1961).

84
Before the Senate Comm, on the Judiciary, 87th Cong., 1st Sess. 15 (1961) 

(1961 Senate Hearings) (testimony of Attorney General Kennedy). See also

Legislation Relating to Organized Crime: Hearings Before a Subcomm. o f the

House Comm, on the Judiciary, 87th Cong., 1st Sess. 42 (1961) (1961 House 

Hearings) (the purpose of the amendments is “to help and assist the States”).

The legislative history of the 1961 amendments reflects Congress’ expectation that the law, as amended, would “provide either for Federal trials of the 

persons apprehended or their return to the proper State jurisdiction fo r p rosecution or other appropriate State a c t i o n H.R. Rep. No. 827, 87th Cong., 1 st 

Sess. at 2 (1961) (1961 House Report) (emphasis added). See also id. at 7 

(expressing concern that, should the category of covered state crimes be 

expanded, “State officials would ask for Federal help in seeking the return of 

every one of these fugitives, especially since the request would relieve the State 

of costs”) (minority views of Rep. Libonati).

Both the House and Senate Reports referred with approval to the Justice 

Department’s then-existing enforcement policy. They also noted that “the 

Department of Justice does not anticipate that its established practice under 

existing law will be altered by the proposed broadening of the Fugitive Felon 

Act.” S. Rep. No. 586, 87th Cong., 1st Sess. 2 (1961). See also 1961 House 

Report at 2. Inter alia, that policy “require[d] the approval of an appropriate 

Assistant Attorney General before an indictment or a Federal removal proceeding may be instituted.” See Letter from Deputy Attorney General Byron R. 

White (Aug. 23, 1961), reprinted in 107 Cong. Rec. 15757 (1961) (House); id.

at 19240 (Senate).14

During the debates on the bill in the House, there were several unsuccessful 

attempts to write certain aspects of the Department’s practice into the law 

itself. The consensus of the House members, however, was it would unnecessarily hamper federal law enforcement efforts to attempt to legislate the details 

of what was regarded as a successful experiment in federal-state cooperation. 

Thus, for example, the House rejected an amendment which would have 

limited the issuance of a federal complaint under the statute to situations in

14 It would appear that, at least prior to 1961, the Department interpreted the Fugitive Felon Act to permit 

the use of federal removal procedures to secure the return of a fugitive for state prosecution:

Having once apprehended a fugitive defendant or witness the Department has solved the first 

problem for the local prosecutor who can then follow the well- established rendition procedure. 

Should this fa il fo r a variety o f reasons the way is still open to remove the fugitive under Federal

process and return him to the jurisdiction where the original crime was committed. There the

federal government could turn him over to state authorities or try him under the Fugitive Felon

law, or both.

From the debates in Congress it is evident that uppermost in the minds o f some Senators was 

the thought that the Act would operate to secure the return of the fugitive felon or witness. The 

venue provision alone makes that plain and it was agreed that such return was a proper purpose. 

M emorandum from M.H. Helter, Head, Common Crimes Unit to F.X. W alker, Chief, General Crimes Section 

(June 21, 1951) (emphasis added). See also M emorandum from Theron Caudle, Assistant Attorney General, 

Criminal Division to S.A. Andretta, Administrative Assistant to the Attorney General, re: “Expenses of 

Transporting Pnsoners under Fugitive Felon Act who are Turned over to State Authorities for Prosecution” 

(Apr. 4, 1947). In United States ex rel. M ills v. Reing, 191 F.2d 297, 300 (3d Cir. 1951), the court referred to 

the governm ent's concession during argument that “there have been cases where [§ 1073 defendants] 

have been removed to the federal district of indictment and then surrendered forthwith to state custody.”

85
which a state prosecution had already been commenced. 107 Cong. Rec. at 

15767-71 (1961).

On the other hand, Congressman Libonati was successful in adding to the 

venue provisions of the statute a requirement that violations of the Act could be 

prosecuted only upon the formal written approval of the Attorney General or 

Assistant Attorney General. See 107 Cong. Rec. 15767 (1961). The amendment by which this was effected was not the subject of any extended discussion 

on the floor, but appears to have been responsive to the desires of several 

House members to give a statutory framework to existing Justice Department 

enforcement policy.

