Authority for the Removal of Fugitive Felons Apprehended Under 18 U.S.C. § 1073 ( 1983 )

Authority for the Removal of Fugitive Felons
Apprehended Under 18 U.S.C. § 1073An individual charged with a violation of the Fugitive Felon Act, 18 U.S.C. § 1073, which m akes
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 crim e was
com m itted, 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 o f 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 Departm ent o f 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 o f 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 m aking such a determination underscore the wisdom o f the D epartm ent’s requirem ent for
formal approval for Rule 40 removal o f Fugitive Felon Act defendants.
The cost o f transporting a Fugitive Felon Act defendant pursuant to a court order under Rule 40
may be paid out o f funds appropriated for the authorized activities of the United States
M arshal. 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 em orandum O p in io n for th e D ir e c t o r ,
E x e c u t iv e O f f ic e for U n it 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, pursu­
ant to Rule 40 o f 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 Assis­
tant Attorney General, Criminal Division. In 1982, the United States Attorney
for the Eastern District of Pennsylvania wrote to the Criminal Division request­
ing reconsideration o f the policy set forth in § 9-69.450 of the United States
Attorneys Manual (Manual). T hat section provides that “removal proceedings
under Rule 40” shall not be instituted in § 1073 cases without the written
approval o f 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
D epartm ent’s emphasis on federal-state law enforcement cooperation, and
inhibits effective law enforcement.” The Criminal Division’s position is that
the Departm ent’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 o f facilitating a state prosecution could claim some
constitutional or statutory entitlement to be processed under state laws govern­
ing 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
' T he reference in § 9 -6 9 .4 5 0 to “removal proceedings under Rule 40” does not appear to reflect the 1979
am 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(1979). T he 1979 am endm ents abolished th e “w arrant o f rem oval” by which a federal court previously
directed return o f a d efendant arrested in “a distant d istrict,” i.e., on a w arrant issued in another State at a
place 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
R ule 40 in o rd er to accom plish the transfer o f prisoners in federal custody from one district to another, the
term “rem oval" is used throughout this m em orandum to indicate the ju d ic ia l procedure w hereby a federal
defend an t is returned to the jurisdiction o f th e court in w hich the federal charges against him are pending.
2 A s w e understand it, the Crim inal D ivision’s position is based upon its interpretation o f federal authority
un d e r § 1073, and not upon som e independent lim itation upon a court’s authority under Rule 40 to order
rem oval if federal charges are not to be pursued.
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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 defen­
dant 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 prosecu­
tion, 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 o r giving testim ony
W hoever moves o r travels in interstate or foreign com m erce with intent either (1) to avoid
prosecution, or custody o r confinem ent after conviction, under the laws o f the place from which
he flees, for a cnm e, o r an attem pt to com m it a crime, punishable by death or which is a felony
under the laws o f the place from w hich the fugitive flees, o r which, in the case o f New Jersey, is
a high m isdem eanor under the law s o f said State, o r (2) to avoid giving testim ony in any criminal
proceedings in such place in which the com m ission o f an offense punishable by death or which is
a felony under the law s o f such place, or which in the case o f New Jersey, is a high m isdem eanor
under the laws o f said State, is charged, o r (3) to avoid service of, or contem pt proceedings for
alleged disobedience of, lawful process requiring attendance and the giving o f testim ony or the
production o f docum entary evidence before an agency o f a State em pow ered by the law o f such
State to conduct investigations o f alleged crim inal activities, shall be fined not more then $5,000
o r imprisoned not more than five years, or both.
V iolations o f this section may be prosecuted only in the Federal judicial district in which the
original cnm e w as alleged to have been com m itted, or in w hich the person was held in custody or
confinem ent, or in w hich an avoidance o f service o f process o r a contem pt referred to in clause
(3) o f the first paragraph o f this section is alleged to have been com m itted, and only upon formal
approval in writing by the A ttorney General or an A ssistant Attorney General o f the United
States, which function o f approving prosecutions may not be delegated.
