b'Authority for the Removal of Fugitive Felons\nApprehended Under 18 U.S.C. \xc2\xa7 1073\nAn individual charged with a violation of the Fugitive Felon Act, 18 U.S.C. \xc2\xa7 1073, which m akes\nit a federal offense to travel interstate to avoid a state felony prosecution, among other things,\nmay be \xe2\x80\x9cprosecuted\xe2\x80\x9d only in the federal judicial district in which the original state crim e was\ncom m itted, or from which he fled, and \xe2\x80\x9conly upon formal approval in writing by the Attorney\nGeneral or an Assistant Attorney General of the United States, which function of approving\nprosecutions may not be delegated.\xe2\x80\x9d\nUnder Rule 40 of the FedeAl Rules o f Criminal Procedure, an individual who is charged with a\nfederal offense in one district and is apprehended in another may be brought back before the\ncourt in which the federal charges are pending against him. A court\xe2\x80\x99s duty to order removal\nunder Rule 40 is not dependent upon a subsequent federal prosecution.\nThe Departm ent o f Justice has interpreted the term \xe2\x80\x9cprosecution\xe2\x80\x9d in the Fugitive Felon Act to\ninclude all steps in the federal criminal process after a fugitive has been taken into federal\ncustody, including removal to the district in which the federal charges against him are\npending, pursuant to Rule 40. The Department has also determined that the formal approval\nrequired by 18 U.S.C. \xc2\xa7 1073 may not be given if the federal prosecution is not to be\nsubsequently pursued. Although nothing in the legislative history o f the Fugitive Felon Act or\nrelevant case law mandates this interpretation, it is not clear whether a court would require\nformal written approval before issuing a Rule 40 removal order.\nFederal removal under Rule 40 has been upheld against a Fugitive Felon Act defendant\xe2\x80\x99s claim\nthat he was constitutionally entitled to extradition under state law. However, the Fugitive\nFelon Act was not intended to supplant state extradition procedures, and federal removal\nprocedures should not be used to accomplish a Fugitive Felon Act defendant\xe2\x80\x99s return for\nprosecution or other appropriate disposition by the State. The policy considerations involved\nin m aking such a determination underscore the wisdom o f the D epartm ent\xe2\x80\x99s requirem ent for\nformal approval for Rule 40 removal o f Fugitive Felon Act defendants.\nThe cost o f transporting a Fugitive Felon Act defendant pursuant to a court order under Rule 40\nmay be paid out o f funds appropriated for the authorized activities of the United States\nM arshal. All or part of the cost of transportation may voluntarily be borne by the State seeking\nthe fugitive\xe2\x80\x99s return, although any monies received from a State must be deposited into the\ngeneral fund of the Treasury.\n\nMarch 21, 1983\nM\n\nem orandum\n\nE x e c u t iv e O f f ic e\n\nO p in io n\nfor\n\nfor th e\n\nD ir e c t o r ,\n\nU n it e d S t a t e s A t t o r n e y s\n\nThis memorandum responds to your request for our opinion whether a\nfugitive apprehended by federal authorities under the Fugitive Felon Act, 18\n\n75\n\n\x0cU.S.C. \xc2\xa7 1073, may be removed to the jurisdiction from which he fled, pursu\xc2\xad\nant to Rule 40 o f the Federal Rules of Criminal Procedure, if the sole purpose of\nremoval is to return the fugitive to the custody of authorities in the State from\nwhich he fled. In the event federal removal is permissible in this situation, you\nwish to know the permissible source of funds to pay its costs.\nYour request derives from an exchange of correspondence between the\nUnited States Attorney for the Eastern District of Pennsylvania and the Assis\xc2\xad\ntant Attorney General, Criminal Division. In 1982, the United States Attorney\nfor the Eastern District of Pennsylvania wrote to the Criminal Division request\xc2\xad\ning reconsideration o f the policy set forth in \xc2\xa7 9-69.450 of the United States\nAttorneys Manual (Manual). T hat section provides that \xe2\x80\x9cremoval proceedings\nunder Rule 40\xe2\x80\x9d shall not be instituted in \xc2\xa7 1073 cases without the written\napproval o f the Assistant Attorney General, Criminal Division.1 The United\nStates Attorney stated that \xe2\x80\x9cthe present Department policy which prohibits\nroutine federal removal of [\xc2\xa7 1073] defendants is inconsistent with the\nD epartm ent\xe2\x80\x99s emphasis on federal-state law enforcement cooperation, and\ninhibits effective law enforcement.\xe2\x80\x9d The Criminal Division\xe2\x80\x99s position is that\nthe Departm ent\xe2\x80\x99s policy of requiring written approval before removal in \xc2\xa7 1073\ncases is mandated by \xc2\xa7 1073 itself. Furthermore, such approval may not be\ngiven where the government does not intend to pursue a federal prosecution\nunder that statute. This latter position, as more fully developed in discussions\nwith Criminal Division staff, is based not only upon an interpretation of the\nfederal government\xe2\x80\x99s authority under the Fugitive Felon Act, as amended in\n1961, but also upon a concern that a federal defendant removed under Rule 40\nfor the sole purpose o f facilitating a state prosecution could claim some\nconstitutional or statutory entitlement to be processed under state laws govern\xc2\xad\ning interstate rendition.2\nWe have examined the legislative history of \xc2\xa7 1073 and its judicial and\nadministrative interpretations in the half century since its original enactment.\nAlthough we find no basis on which to disagree with the Criminal Division\xe2\x80\x99s\nposition with respect to its policy of requiring written approval for removal in\n\xc2\xa7 1073 cases, we do not believe the situations in which such approval may be\ngiven are limited to those in which a decision has been made to pursue a federal\nprosecution under that statute. For reasons more fully discussed below, we\nbelieve the federal government\xe2\x80\x99s broad authority under \xc2\xa7 1073 to assist local\n\' T he reference in \xc2\xa7 9 -6 9 .4 5 0 to \xe2\x80\x9cremoval proceedings under Rule 40\xe2\x80\x9d does not appear to reflect the 1979\nam endm ents to R ule 40 o f the Federal R ules o f Criminal Procedure. See Pub. L. No. 9 6 -4 2 , 93 Stat. 326\n(1979). T he 1979 am endm ents abolished th e \xe2\x80\x9cw arrant o f rem oval\xe2\x80\x9d by which a federal court previously\ndirected return o f a d efendant arrested in \xe2\x80\x9ca distant d istrict,\xe2\x80\x9d i.e., on a w arrant issued in another State at a\nplace 100 m iles o r m ore from the place o f a rre st. Although a w arrant of rem oval is no longer required under\nR ule 40 in o rd er to accom plish the transfer o f prisoners in federal custody from one district to another, the\nterm \xe2\x80\x9crem oval" is used throughout this m em orandum to indicate the ju d ic ia l procedure w hereby a federal\ndefend an t is returned to the jurisdiction o f th e court in w hich the federal charges against him are pending.\n2 A s w e understand it, the Crim inal D ivision\xe2\x80\x99s position is based upon its interpretation o f federal authority\nun d e r \xc2\xa7 1073, and not upon som e independent lim itation upon a court\xe2\x80\x99s authority under Rule 40 to order\nrem oval if federal charges are not to be pursued.\n\n76\n\n\x0claw enforcement agencies in the apprehension of fugitive felons or witnesses\npermits it to return a fugitive to the jurisdiction from which he fled for\nprosecution or other appropriate disposition by the State. Furthermore, a defen\xc2\xad\ndant subject to removal under Rule 40 has no federal constitutional or statutory\nright to be extradited under state law. Federal removal should, however, be\nsought only in those situations where existing interstate rendition procedures\ncannot be relied upon to bring a fugitive to justice.\nFinally, the cost of transporting a federal \xc2\xa7 1073 defendant pursuant to a\nfederal court order under Rule 40 may be paid from funds appropriated for the\nauthorized activities of the United States Marshal responsible for carrying out\nthe court\xe2\x80\x99s order. Although all or part of this cost may be reimbursed by the\nState seeking the fugitive\xe2\x80\x99s return, any monies received from the State must be\ndeposited directly into the general fund of the Treasury.\n\nI. Section 1073, Rule 40, and Current Departmental\nPractice in Fugitive Cases\nA. Section 1073\n\nSection 1073 of Title 18, the so-called Fugitive Felon Act, makes it a federal\noffense to travel interstate for the purpose of avoiding a state felony prosecu\xc2\xad\ntion, or custody or confinement after conviction, or to avoid giving testimony\nin a state criminal prosecution or investigation.3 Under the venue provisions of\n\xc2\xa7 1073, an individual charged with a violation may be \xe2\x80\x9cprosecuted\xe2\x80\x9d only in the\nfederal judicial district in which the original state crime was committed, or\nfrom which he fled, and \xe2\x80\x9conly upon formal approval in writing by the Attorney\nGeneral or an Assistant Attorney General of the United States, which function\nof approving prosecutions may not be delegated.