During the House debates, several Congressman referred specifically to the 

use of federal removal procedures in § 1073 cases. Acknowledging that most 

fugitives apprehended under § 1073 were returned through state extradition 

procedures, they appear to have assumed that federal removal procedures had 

been, and could continue to be, used to bring back fugitives for prosecution by 

state authorities. For example, Rep. Corman stated:

It appears from the committee report and the letter of the 

Department that the Fugitive Felon Act is used primarily as an 

expeditious means of apprehending fleeing criminals to be returned to the scene o f their alleged crime for prosecution. It 

further seems apparent that in those instances when this mission 

is accomplished and State authorities do prosecute that the 

Federal Government refrains from prosecution. I see no violence to justice under such procedure.

107 Cong. Rec. at 15771 (1961). See also id. at 15761 (objecting to the use of 

§ 1073 to bring back fugitive witnesses to States which had not yet adopted 

interstate rendition procedures for securing the return of witnesses) (remarks of 

Rep. Whitener). In the Senate, there was some concern expressed that States 

would attempt to use the federal removal process to secure the return of 

fugitives in cases raising civil rights issues, where extradition was not likely to 

succeed. See id. at 19242 (referring to alleged “misapplication” of the Act “in 

cases involving civil rights matters”) (remarks of Sen. Keating).

In summary, the legislative history of the 1961 amendments to § 1073 

indicates no intention on the part of Congress to remove any part of the 

authority given federal law enforcement agencies under the 1934 Act. And, 

although Congress expressed its approval of the existing Department of Justice 

policies on enforcement of the Act, it resisted most proposals to write those 

policies into the statute itself. The sole statutory limitation placed on federal 

enforcement activities by the 1961 amendments was the requirement of formal 

Department of Justice approval for “prosecution” of a violation. There is no 

indication in the legislative history of the 1961 amendments that Congress 

considered the potential applicability of this requirement to different phases of 

a prosecution. Nor is there any evidence that Congress intended to limit the

86
Department’s discretionary authority to approve removal to those cases in 

which a federal indictment would subsequently be sought.

III. Judicial Precedents Relating to Federal Removal of a § 1073

Defendant in Aid of a State Prosecution

Although several courts have referred in dictum to the government’s authority to return a § 1073 defendant in aid of a state prosecution, only two cases 

have directly considered and ruled upon the availability of federal removal 

procedures for this purpose.15 In Wright v. Cartier, 10 F.R.D. 21 (D. Mass. 

1950), an escapee from a Georgia prison was arrested in Massachusetts on a 

federal § 1073 warrant issued by the district court in Georgia. He was brought 

before a federal commissioner in Massachusetts, his identity was determined 

and probable cause found, and he was “ordered returned to the State of 

Georgia.” 10 F.R.D. at 22. The defendant filed a writ of habeas corpus, 

charging that § 1073 was unconstitutional, “not because of its express provisions or purpose, but because of its mode of operation with regard to him.” Id.

Specifically, he charged that:

the federal authorities never prosecute under the federal statute, 

but simply turn over the fugitive to the state authorities for 

prosecution under the state statute with the violation of which he 

is charged. Petitioner contends that for members of the Negro 

race this results in a deprivation of the opportunity at an extradition hearing to allege that the fugitive will not be given a fair 

trial in the state seeking extradition and to petition exercise of 

executive clemency in the state of refuge to prevent his return 

for trial.

Id. at 22-23. The court refused to rule on the statute’s constitutionality in the 

context of a habeas proceeding, however, stating that “if this petitioner makes 

demand upon the United States Court in Georgia for his prosecution so that he 

may there test the constitutionality of the Fugitive Felon Act, the Court will be 

open to him.” Id. at 23.