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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); B arker v. United States, 178 F.2d 803 (5th Cir. 1949); Hemans v.
U nited States, 163 F.2d 228 (6th Cir.), cert, denied, 332 U.S. 801 (1947);
U nited 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 o f state law s,” 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. U nited 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 crim es against the states. If such power be
not lodged in the Congress, then the unity o f 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 o f assisting state law enforcement:
[T]he primary purposes of the venue section o f § 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 m agistrate.” Preliminary proceedings are held
before the magistrate to determine that the apprehended fugitive is the indi­
vidual 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
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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) A ppearance Before Federal M agistrate
If a person is arrested in a district other than that in which the offense is alleged to have been
com m itted, he shall be taken without unnecessary delay before the nearest available federal
m agistrate. Preliminary proceedings concerning the defendant shall be conducted in accordance
with Rules 5 and 5 1, except that if no prelim inary exam ination is held because an indictm ent has
been returned o r an inform ation filed o r because the defendant elects to have the prelim inary
exam ination conducted in the d istn ct in which the prosecution is pending, the person shall be
held to answ er upon a finding that he is the person named in the indictment, inform ation or
warrant. If the defendant is held to answ er, he shall be held to answ er in the district court in which
the prosecution is pending, provided that a w arrant is issued in that district if the arrest was made
w ithout a w arrant, upon production o f the w arrant or a certified copy thereof.
s A federal c o u rt's authonty and duty to effectuate a federal prisoner’s com m itm ent to the d istnct in which
federal charges against him are pending was first set forth m § 33 o f the Judiciary Act o f 1789. That section
provided that “it shall be the duty o f the judge o f the district where the delinquent is im pnsoned, seasonably
to 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
district in w hich the trial is to be had.” 1 Stat. 73, 91 (1789). This provision was later codified virtually
unchanged in § 1014 o f the R evised Statutes, and brought forward as § 591 o f Title 18 o f the U nited States
Code (1940). It was repealed in 1948, three years after the Suprem e C ourt’s prom ulgation o f Rule 40. In the
early years o f the Republic, it was the frequent practice for many district courts to issue a w arrant o f rem oval
at the sam e time they issued a w arrant o f arrest. Upon his apprehension, the defendant was im m ediately
returned to the district which had issued the w arrant, and was thus effectively deprived o f any hearing on the
question o f his rem oval. This practice was disapproved as a m atter o f judicial policy in such cases as United
Continued
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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 G allow ay v. U nited 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 o f 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. D epartm ental Enforcement P olicy in § 1073 Cases
The Departm ent’s policy on enforcement o f § 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. C as. 1056 (E.D. M ich. 1870) (No. 16,273); U nited States v. Jacobi, 26 F. Cas. 564(W .D . T enn. 1871) (N o. 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 o f ensuring against m istaken identity or the absence of
probable cause before o rdering a defendant transported w hat m ight be hundreds o f m iles for trial. At the same
tim 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
best d elaying h is return and potentially frustrating prosecution entirely. In prom ulgating R ule 40 in 1945, the
Suprem e C o u rt sought to strike a balance betw een these tw o concerns. See generally Holtzoff, Rem oval o f
D efendants in F ederal C rim inal Procedure, 4 F.R.D . 455 (1945); 8B M oore's Federal Practice *2 40.04 at
4 0 -2 4 (1 9 8 0 ).
As o rig in ally prom ulgated in 1945, R ule 40 distinguished betw een persons taken into federal custody in a
“nearby d istric t” {i.e., on a w arrant issued in the sam e State o r w ithin 100 miles) and persons arrested in a
“d istan t d istric t.” Persons in the latter category could be returned for prosecution only upon the issuance o f a
“w arran t o f rem oval” by a district judge. N o w arrant o f rem oval was necessary to return a person arrested in
a “nearby d istrict,” w ho, like a state prisoner transported acro ss the S tate for trial, was “transported by virtue
o f the process un d er w hich he was arrested.” See N otes o f the A dvisory C om m ittee on the 1945 Rules, Rule
40(a), 18 U .S.C . app. (1976). The 1979 am endm ents to R ule 40 abolished the “w arrant o f rem oval” and
elim in ated the d istin ctio n betw een the p rocedures applicable to arrest in “distant” and “ nearby” districts. The
N otes o f the A dvisory Com m ittee on th e 1979 am endm ents to the R ules explained that the preliminary
proceedings previously applicable under R ule 40(a) to persons arrested in a “nearby” district were “adequate
to protect the rig h ts o f an arrestee w herever he m ight be arrested,” and w ould henceforth apply in all cases o f
com m itm ent to a n o th er d istrict. See Rule 40(a), 18 U .S.C. app. (1980).