\xe2\x80\x9d\n\n3 Section 1073 provides in full as follows:\n\xc2\xa7 1073. Flight to avoid prosecution o r giving testim ony\nW hoever moves o r travels in interstate or foreign com m erce with intent either (1) to avoid\nprosecution, or custody o r confinem ent after conviction, under the laws o f the place from which\nhe flees, for a cnm e, o r an attem pt to com m it a crime, punishable by death or which is a felony\nunder the laws o f the place from w hich the fugitive flees, o r which, in the case o f New Jersey, is\na high m isdem eanor under the law s o f said State, o r (2) to avoid giving testim ony in any criminal\nproceedings in such place in which the com m ission o f an offense punishable by death or which is\na felony under the law s o f such place, or which in the case o f New Jersey, is a high m isdem eanor\nunder the laws o f said State, is charged, o r (3) to avoid service of, or contem pt proceedings for\nalleged disobedience of, lawful process requiring attendance and the giving o f testim ony or the\nproduction o f docum entary evidence before an agency o f a State em pow ered by the law o f such\nState to conduct investigations o f alleged crim inal activities, shall be fined not more then $5,000\no r imprisoned not more than five years, or both.\nV iolations o f this section may be prosecuted only in the Federal judicial district in which the\noriginal cnm e w as alleged to have been com m itted, or in w hich the person was held in custody or\nconfinem ent, or in w hich an avoidance o f service o f process o r a contem pt referred to in clause\n(3) o f the first paragraph o f this section is alleged to have been com m itted, and only upon formal\napproval in writing by the A ttorney General or an A ssistant Attorney General o f the United\nStates, which function o f approving prosecutions may not be delegated.\n\n77\n\n\x0cThe Fugitive Felon Act has been sustained against constitutional challenge\nas a valid exercise of Congress\xe2\x80\x99 power to regulate interstate commerce, U.S.\nConst, art. I, \xc2\xa7 8, cl. 3. See, e.g.. United States v. Bando, 244 F.2d 833 (2d Cir.\n1957); B arker v. United States, 178 F.2d 803 (5th Cir. 1949); Hemans v.\nU nited States, 163 F.2d 228 (6th Cir.), cert, denied, 332 U.S. 801 (1947);\nU nited States v. Brandenburg, 144 F.2d 656 (2d Cir. 1944); Simmons v. Zerbst,\n18 F. Supp. 929 (N.D. Ga. 1939). The \xe2\x80\x9cgeneral purpose of the Act was to assist\nin the enforcement o f state law s,\xe2\x80\x9d United States v. Brandenburg, 144 F.2d at\n659, and its enforcement has been held not to violate the rights of the States\nunder the Tenth Amendment. See United States v. Miller, 17 F. Supp. 65, 68\n(W.D. Ky. 1936); Lupino v. U nited States, 185 F. Supp. 363, 368 (D. Minn.\n1960). In Miller, the district court explained that\n[Congress] may make a crime the use of interstate commerce by\na fleeing criminal in order to aid the states in the apprehension of\nthe guilty and make certain, swift, and sure the punishment of\nthose who commit crim es against the states. If such power be\nnot lodged in the Congress, then the unity o f our people to deal\nwith crime is destroyed and the states crippled in punishing\nthose who violate their laws and flee to another state.\n17 F. Supp. at 68.\nThe venue provisions of \xc2\xa7 1073 have been interpreted consistently with this\ngeneral purpose o f assisting state law enforcement:\n[T]he primary purposes of the venue section o f \xc2\xa7 1073 [are] to\nreturn the felon to the state where the original flight occurred in\norder to assist state officials in combating organized crime\nthere, and to vindicate the federal interest in punishing acts\ncommitted in the judicial district where the original flight took\nplace.\nUnited States v. Thurman, 687 F.2d 11, 13 (3d Cir. 1982).\nB. Rule 40\n\nRule 40 of the Federal Rules of Criminal Procedure (\xe2\x80\x9cCommitment to\nAnother District\xe2\x80\x9d) describes the process whereby a person who is charged with\na federal offense in one district, and is apprehended in another, may be brought\nback before the court in which the federal charges are pending against him.\nRule 40(a) provides that \xe2\x80\x9cif a person is arrested in a district other than that in\nwhich the offense is alleged to have been committed, he shall be taken before\nthe nearest available federal m agistrate.\xe2\x80\x9d Preliminary proceedings are held\nbefore the magistrate to determine that the apprehended fugitive is the indi\xc2\xad\nvidual named in the arrest warrant. If no indictment has been returned against\nhim in the district where the warrant was issued, the magistrate must also\ndetermine that there is probable cause that he committed the crime for which he\n\n78\n\n\x0cis to be \xe2\x80\x9cheld to answer in the district court in which the prosecution is\npending.\xe2\x80\x9d4\nRule 40 does not explicitly provide for a federal prisoner\xe2\x80\x99s transportation to\nthe jurisdiction in which the charges against him are pending. If a defendant is\nadmitted to bail, or released on his own recognizance, he is expected to present\nhimself in the proper court at the proper time. If the magistrate has not\napproved the prisoner\xe2\x80\x99s release, however, he remains in the custody of the U.S.\nMarshal, who is responsible for seeing that the magistrate\xe2\x80\x99s removal order is\ncarried out by transporting the defendant to the court in which the charges\nagainst him are pending. See 28 U.S.C. \xc2\xa7 567; 28 C.F.R. \xc2\xa7 0.1 ll(j).\nThe procedural protections embodied in Rule 40 are not constitutionally\nrequired, but were developed as a matter of sound judicial policy. Unlike\nextradition, which involves a demand of one sovereign upon another, and\nimplicates \xe2\x80\x9cthe protection owed by a sovereign to those within its territory,\xe2\x80\x9d\nUnited States ex rel. Kassin v. Mulligan, 295 U.S. at 396, 400 (1935), the\nprocess by which a federal defendant is returned for trial theoretically involves\nonly a physical transfer from one judicial district to another within a single\nsovereign\xe2\x80\x99s territory. See United States v. Godwin, 97 F. Supp. 252, 255 (W.D.\nArk.), a jfd , 191 F.2d 932 (5th Cir. 1951) (\xe2\x80\x9cthe several judicial districts are not\nforeign to each other . . . but are simply convenient subdivisions . . . of one\nsovereign, the United States\xe2\x80\x9d). The purpose of Rule 40 is \xe2\x80\x9cto afford defendants\nreasonable protection, to safeguard them against improvident removal to a\ndistant point for trial and to curb a defendant\xe2\x80\x99s opportunity for delay and\nobstruction of prosecution.\xe2\x80\x9d United States v. McCord, 695 F.2d 823, 826 (5th\nCir.), cert, denied, 460 U.S. 1073 (1983). See also Notes of the Advisory\nCommittee on the 1945 Rules, 18 U.S.C. app. (1976).5\n4 Rule 40(a) provides in full as follows:\n(a) A ppearance Before Federal M agistrate\nIf a person is arrested in a district other than that in which the offense is alleged to have been\ncom m itted, he shall be taken without unnecessary delay before the nearest available federal\nm agistrate. Preliminary proceedings concerning the defendant shall be conducted in accordance\nwith Rules 5 and 5 1, except that if no prelim inary exam ination is held because an indictm ent has\nbeen returned o r an inform ation filed o r because the defendant elects to have the prelim inary\nexam ination conducted in the d istn ct in which the prosecution is pending, the person shall be\nheld to answ er upon a finding that he is the person named in the indictment, inform ation or\nwarrant. If the defendant is held to answ er, he shall be held to answ er in the district court in which\nthe prosecution is pending, provided that a w arrant is issued in that district if the arrest was made\nw ithout a w arrant, upon production o f the w arrant or a certified copy thereof.\ns A federal c o u rt\'s authonty and duty to effectuate a federal prisoner\xe2\x80\x99s com m itm ent to the d istnct in which\nfederal charges against him are pending was first set forth m \xc2\xa7 33 o f the Judiciary Act o f 1789. That section\nprovided that \xe2\x80\x9cit shall be the duty o f the judge o f the district where the delinquent is im pnsoned, seasonably\nto issue, and o f the M arshal o f the sam e district to execute a w arrant for the rem oval of the o ffe n d e r,. .. to the\ndistrict in w hich the trial is to be had.\xe2\x80\x9d 1 Stat. 73, 91 (1789). This provision was later codified virtually\nunchanged in \xc2\xa7 1014 o f the R evised Statutes, and brought forward as \xc2\xa7 591 o f Title 18 o f the U nited States\nCode (1940). It was repealed in 1948, three years after the Suprem e C ourt\xe2\x80\x99s prom ulgation o f Rule 40. In the\nearly years o f the Republic, it was the frequent practice for many district courts to issue a w arrant o f rem oval\nat the sam e time they issued a w arrant o f arrest. Upon his apprehension, the defendant was im m ediately\nreturned to the district which had issued the w arrant, and was thus effectively deprived o f any hearing on the\nquestion o f his rem oval. This practice was disapproved as a m atter o f judicial policy in such cases as United\nContinued\n\n79\n\n\x0cOrdinarily, a court has no discretion to refuse to order removal, provided the\nrequisite showing of identity and probable cause has been made. A removal\norder is not appealable. See G allow ay v. U nited States, 302 F.2d 457 (10th Cir.