In United States v. Love, 425 F. Supp. 1248 (S.D.N.Y. 1977), a fugitive from 

a North Carolina murder charge, arrested in New York on a federal § 1073 

warrant, attempted to avoid being turned over to New York authorities by 

invoking removal procedures himself under Rule 40. The federal magistrate

15 See United States v. Thurman, 687 F.2d at 13 (one of “the prim ary purposes of the venue section of 

§ 1073 is to return the felon to the state where the original flight occurred in order to assist state officials in 

combatting organized crim e there”); United States v. McCarthy, 249 F. Supp. 199, 203 (E.D.N.Y. 1966) (“the 

1961 amendment did not diminish the power of the federal government to return the fugitive felon for state 

prosecution”); Hemans v. United States, 163 F.2d at 240 (“if Congress regarded it as a duty to aid the states in 

bringing back to their local jurisdictions fugitives from justice, or essential witnesses, that power exists”); 

United States v. Miller, 17 F. Supp. at 67 (“The right o f extradition guaranteed to the states by the federal 

government becomes too slow as a vehicle for swift punishment o f criminals, and oftentimes any punishment 

at all.”)

87
refused to issue the warrant, and directed the federal authorities to release the 

fugitive to New York authorities for extradition. On review of the magistrate’s 

order, Judge MacMahon held that

removal under Rule 40 is inappropriate in this case, for it would 

result in the circumvention of valid state extradition laws as well 

as unnecessary and extraordinary expense to the government in 

the transportation of prisoners throughout the country.

425 F. Supp. at 1250. Judge MacMahon’s holding appears to be based on his 

reading of the 1961 amendments to § 1073, which added to the statute the 

requirement of written Department of Justice approval for any § 1073 prosecution. He noted that Congress had been “aware” of existing departmental enforcement practices when it amended § 1073 in 1961, and had “reinforced” 

them by writing into the statute itself the requirement of written approval. 425 

F. Supp. at 1249.

Notwithstanding some dicta that suggest a somewhat broader holding,16 the 

Love opinion holds no more than that it would be “inappropriate” for a court to 

order removal in a § 1073 case except in accordance with established Department of Justice policies.17 Because in Love the federal defendant himself had 

sought to invoke Rule 40, apparently without the support of any federal 

official, the removal order would not be issued.18 No court has directly ruled 

upon whether the requirement o f formal written approval added to § 1073 in 

1961 extends to removal as well as to subsequent stages in a federal prosecu16 Judge M acM ahon’s reference to a defendant’s “right to formal extradition proceedings,” 425 F. Supp. at 

1250, is discussed in Part IV below.

17 Judge M acM ahon did not invoke the principle that a court may in its discretion refuse to order removal 

under Rule 40 whenever “special facts w ere disclosed that seemed to make questionable the propriety of 

rem oval.” United States v. Johnson, 63 F. Supp. at 616. See supra note 6. However, his use o f the term 

“inappropriate” suggests that he regarded h is refusal to order removal as an exercise of discretion rather than 

required by law.

18 This reading o f the Love opinion is consistent with Judge M acM ahon’s citation of Wright v. Cartier and 

M oore ’s F ederal Practice. 425 F. Supp. at 1249. At the cited page in M oore *s, the Wright case is relied upon 

as authority for the following proposition:

If the fugitive is w illing to waive a rem oval hearing, or the government has sufficient evidence 

available to prove probable cause, th e fugitive may presumably be returned to the demanding 

state by way o f removal under Rule 4 0 , rather than by way of extradition.

8B M o o re’s F ederal P ractice^ 40.04 at 4 0 -2 3 (1980). In one recent case, a defendant convicted under § 1073 

sought unsuccessfully to invoke the Love c ase in support o f his argument that his removal under Rule 40 had 

violated his constitutional right to formal extradition under state law. United States v. McCord, 695 F.2d 823, 

826 (5th Cir. 1983). He urged an interpretation of § 1073, and of Judge M acM ahon’s holding in Love, which 

would preclude Rule 40 removal in any § 1073 case, because the “underlying offense” is a state not a federal 

offense. The court o f appeals rejected this interpretation o f § 1073, pointing out that the “underlying offense” 

is a federal one, and that Rule 40 removal is accordingly “the appropriate procedure” for returning a federal 

§ 1073 defendant to the jurisdiction from w hich he fled. The court of appeals contrasted M cCord’s case, in 

which “the Federal G overnm ent sought and intended to prosecute the defendant for violation o f § 1073,” with 

the situation in Love, in which the government did not seek removal but “merely sought to aid the state in 

obtaining custody o f one o f its prisoners.” The court in M cCord did not have before it, and accordingly did 

not address, the issue w hether Rule 40 rem oval may be available at the request of the Federal Government, 

where the federal § 1073 charges are not to be pursued upon the defendant’s return to the State from which he 

fled.
tion. It has, however, been interpreted by at least two courts not to extend to the 

issuance of a federal § 1073 complaint or warrant of arrest. See United States v. 

