Reading Room Document

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

An individual charged with a violation of the Fugitive Felon Act, 18 U.S.C. § 1073, which makes it a federal offense to travel interstate to avoid a state felony prosecution, among other things, may be "prosecuted" only in the federal judicial district in which the original state crime was committed, or from which he fled, and "only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated." Under Rule 40 of the FedeAl Rules of Criminal Procedure, an individual who is charged with a federal offense in one district and is apprehended in another may be brought back before the court in which the federal charges are pending against him. A court's duty to order removal under Rule 40 is not dependent upon a subsequent federal prosecution. The Department of Justice has interpreted the term "prosecution" in the Fugitive Felon Act to include all steps in the federal criminal process after a fugitive has been taken into federal custody, including removal to the district in which the federal charges against him are pending, pursuant to Rule 40. The Department has also determined that the formal approval required by 18 U.S.C. § 1073 may not be given if the federal prosecution is not to be subsequently pursued. Although nothing in the legislative history of the Fugitive Felon Act or relevant case law mandates this interpretation, it is not clear whether a court would require formal written approval before issuing a Rule 40 removal order. Federal removal under Rule 40 has been upheld against a Fugitive Felon Act defendant's claim that he was constitutionally entitled to extradition under state law. However, the Fugitive Felon Act was not intended to supplant state extradition procedures, and federal removal procedures should not be used to accomplish a Fugitive Felon Act defendant's return for prosecution or other appropriate disposition by the State. The policy considerations involved in making such a determination underscore the wisdom o f the Department's requirement for formal approval for Rule 40 removal of Fugitive Felon Act defendants. The cost of transporting a Fugitive Felon Act defendant pursuant to a court order under Rule 40 may be paid out of funds appropriated for the authorized activities of the United States Marshal. All or part of the cost of transportation may voluntarily be borne by the State seeking the fugitive's return, although any monies received from a State must be deposited into the general fund of the Treasury. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23491/download.

March 21, 1983