\n1962). Neither the sufficiency of the charges nor the constitutionality of the\nstatute on which those charges are based can be raised in a removal hearing,\nthough these may o f course be challenged in the district court in which the\ncharges are pending. See United States v. Winston, 267 F. Supp. 555 (S.D.N.Y.\n1967); Wright v. Cartier, 10 F.R.D. 21 (D. Mass. 1950).6\nA district court\xe2\x80\x99s authority and responsibility under Rule 40 and its statutory\npredecessors has never been held to depend upon the likelihood of subsequent\nfederal prosecution. There is, for example, no requirement that an indictment\nbe returned in the court to which removal is sought. See Fetters v. United\nStates, 283 U.S. 638 (1931); Greene v. Henkel, 183 U.S. 249 (1902). This is\nevident on the face of the Rule, which requires that the government prosecutor\nestablish probable cause only if no indictment has been returned or information\nfiled in the district to which removal is sought. A court\xe2\x80\x99s duty to order removal\nis thus not conditioned upon the government prosecutor\xe2\x80\x99s declared willingness\nto seek an indictment and proceed to trial.\nC. D epartm ental Enforcement P olicy in \xc2\xa7 1073 Cases\nThe Departm ent\xe2\x80\x99s policy on enforcement o f \xc2\xa7 1073 is set forth in the United\nStates Attorneys Manual at \xc2\xa7\xc2\xa7 9-69.400 et seq. As stated in the Manual, that\n3 (. . . continued)\nStates v. Shepard, 27 F. C as. 1056 (E.D. M ich. 1870) (No. 16,273); U nited States v. Jacobi, 26 F. Cas. 564\n(W .D . T enn. 1871) (N o. 15,460); and U nited States v. Yarborough, 122 F. 293 (W.D. Va. 1903). In these\nearly cases, the courts recognized the im portance o f ensuring against m istaken identity or the absence of\nprobable cause before o rdering a defendant transported w hat m ight be hundreds o f m iles for trial. At the same\ntim e, how ever, they w ere unw illing to allo w a defendant to force a trial on the merits at the removal stage, at\nbest d elaying h is return and potentially frustrating prosecution entirely. In prom ulgating R ule 40 in 1945, the\nSuprem e C o u rt sought to strike a balance betw een these tw o concerns. See generally Holtzoff, Rem oval o f\nD efendants in F ederal C rim inal Procedure, 4 F.R.D . 455 (1945); 8B M oore\'s Federal Practice *2 40.04 at\n4 0 -2 4 (1 9 8 0 ).\nAs o rig in ally prom ulgated in 1945, R ule 40 distinguished betw een persons taken into federal custody in a\n\xe2\x80\x9cnearby d istric t\xe2\x80\x9d {i.e., on a w arrant issued in the sam e State o r w ithin 100 miles) and persons arrested in a\n\xe2\x80\x9cd istan t d istric t.\xe2\x80\x9d Persons in the latter category could be returned for prosecution only upon the issuance o f a\n\xe2\x80\x9cw arran t o f rem oval\xe2\x80\x9d by a district judge. N o w arrant o f rem oval was necessary to return a person arrested in\na \xe2\x80\x9cnearby d istrict,\xe2\x80\x9d w ho, like a state prisoner transported acro ss the S tate for trial, was \xe2\x80\x9ctransported by virtue\no f the process un d er w hich he was arrested.\xe2\x80\x9d See N otes o f the A dvisory C om m ittee on the 1945 Rules, Rule\n40(a), 18 U .S.C . app. (1976). The 1979 am endm ents to R ule 40 abolished the \xe2\x80\x9cw arrant o f rem oval\xe2\x80\x9d and\nelim in ated the d istin ctio n betw een the p rocedures applicable to arrest in \xe2\x80\x9cdistant\xe2\x80\x9d and \xe2\x80\x9c nearby\xe2\x80\x9d districts. The\nN otes o f the A dvisory Com m ittee on th e 1979 am endm ents to the R ules explained that the preliminary\nproceedings previously applicable under R ule 40(a) to persons arrested in a \xe2\x80\x9cnearby\xe2\x80\x9d district were \xe2\x80\x9cadequate\nto protect the rig h ts o f an arrestee w herever he m ight be arrested,\xe2\x80\x9d and w ould henceforth apply in all cases o f\ncom m itm ent to a n o th er d istrict. See Rule 40(a), 18 U .S.C. app. (1980).\n6 W e a re aw are o f tw o cases in which a district court declined to order removal on grounds that \xe2\x80\x9cspecial\nfacts w ere disclosed that seem ed to make questionable the propriety o f rem oval.\xe2\x80\x9d United States v. Johnson,\n63 F. Supp. 615, 616 (D. Or. 1945); U nited States v. Parker, 14 F.R.D. 146 (D.D.C. 1953). In Johnson, the\nd istrict c o u rt in O regon refused to order the d efen d an t\'s rem oval to the D istrict o f C olum bia, declining to\ngive the latter ju risd ic tio n \'s criminal child support statute \xe2\x80\x9cextraterritorial application.\xe2\x80\x9d In Parker, the court\nrefused to o rder rem oval in a situation suggesting governm ent harassm ent o f the defendant.\n\n80\n\n\x0cpolicy is grounded in the theory that \xe2\x80\x9cthe primary purpose of the [Fugitive\nFelon] Act is to permit the Federal Government to assist in the location and\napprehension of fugitives from State justice.\xe2\x80\x9d Accordingly, federal \xc2\xa7 1073\ncharges are rarely pursued beyond the point of a fugitive\xe2\x80\x99s apprehension by\nfederal law enforcement authorities.7 Ordinarily, after the federal \xc2\xa7 1073 pris\xc2\xad\noner has been taken before the nearest available federal magistrate pursuant to\nRule 40(a), he is turned over to authorities in the State of arrest for extradition\nto the State from which he fled.8\nOccasionally, however, a federal \xc2\xa7 1073 prosecution will be pursued. In\nsuch a case, once preliminary proceedings under Rule 40 have been completed\n(or waived), the magistrate is requested to issue an order under Rule 40(a)\ndirecting that the apprehended fugitive be committed to the jurisdiction o f the\nfederal court in which the \xc2\xa7 1073 charges are pending against him. It is this\nlatter court which, under the venue provisions of \xc2\xa7 1073, has jurisdiction over\nthe federal criminal case.\nSection 9-69.450 o f the Manual restates the statutory requirement that\n\xc2\xa7 1073 \xe2\x80\x9cprosecutions\xe2\x80\x9d may be \xe2\x80\x9cinitiated\xe2\x80\x9d only upon the written approval o f the\nAttorney General or an Assistant Attorney General:\nThe 1961 amendment to the Act incorporated existing adminis\xc2\xad\ntrative practice by requiring approval by the Attorney General\nor Assistant Attorney General, in writing, before initiation of\nprosecution for unlawful flight to avoid prosecution, or custody\nor confinement after conviction, or to avoid giving testimony.\nAccordingly, under no circumstances should an indictment un\xc2\xad\nder the Act be sought nor an information be filed nor should\nremoval proceedings under Rule 40, F. R. Crim. P., be instituted\nwithout the written approval of the Assistant Attorney General,\nCriminal Division.\nSection 9-29.450, as interpreted by the Criminal Division, incorporates two\nlegal conclusions: (1) The statutory term \xe2\x80\x9cprosecution\xe2\x80\x9d in the final paragraph\n7 W e understand from the C rim inal D ivision that there have been only tw o or three federal \xc2\xa7 1073\nprosecutions since 1961.\n8 U nder Rule 40(a) it is the m agistrate\xe2\x80\x99s responsibility to conduct prelim inary proceedings to determ ine that\nthe defendant is the person nam ed in the federal arrest w arrant, and that there is probable cause to believe that\na violation o f \xc2\xa7 1073 was com m itted. See supra note 5. The fugitive \xe2\x80\x9cshould remain in Federal custody o r on\nbail or other conditions o f release only so long as is necessary to permit his com m itm ent to the authorities in\nthe State where apprehended.\xe2\x80\x9d See \xc2\xa7 9-69.430. Asylum state authorities are generally w illing to take custody\no f the fugitive, and the m agistrate is willing to approve release from federal custody with this understanding.\nT he dem anding State may already have begun the extradition process by the time custody has shifted. The\nU nited States A ttorney in the district where the federal com plaint was filed then moves for its dism issal, and\nthere is no further federal involvement. See \xc2\xa7 9 -6 9 .4 3 1 ; see also 8B M oore\'s Federal Practice, 1 4 0 .0 4 a t 4 0 2 3 (1 9 8 0 ).\nThe process o f extradition is not always a sm ooth one. The M anual notes the possibility that the dem anding\nState w ill be unw illing to extradite, or that extradition will be attem pted but fail. See \xc2\xa7 9-69.431. T he same\nsection also m entions the possible difficulties associated w ith the return o f fugitive w itnesses, to w hom State\nextradition procedures do not apply. In addition, State courts may release the fugitive on low bail before the\nextradition process can be com pleted, providing a new occasion for interstate flight and federal involvem ent\nunder \xc2\xa7 1073.