Diaz, 351 F. Supp. 1050 (D. Conn. 1972); United States v. McCarthy, 249 F. 

Supp. 199 (E.D.N.Y. 1966). Although neither case required the court to rule on 

the applicability of the requirement to federal removal, both courts remarked 

on that issue in dictum. In D iaz, Judge Newman rejected a construction of the 

statutory term “prosecution” which would have extended the requirement of 

written approval to “every step of the criminal process including the issuance 

of an arrest warrant.” 351 F. Supp. at 1051. He suggested, however, that the 

requirement of written approval might extend beyond formal indictment to “the 

preliminary step of a removal proceeding.” Id. at 1052.

In McCarthy, Judge Mishler took a different view of the 1961 amendment:

It is clear that the amendment was intended to aid local law 

enforcement agencies apprehend fugitive felons through federal 

agencies [sic] and return them to the State jurisdiction for prosecution there. Implicit in the language of the report is the intention that federal prosecution for the offense was of secondary 

consideration. The choice of federal prosecution was therefore 

withdrawn from the United States District Attorney and lodged 

with the Attorney General. The 1961 amendment did not diminish the pow er o f the federal government to return the fugitive

felon fo r state prosecution.

249 F. Supp. at 203 (emphasis added).

In summary, while judicial precedent confirms our conclusion that the 

availability of removal in § 1073 cases does not depend as a matter of law upon 

whether a federal indictment will subsequently be sought, it is less clear 

whether a court will require formal written Justice Department approval before 

issuing a removal order.

IV. The Extradition Clause of the Constitution

Having concluded that federal removal in aid of a state prosecution is 

authorized by the Fugitive Felon Act, we turn to the Criminal Division’s 

concern that such removal might be inconsistent with some federal constitutional or statutory right of a fugitive to extradition under state law. We also 

discuss what federal constitutional or statutory rights, if any, the States themselves may have in connection with federal removal of a § 1073 defendant.

A. Rights o f a § 1073 Defendant With Regard to Extradition

The Supreme Court has consistently interpreted the Extradition Clause of the 

United States Constitution, U.S. Const, art. IV, § 2, cl. 2, to confer no rights on 

individuals. Its sole purpose is to benefit the States. See, e.g., Michigan v.

89
Doran, 439 U.S. 282, 287 (1978); Biddinger v. Commissioner o f Police o f New

York, 245 U.S. 128 (1917).19 And, the procedural safeguards provided to 

individuals in state extradition statutes have been held by the Supreme Court to 

be inapplicable to persons charged with a federal crime who are otherwise 

properly subject to removal under Rule 40. See United States ex rel. Kassin v. 

Mulligan, 295 U.S. 396 (1935); United States ex rel. Hughes v. Gault, 271 U.S. 

142 (1926); United States v. Guy, 456 F.2d 1157 (8th Cir. 1972).

Federal removal under Rule 40 or its statutory predecessors has been held 

proper in several § 1073 cases, in the face of a defendant’s claim that he was 

constitutionally entitled to be processed under state extradition laws. See, e.g.,

United States v. McCord, 695 F.2d at 826 (Rule 40 removal appropriate 

because “underlying offense” a federal one); Lupino v. United States, 185 F. 

Supp. at 368 (“Congress, not the states, has established the punishable offense, 

and it is, therefore, federal, not state, arresting and removal process which is 

relevant.”); United States v. Miller, 17 F. Supp. at 68 (federal removal of a 

§ 1073 defendant does not “interfere[] with the right of extradition of a criminal from a state to which he has fled to one where the crime was committed.”).

