Approval by Both U.S. Attorneys

Approval by Both U.S. Attorneys

Rule 20(a)(2) supplies the second condition for a transfer: the United States attorneys in both districts must approve the transfer in writing.¹ A United States attorney is the federal government's chief prosecutor for a judicial district, and the rule gives that officer, and not the defendant, the decision whether a case may leave the charging district. This condition stands apart from the one in Rule 20(a)(1). The defendant's written statement shows that the defendant is willing to plead and to be handled in the receiving district, while the approval requirement asks a different question, namely whether the government is willing to let the case move. Both conditions must be satisfied, and neither can stand in for the other.

The reason a defendant's wish cannot substitute for approval lies in what a transfer changes. A Rule 20 transfer alters who prosecutes the case, who appears at the plea and the sentencing, and which court resolves it, so two offices have something at stake and the rule gives each of them a veto. The office in the charging district made the decision to bring the charges. It therefore has the strongest claim to decide whether to give up its forum, and whether any plea agreement under discussion fits its charging decisions. The office in the receiving district is the one asked to take on a case it did not investigate or charge, and it must supply a lawyer, a place on its calendar, and its attention. If the defendant's statement alone were enough, a defendant choosing among districts would have every reason to pick the one that looks most favorable and could hand the case to an office that never agreed to receive it. Putting the approvals in the rule means a transfer happens only when both prosecutors agree, whatever the defendant would prefer. That also fits the point from the previous section that waiving trial in the charging district does not let a defendant compel a transfer in every case, since the approvals are one of the controls Rule 20 places on the waiver.

The approval condition has two features, and the next two subsections teach them one at a time. The first is that the approval is two-sided: the prosecutor in the charging district and the prosecutor in the receiving district must each give it, so agreement by only one office leaves the condition unmet. The second is that the approval must be in writing, which, like the defendant's statement, produces a document that the later steps of the transfer can rely on. The juvenile provision in Rule 20(d) has a parallel written-approval requirement, and a later section of this chapter compares it with the adult rule.

On an exam problem, the usual mistake is to treat a defendant's signed statement as if it settled whether the case may move. The statement opens the process, and the approvals decide whether it goes forward, so the analysis must ask separately who the prosecutors are in each district and whether each has agreed. The first subsection takes up the requirement that both districts approve.

Both Districts Must Approve

Rule 20(a)(2) speaks in the plural: the United States attorneys in both districts must approve the transfer in writing.³ The rule therefore names two offices, the one in the charging district, where the indictment or information is pending or from which the complaint warrant issued, and the one in the receiving district, where the defendant has been arrested, is held, or is present. Each approval is its own condition. The rule does not ask whether the two prosecutors, taken together, favor the move, and it does not rank one office's view above the other's. A yes from one district leaves the requirement as unmet as silence from both would.

Because each office holds its own veto, neither can compel the other. The charging office may decline to give up a case it chose to bring, perhaps because it wants to keep the matter at home or because the plea terms the defendant has in mind do not match what it would accept. The receiving office may decline to take on a plea hearing, a sentencing, and the follow-up work for a case it never investigated or charged. Neither reason obliges the other office to agree, and neither office has authority to approve on the other's behalf. A defendant who wants a transfer is in effect asking two separate prosecutors for the same favor, and a refusal by either one defeats the request under Rule 20(a).⁴

The rule also identifies who makes this decision. The approvals come from United States attorneys, and the text of Rule 20(a)(2) assigns no corresponding role to a judge, so a judge's agreement cannot fill the gap left by a prosecutor's refusal.⁵ Court approval appears only in the juvenile provision of Rule 20(d), which a later section of this chapter compares with the adult rule. For the adult route, the question to ask is always whether the two prosecutors have agreed.

The three versions of the Colorado and Nevada facts show how the approvals sit beside the defendant's statement. Rule 20(a) makes the transfer depend on conditions that must all be met together, so the defendant's statement and the two approvals work as independent gates. In every version the defendant's statement was identical, and the outcome tracked a single variable, whether both offices agreed. A statement shows that the defendant is willing, and it cannot make up for an office that is unwilling. The same independence runs the other way, because, as the preceding section explained, the statement is the defendant's own act, and two agreeable prosecutors cannot produce one that the defendant has not filed. On an exam problem, the common error is to treat one office's approval as enough because the defendant and the other prosecutor are both ready to proceed. The analysis should check each district separately and ask whether that district's United States attorney has agreed.

Approval by both offices settles who must agree, and it leaves open what form the agreement must take. The next subsection turns to that question, the requirement that each approval be in writing.

Approval Must Be Written

Rule 20(a)(2) does more than require that both United States attorneys approve the transfer. It also requires that the approval be given "in writing."⁷ That phrase describes the form the approval must take, so an agreement that exists only as a spoken understanding has not been given in the form the rule calls for, however sincerely the two offices mean it. The text asks for a writing and says nothing more about who signs or what the document looks like, so the safe reading on an exam is to require a writing and to add no further formalities the rule does not state.

The reason for the requirement follows from what a transfer does. Two offices in two different districts must each agree, and a defendant who wants the case moved has every reason to remember an informal remark as a promise. Without a document, a court asked to take the plea could face a dispute over who said what on a telephone call, and the transfer would rest on recollection. A writing fixes who agreed, and it leaves a record that no one has to reconstruct later. It also gives the later steps something concrete to act on, which is the link to the clerk.

That link appears in Rule 20(b). After receiving the defendant's statement and the required approvals, the clerk where the indictment, information, or complaint is pending must send the file, or a certified copy, to the clerk in the transferee district.⁸ The clerk's duty is triggered by receipt, so the approvals have to be something a clerk can receive. A written approval can be placed before the clerk beside the defendant's statement, while a conversation between prosecutors leaves nothing to hand over. The sequence therefore runs in order: the defendant files the statement, each United States attorney approves in writing, and only then does the clerk send the file. The next section takes up the clerk's duties in detail.

On an exam problem, the usual mistake is to treat an oral agreement between prosecutors as approval because both offices are plainly willing. Willingness satisfies the two-sided requirement taught above, and the writing requirement is a separate demand about form. The analysis should therefore ask two questions about each district: whether its United States attorney has approved, and whether that approval exists in a writing that can go to the clerk.