\n\n81\n\n\x0co f \xc2\xa7 1073 for which written approval is required includes all steps in the federal\ncrim inal process after a fugitive has been taken into federal custody, including\nremoval to the district in which the federal charges against him are pending;\nand (2) such approval may not lawfully be given if the federal prosecution\nunder \xc2\xa7 1073 is not to be subsequently pursued. Accordingly, the Criminal\nD ivision\xe2\x80\x99s position on the questions hereinafter considered is that \xc2\xa7 1073 itself\nprecludes removal of a defendant in a \xc2\xa7 1073 case unless there has been a\nformal departmental decision, approved in writing by the Assistant Attorney\nGeneral, to indict and bring to trial on the federal charges.\nThe text of \xc2\xa7 1073 affords no clear guidance on the scope to be given the\nstatutory term \xe2\x80\x9cprosecution,\xe2\x80\x9d o r more generally on the permissibility of using\nfederal removal procedures to secure the return of \xc2\xa7 1073 defendants in aid of a\nstate prosecution. Accordingly, we must review the legislative history of\n\xc2\xa7 1073 to determ ine whether the Criminal Division\xe2\x80\x99s position on these issues,\nas described above, is correct.\nM. LegisDative Hnstory of \xc2\xa7 1\xc2\xae73\nA. The 1934 A ct\n\nThe Fugitive Felon Act, Pub. L. No. 73-233,48 Stat. 782 (1934), was one of\na series of thirteen major crime bills proposed by the Roosevelt Administration\nand passed by Congress in 1934. As originally enacted, the Act made it a\nfederal offense to travel interstate to avoid prosecution for certain specified\nstate felonies, or to avoid giving testimony in certain state criminal proceed\xc2\xad\nings. The Act originated in a series of hearings on organized crime held in 1933\nin different parts o f the country by a subcommittee of the Senate Committee on\nCommerce. Investigation o f So-C alled \xe2\x80\x9cRackets": Hearings Pursuant to S.\nRes. 74, 73d Cong., 2d Sess. (1933) (1933 Senate Hearings). The hearings\nexplored the difficulties which state law enforcement agencies were experienc\xc2\xad\ning in dealing with interstate crime. One of the frequently mentioned problems\nwas the complicated and inefficient process o f state extradition. See, e.g., 1933\nSenate Hearings at 177 (statement of Hon. William M \xe2\x80\x99Kay Stillman, Judge of\nthe Criminal Court in Detroit); 210 (statement o f John P. Smith, Chief of Police\no f Detroit, M ichigan); 293 (statement of H.D. Harper, Chief of Police of\nColorado Springs, Colorado).\nDuring the course o f the hearings, Harry S. Toy, the Prosecuting Attorney of\nW ayne County, Michigan, introduced into the hearing record a legislative\nproposal which would make interstate flight a federal crime. 1933 Senate\nHearings at 198. Mr. Toy was particularly concerned with the problem of\nfugitive witnesses, to whom m ost state extradition procedures did not apply.9\nSenator Copeland, who chaired the subcommittee, questioned Mr. Toy closely\n9 Id 1934, only ten States had enacted statu tes providing fo r the interstate rendition o f witnesses in crim inal\nproceedings. S ee C om m issioner\xe2\x80\x99s Prefatory N ote to 1936 R evision o f U niform Act to Secure the Attendance\no f W itnesses from W ithout the State in C rim inal Proceedings, 11 U.L.A. 2 (1974).\n\n82\n\n\x0cabout the possibility whether, under the legislation he had proposed, \xe2\x80\x9ca witness\nbrought back by the Federal court might then be turned over to the State court\nfor such action as it proposes.\xe2\x80\x9d Id. at 199. He was concerned that Mr. Toy\xe2\x80\x99s\nproposed legislation would be held unconstitutional because it would \xe2\x80\x9cevade\nthe extradition clause of the Constitution to bring this man back into the\njurisdiction o f the Federal court,\xe2\x80\x9d only to \xe2\x80\x9cserve the papers upon him for action\nin the State court.\xe2\x80\x9d Id. at 204.10 Senator Vandenburg disagreed on the constitu\xc2\xad\ntionality of the proposed legislation. Significantly, however, both Senators\nbelieved that the legislation would permit federal return of a fugitive felon or\nwitness for state prosecution.\nOn January 11, 1934, Senator Copeland introduced Mr. Toy\xe2\x80\x99s proposed\nlegislation, with certain changes in its venue provisions." In his floor state\xc2\xad\nment, he again expressed his reservations about the constitutionality of a bill\nwhich would permit the \xe2\x80\x9ccircumvention\xe2\x80\x9d of state extradition procedures:\n[Senator Vandenburg] thinks he sees in this an opportunity to\nhelp the State courts . . . . He hopes that a witness to a crime\nagainst the State law may, by the operation of this proposed law,\nbe brought back by the United States district court, and then,\nwhen the witness is returned and within the jurisdiction of the\nState court, that he may be turned over to the State court for the\nbenefit of the State authorities in carrying on the prosecution. Of\ncourse, I do not think that can be done . . . .\n78 Cong. Rec. 453 (1934). The Attorney General, in comments on the bill\nprepared for the House Committee on the Judiciary, appeared to explain that\nthe bill would assist the States in providing an alternative to extradition to\nsecure the return of fugitives:\nThis bill will not prevent the States from obtaining extradition\nof roving criminals but the complicated process of extradition\nhas proved to be very inefficient. . . . By an amendment in the\nSenate this bill was clarified to assure that the defendant shall be\ntried only where the \xe2\x80\x98original crime is alleged to have been\ncommitted.\nH.R. Rep. No. 1458, 73d Cong., 2d Sess. 1-2 (1934).\nThe \xe2\x80\x9camendment in the Senate\xe2\x80\x9d to which the Attorney General referred was\nan addition to the bill\xe2\x80\x99s venue provisions made on the floor of the Senate.\nSenator Steiwer had expressed concern about whether the venue provisions in\n10 It is not c le ar w hether Senator Copeland* s constitutional concern related to possible rights o f States under\nthe Extradition C lause, o r to the possible right o f an individual to be extradited, or to both. C harles F. Boots,\nLegislative C ounsel to the Senate, who also com m ented for the record on the constitutionality o f M r. T o y \'s\ndraft legislation, was concerned that \xe2\x80\x9csuch procedure could well be challenged as w ithholding from the\ndefendant the rig h t to a speedy trial on the Federal charge.\xe2\x80\x9d 1933 Senate H earings at 200-03.\n11 The venue provisions in M r. Toy\xe2\x80\x99s bill w ould have perm itted federal prosecution in any federal district\n\xe2\x80\x9cfrom, through, o r into w hich any person shall flee.\xe2\x80\x9d 1933 Senate H earings at 1989. The analogous provisions\no f S. 2253 lim ited venue to the \xe2\x80\x9cFederal ju dicial district in which the cn m e was com m itted.\xe2\x80\x9d\n\n83\n\n\x0cthe bill as originally introduced could be construed to require trial on the\nfederal charges in the district where the fugitive was apprehended. Senator\nCopeland agreed to a clarifying amendment, explaining that the bill\xe2\x80\x99s purpose,\nat least in the case o f fugitive witnesses, was to facilitate state prosecutions by\nsecuring their return to the jurisdiction from which they had fled:\nO f course the State could make it a felony for a witness to flee\nthe jurisdiction of the court, but the State would have no power\nto bring the witness back. In this case, however, if he is an\nimportant witness to a murder, or to a gang operation, and flees\nto another State, he becomes guilty of a felony, and may be\nbrought back by the d istrict court o r by the Federal G overn\xc2\xad\nment. So there can be no doubt that in apprehending criminals\n\nand in bringing them to book this is an important bill, and one\nwhich should be passed.\n78 Cong. Rec. 5736 (1934) (emphasis added). Senator Steiwer responded that\n\xe2\x80\x9cI think the purpose just explained by the Senator is a very proper purpose,\xe2\x80\x9d\nand that \xe2\x80\x9cI agree thoroughly that the accused ought to go back to the State from\nwhich he flees . . . .\xe2\x80\x9d Id. at 5936-39.\nThe foregoing legislative history indicates that the sponsors of the 1934 Act\nexpected that it could be used to assist state authorities by securing the return of\nfugitives. Although existing state rendition procedures might have been avail\xc2\xad\nable to obtain the return of fugitives from another State\xe2\x80\x99s criminal justice\nsystem, those procedures were often \xe2\x80\x9cinefficient,\xe2\x80\x9d and in any event did not\nalways apply to fugitive witnesses. To be sure, there was disagreement among\nthe sponsors o f the bill as to how far federal law enforcement agencies could\nconstitutionally go in \xe2\x80\x9cassisting\xe2\x80\x9d the States in this regard, if state extradition\nprocedures were otherwise available. But there seems little doubt that its\nsponsors intended the bill which passed in 1934 to authorize federal removal to\nthe extent constitutionally permissible.12\nB. The 1961 Am endm ents to \xc2\xa7 1073\n\nIn 1961 the Kennedy administration proposed amendments to the Fugitive\nFelon Act which brought within its scope all felonies or offenses punishable\nunder state law by more than one year in prison.13 See Pub. L. No. 87-368, 75\nStat. 