|9-69.100||Protection of Government Processes—Obstruction of Justice|
|9-69.200||Perjury and False Declarations Before Grand Jury or Court—Prosecution Policy|
|9-69.300||Prison Offenses (18 U.S.C. § § 1791-1793)|
|9-69.400||Fugitive Felon Act—18 U.S.C. § 1073|
|9-69.420||Prerequisites to Issuance of Federal Complaint in Aid of States|
|9-69.422||Unlawful Flight Warrants for Juvenile Offenders|
|9-69.430||Unlawful Flight to Avoid Custody or Confinement After Conviction|
|9-69.440||Unlawful Flight to Avoid Giving Testimony|
|9-69.460||Federal Information; Indictment; Removal—Approval Required|
|9-69.502||Escape from Custody Resulting from Conviction (18 U.S.C. § § 751 and 752)—Prosecution Policy|
9-69.010 - Introduction
This chapter focuses on the investigation and prosecution of federal criminal offenses that interfere with the federal justice system. These offenses include obstruction of justice, perjury, escape, and unlawful flight to avoid prosecution.
9-69.100 - Protection of Government Processes—Obstruction of Justice
The obstruction of justice statutes include 18 U.S.C. §§ 1501, 1503, 1505, 1510-1513, and 1516-1520. Generally, obstruction of justice offenses fall under the supervisory responsibility of the Division and Section of the Department having responsibility for, or expertise in, the basic subject matter. For example, obstruction of an investigation into health care fraud would fall under the supervision of the Fraud Section of the Criminal Division; obstruction involving violence against a witness would fall under the supervision of the Organized Crime and Gang Section of the Criminal Division; obstruction of a gambling investigation would fall under the supervision of the Organized Crime and Gang Section of the Criminal Division; and obstruction of a public corruption investigation or a congressional proceeding would fall under the supervision of the Public Integrity Section of the Criminal Division.
If such responsibility cannot be identified, supervisory responsibility rests with the Fraud Section of the Criminal Division.
9-69.200 - Perjury and False Declarations Before Grand Jury or Court—Prosecution Policy
Several Federal statutes criminalize perjury and related false statements. The two most commonly used statutes for perjury offenses are 18 U.S.C. §§ 1621 and 1623. The prior authorization of the Criminal Division is required for investigations or prosecutions of perjury before Congress and contempt of Congress. See also JM 9-90.550. Additionally, United States Attorneys are required to consult with the Criminal Division before instituting grand jury proceedings, filing an information, or seeking an indictment of an individual for perjury committed during a trial that resulted in acquittal. In all other perjury cases, no prior authorization or consultation is required.
Generally, perjury offenses fall under the supervisory responsibility of the Division and Section of the Department having responsibility for the basic subject matter. If such responsibility cannot be identified, or if the Division/Section with jurisdiction over the basic subject matter does not have criminal prosecutive responsibilities, i.e., certain civil litigation sections, supervisory responsibility rests with the Fraud Section of the Criminal Division.
The Federal Bureau of Investigation (FBI) has primary investigative responsibility for perjury violations in all cases and matters involving departments and agencies of the United States, except those arising out of a substantive matter being investigated by the United States Secret Service; Internal Revenue Service; Immigration and Naturalization Service; United States Customs Service; Drug Enforcement Administration; Bureau of Alcohol, Tobacco and Firearms; or United States Postal Inspection Service. The FBI also investigates violations relating to cases and matters not involving the United States government, or its agencies or departments, such as a civil case in a United States District Court between private parties. Upon written request of the Department, the FBI also investigates perjury violations committed in connection with any inquiry or investigation being conducted by the United States House of Representatives or the United States Senate, or their components.
[updated January 2020]
9-69.300 - Prison Offenses (18 U.S.C. § § 1791-1793)
The Office of Enforcement Operations has supervisory responsibility for these statutes.
9-69.400 - Fugitive Felon Act—18 U.S.C. § 1073
Though drawn as a penal statute, and therefore permitting prosecution by the Federal government for its violation, 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. No prior Criminal Division approval is required to authorize unlawful flight complaints in aid of the states. However, the statute expressly requires "formal approval in writing" by a designated Department official before a UFAP violation can be actually prosecuted in federal court. See JM 9-69.460. For information regarding use of a grand jury to locate a fugitive, see JM 9-11.120.
Since the primary purpose of the Act is to assist the states in apprehending fugitives from state justice, the Act should not be applied to the interstate or international flight of federal fugitives.
Agents and prosecutors can also contact the Criminal Division’s Office of International Affairs, the Department’s point of contact for securing the return of fugitives overseas, at (202) 514-0000. See JM 9-15.000.
