CHAPTER 10 DELIVERY OF PERSONNEL

Whether you are assigned to a small legal office or to a larger naval legal service office (NLSO) or NLSO detachment, you will probably become involved with the preparation of various documents associated with the delivery of personnel and waiver of extradition. This chapter is designed to provide you with background information associated with the delivery of personnel, waivers of extradition, and service of process and subpoenas.

DELIVERY

There are varying circumstances you must consider when you receive a request for delivery of a member. Questions can arise on matters of jurisdiction, extradition, and agreements that must be executed. The following discussion of these circumstances is provided to give you an understanding of the factors involved.

PERSONS REQUESTED BY STATE AUTHORITIES IN CRIMINAL CASES

The first part of this chapter deals with requests by state authorities for the surrender of service members or civilians according to arrest warrants or similar process. This is commonly done in connection with a criminal prosecution. Responding to such requests by a state for delivery of service members or civilian employees involves balancing the federal interests in preserving sovereign immunity and the productivity, peace, good order, and discipline of the installation against the right of the state to exercise its jurisdiction. Additionally, by regulation, Navy and Marine Corps authorities are limited in the extent to which they can directly assist such an act. Commands should respond to such requests by using the minimum authority necessary to preserve federal interests without unduly restricting state jurisdiction.

WITHIN TERRITORIAL LIMITS OF REQUESTING STATE

When the delivery of any person in the Navy or Marine Corps is requested by local and state civil authorities of a state, territory, or commonwealth for an alleged offense punishable under the laws of that jurisdiction, and such person is located at a Navy or Marine Corps installation within the requesting jurisdiction, or aboard a ship within the territorial waters of such jurisdiction, commanding officers (COs) are authorized to and normally will deliver such person when a proper warrant is issued. In the case of a service member, delivery can only be carried out after compliance with the Manual of the Judge Advocate General (JAGMAN) subject to the exceptions noted in the JAGMAN. You should consult a judge advocate of the Navy or Marine Corps before delivery is carried out if a judge advocate is reasonably available.

The previous rule applies equally to civilian employees and civilian contractors and their employees when located on a Navy or Marine Corps installation. Commands should normally not become actively involved in civilian law enforcement. When a command has determined that a person is to be delivered in response to a valid warrant, you should consider the following guidance. If the person to be delivered is a military member, the member may be ordered to report to the location designated by the CO and surrender to civil authorities under Article 14, Uniform Code of Military Justice (UCMJ). If the person to be delivered is a civilian, the person may be invited to report to the designated space for delivery. If the civilian refuses, the civilian authorities may be escorted to a place where the civilian is located so delivery may be performed. A civilian who works in a classified area can be directed to leave his or her immediate work area to avoid any compromise of classified material. When it is required to have civilian law enforcement personnel go to the work center of an individual, it should be done with minimum interference to good order and discipline.

BEYOND TERRITORIAL LIMITS OF REQUESTING STATE

When the delivery of any person in the Navy or Marine Corps is requested by state, territory, or commonwealth civil authorities for an alleged crime or offense punishable by the laws of the jurisdiction making the request, and the person is not attached to a Navy or Marine Corps activity within the requesting state territory, or commonwealth, or a ship within the territorial waters thereof, take the following action. Deliver the person for the purpose of making that person amenable to prosecution. The delivery must be approved by any officer exercising general court-martial jurisdiction (OEGCMJ), or by an officer designated by him or her, or by any CO. The OEGCMJ or CO must consult with judge advocate of the Navy or Marine Corps before authorizing delivery. Before delivery, the OEGCMJ or CO must follow the provisions of the JAGMAN subject to any exceptions that are discussed later in this chapter.

The member may be delivered upon formal or informal waiver of extradition, or upon presentation of a fugitive warrant. Both of these procedures are discussed later in this chapter.

The previous rule applies equally to civilian employees when located on a Department of the Navy ( DON) installation not within the requesting state.

Waiver of Extradition

_{Any person may} waive formal extradition. A waiver must be in writing and witnessed. The waiver must include a statement that the person signing it has received counsel of either a military or civilian attorney before executing the waiver. The waiver must further state the name and address of the attorney consulted. The form used for the waiver should be substantially as shown in figure 10-1. Mail all executed copies of the waiver to the Judge Advocate General (JAG) immediately after their execution.

In every case where there is doubt about the voluntary nature of a waiver, such doubt is resolved against its use. All persons concerned must be advised to comply with the procedures set forth for fugitive warrants.

When an individual declines to waive extradition. You need to inform the nearest NLSO or Marine Corps staff judge advocate (SJA) since further representations to the civil authorities may be needed. Do not allow the transfer of the individual concerned out of the state in which he or she is then located without the permission of the Secretary of the Navy (SEC-NAV) (JAG), unless you have obtained a fugitive warrant.

Fugitive Warrants

A fugitive warrant, as defined in this chapter, is a warrant issued by a state court of competent jurisdiction for the arrest of an individual. Normally, a state requesting delivery of a member from another state will issue a fugitive warrant to the state where the member is then located.

Upon issuance of a fugitive warrant by the requesting state to the state where the member is located, the latter state will normally request delivery of the member to local state authorities. Delivery to local state officials should be arranged by authorized Navy or Marine Corps officers subject to the conditions set forth in the JAGMAN and the following discussion.

Upon receipt of a request for delivery of a member under fugitive warrant to state authorities, if the member voluntarily waives extradition, the provisions for the waiver of extradition apply. If the member is delivered to local authorities but refuses to waive extradition, he or she will have the opportunity to contest extradition in the courts of the state in which he or she is then located.

No delivery of a member by Navy or Marine Corps officers pursuant to a fugitive warrant or waiver of extradition can be done without the completion and execution of the delivery agreement required by the JAGMAN. The agreement is executed when (1) the authorities of both the requesting state and the state in which the member is located have signed it or (2) the authorities of the state in which the member is located have signed the agreement. This provision applies only if such authorities, on behalf of the requesting state, accept full responsibility for returning the member to a command designated by the DON.

PERSONNEL STATIONED OUTSIDE THE UNITED STATES

Persons desired by local U.S. authorities-when delivery of any member of the Navy or Marine Corps, or any civilian employee or dependent, is desired for trial by state, territory, commonwealth, or local civil authorities and the individual whose presence is sought is stationed outside the United States, follow the provision of Department of Defense (DOD) Directive 5525.9 of 27 December 1988, Compliance of DOD Members, Employees, and Family Members Outside the United States with Court Orders, as implemented in SECNAVINST 5820.9. In all such cases, you should consult with the nearest judge advocate of the Navy or Marine Corps before any action is taken.

Members desired by U.S. federal authorities- when the delivery of any member of the Navy or

Figure 10-1 . -Waiver of extradition.

Marine Corps is desired for trial in federal district court, upon proper representation by the Department of Justice to the SECNAV (JAG), return the member to the United States. This transfer is at the expense of the DON. The member will be held at a military facility convenient to the DON and to the Department of Justice. Delivery may be done as set forth in JAG-MAN, section 0608, subject to the exceptions in JAG-MAN, section 0610.