795 (1961). The purpose o f the amendments was to \xe2\x80\x9cpermit the Federal\ngovernment to give greater aid and assistance to the States.\xe2\x80\x9d The Attorney\nG e n e ra l\xe2\x80\x99s P rogram to Curb O rganized Crim e and Racketeering: Hearings\n12 T here is no suggestion in the legislative history o f the 1934 A ct that C ongress considered the scope o f a\nfederal c o u rt\'s authority and obligation to o rd e r a federal p riso n e r\'s com m itm ent to another district under\nthen-ex istin g law. In 1934, federal removal w as governed by the provisions o f 18 U.S.C. \xc2\xa7 591, which made\nit the \xe2\x80\x9cd u ty " o f a federal court to execute a w arrant for a p riso n e r\'s removal \xe2\x80\x9cto the distn c t where the trial is\nto be h ad ." See 18 U .S.C . \xc2\xa7 591 (1934)\n13 A s originally enacted, the Fugitive Felon A ct applied only to specifically enum erated crim es. See S. Rep.\nNo. 586, 87th C ong., 1st Sess. 2 (1961).\n\n84\n\n\x0cBefore the Senate Comm, on the Judiciary, 87th Cong., 1st Sess. 15 (1961)\n(1961 Senate Hearings) (testimony of Attorney General Kennedy). See also\nLegislation Relating to O rganized Crime: Hearings Before a Subcomm. o f the\nHouse Comm, on the Judiciary, 87th Cong., 1st Sess. 42 (1961) (1961 House\n\nHearings) (the purpose of the amendments is \xe2\x80\x9cto help and assist the States\xe2\x80\x9d).\nThe legislative history of the 1961 amendments reflects Congress\xe2\x80\x99 expecta\xc2\xad\ntion that the law, as amended, would \xe2\x80\x9cprovide either for Federal trials of the\npersons apprehended or their return to the p ro p er State jurisdiction f o r p ro s\xc2\xad\necution or other appropriate State a c t i o n H.R. Rep. No. 827, 87th Cong., 1st\nSess. at 2 (1961) (1961 House Report) (emphasis added). See also id. at 7\n(expressing concern that, should the category of covered state crimes be\nexpanded, \xe2\x80\x9cState officials would ask for Federal help in seeking the return of\nevery one of these fugitives, especially since the request would relieve the State\nof costs\xe2\x80\x9d) (minority views of Rep. Libonati).\nBoth the House and Senate Reports referred with approval to the Justice\nDepartment\xe2\x80\x99s then-existing enforcement policy. They also noted that \xe2\x80\x9cthe\nDepartment of Justice does not anticipate that its established practice under\nexisting law will be altered by the proposed broadening of the Fugitive Felon\nAct.\xe2\x80\x9d S. Rep. No. 586, 87th Cong., 1st Sess. 2 (1961). See also 1961 House\nReport at 2. Inter alia, that policy \xe2\x80\x9crequire[d] the approval of an appropriate\nAssistant Attorney General before an indictment or a Federal removal proceed\xc2\xad\ning may be instituted.\xe2\x80\x9d See Letter from Deputy Attorney General Byron R.\nWhite (Aug. 23, 1961), reprinted in 107 Cong. Rec. 15757 (1961) (House); id.\nat 19240 (Senate).14\nDuring the debates on the bill in the House, there were several unsuccessful\nattempts to write certain aspects of the Department\xe2\x80\x99s practice into the law\nitself. The consensus of the House members, however, was it would unneces\xc2\xad\nsarily hamper federal law enforcement efforts to attempt to legislate the details\nof what was regarded as a successful experiment in federal-state cooperation.\nThus, for example, the House rejected an amendment which would have\nlimited the issuance of a federal complaint under the statute to situations in\n14 It would appear that, at least prior to 1961, the D epartm ent interpreted the Fugitive Felon Act to permit\nthe use o f federal removal procedures to secure the return o f a fugitive for state prosecution:\nH aving once apprehended a fugitive defendant or witness the Department has solved the first\nproblem for the local prosecutor who can then follow the well- established rendition procedure.\nShould this fa il fo r a variety o f reasons the w ay is still open to remove the fu g itiv e under Federal\nprocess a n d return him to the jurisd ictio n where the original crim e was committed. There the\nfe d e ra l governm ent could turn him over to state authorities o r try him under the Fugitive Felon\nlaw, o r both.\nFrom the debates in C ongress it is evident that upperm ost in the minds o f some Senators was\nthe thought that the Act would operate to secure the return o f the fugitive felon or w itness. The\nvenue provision alone makes that plain and it w as agreed that such return was a proper purpose.\nM emorandum from M.H. H elter, Head, Common Crim es Unit to F.X. W alker, C hief, General C rim es Section\n(June 21, 1951) (em phasis added). See also M em orandum from Theron Caudle, A ssistant A ttorney G eneral,\nC rim inal D ivision to S.A. A ndretta, A dm inistrative A ssistant to the Attorney G eneral, re: \xe2\x80\x9c Expenses of\nTransporting Pnsoners under Fugitive Felon Act w ho are Turned over to State A uthorities fo r Prosecution\xe2\x80\x9d\n(Apr. 4, 1947). In U nited States ex rel. M ills v. Reing, 191 F.2d 297, 300 (3d Cir. 1951), the court referred to\nthe governm ent\'s concession during argum ent that \xe2\x80\x9c there have been cases where [\xc2\xa7 1073 defendants]\nhave been rem oved to the federal district o f indictm ent and then surrendered forthw ith to state custody.\xe2\x80\x9d\n\n85\n\n\x0cwhich a state prosecution had already been commenced. 107 Cong. Rec. at\n15767-71 (1961).\nOn the other hand, Congressman Libonati was successful in adding to the\nvenue provisions o f the statute a requirement that violations of the Act could be\nprosecuted only upon the formal written approval of the Attorney General or\nAssistant Attorney General. S ee 107 Cong. Rec. 15767 (1961). The amend\xc2\xad\nment by which this was effected was not the subject o f any extended discussion\non the floor, but appears to have been responsive to the desires o f several\nHouse members to give a statutory framework to existing Justice Department\nenforcement policy.\nDuring the House debates, several Congressman referred specifically to the\nuse o f federal removal procedures in \xc2\xa7 1073 cases. Acknowledging that most\nfugitives apprehended under \xc2\xa7 1073 were returned through state extradition\nprocedures, they appear to have assumed that federal removal procedures had\nbeen, and could continue to be, used to bring back fugitives for prosecution by\nstate authorities. For example, Rep. Corman stated:\nIt appears from the committee report and the letter of the\nDepartment that the Fugitive Felon Act is used primarily as an\nexpeditious means of apprehending fleeing criminals to be re\xc2\xad\nturned to the scene o f their alleged crime for prosecution. It\nfurther seems apparent that in those instances when this mission\nis accomplished and State authorities do prosecute that the\nFederal Government refrains from prosecution. I see no vio\xc2\xad\nlence to justice under such procedure.\n107 Cong. Rec. at 15771 (1961). See also id. at 15761 (objecting to the use of\n\xc2\xa7 1073 to bring back fugitive witnesses to States which had not yet adopted\ninterstate rendition procedures for securing the return of witnesses) (remarks of\nRep. Whitener). In the Senate, there was some concern expressed that States\nwould attempt to use the federal removal process to secure the return of\nfugitives in cases raising civil rights issues, where extradition was not likely to\nsucceed. See id. at 19242 (referring to alleged \xe2\x80\x9cmisapplication\xe2\x80\x9d of the Act \xe2\x80\x9cin\ncases involving civil rights matters\xe2\x80\x9d) (remarks of Sen. Keating).\nIn summary, the legislative history of the 1961 amendments to \xc2\xa7 1073\nindicates no intention on the part o f Congress to remove any part of the\nauthority given federal law enforcement agencies under the 1934 Act. And,\nalthough Congress expressed its approval of the existing Department o f Justice\npolicies on enforcement of the Act, it resisted most proposals to write those\npolicies into the statute itself. The sole statutory limitation placed on federal\nenforcement activities by the 1961 amendments was the requirement of formal\nDepartment of Justice approval for \xe2\x80\x9cprosecution\xe2\x80\x9d of a violation. There is no\nindication in the legislative history o f the 1961 amendments that Congress\nconsidered the potential applicability of this requirement to different phases of\na prosecution. Nor is there any evidence that Congress intended to limit the\n\n86\n\n\x0cDepartment\xe2\x80\x99s discretionary authority to approve removal to those cases in\nwhich a federal indictment would subsequently be sought.\n\nIII. Judicial Precedents Relating to Federal Removal of a \xc2\xa7 1073\nDefendant in Aid of a State Prosecution\nAlthough several courts have referred in dictum to the government\xe2\x80\x99s author\xc2\xad\nity to return a \xc2\xa7 1073 defendant in aid of a state prosecution, only two cases\nhave directly considered and ruled upon the availability of federal removal\nprocedures for this purpose.15 In Wright v. Cartier, 10 F.R.D. 21 (D. Mass.