There is dictum in the court’s opinion in United States v. Love, 425 F. Supp. 

at 1250, which suggests that a federal § 1073 defendant, returned to the custody 

of state authorities under federal process, may have some “right to formal 

extradition,” deprivation of which could be raised by him in the context of his 

state prosecution. The court did not, however, indicate what the source of that 

right might be. It is possible that under the laws of some States, a defendant 

could claim an entitlement to be brought within the jurisdiction of its courts in 

a particular manner. Cf. Ker v. Illinois, 119 U.S. 436,444 (1886). We have not 

examined that issue, and express no opinion on it.20 However, an individual has 

no “right to formal extradition” under the federal Constitution or under any 

federal statute of which we are aware.21

B. Rights and Obligations o f the States

in Connection with Extradition

Although a § 1073 defendant can claim no entitlement to be extradited 

deriving from the Extradition Clause of the Constitution, the rights and obligations of the States themselves under that provision must be recognized when19 The Extradition C lause provides:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, 

and be found in another State, shall on Demand of the executive Authority of the State from 

which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

20 Perhaps the dem anding State’s requirem ents in this regard would therefore be a valid consideration for 

the D epartm ent in determ ining whether to give approval under § 1073 for removal in any particular case.

21 The Uniform C rim inal Extradition Act has been adopted by a majority o f the States, but has no 

independent force as federal law. Where applicable, its due process protections can be enforced by suits under 

the Fourteenth Amendment. See Cuyler v. Adams, 449 U.S. 433 (1981). By their terms, however, the 

protections in the Uniform Criminal Extradition Act apply only to a person arrested on a warrant signed by 

the G overnor o f the asylum State. See §§ 7, 10.

90
ever federal removal is proposed in any § 1073 case. It is all the more important 

to do so whenever federal removal is intended simply to facilitate a state 

prosecution.

The Extradition Clause imposes upon the executive authority of each State 

an obligation, on the demand of another State, to “deliver up” a fugitive from 

that other State’s justice. See supra note 19. The right given a State to demand 

is an “absolute” one, and implies a “correlative obligation to deliver, without 

any reference to the character of the crime charged, or to the policy or laws of 

the State to which the fugitive has fled.” Kentucky v. Dennison, 65 U.S. (24 

How.) 66, 103 (1861). “The duty of the Governor of the State where the 

fugitive was found is, in such cases, merely ministerial, without the right to 

exercise either executive or judicial discretion.” Id. at 104. However, the 

Clause and its federal implementing statute, 18 U.S.C. §3182, have been 

characterized as merely “declaratory of a moral duty,” because neither provides “any means to compel the execution of this duty.” Id. at 107. See also

Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 370 (1872). Accordingly, the federal 

courts have no power to compel authorities in one State to surrender a fugitive 

to those of another. See also South Dakota v. Brown, 20 Cal. 3d. 765, 772, 576 

P.2d 473 (1978) (state courts have no power under state extradition laws to 

“control executive discretion in extradition matters.”).22

Even if, under existing law, a State’s duty under the Extradition Clause 

cannot be enforced directly by a federal court, it does not follow that the 

Extradition Clause gives States an affirmative right to refuse or delay extradition. Indeed, the history of the Extradition Clause itself suggests that any such 

claimed right would be inconsistent with the Framers’ intention “to preserve 

harmony between States, and order and law within their respective borders.” 

See Kentucky v. Dennison, 65 U.S. at 101-03. Accordingly, the Extradition 

Clause gives a State no basis for resisting otherwise constitutional federal 

efforts to assist another in obtaining custody of a fugitive who has sought 

refuge within its borders. Cf. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 

(1842). The Fugitive Felon Act, with its provisions for apprehending and 

returning fugitives who have fled from one State to another, cannot therefore 

be challenged as an unconstitutional intrusion on some hypothetical “right” of 

one State to give asylum to another’s fugitives, or otherwise control the process 

of extradition.23 In fact, far from an intrusion, this statute provides, in effect, a 

federal means of enforcing the mandatory duty imposed upon States by the

22 In Kentucky v. Dennison, the Supreme Court held that a federal court could not issue a writ of mandamus 

to compel the Governor of Ohio to surrender a fugitive indicted in Kentucky for assisting a slave to escape: 

“the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty 

whatever, and compel him to perform it.” 65 U.S. at 107. Dissenting in South Dakota v. Brown, Justice Mosk 

observed that “[t]here is serious question whether the rigid federalism of Dennison would be followed today 

when a constitutional issue is involved.” 20 Cal. 3d at 781 n. 1 (citing Brown v. Board o f Education, 349 U.S.