6 W e a re aw are o f tw o cases in which a district court declined to order removal on grounds that “special
facts w ere disclosed that seem ed to make questionable the propriety o f rem oval.” United States v. Johnson,
63 F. Supp. 615, 616 (D. Or. 1945); U nited States v. Parker, 14 F.R.D. 146 (D.D.C. 1953). In Johnson, the
d 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
give the latter ju risd ic tio n 's criminal child support statute “extraterritorial application.” In Parker, the court
refused to o rder rem oval in a situation suggesting governm ent harassm ent o f the defendant.
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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 pris­
oner 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 o f 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 o f the Manual restates the statutory requirement that
§ 1073 “prosecutions” may be “initiated” only upon the written approval o f the
Attorney General or an Assistant Attorney General:
The 1961 amendment to the Act incorporated existing adminis­
trative 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 un­
der 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 W e understand from the C rim inal D ivision that there have been only tw o or three federal § 1073
prosecutions since 1961.
8 U nder Rule 40(a) it is the m agistrate’s responsibility to conduct prelim inary proceedings to determ ine that
the defendant is the person nam ed in the federal arrest w arrant, and that there is probable cause to believe that
a violation o f § 1073 was com m itted. See supra note 5. The fugitive “should remain in Federal custody o r on
bail or other conditions o f release only so long as is necessary to permit his com m itm ent 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 m agistrate is willing to approve release from federal custody with this understanding.
T he dem anding State may already have begun the extradition process by the time custody has shifted. The
U nited States A ttorney in the district where the federal com plaint was filed then moves for its dism issal, and
there is no further federal involvement. See § 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 ).
The process o f extradition is not always a sm ooth one. The M anual notes the possibility that the dem anding
State w ill be unw illing to extradite, or that extradition will be attem pted but fail. See § 9-69.431. T he same
section also m entions the possible difficulties associated w ith the return o f fugitive w itnesses, to w hom State
extradition procedures do not apply. In addition, State courts may release the fugitive on low bail before the
extradition process can be com pleted, providing a new occasion for interstate flight and federal involvem ent
under § 1073.
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o f § 1073 for which written approval is required includes all steps in the federal
crim inal 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
D ivision’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,” o r 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 determ ine whether the Criminal Division’s position on these issues,
as described above, is correct.
M. LegisDative Hnstory of § 1®73
A. The 1934 A ct
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 proceed­
ings. The Act originated in a series of hearings on organized crime held in 1933
in different parts o f the country by a subcommittee of the Senate Committee on
Commerce. Investigation o f So-C alled “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 experienc­
ing in dealing with interstate crime. One of the frequently mentioned problems
was the complicated and inefficient process o f 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 o f John P. Smith, Chief of Police
o f Detroit, M ichigan); 293 (statement of H.D. Harper, Chief of Police of
Colorado Springs, Colorado).
During the course o f the hearings, Harry S. Toy, the Prosecuting Attorney of
W ayne 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 m ost 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 statu tes providing fo r the interstate rendition o f witnesses in crim inal
proceedings. S ee C om m issioner’s Prefatory N ote to 1936 R evision o f U niform Act to Secure the Attendance
o f W itnesses from W ithout the State in C rim 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 o f 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 constitu­
tionality 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 state­
ment, 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 c le ar w hether Senator Copeland* s constitutional concern related to possible rights o f States under
the Extradition C lause, o r to the possible right o f an individual to be extradited, or to both. C harles F. Boots,
Legislative C ounsel to the Senate, who also com m ented for the record on the constitutionality o f M r. T o y 's
draft legislation, was concerned that “such procedure could well be challenged as w ithholding from the
defendant the rig h t to a speedy trial on the Federal charge.” 1933 Senate H earings at 200-03.