\n1950), an escapee from a Georgia prison was arrested in Massachusetts on a\nfederal \xc2\xa7 1073 warrant issued by the district court in Georgia. He was brought\nbefore a federal commissioner in Massachusetts, his identity was determined\nand probable cause found, and he was \xe2\x80\x9cordered returned to the State of\nGeorgia.\xe2\x80\x9d 10 F.R.D. at 22. The defendant filed a writ of habeas corpus,\ncharging that \xc2\xa7 1073 was unconstitutional, \xe2\x80\x9cnot because of its express provi\xc2\xad\nsions or purpose, but because of its mode of operation with regard to him.\xe2\x80\x9d Id.\nSpecifically, he charged that:\nthe federal authorities never prosecute under the federal statute,\nbut simply turn over the fugitive to the state authorities for\nprosecution under the state statute with the violation of which he\nis charged. Petitioner contends that for members of the Negro\nrace this results in a deprivation of the opportunity at an extradi\xc2\xad\ntion hearing to allege that the fugitive will not be given a fair\ntrial in the state seeking extradition and to petition exercise of\nexecutive clemency in the state of refuge to prevent his return\nfor trial.\nId. at 22-23. The court refused to rule on the statute\xe2\x80\x99s constitutionality in the\n\ncontext of a habeas proceeding, however, stating that \xe2\x80\x9cif this petitioner makes\ndemand upon the United States Court in Georgia for his prosecution so that he\nmay there test the constitutionality of the Fugitive Felon Act, the Court will be\nopen to him.\xe2\x80\x9d Id. at 23.\nIn United States v. Love , 425 F. Supp. 1248 (S.D.N.Y. 1977), a fugitive from\na North Carolina murder charge, arrested in New York on a federal \xc2\xa7 1073\nwarrant, attempted to avoid being turned over to New York authorities by\ninvoking removal procedures himself under Rule 40. The federal magistrate\n15 See U nited States v. Thurman, 687 F.2d at 13 (one o f \xe2\x80\x9cthe prim ary purposes of the venue section of\n\xc2\xa7 1073 is to return the felon to the state where the original flight occurred in order to assist state officials in\ncom batting organized crim e there\xe2\x80\x9d); U nited States v. McCarthy, 249 F. Supp. 199, 203 (E.D .N.Y . 1966) (\xe2\x80\x9cthe\n1961 am endm ent did not dim inish the pow er o f the federal governm ent to return the fugitive felon for state\nprosecution\xe2\x80\x9d); Hemans v. U nited States, 163 F.2d at 240 ( \xe2\x80\x9cif Congress regarded it as a duty to aid the states in\nbringing back to their local jurisdictions fugitives from justice, o r essential w itnesses, that pow er exists\xe2\x80\x9d );\nU nited States v. Miller, 17 F. Supp. at 67 (\xe2\x80\x9cThe right o f extradition guaranteed to the states by the federal\ngovernm ent becom es too slow as a vehicle for swift punishm ent o f crim inals, and oftentim es any punishm ent\nat all.\xe2\x80\x9d)\n\n87\n\n\x0crefused to issue the warrant, and directed the federal authorities to release the\nfugitive to New York authorities for extradition. On review of the magistrate\xe2\x80\x99s\norder, Judge M acMahon held that\nremoval under Rule 40 is inappropriate in this case, for it would\nresult in the circumvention of valid state extradition laws as well\nas unnecessary and extraordinary expense to the government in\nthe transportation of prisoners throughout the country.\n425 F. Supp. at 1250. Judge M acM ahon\xe2\x80\x99s holding appears to be based on his\nreading o f the 1961 amendments to \xc2\xa7 1073, which added to the statute the\nrequirem ent of written Department of Justice approval for any \xc2\xa7 1073 prosecu\xc2\xad\ntion. He noted that Congress had been \xe2\x80\x9caware\xe2\x80\x9d of existing departmental en\xc2\xad\nforcement practices when it amended \xc2\xa7 1073 in 1961, and had \xe2\x80\x9creinforced\xe2\x80\x9d\nthem by writing into the statute itself the requirement of written approval. 425\nF. Supp. at 1249.\nNotwithstanding some dicta that suggest a somewhat broader holding,16 the\nLove opinion holds no more than that it would be \xe2\x80\x9cinappropriate\xe2\x80\x9d for a court to\norder removal in a \xc2\xa7 1073 case except in accordance with established Depart\xc2\xad\nment o f Justice policies.17 Because in Love the federal defendant himself had\nsought to invoke Rule 40, apparently without the support of any federal\nofficial, the removal order would not be issued.18 No court has directly ruled\nupon whether the requirement o f formal written approval added to \xc2\xa7 1073 in\n1961 extends to removal as well as to subsequent stages in a federal prosecu\xc2\xad\n16 Judge M acM ahon\xe2\x80\x99s reference to a d efen d an t\xe2\x80\x99s \xe2\x80\x9cright to form al extradition proceedings,\xe2\x80\x9d 425 F. Supp. at\n1250, is discussed in Part IV below.\n17 Judge M acM ahon did not invoke the p rin cip le that a court may in its discretion refuse to order removal\nunder R ule 40 w henever \xe2\x80\x9c special facts w e re disclosed that seemed to m ake questionable the propriety of\nrem o v al.\xe2\x80\x9d U nited States v. Johnson, 63 F. Supp. at 616. See supra note 6. However, his use o f the term\n\xe2\x80\x9cinappropriate\xe2\x80\x9d suggests that he regarded h is refusal to o rd er removal as an exercise o f discretion rather than\nrequired by law.\n18 This reading o f the Love opinion is co n sisten t w ith Judge M acM ahon\xe2\x80\x99s citation o f Wright v. C artier and\nM oore \xe2\x80\x99s F ed era l P ractice. 425 F. Supp. a t 1249. At the cited page in M oore *s, the W right case is relied upon\nas authority fo r the follow ing proposition:\nIf the fugitive is w illing to waive a rem oval hearing, o r the governm ent has sufficient evidence\na v ailab le to prove probable cause, th e fugitive may presum ably be returned to the dem anding\nstate by w ay o f rem oval under Rule 4 0 , rather than by w ay o f extradition.\n8B M o o r e \xe2\x80\x99s F ederal P r a c tic e ^ 40.04 at 4 0 - 2 3 (1980). In one recent case, a defendant convicted under \xc2\xa7 1073\nsought u n successfully to invoke the Love c a s e in support o f his argum ent that his rem oval under Rule 40 had\nviolated h is co nstitutional right to formal ex trad itio n under state law. U nited States v. M cC ord, 695 F.2d 823,\n826 (5th C ir. 1983). H e urged an interpretation o f \xc2\xa7 1073, and o f Judge M acM ahon\xe2\x80\x99s holding in Love, which\nw ould p reclude Rule 4 0 rem oval in any \xc2\xa7 1073 case, because the \xe2\x80\x9cunderlying offense\xe2\x80\x9d is a state not a federal\noffense. The court o f appeals rejected this in terpretation o f \xc2\xa7 1073, pointing out that the \xe2\x80\x9cunderlying offense\xe2\x80\x9d\nis a federal one, and that R ule 40 removal is accordingly \xe2\x80\x9c the appropriate procedure\xe2\x80\x9d for returning a federal\n\xc2\xa7 1073 d efen d an t to the jurisdiction from w hich he fled. The court o f appeals contrasted M cC ord\xe2\x80\x99s case, in\nw hich \xe2\x80\x9cth e Federal G overnm ent sought a n d intended to prosecute the defendant for violation o f \xc2\xa7 1073,\xe2\x80\x9d with\nthe situation in L o ve, in w hich the governm ent did not seek removal but \xe2\x80\x9c merely sought to aid the state in\nobtaining custody o f one o f its prisoners.\xe2\x80\x9d The court in M cC ord did not have before it, and accordingly did\nnot address, the issue w h eth er Rule 40 rem o v al may be available at the request o f the Federal G overnment,\nw here th e federal \xc2\xa7 1073 charges are not to be pursued upon the defendant\xe2\x80\x99s return to the State from which he\nfled.\n\n\x0ction. It has, however, been interpreted by at least two courts not to extend to the\nissuance of a federal \xc2\xa7 1073 complaint or warrant o f arrest. See United States v.\nDiaz, 351 F. Supp. 1050 (D. Conn. 1972); United States v. M cCarthy, 249 F.\nSupp. 199 (E.D.N.Y. 1966). Although neither case required the court to rule on\nthe applicability of the requirement to federal removal, both courts remarked\non that issue in dictum. In D iaz , Judge Newman rejected a construction of the\nstatutory term \xe2\x80\x9cprosecution\xe2\x80\x9d which would have extended the requirement of\nwritten approval to \xe2\x80\x9cevery step of the criminal process including the issuance\nof an arrest warrant.\xe2\x80\x9d 351 F. Supp. at 1051. He suggested, however, that the\nrequirement of written approval might extend beyond formal indictment to \xe2\x80\x9cthe\npreliminary step of a removal proceeding.\xe2\x80\x9d Id. at 1052.\nIn M cCarthy, Judge Mishler took a different view of the 1961 amendment:\nIt is clear that the amendment was intended to aid local law\nenforcement agencies apprehend fugitive felons through federal\nagencies [sic] and return them to the State jurisdiction for pros\xc2\xad\necution there. Implicit in the language of the report is the inten\xc2\xad\ntion that federal prosecution for the offense was of secondary\nconsideration. The choice of federal prosecution was therefore\nwithdrawn from the United States District Attorney and lodged\nwith the Attorney General. The 1961 amendment d id not dim in\xc2\xad\nish the p o w er o f the fed era l government to return the fugitive\nfelon fo r state prosecution.