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737

Role of the United States Attorneys' Offices and Law Enforcement Agencies in the Transfer Process

To ensure a thorough, fair, and principled review of each application, the IPTU collects and evaluates pertinent formation from various sources, including input from the prosecutor and law enforcement agencies. One of the first steps that the IPTU analyst takes when a federal prisoner applies for transfer is to contact the USAO and the investigative agencies responsible for the prosecution of the case. These law enforcement agencies are responsible for furnishing pertinent information and recommendations to the IPTU no later than 14 calendar days from the date of the initial faxed or emailed request. Unless the USAO or the law enforcement agency contacts the IPTU and requests additional time to respond to the inquiry, the IPTU will interpret a failure to respond to its information requests as indicating that the USAO or the law enforcement agency is either taking no position or has no objection to the transfer request. This policy is intended to assist in avoiding unnecessary delays in processing transfer applications.

The sample of the form that the IPTU sends to the USAOs is set forth at Section 738 of this Manual. Although most USAOs submit their responses on this form, they may also provide their views by telephone, email or fax. The IPTU welcomes and seriously considers all legitimate law enforcement concerns raised by the USAOs. Nevertheless, generic and unsubstantiated complaints about the transfer program are not helpful and will not have an impact on the transfer decision. Generic complaints include opinions that express a general dislike of the program, a belief that the prisoner should serve his entire sentence in the United States, an unsupported belief that the prisoner will return to the United States, and a concern that the prisoner will serve a shorter sentence in his home country. A blanket policy of objecting to transfer without a substantial basis to do so would be inconsistent with the treaty obligations of the United States. The treaties and conventions governing the transfer of prisoners express a foreign policy determination of the United States that prisoner transfer should be available to foreign nationals incarcerated here, just as it should be available to American nationals incarcerated abroad. Furthermore, since the prisoner transfer treaties are part of United States law, the United States has an obligation to give a good faith consideration of each case. See generally Criminal Resource Manual 739 (March 14, 2012 Memorandum to All United States Attorneys from Lanny Breuer, Assistant Attorney General) (discusses the prisoner transfer program and the role of the USAOs).

The IPTU recognizes that the USAOs have a strong interest in the cases they have prosecuted and, as a result, gives considerable weight to the views and recommendations of the USAOs. The views of the investigative agency also provide important information in considering whether transfer should be approved. Indeed, sometimes a law enforcement agency may provide information unknown to the USAO, including the involvement of the prisoner in other crimes under investigation. Despite the importance of the views and recommendations of the USAO and the investigative agencies, these views are not necessarily determinative of the final decision in any particular transfer request.

Two other areas in which the USAOs play a role in the transfer process are: the drafting of plea agreements that make representations regarding the availability of transfer for an offender; and the extradition of foreign nationals when extradition is linked to a promise of prisoner transfer. These two situations and the responsibilities of the USAOs are discussed in more detail in Sections 740, 741, and 742 of this Manual.

Finally, although the USAOs do not provide their views concerning the transfer of state prisoners, they do have a role in one important step in the process of transferring state offenders. The federal enabling statute requires that a consent verification hearing (CVH) must be held for all transferring prisoners, regardless of whether the prisoner is in federal or state custody. See Manual at 741. In order to bring the state prisoner from a state prison to a federal courthouse for the CVH, it is necessary for a writ of habeas corpus to be issued. The USAO located in the district of the court holding the hearing is responsible for filing the motions necessary to secure this writ. It is not necessary for an AUSA to be present at the CVH as it is a non-adversarial proceeding inquiring only as to whether the prisoner understands the consequences of transfer and consents to transfer. See 18 U.S.C. § 4107.

[updated and renumbered March 2012] [cited in USAM 9-35.010]