11 The venue provisions in M r. Toy’s bill w ould have perm itted federal prosecution in any federal district
“from, through, o r into w hich any person shall flee.” 1933 Senate H earings at 1989. The analogous provisions
o f S. 2253 lim ited venue to the “Federal ju dicial district in which the cn m 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 o f 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 d istrict court o r by the Federal G overn­
ment. 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 avail­
able 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 o f 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 Am endm ents 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 e n e ra l’s P rogram to Curb O rganized Crim e and Racketeering: Hearings
12 T here is no suggestion in the legislative history o f the 1934 A ct that C ongress considered the scope o f a
federal 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
then-ex istin g law. In 1934, federal removal w as governed by the provisions o f 18 U.S.C. § 591, which made
it the “d u ty " o f a federal court to execute a w arrant for a p riso n e r's removal “to the distn c t where the trial is
to be h ad ." See 18 U .S.C . § 591 (1934)
13 A s originally enacted, the Fugitive Felon A ct applied only to specifically enum erated crim es. 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 O rganized 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’ expecta­
tion that the law, as amended, would “provide either for Federal trials of the
persons apprehended or their return to the p ro p er State jurisdiction f o r p ro s­
ecution or other appropriate State a c t i o n H.R. Rep. No. 827, 87th Cong., 1st
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 proceed­
ing 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 unneces­
sarily 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 D epartm ent interpreted the Fugitive Felon Act to permit
the use o f federal removal procedures to secure the return o f a fugitive for state prosecution:
H aving 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 w ay is still open to remove the fu g itiv e under Federal
process a n d return him to the jurisd ictio n where the original crim e was committed. There the
fe d e ra l governm ent could turn him over to state authorities o r try him under the Fugitive Felon
law, o r both.
From the debates in C ongress it is evident that upperm ost in the minds o f some Senators was
the thought that the Act would operate to secure the return o f the fugitive felon or w itness. The
venue provision alone makes that plain and it w as agreed that such return was a proper purpose.
M emorandum from M.H. H elter, Head, Common Crim es Unit to F.X. W alker, C hief, General C rim es Section
(June 21, 1951) (em phasis added). See also M em orandum from Theron Caudle, A ssistant A ttorney G eneral,
C rim inal D ivision to S.A. A ndretta, A dm inistrative A ssistant to the Attorney G eneral, re: “ Expenses of
Transporting Pnsoners under Fugitive Felon Act w ho are Turned over to State A uthorities fo r Prosecution”
(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
the governm ent's concession during argum ent that “ there have been cases where [§ 1073 defendants]
have been rem oved to the federal district o f indictm ent and then surrendered forthw ith 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 o f 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. S ee 107 Cong. Rec. 15767 (1961). The amend­
ment by which this was effected was not the subject o f any extended discussion
on the floor, but appears to have been responsive to the desires o f 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 o f 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 re­
turned 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 vio­
lence 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 o f 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 o f 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 o f 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 author­
ity 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 provi­
sions 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 extradi­
tion 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 U nited States v. Thurman, 687 F.2d at 13 (one o f “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
com batting organized crim e there”); U nited States v. McCarthy, 249 F. Supp. 199, 203 (E.D .N.Y . 1966) (“the
1961 am endm ent did not dim inish the pow er o f the federal governm ent to return the fugitive felon for state
prosecution”); Hemans v. U nited 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, o r essential w itnesses, that pow er exists” );
U nited States v. Miller, 17 F. Supp. at 67 (“The right o f extradition guaranteed to the states by the federal
governm ent becom es too slow as a vehicle for swift punishm ent o f crim inals, and oftentim es any punishm ent
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 M acMahon 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 M acM ahon’s holding appears to be based on his
reading o f the 1961 amendments to § 1073, which added to the statute the
requirem ent of written Department of Justice approval for any § 1073 prosecu­
tion. He noted that Congress had been “aware” of existing departmental en­
forcement 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 Depart­
ment o f 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 prosecu­
16 Judge M acM ahon’s reference to a d efen d an t’s “right to form al extradition proceedings,” 425 F. Supp. at
1250, is discussed in Part IV below.