\n\n249 F. Supp. at 203 (emphasis added).\nIn summary, while judicial precedent confirms our conclusion that the\navailability of removal in \xc2\xa7 1073 cases does not depend as a matter of law upon\nwhether a federal indictment will subsequently be sought, it is less clear\nwhether a court will require formal written Justice Department approval before\nissuing a removal order.\n\nIV. The Extradition Clause of the Constitution\nHaving concluded that federal removal in aid of a state prosecution is\nauthorized by the Fugitive Felon Act, we turn to the Criminal Division\xe2\x80\x99s\nconcern that such removal might be inconsistent with some federal constitu\xc2\xad\ntional or statutory right of a fugitive to extradition under state law. We also\ndiscuss what federal constitutional or statutory rights, if any, the States them\xc2\xad\nselves may have in connection with federal removal of a \xc2\xa7 1073 defendant.\nA. Rights o f a \xc2\xa7 1073 Defendant With R egard to Extradition\n\nThe Supreme Court has consistently interpreted the Extradition Clause of the\nUnited States Constitution, U.S. Const, art. IV, \xc2\xa7 2, cl. 2, to confer no rights on\nindividuals. Its sole purpose is to benefit the States. See, e.g., M ichigan v.\n\n89\n\n\x0cDoran, 439 U.S. 282, 287 (1978); Biddinger v. Commissioner o f Police o f New\nYork, 245 U.S. 128 (1917).19 And, the procedural safeguards provided to\n\nindividuals in state extradition statutes have been held by the Supreme Court to\nbe inapplicable to persons charged with a federal crime who are otherwise\nproperly subject to removal under Rule 40. See United States ex rel. Kassin v.\nM ulligan, 295 U.S. 396 (1935); United States ex rel. Hughes v. Gault, 271 U.S.\n142 (1926); U nited States v. Guy, 456 F.2d 1157 (8th Cir. 1972).\nFederal removal under Rule 40 or its statutory predecessors has been held\nproper in several \xc2\xa7 1073 cases, in the face of a defendant\xe2\x80\x99s claim that he was\nconstitutionally entitled to be processed under state extradition laws. See, e.g.,\nU nited States v. McCord, 695 F.2d at 826 (Rule 40 removal appropriate\nbecause \xe2\x80\x9cunderlying offense\xe2\x80\x9d a federal one); Lupino v. United States, 185 F.\nSupp. at 368 (\xe2\x80\x9cCongress, not the states, has established the punishable offense,\nand it is, therefore, federal, not state, arresting and removal process which is\nrelevant.\xe2\x80\x9d); U nited States v. Miller, 17 F. Supp. at 68 (federal removal of a\n\xc2\xa7 1073 defendant does not \xe2\x80\x9cinterfere[] with the right of extradition of a crimi\xc2\xad\nnal from a state to which he has fled to one where the crime was committed.\xe2\x80\x9d).\nThere is dictum in the court\xe2\x80\x99s opinion in United States v. Love, 425 F. Supp.\nat 1250, which suggests that a federal \xc2\xa7 1073 defendant, returned to the custody\nof state authorities under federal process, may have some \xe2\x80\x9cright to formal\nextradition,\xe2\x80\x9d deprivation of which could be raised by him in the context of his\nstate prosecution. The court did not, however, indicate what the source of that\nright might be. It is possible that under the laws of some States, a defendant\ncould claim an entitlement to be brought within the jurisdiction of its courts in\na particular manner. Cf. Ker v. Illinois, 119 U.S. 436,444 (1886). We have not\nexamined that issue, and express no opinion on it.20 However, an individual has\nno \xe2\x80\x9cright to formal extradition\xe2\x80\x9d under the federal Constitution or under any\nfederal statute o f which we are aware.21\nB. Rights and Obligations o f the States\nin Connection with Extradition\n\nAlthough a \xc2\xa7 1073 defendant can claim no entitlement to be extradited\nderiving from the Extradition Clause of the Constitution, the rights and obliga\xc2\xad\ntions o f the States themselves under that provision must be recognized when\xc2\xad\n19 T he E xtradition C lause provides:\nA Person charged in any State w ith Treason, Felony, o r other Crim e, who shall flee from Justice,\nand be found in an o th er State, sh all on Demand o f the executive A uthority o f the State from\nw hich he fled, be delivered up, to b e removed to the State having Jurisdiction o f the Crime.\n20 Perhaps the dem anding State\xe2\x80\x99s requirem ents in this regard w ould therefore be a valid consideration for\nthe D epartm ent in determ ining whether to give approval under \xc2\xa7 1073 for removal in any particular case.\n21 T he U niform C rim inal Extradition A ct has been adopted by a majority o f the States, but has no\nindependent force as federal law. Where applicable, its due process protections can be enforced by suits under\nthe Fourteenth A m endm ent. See C uyler v. Adams, 449 U.S. 433 (1981). By their terms, however, the\nprotections in the U niform Criminal Extradition Act apply only to a person arrested on a w arrant signed by\nthe G overnor o f the asylum State. See \xc2\xa7\xc2\xa7 7, 10.\n\n90\n\n\x0cever federal removal is proposed in any \xc2\xa7 1073 case. It is all the more important\nto do so whenever federal removal is intended simply to facilitate a state\nprosecution.\nThe Extradition Clause imposes upon the executive authority of each State\nan obligation, on the demand of another State, to \xe2\x80\x9cdeliver up\xe2\x80\x9d a fugitive from\nthat other State\xe2\x80\x99s justice. See supra note 19. The right given a State to demand\nis an \xe2\x80\x9cabsolute\xe2\x80\x9d one, and implies a \xe2\x80\x9ccorrelative obligation to deliver, without\nany reference to the character of the crime charged, or to the policy or laws of\nthe State to which the fugitive has fled.\xe2\x80\x9d Kentucky v. Dennison , 65 U.S. (24\nHow.) 66, 103 (1861). \xe2\x80\x9cThe duty of the Governor of the State where the\nfugitive was found is, in such cases, merely ministerial, without the right to\nexercise either executive or judicial discretion.\xe2\x80\x9d Id. at 104. However, the\nClause and its federal implementing statute, 18 U.S.C. \xc2\xa73182, have been\ncharacterized as merely \xe2\x80\x9cdeclaratory of a moral duty,\xe2\x80\x9d because neither pro\xc2\xad\nvides \xe2\x80\x9cany means to compel the execution o f this duty.\xe2\x80\x9d Id. at 107. See also\nTaylor v. Taintor, 83 U.S. (16 Wall.) 366, 370 (1872). Accordingly, the federal\ncourts have no power to compel authorities in one State to surrender a fugitive\nto those of another. See also South Dakota v. Brown, 20 Cal. 3d. 765, 772, 576\nP.2d 473 (1978) (state courts have no power under state extradition laws to\n\xe2\x80\x9ccontrol executive discretion in extradition matters.\xe2\x80\x9d).22\nEven if, under existing law, a State\xe2\x80\x99s duty under the Extradition Clause\ncannot be enforced directly by a federal court, it does not follow that the\nExtradition Clause gives States an affirmative right to refuse or delay extradi\xc2\xad\ntion. Indeed, the history of the Extradition Clause itself suggests that any such\nclaimed right would be inconsistent with the Framers\xe2\x80\x99 intention \xe2\x80\x9cto preserve\nharmony between States, and order and law within their respective borders.\xe2\x80\x9d\nSee Kentucky v. Dennison, 65 U.S. at 101-03. Accordingly, the Extradition\nClause gives a State no basis for resisting otherwise constitutional federal\nefforts to assist another in obtaining custody of a fugitive who has sought\nrefuge within its borders. Cf. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612\n(1842). The Fugitive Felon Act, with its provisions for apprehending and\nreturning fugitives who have fled from one State to another, cannot therefore\nbe challenged as an unconstitutional intrusion on some hypothetical \xe2\x80\x9cright\xe2\x80\x9d of\none State to give asylum to another\xe2\x80\x99s fugitives, or otherwise control the process\nof extradition.23 In fact, far from an intrusion, this statute provides, in effect, a\nfederal means of enforcing the mandatory duty imposed upon States by the\n22 In K entucky v. Dennison, the Supreme C ourt held that a federal court could not issue a w rit o f m andam us\nto com pel the G overnor o f O hio to surrender a fugitive indicted in K entucky for assisting a slave to escape:\n\xe2\x80\x9cthe Federal G overnm ent, under the C onstitution, has no pow er to im pose on a State officer, as such, any duty\nw hatever, and com pel him to perform it.\xe2\x80\x9d 65 U.S. at 107. D issenting in South Dakota v. Brown, Justice M osk\nobserved that \xe2\x80\x9c [t]here is serious question w hether the rigid federalism o f Dennison w ould be followed today\nwhen a constitutional issue is involved.\xe2\x80\x9d 20 C al. 3d at 781 n. 1 (citing Brown v. Board o f Education, 349 U.S.\n294 (1955) and Green v. County School Bd., 391 U.S. 430 (1968)).\n23 In any event, we think it unlikely (hat a court would perm it a defendant to rely upon any right belonging\nto the asylum State as a defense to prosecution in the dem anding State. See United States v M iller, 17 F.\nSupp. a t 68.