294 (1955) and Green v. County School Bd., 391 U.S. 430 (1968)).

23 In any event, we think it unlikely (hat a court would permit a defendant to rely upon any right belonging 

to the asylum State as a defense to prosecution in the demanding State. See United States v Miller, 17 F. 

Supp. at 68.

91
Extradition Clause.24 This is not to say that the Fugitive Felon Act was 

intended to provide a routine substitute for state extradition procedures. The 

legislative history of the 1934 Act and its 1961 amendments makes clear that 

Congress did not intend the Act to supplant state extradition procedures. 

Congress was concerned not only with the possible federal intrusion in an area 

historically left to the States, but also with the financial burden which frequent 

use of federal removal procedures would place on the Federal Government. 

Thus, Congress appears to have contemplated that federal removal procedures 

would be used only in those rare situations where interstate rendition procedures would not be effective in bringing the fugitive to justice.

The statute’s intended deference to state extradition procedures requires that 

federal removal be used very sparingly in § 1073 cases. Accordingly, federal 

removal of a § 1073 defendant should not be sought routinely, or when state 

extradition procedures are determined to be adequate to accomplish the 

defendant’s return for prosecution or other appropriate disposition by the 

demanding State. The important policy considerations involved in making such 

a determination simply underscore the wisdom of requiring formal departmental approval of any request for removal in a § 1073 case. Factors to be considered in making this determination could include whether the extradition process will be likely to deliver the defendant to the demanding State in a timely 

fashion; whether the interest o f the demanding State in obtaining return of the 

fugitive is sufficiently strong to warrant using federal resources for this purpose; and whether the federal interest in the particular case is sufficiently 

strong to overcome whatever interest the asylum State may have in implementing its own extradition procedures. In a case in which extradition has been 

refused, the Department should consider whatever findings the asylum State’s 

Governor has made which caused him to make such a refusal.

V. Payment off Expenses off Traumsportiinig

Deffemdainits Umdler § 1®73

The United States Marshal has the authority and responsibility to execute a 

federal court order directing that a prisoner in federal custody be transported to 

another district. 28 U.S.C. § 567; 28 C.F.R. § 0.1 llj. Appropriated funds are 

available for this purpose. See Pub. L. No. 96-68, Title II, 93 Stat. 416, 420 

(1979). These funds are available for the court ordered transportation of § 1073

24 If the integrity o f an asylum State’s extradition procedures were guaranteed by the Extradition Clause, we 

doubt that the venue provisions o f § 1073 could have withstood constitutional challenge. Those provisions in 

effect require circum vention o f state extradition procedures insofar as they lead, sooner or later, to the 

fugitive’s return by federal process to the custody o f authorities in the State from which he fled. W hether the 

governm ent wins o r loses its § 1073 prosecution, the defendant is subsequently made to answer in state court 

for the state crim e. See United States v. M iller, 17 F. Supp. at 68. We see no reason why this constitutional 

issue w ould depend upon whether a federal prosecution preceded the fugitive’s being turned over to state 

authorities. The federal interest would appear to be as great, and that interest would appear to be equally 

served, and perhaps in a fairer way to defendants, when the federal government chooses to decline prosecution for w hat is essentially a derivative crim e, in deference to the demanding State’s disposition of the 

fugitive under state law.

92
prisoners to the same extent that they are available for the transportation of 

other federal prisoners.