17 Judge M acM ahon did not invoke the p rin cip le that a court may in its discretion refuse to order removal
under R ule 40 w henever “ special facts w e re disclosed that seemed to m ake questionable the propriety of
rem o v al.” U nited 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 o rd er removal as an exercise o f discretion rather than
required by law.
18 This reading o f the Love opinion is co n sisten t w ith Judge M acM ahon’s citation o f Wright v. C artier and
M oore ’s 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
as authority fo r the follow ing proposition:
If the fugitive is w illing to waive a rem oval hearing, o r the governm ent has sufficient evidence
a v ailab le to prove probable cause, th e fugitive may presum ably be returned to the dem anding
state by w ay o f rem oval under Rule 4 0 , rather than by w ay o f extradition.
8B M o o r e ’s F ederal P r a c tic e ^ 40.04 at 4 0 - 2 3 (1980). In one recent case, a defendant convicted under § 1073
sought 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
violated 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,
826 (5th C ir. 1983). H e urged an interpretation o f § 1073, and o f Judge M acM ahon’s holding in Love, which
w ould p reclude Rule 4 0 rem oval in any § 1073 case, because the “underlying offense” is a state not a federal
offense. The court o f appeals rejected this in terpretation o f § 1073, pointing out that the “underlying offense”
is a federal one, and that R ule 40 removal is accordingly “ the appropriate procedure” for returning a federal
§ 1073 d efen d an t to the jurisdiction from w hich he fled. The court o f appeals contrasted M cC ord’s case, in
w hich “th e Federal G overnm ent sought a n d intended to prosecute the defendant for violation o f § 1073,” with
the situation in L o ve, in w hich the governm ent 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 cC ord did not have before it, and accordingly did
not 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,
w here th e 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 o f arrest. See United States v.
Diaz, 351 F. Supp. 1050 (D. Conn. 1972); United States v. M cCarthy, 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 M cCarthy, 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 pros­
ecution there. Implicit in the language of the report is the inten­
tion 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 d id not dim in­
ish the p o w er o f the fed era l 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 constitu­
tional or statutory right of a fugitive to extradition under state law. We also
discuss what federal constitutional or statutory rights, if any, the States them­
selves may have in connection with federal removal of a § 1073 defendant.
A. Rights o f a § 1073 Defendant With R egard 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., M ichigan 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.
M ulligan, 295 U.S. 396 (1935); United States ex rel. Hughes v. Gault, 271 U.S.
142 (1926); U nited 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.,
U nited 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.”); U nited States v. Miller, 17 F. Supp. at 68 (federal removal of a
§ 1073 defendant does not “interfere[] with the right of extradition of a crimi­
nal 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 o f 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 obliga­
tions o f the States themselves under that provision must be recognized when­
19 T he E xtradition C lause provides:
A Person charged in any State w ith Treason, Felony, o r other Crim e, who shall flee from Justice,
and be found in an o th er State, sh all on Demand o f the executive A uthority o f the State from
w hich he fled, be delivered up, to b e removed to the State having Jurisdiction o f the Crime.
