United States v. Diaz, Magistrate's No. 3

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation351 F. Supp. 1050
Docket NumberMagistrate's No. 3,No. 215.,215.
PartiesUNITED STATES of America v. Daniel Melendez DIAZ.
Decision Date30 August 1972

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 General or an Assistant Attorney General. The Magistrate construed "prosecution" to mean every step of the criminal process including the issuance of an arrest warrant. The Government contends that in this statute the word means all steps after the initiation of a court proceeding by indictment or information.

The paragraph in question was added to the Fugitive Felon Act in 1961 when the Act was broadened to include those who flee across state lines to avoid prosecution or confinement not merely for a list of enumerated crimes but for all felonies. The paragraph was added as an amendment offered by Congressman Libonati and adopted without discussion. 107 Cong.Rec. 15767 (Daily ed. Aug. 23, 1961). Earlier in the debate,...

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3 cases
  • U.S. v. Frank
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 28, 1988
    ...Justice for the filing of a charge, the issuance of an arrest warrant, or the arrest and detention of a fugitive. See United States v. Diaz, 351 F.Supp. 1050 (D.Conn.1972) (warrant may issue without Attorney General's approval); United States v. McCarthy, 249 F.Supp. 199 (E.D.N.Y.1966) (fil......
  • Authority for the Removal of Fugitive Felons Apprehended Under 18 U.S.C. § 1073, 83-10
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • March 21, 1983
    ...case required the court to rule on the applicability of the requirement to federal removal, both courts remarked on that issue in dictum. In Diaz, Newman rejected a construction of the statutory term "prosecution" which would have extended the requirement of written approval to "every step ......
  • United States v. Price
    • United States
    • U.S. District Court — Western District of Michigan
    • November 14, 1972
    ... ... 3, 1969, again asserting that the ministry was his "main occupation." He was granted a personal ... ...

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