18 U.S.C. § 4109 — Right to counsel, appointment of counsel

Page 912 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 4108 1 So in original. Probably should be ‘‘section 3006A of this title;’’. See 1990 Amendment note below. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘United States magistrate judge’’ substituted for ‘‘United States magistrate’’ in subsec. (a) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Proce- dure. § 4108. Verification of consent of offender to transfer to the United States (a) Prior to the transfer of an offender to the United States, the fact that the offender con- sents to such transfer and that such consent is voluntary and with full knowledge of the con- sequences thereof, shall be verified in the coun- try in which the sentence was imposed by a United States magistrate judge, or by a citizen specifically designated by a judge of the United States as defined in section 451 of title 28, United States Code. The designation of a citizen who is an employee or officer of a department or agency of the United States shall be with the approval of the head of that department or agen- cy. (b) The verifying officer shall inquire of the of- fender whether he understands and agrees that the transfer will be subject to the following con- ditions: (1) only the country in which he was con- victed and sentenced can modify or set aside the conviction or sentence, and any pro- ceedings seeking such action may only be brought in that country; (2) the sentence shall be carried out accord- ing to the laws of the United States and that those laws are subject to change; (3) if a United States court should determine upon a proceeding initiated by him or on his behalf that his transfer was not accomplished in accordance with the treaty or laws of the United States, he may be returned to the country which imposed the sentence for the purpose of completing the sentence if that country requests his return; and (4) his consent to transfer, once verified by the verifying officer, is irrevocable. (c) The verifying officer, before determining that an offender’s consent is voluntary and given with full knowledge of the consequences, shall advise the offender of his right to consult with counsel as provided by this chapter. If the offender wishes to consult with counsel before giving his consent, he shall be advised that the proceedings will be continued until he has had an opportunity to consult with counsel. (d) The verifying officer shall make the nec- essary inquiries to determine that the offender’s consent is voluntary and not the result of any promises, threats, or other improper induce- ments, and that the offender accepts the trans- fer subject to the conditions set forth in sub- section (b). The consent and acceptance shall be on an appropriate form prescribed by the Attor- ney General. (e) The proceedings shall be taken down by a reporter or recorded by suitable sound recording equipment. The Attorney General shall main- tain custody of the records. (Added Pub. L. 95–144, § 1, Oct. 28, 1977, 91 Stat. 1217; amended Pub. L. 98–473, title II, § 223(m)(4), Oct. 12, 1984, 98 Stat. 2030; Pub. L. 100–690, title VII, § 7101(b), Nov. 18, 1988, 102 Stat. 4415; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117.) Editorial Notes AMENDMENTS 1988—Subsec. (a). Pub. L. 100–690 struck out ‘‘includ- ing any term of imprisonment or term of supervised re- lease specified in the applicable sentencing guideline promulgated pursuant to 28 U.S.C. 944(a)(1),’’ after ‘‘consequences thereof,’’. 1984—Subsec. (a). Pub. L. 98–473 inserted ‘‘, including any term of imprisonment or term of supervised release specified in the applicable sentencing guideline promul- gated pursuant to 28 U.S.C. 994(a)(1),’’ after ‘‘con- sequences thereof’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘United States magistrate judge’’ substituted for ‘‘United States magistrate’’ in subsec. (a) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Proce- dure. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–473 effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98–473, set out as an Effective Date note under section 3551 of this title. § 4109. Right to counsel, appointment of counsel (a) In proceedings to verify consent of an of- fender for transfer, the offender shall have the right to advice of counsel. If the offender is fi- nancially unable to obtain counsel— (1) counsel for proceedings conducted under section 4107 shall be appointed in accordance with section 3006A of this title. Such appoint- ment shall be considered an appointment in a misdemeanor case for purposes of compensa- tion under the Act; 1 (2) counsel for proceedings conducted under section 4108 shall be appointed by the verifying officer pursuant to such regulations as may be prescribed by the Director of the Administrative Office of the United States Courts. The Secretary of State shall make payments of fees and expenses of the ap- pointed counsel, in amounts approved by the verifying officer, which shall not exceed the amounts authorized under section 3006A of this title for representation in a misdemeanor case. Payment in excess of the maximum amount authorized may be made for extended or complex representation whenever the verifying officer certifies that the amount of the excess payment is necessary to provide fair compensation, and the payment is ap- proved by the chief judge of the United States court of appeals for the appropriate circuit. Counsel from other agencies in any branch of the Government may be appointed: Provided, That in such cases the Secretary of State shall pay counsel directly, or reimburse the employ- ing agency for travel and transportation ex- penses. Notwithstanding section 