20 Perhaps the dem anding State’s requirem ents in this regard w ould 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 T he U niform C rim inal Extradition A ct 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 A m endm ent. See C uyler v. Adams, 449 U.S. 433 (1981). By their terms, however, the
protections in the U niform Criminal Extradition Act apply only to a person arrested on a w arrant 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 pro­
vides “any means to compel the execution o f 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 extradi­
tion. 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 K entucky v. Dennison, the Supreme C ourt held that a federal court could not issue a w rit o f m andam us
to com pel the G overnor o f O hio to surrender a fugitive indicted in K entucky for assisting a slave to escape:
“the Federal G overnm ent, under the C onstitution, has no pow er to im pose on a State officer, as such, any duty
w hatever, and com pel him to perform it.” 65 U.S. at 107. D issenting in South Dakota v. Brown, Justice M osk
observed that “ [t]here is serious question w hether the rigid federalism o f Dennison w ould be followed today
when a constitutional issue is involved.” 20 C al. 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 perm it a defendant to rely upon any right belonging
to the asylum State as a defense to prosecution in the dem anding State. See United States v M iller, 17 F.
Supp. a t 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 o f 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 proce­
dures 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 o f 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 departmen­
tal approval o f any request for removal in a § 1073 case. Factors to be consid­
ered in making this determination could include whether the extradition pro­
cess 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 pur­
pose; and whether the federal interest in the particular case is sufficiently
strong to overcome whatever interest the asylum State may have in implement­
ing 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 l l j. 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 w ere guaranteed by the Extradition C lause, we
doubt th at the venue provisions o f § 1073 co u ld have w ithstood constitutional challenge. Those provisions in
effect require circum vention o f state extradition procedures insofar as they lead, sooner or later, to the
fu gitiv e’s retu rn by federal process to the custody o f authorities in the State from which he fled. W hether the
g ov ern m en t w ins o r loses its § 1073 prosecution, the defendant is subsequently made to answ er in state court
fo 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
issue w o u ld d epend upon w hether a federal prosecution preceded the fugitive’s being turned over to state
auth o rities. The federal interest would ap p ear to be as great, and that interest would appear to be equally
served, an d perhaps in a fairer w ay to defendants, w hen the federal governm ent chooses to decline prosecu­
tion for w hat is essentially a derivative crim e, in deference to the dem anding State’s disposition of the
fugitiv e u n d e r state law.
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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 transporta­
tion of prisoners would therefore have to be deposited in the general fund o f 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 prosecu­
tion. 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 W e have not studied w hether the State could be required to reim burse the United States for expenses
incurred by the Marsha) in this situation, as a condition o f the D epartm ent’s willingness to request rem oval,
and express no view s on that issue. We note, how ever, that the authority to charge a fee for services contained
in 31 U.S.C. § 9701 (form erly 31 U.S.C. § 483a), the so-called “user fee statute," has been held inapplicable
to state and local governm ents and agencies thereof. See Beaver, Bountiful, Enterprise v. Andrus, 637 F.2d
749 (10th Cir. 1980). The Intergovernm ental C ooperation Act o f 1968 provided a m echanism whereby
governm ental 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 w ere am ended and reenacted in
1982 as part o f T itle 31. See 31 U.S.C. § 6505. Services may be provided, how ever, only if “prescribed by the
President.” Id. § 6505(b).
26 Although the M arshal may not accept cash reim bursem ent without im plicating the rule against augm en­
tation o f appropriations, it is possible that all o r part o f the personnel costs o f transporting federal § 1073
prisoners could be defrayed by deputizing state Ipw enforcem ent officers to assist the M arshal in carrying out
this function. Under 28 C.F.R . § 0.112, the D irector o f the U.S. M arshals Service is authorized to m ake such
deputations “w henever the needs o f the U.S. M arshals Service so require.” See also 28 U.S.C. § 569(b)
(conferring authority on U.S. M arshals to “com m and all necessary assistance to execute their duties” ).
A lthough 31 U.S.C. § 665(b) prohibits the acceptance o f voluntary services for the U nited States, this
provision has been construed not to prohibit the acceptance o f services that are truly “gratuitous,” i.e., for
w hich no federal com pensation is expected. See 54 Comp. Gen. 560 (1975).
93
should not be sought in such circumstances unless it is clear that state proce­
dures are inadequate to the task of returning the fugitive.
Although it is unclear whether § 1073’s requirement of formal written
Department o f 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 o f 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 o f 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.
Ra lph W . T a rr
Deputy A ssistant Attorney
G eneral Office o f Legal Counsel
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