351 F.Supp. 1050 (D.Conn. 1972), 215, United States v. Diaz

Docket Nº:215.
Citation:351 F.Supp. 1050
Party Name:UNITED STATES of America v. Daniel Melendez DIAZ. Magistrate's No. 3.
Case Date:August 30, 1972
Court:United States District Courts, 2nd Circuit, District of Connecticut

Page 1050

351 F.Supp. 1050 (D.Conn. 1972)



Daniel Melendez DIAZ.

Magistrate's No. 3.

No. 215.

United States District Court, D. Connecticut.

Aug. 30, 1972

Page 1051

Randolph C. Roeder, Asst. U. S. Atty., Hartford, Conn., for plaintiff.


NEWMAN, District Judge.

The Government has presented an application for issuance of an arrest warrant in order to secure a judicial ruling within this District as to whether a warrant may issue for a violation of 18 U.S.C. § 1073 (unlawful flight to avoid prosecution) in the absence of the written approval of the Attorney General of the United States or an Assistant Attorney General. On July 25, 1972, a sworn complaint charging Daniel Diaz with a violation of § 1073 was presented before United States Magistrate Thomas F. Parker. The complaint alleged that Diaz, while held in state custody for prosecution on a charge of selling narcotics, escaped on May 18 and was arrested in New York City on June 4. Magistrate Parker declined to issue a warrant, expressing his view in a brief memorandum that § 1073 requires the written approval of the Attorney General or an Assistant Attorney General before a warrant may issue.

The Government styles its ap-application a Motion for Rehearing, which it says is based on Rule 5 of the Federal Rules of Procedure for the Trial of Minor Offenses before United States Magistrates. That rule provides for the rehearing of any decision of a magistrate, which if made by a judge of the district court, could be appealed. But there is no authority to appeal the decision of a district judge denying a request to issue a warrant. However, there is no reason this Court cannot act upon the application as an original matter, despite its prior presentation to a magistrate. The Court's jurisdiction is clear, 18 U.S.C. § 3041, and while successive requests to issue a warrant after an initial refusal should normally be discouraged, it is entirely appropriate to entertain the application here where the question is not the sufficiency of the facts to establish probable cause but rather the proper construction of a statute which has not been adjudicated in this District.

The issue arises from the last paragraph of § 1073 which specifies that violations of the section may be "prosecuted" only upon the formal written approval of the Attorney...

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