3324(a) and (b) Page 913 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 4113 of title 31, the Secretary may make advance payments of travel and transportation ex- penses to counsel appointed under this sub- section. (b) Guardians ad litem appointed by the verifying officer under section 4100 of this title to represent offenders who are financially un- able to provide for compensation and travel ex- penses of the guardian ad litem shall be com- pensated and reimbursed under subsection (a)(1) of this section. (c) The offender shall have the right to advice of counsel in proceedings before the United States Parole Commission under section 4106A of this title and in an appeal from a determina- tion of such Commission under such section. If the offender is financially unable to obtain counsel, counsel for such proceedings and appeal shall be appointed under section 3006A of this title. (Added Pub. L. 95–144, § 1, Oct. 28, 1977, 91 Stat. 1218; amended Pub. L. 97–258, § 3(e)(2), Sept. 13, 1982, 96 Stat. 1064; Pub. L. 100–690, title VII, § 7101(d), Nov. 18, 1988, 102 Stat. 4416; Pub. L. 101–647, title XXXV, § 3598, Nov. 29, 1990, 104 Stat. 4931.) Editorial Notes AMENDMENTS 1990—Subsec. (a). Pub. L. 101–647 substituted ‘‘section 3006A of this title’’ for ‘‘the Criminal Justice Act (18 U.S.C. 3006A)’’ in par. (1) and for ‘‘the Criminal Justice Act (18 U.S.C. 3006(a))’’ in par. (2). 1988—Pub. L. 100–690 designated existing provisions as subsec. (a) and added subsecs. (b) and (c). 1982—Par. (2). Pub. L. 97–258 substituted ‘‘section 3324(a) and (b) of title 31’’ for ‘‘section 3648 of the Re- vised Statutes as amended (31 U.S.C. 529)’’. § 4110. Transfer of juveniles An offender transferred to the United States because of an act which would have been an act of juvenile delinquency had it been committed in the United States or any State thereof shall be subject to the provisions of chapter 403 of this title except as otherwise provided in the rel- evant treaty or in an agreement pursuant to such treaty between the Attorney General and the authority of the foreign country. (Added Pub. L. 95–144, § 1, Oct. 28, 1977, 91 Stat. 1218.) § 4111. Prosecution barred by foreign conviction An offender transferred to the United States shall not be detained, prosecuted, tried, or sen- tenced by the United States, or any State there- of for any offense the prosecution of which would have been barred if the sentence upon which the transfer was based had been by a court of the jurisdiction seeking to prosecute the transferred offender, or if prosecution would have been barred by the laws of the jurisdiction seeking to prosecute the transferred offender if the sentence on which the transfer was based had been issued by a court of the United States or by a court of another State. (Added Pub. L. 95–144, § 1, Oct. 28, 1977, 91 Stat. 1218.) § 4112. Loss of rights, disqualification An offender transferred to the United States to serve a sentence imposed by a foreign court shall not incur any loss of civil, political, or civic rights nor incur any disqualification other than those which under the laws of the United States or of the State in which the issue arises would result from the fact of the conviction in the foreign country. (Added Pub. L. 95–144, § 1, Oct. 28, 1977, 91 Stat. 1218.) § 4113. Status of alien offender transferred to a foreign country (a) An alien who is deportable from the United States but who has been granted voluntary de- parture pursuant to section 240B of the Immi- gration and Nationality Act and who is trans- ferred to a foreign country pursuant to this chapter shall be deemed for all purposes to have voluntarily departed from this country. (b) An alien who is the subject of an order of removal from the United States pursuant to sec- tion 240 of the Immigration and Nationality Act who is transferred to a foreign country pursuant to this chapter shall be deemed for all purposes to have been removed from this country. (c) An alien who is the subject of an order of removal from the United States pursuant to sec- tion 240 of the Immigration and Nationality Act, who is transferred to a foreign country pursuant to this chapter shall be deemed for all purposes to have been excluded from admission and re- moved from the United States. (Added Pub. L. 95–144, § 1, Oct. 28, 1977, 91 Stat. 1219; amended Pub. L. 104–208, div. C, title III, § 308(d)(4)(U), (e)(1)(Q), (2)(I), (g)(3)(B), (5)(A)(iv), Sept. 30, 1996, 110 Stat. 3009–619, 3009–620, 3009–622, 3009–623.) Editorial Notes REFERENCES IN TEXT Section 240B of the Immigration and Nationality Act, referred to in subsec. (a), is classified to section 1229c of Title 8, Aliens and Nationality. Section 240 of the Immigration and Nationality Act, referred to in subsecs. (b) and (c), is classified to sec- tion 1229a of Title 8. AMENDMENTS 1996—Subsec. (a). Pub. L. 104–208, § 308(g)(5)(A)(iv)(I), substituted ‘‘section 240B of the Immigration and Na- tionality Act’’ for ‘‘section 1252(b) or section 1254(e) of title 8, United States Code,’’. Subsec. (b). Pub. L. 104–208, § 308(g)(5)(A)(iv)(II), sub- stituted ‘‘section 240 of the Immigration and Nation- ality Act’’ for ‘‘section 1252 of title 8, United States Code,’’. Pub. L. 104–208, § 308(e)(1)(Q), (2)(I), substituted ‘‘re- moval’’ for ‘‘deportation’’ and ‘‘removed’’ for ‘‘de- ported’’. Subsec. (c). Pub. L. 104–208, § 308(g)(3)(B), substituted ‘‘240 of the Immigration and Nationality Act’’ for ‘‘1226 of title 8, United States Code’’. Pub. L. 104–208, § 308(d)(4)(U), (e)(2)(I), substituted ‘‘re- moval’’ for ‘‘exclusion and deportation’’ and ‘‘removed’’ for ‘‘deported’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1997 AMENDMENT Amendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first