9-69.420 - Prerequisites to Issuance of Federal Complaint in Aid of States
A complaint for violation of the Fugitive Felon Act should not be authorized unless there is probable cause to believe that the fugitive moved in interstate or foreign commerce with the intent of avoiding a felony prosecution under the laws of the place from which he fled. In addition, it should be clear that the requesting state authorities are determined to take all necessary steps to extradite or otherwise secure the return of the fugitive, and that it is their intention to bring him to trial on the state charge for which he is sought.
In considering requests for issuing complaints under the Act, care should be exercised to prevent use of the Act to assist in enforcement of any state statute with a clearly discriminatory purpose or in the discriminatory application of an otherwise lawful statute. Similarly, caution should be exercised to prevent use of FBI investigative resources to compel discharge of civil obligations. Thus, requests for federal involvement in worthless check violations, or in desertion/non-support cases should be scrutinized carefully.
[cited in JM 9-69.421]
9-69.421 - Parental Kidnapping
State requests for the filing of unlawful flight complaints in felony parental abduction cases are to be treated in the same manner as other unlawful flight requests. See JM 9-69.420 for additional policy guidance on unlawful flight complaints. See JM 9-74.200 for additional information regarding international parental kidnapping.
[updated January 2020] [cited in JM 9-2.112]
9-69.422 - Unlawful Flight Warrants for Juvenile Offenders
A state juvenile delinquency charge does not provide a basis for obtaining an unlawful flight warrant because a juvenile proceeding involves an adjudication of status, not a felony prosecution. However, if a juvenile is charged, as an adult, with a state felony offense, a UFAP warrant may be sought. In such situations, the UFAP complaint must charge an act of juvenile delinquency (unlawful flight) under 18 U.S.C. § 5032.
9-69.430 - Unlawful Flight to Avoid Custody or Confinement After Conviction
Selective handling by United States Attorneys will obviate indiscriminate use of the Fugitive Felon Act to locate parolees who have simply failed to report to the parole board or failed to notify the parole board of a change of address.
9-69.440 - Unlawful Flight to Avoid Giving Testimony
The majority of states have adopted the Uniform Act to Secure the Return of Witnesses From Without the State in Criminal Cases. Therefore, a state should be required to exhaust existing remedies for securing the return of witnesses before seeking Federal assistance.
9-69.460 - Federal Information; Indictment; Removal —Approval Required
The Fugitive Felon Act requires formal approval in writing by the Attorney General, Deputy Attorney General, Associate Attorney General, or Assistant Attorney General before initiating a 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 under the Act be sought nor an information be filed nor should removal proceedings under Rule 40, Federal Rules of Criminal Procedure, be instituted without the written approval of the Assistant Attorney General, Criminal Division. See H.Rep. No. 827, 87th Cong., 1st Sess. (1961), reprinted in, 1961 U.S.Code Cong. & Ad. News, 3242; United States v. McCord, 695 F.2d 823 (5th Cir.), cert. denied, 460 U.S. 1073 (1983). Requests for written approval to prosecute for unlawful flight should be forwarded to the Policy and Statutory Enforcement Unit using a form available to Department attorneys. Generally, such requests are approved only if it clearly appears that the interests of justice would be frustrated by a failure to prosecute.
9-69.502 - Escape from Custody Resulting from Conviction (18 U.S.C. § § 751 and 752)—Prosecution Policy
As a result of decisions handed down by the United States Supreme Court, it is clear that warrants are required to enter premises to arrest escapees from federal custody under 18 U.S.C. § 751 in all cases except where consent or exigent circumstances exist. It is clear from these decisions that in some cases an arrest warrant coupled with a reasonable belief that the escapee is in the premises is sufficient for a lawful entry. As a result of these decisions, and in order to provide federal law enforcement officers with all available legal process for the accomplishment of arrests of federal escapees, prosecutors are instructed that in all federal escape cases the issuance of a magistrate's complaint and arrest warrant should be authorized promptly upon completion of the investigation and presentation of the matter to the United States Attorney's Office by the agency involved. Many local law enforcement agencies will not assist in the search for federal escapees if there is no arrest warrant for the escapee. Thus, by promptly issuing the arrest warrant, prosecutors will insure the full cooperation of local law enforcement agencies in the search for and apprehension of the escapee.
Authorization of a complaint and arrest warrant should not be deferred until after apprehension of the escapee. Reevaluation of the prosecutive merit of the individual escape case in which a complaint is authorized may be made after the escapee has been apprehended. At that later time, prosecutors may determine that the case does not merit proceeding further and dismiss the complaint, or the escapee may be indicted within thirty or sixty days, 18 U.S.C. § 3161(b), depending on the availability of a grand jury, and proceed with the prosecution. However, by prompt authorization of the issuance of a magistrate's complaint and warrant, prosecutors will make available to the enforcement agencies legal process which will be sufficient to permit entry into private premises.