\n\n91\n\n\x0cExtradition Clause.24 This is not to say that the Fugitive Felon Act was\nintended to provide a routine substitute for state extradition procedures. The\nlegislative history of the 1934 Act and its 1961 amendments makes clear that\nCongress did not intend the Act to supplant state extradition procedures.\nCongress was concerned not only with the possible federal intrusion in an area\nhistorically left to the States, but also with the financial burden which frequent\nuse o f federal removal procedures would place on the Federal Government.\nThus, Congress appears to have contemplated that federal removal procedures\nwould be used only in those rare situations where interstate rendition proce\xc2\xad\ndures would not be effective in bringing the fugitive to justice.\nThe statute\xe2\x80\x99s intended deference to state extradition procedures requires that\nfederal removal be used very sparingly in \xc2\xa7 1073 cases. Accordingly, federal\nremoval o f a \xc2\xa7 1073 defendant should not be sought routinely, or when state\nextradition procedures are determined to be adequate to accomplish the\ndefendant\xe2\x80\x99s return for prosecution or other appropriate disposition by the\ndemanding State. The important policy considerations involved in making such\na determination simply underscore the wisdom of requiring formal departmen\xc2\xad\ntal approval o f any request for removal in a \xc2\xa7 1073 case. Factors to be consid\xc2\xad\nered in making this determination could include whether the extradition pro\xc2\xad\ncess will be likely to deliver the defendant to the demanding State in a timely\nfashion; whether the interest o f the demanding State in obtaining return of the\nfugitive is sufficiently strong to warrant using federal resources for this pur\xc2\xad\npose; and whether the federal interest in the particular case is sufficiently\nstrong to overcome whatever interest the asylum State may have in implement\xc2\xad\ning its own extradition procedures. In a case in which extradition has been\nrefused, the Department should consider whatever findings the asylum State\xe2\x80\x99s\nGovernor has made which caused him to make such a refusal.\n\nV. Payment off Expenses off Traumsportiinig\nDeffemdainits Umdler \xc2\xa7 1\xc2\xae73\nThe United States Marshal has the authority and responsibility to execute a\nfederal court order directing that a prisoner in federal custody be transported to\nanother district. 28 U.S.C. \xc2\xa7 567; 28 C.F.R. \xc2\xa7 0.1 l l j. Appropriated funds are\navailable for this purpose. See Pub. L. No. 96-68, Title II, 93 Stat. 416, 420\n(1979). These funds are available for the court ordered transportation of \xc2\xa7 1073\n24 If the integrity o f an asylum State\xe2\x80\x99s extradition procedures w ere guaranteed by the Extradition C lause, we\ndoubt th at the venue provisions o f \xc2\xa7 1073 co u ld have w ithstood constitutional challenge. Those provisions in\neffect require circum vention o f state extradition procedures insofar as they lead, sooner or later, to the\nfu gitiv e\xe2\x80\x99s retu rn by federal process to the custody o f authorities in the State from which he fled. W hether the\ng ov ern m en t w ins o r loses its \xc2\xa7 1073 prosecution, the defendant is subsequently made to answ er in state court\nfo r the state crim e. S ee U nited States v. M iller, 17 F. Supp. at 68. We see no reason why this constitutional\nissue w o u ld d epend upon w hether a federal prosecution preceded the fugitive\xe2\x80\x99s being turned over to state\nauth o rities. The federal interest would ap p ear to be as great, and that interest would appear to be equally\nserved, an d perhaps in a fairer w ay to defendants, w hen the federal governm ent chooses to decline prosecu\xc2\xad\ntion for w hat is essentially a derivative crim e, in deference to the dem anding State\xe2\x80\x99s disposition of the\nfugitiv e u n d e r state law.\n\n92\n\n\x0cprisoners to the same extent that they are available for the transportation of\nother federal prisoners.\nThe State seeking the return of the \xc2\xa7 1073 defendant could voluntarily\nreimburse the United States for expenses incurred by the U.S. Marshal in\nconnection with transportation in this situation. See United States v. Bumison,\n339 U.S. 87, 90 (1950).25 However, the Marshal could not recoup his own\nexpense from any such reimbursement, because an agency may not augment its\nappropriations without specific statutory authority. See 49 Comp. Gen. 572\n(1970); 5 Comp. Gen. 289 (1925). See generally General Accounting Office,\nPrinciples o f Federal Appropriations Law, ch. 5, subpart C (1982). With a few\nexceptions apparently not applicable here, any money an agency receives for\nthe use of the United States from a source outside the agency must be deposited\nin full into the general fund of the Treasury. See 31 U.S.C. \xc2\xa7 3302b (formerly\n31 U.S.C. \xc2\xa7 484). See also 46 Comp. Gen. 31 (1966). Once money has been\ndeposited into the general fund, there must be an appropriation to permit its\nexpenditure. See 3 Comp. Gen. 599,600 (1923). The Marshal is not authorized\nto accept gifts of money for his own use, nor is he otherwise authorized to\naccept reimbursement for expenses incurred in carrying out his authorized\nfunctions. Thus, any funds received from a State for the interdistrict transporta\xc2\xad\ntion of prisoners would therefore have to be deposited in the general fund o f the\nTreasury.26\n\nConclusion\nA federal \xc2\xa7 1073 defendant may in appropriate circumstances be removed by\nfederal process to the jurisdiction from which he fled in aid of a state prosecu\xc2\xad\ntion. Accordingly, a prosecutor may seek removal, and a court may order it,\neven if the government does not intend to pursue the federal charges against the\ndefendant once he has been returned. On the other hand, because \xc2\xa7 1073 is not\nintended to supplant state law procedures for interstate rendition, removal\n25 W e have not studied w hether the State could be required to reim burse the United States for expenses\nincurred by the Marsha) in this situation, as a condition o f the D epartm ent\xe2\x80\x99s willingness to request rem oval,\nand express no view s on that issue. We note, how ever, that the authority to charge a fee for services contained\nin 31 U.S.C. \xc2\xa7 9701 (form erly 31 U.S.C. \xc2\xa7 483a), the so-called \xe2\x80\x9cuser fee statute," has been held inapplicable\nto state and local governm ents and agencies thereof. See Beaver, Bountiful, Enterprise v. Andrus, 637 F.2d\n749 (10th Cir. 1980). The Intergovernm ental C ooperation Act o f 1968 provided a m echanism whereby\ngovernm ental agencies can recover the cost o f certain \xe2\x80\x9cspecialized or technical services\'* provided to State\nand local entities. See 42 U .S.C. \xc2\xa7\xc2\xa7 4222, 4223 (1976). These provisions w ere am ended and reenacted in\n1982 as part o f T itle 31. See 31 U.S.C. \xc2\xa7 6505. Services may be provided, how ever, only if \xe2\x80\x9cprescribed by the\nPresident.\xe2\x80\x9d Id. \xc2\xa7 6505(b).\n26 Although the M arshal may not accept cash reim bursem ent without im plicating the rule against augm en\xc2\xad\ntation o f appropriations, it is possible that all o r part o f the personnel costs o f transporting federal \xc2\xa7 1073\nprisoners could be defrayed by deputizing state Ipw enforcem ent officers to assist the M arshal in carrying out\nthis function. Under 28 C.F.R . \xc2\xa7 0.112, the D irector o f the U.S. M arshals Service is authorized to m ake such\ndeputations \xe2\x80\x9cw henever the needs o f the U.S. M arshals Service so require.\xe2\x80\x9d See also 28 U.S.C. \xc2\xa7 569(b)\n(conferring authority on U.S. M arshals to \xe2\x80\x9ccom m and all necessary assistance to execute their duties\xe2\x80\x9d ).\nA lthough 31 U.S.C. \xc2\xa7 665(b) prohibits the acceptance o f voluntary services for the U nited States, this\nprovision has been construed not to prohibit the acceptance o f services that are truly \xe2\x80\x9cgratuitous,\xe2\x80\x9d i.e., for\nw hich no federal com pensation is expected. See 54 Comp. Gen. 560 (1975).\n\n93\n\n\x0cshould not be sought in such circumstances unless it is clear that state proce\xc2\xad\ndures are inadequate to the task of returning the fugitive.\nAlthough it is unclear whether \xc2\xa7 1073\xe2\x80\x99s requirement of formal written\nDepartment o f Justice approval applies in connection with such removal, it is\npossible that a court would not be willing to issue a Rule 40 order unless such\napproval had been given. Accordingly, we believe the Criminal Division\xe2\x80\x99s\npolicy of requiring departmental approval o f all requests to remove represents\nthe safer course.\nFinally, funds appropriated for the authorized activities of the U.S. Marshal\nmay be used to pay the cost o f transporting a \xc2\xa7 1073 defendant pursuant to a\nfederal court order under Rule 40. All or part of the cost of transportation may\nvoluntarily be borne by the State seeking the fugitive\xe2\x80\x99s return, although any\nmonies received from a State must be deposited into the general fund of the\nTreasury.\nRa lph W . T a rr\n\nDeputy A ssistant Attorney\nG eneral Office o f Legal Counsel\n\n94\n\n\x0c'