The State seeking the return of the § 1073 defendant could voluntarily 

reimburse the United States for expenses incurred by the U.S. Marshal in 

connection with transportation in this situation. See United States v. Bumison,

339 U.S. 87, 90 (1950).25 However, the Marshal could not recoup his own 

expense from any such reimbursement, because an agency may not augment its 

appropriations without specific statutory authority. See 49 Comp. Gen. 572 

(1970); 5 Comp. Gen. 289 (1925). See generally General Accounting Office, 

Principles o f Federal Appropriations Law, ch. 5, subpart C (1982). With a few 

exceptions apparently not applicable here, any money an agency receives for 

the use of the United States from a source outside the agency must be deposited 

in full into the general fund of the Treasury. See 31 U.S.C. § 3302b (formerly 

31 U.S.C. § 484). See also 46 Comp. Gen. 31 (1966). Once money has been 

deposited into the general fund, there must be an appropriation to permit its 

expenditure. See 3 Comp. Gen. 599,600 (1923). The Marshal is not authorized 

to accept gifts of money for his own use, nor is he otherwise authorized to 

accept reimbursement for expenses incurred in carrying out his authorized 

functions. Thus, any funds received from a State for the interdistrict transportation of prisoners would therefore have to be deposited in the general fund of the 

Treasury.26

Conclusion

A federal § 1073 defendant may in appropriate circumstances be removed by 

federal process to the jurisdiction from which he fled in aid of a state prosecution. Accordingly, a prosecutor may seek removal, and a court may order it, 

even if the government does not intend to pursue the federal charges against the 

defendant once he has been returned. On the other hand, because § 1073 is not 

intended to supplant state law procedures for interstate rendition, removal

25 We have not studied whether the State could be required to reimburse the United States for expenses 

incurred by the Marsha) in this situation, as a condition of the Department’s willingness to request removal, 

and express no views on that issue. We note, however, that the authority to charge a fee for services contained 

in 31 U.S.C. § 9701 (formerly 31 U.S.C. § 483a), the so-called “user fee statute," has been held inapplicable 

to state and local governments and agencies thereof. See Beaver, Bountiful, Enterprise v. Andrus, 637 F.2d 

749 (10th Cir. 1980). The Intergovernmental Cooperation Act of 1968 provided a mechanism whereby 

governmental agencies can recover the cost o f certain “specialized or technical services'* provided to State 

and local entities. See 42 U.S.C. §§ 4222, 4223 (1976). These provisions were amended and reenacted in 

1982 as part o f Title 31. See 31 U.S.C. § 6505. Services may be provided, however, only if “prescribed by the 

President.” Id. § 6505(b).

26 Although the Marshal may not accept cash reimbursement without implicating the rule against augm entation of appropriations, it is possible that all or part of the personnel costs of transporting federal § 1073 

prisoners could be defrayed by deputizing state Ipw enforcement officers to assist the M arshal in carrying out 

this function. Under 28 C.F.R. § 0.112, the Director of the U.S. Marshals Service is authorized to m ake such 

deputations “whenever the needs of the U.S. Marshals Service so require.” See also 28 U.S.C. § 569(b) 

(conferring authority on U.S. Marshals to “command all necessary assistance to execute their duties”). 

Although 31 U.S.C. § 665(b) prohibits the acceptance o f voluntary services for the United States, this 

provision has been construed not to prohibit the acceptance of services that are truly “gratuitous,” i.e., for 

which no federal compensation is expected. See 54 Comp. Gen. 560 (1975).

93
should not be sought in such circumstances unless it is clear that state procedures are inadequate to the task of returning the fugitive.

Although it is unclear whether § 1073’s requirement of formal written 

Department of Justice approval applies in connection with such removal, it is 

possible that a court would not be willing to issue a Rule 40 order unless such 

approval had been given. Accordingly, we believe the Criminal Division’s 

policy of requiring departmental approval of all requests to remove represents 

the safer course.

Finally, funds appropriated for the authorized activities of the U.S. Marshal 

may be used to pay the cost of transporting a § 1073 defendant pursuant to a 

federal court order under Rule 40. All or part of the cost of transportation may 

voluntarily be borne by the State seeking the fugitive’s return, although any 

monies received from a State must be deposited into the general fund of the 

Treasury.

R a l p h W . T a r r

Deputy Assistant Attorney

General Office o f Legal Counsel

94