-CITE-

18 USC CHAPTER 219 - TRIAL BY UNITED STATES MAGISTRATE

JUDGES 01/06/03

-EXPCITE-

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 219 - TRIAL BY UNITED STATES MAGISTRATE JUDGES

.

-HEAD-

CHAPTER 219 - TRIAL BY UNITED STATES MAGISTRATE JUDGES

-MISC1-

Sec.

3401. Misdemeanors; application of probation laws.

3402. Rules of procedure, practice and appeal.

AMENDMENTS

1979 - Pub. L. 96-82, Sec. 7(c), Oct. 10, 1979, 93 Stat. 646,

substituted ''Misdemeanors'' for ''Minor offenses'' in item 3401.

1968 - Pub. L. 90-578, title III, Sec. 301(c), 302(c), Oct. 17,

1968, 82 Stat. 1115, 1116, substituted ''TRIAL BY UNITED STATES

MAGISTRATES'' for ''TRIAL BY COMMISSIONERS'' in chapter heading,

and substituted ''Minor offenses'' for ''Petty offenses'' and

struck out ''fees'' after ''probation laws'' in item 3401.

-CHANGE-

CHANGE OF NAME

''UNITED STATES MAGISTRATE JUDGES'' substituted for ''UNITED

STATES MAGISTRATES'' in chapter heading pursuant to section 321 of

Pub. L. 101-650, set out as a note under section 631 of Title 28,

Judiciary and Judicial Procedure.

-CITE-

18 USC Sec. 3401 01/06/03

-EXPCITE-

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 219 - TRIAL BY UNITED STATES MAGISTRATE JUDGES

-HEAD-

Sec. 3401. Misdemeanors; application of probation laws

-STATUTE-

(a) When specially designated to exercise such jurisdiction by

the district court or courts he serves, any United States

magistrate judge shall have jurisdiction to try persons accused of,

and sentence persons convicted of, misdemeanors committed within

that judicial district.

(b) Any person charged with a misdemeanor, other than a petty

offense may elect, however, to be tried before a district judge for

the district in which the offense was committed. The magistrate

judge shall carefully explain to the defendant that he has a right

to trial, judgment, and sentencing by a district judge and that he

may have a right to trial by jury before a district judge or

magistrate judge. The magistrate judge may not proceed to try the

case unless the defendant, after such explanation, expressly

consents to be tried before the magistrate judge and expressly and

specifically waives trial, judgment, and sentencing by a district

judge. Any such consent and waiver shall be made in writing or

orally on the record.

(c) A magistrate judge who exercises trial jurisdiction under

this section, and before whom a person is convicted or pleads

either guilty or nolo contendere, may, with the approval of a judge

of the district court, direct the probation service of the court to

conduct a presentence investigation on that person and render a

report to the magistrate judge prior to the imposition of sentence.

(d) The probation laws shall be applicable to persons tried by a

magistrate judge under this section, and such officer shall have

power to grant probation and to revoke, modify, or reinstate the

probation of any person granted probation by a magistrate judge.

(e) Proceedings before United States magistrate judges under this

section shall be taken down by a court reporter or recorded by

suitable sound recording equipment. For purposes of appeal a copy

of the record of such proceedings shall be made available at the

expense of the United States to a person who makes affidavit that

he is unable to pay or give security therefor, and the expense of

such copy shall be paid by the Director of the Administrative

Office of the United States Courts.

(f) The district court may order that proceedings in any

misdemeanor case be conducted before a district judge rather than a

United States magistrate judge upon the court's own motion or, for

good cause shown, upon petition by the attorney for the Government.

Such petition should note the novelty, importance, or complexity of

the case, or other pertinent factors, and be filed in accordance

with regulations promulgated by the Attorney General.

(g) The magistrate judge may, in a petty offense case involving a

juvenile, exercise all powers granted to the district court under

chapter 403 of this title. The magistrate judge may, in the case

of any misdemeanor, other than a petty offense, involving a

juvenile in which consent to trial before a magistrate judge has

been filed under subsection (b), exercise all powers granted to the

district court under chapter 403 of this title. For purposes of

this subsection, proceedings under chapter 403 of this title may be

instituted against a juvenile by a violation notice or complaint,

except that no such case may proceed unless the certification

referred to in section 5032 of this title has been filed in open

court at the arraignment.

(h) The magistrate judge shall have power to modify, revoke, or

terminate supervised release of any person sentenced to a term of

supervised release by a magistrate judge.

(i) A district judge may designate a magistrate judge to conduct

hearings to modify, revoke, or terminate supervised release,

including evidentiary hearings, and to submit to the judge proposed

findings of fact and recommendations for such modification,

revocation, or termination by the judge, including, in the case of

revocation, a recommended disposition under section 3583(e) of this

title. The magistrate judge shall file his or her proposed

findings and recommendations.

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 830; Pub. L. 85-508, Sec. 12(j),

July 7, 1958, 72 Stat. 348; Pub. L. 90-578, title III, Sec. 302(a),

Oct. 17, 1968, 82 Stat. 1115; Pub. L. 96-82, Sec. 7(a), (b), Oct.

10, 1979, 93 Stat. 645, 646; Pub. L. 98-473, title II, Sec. 223(j),

Oct. 12, 1984, 98 Stat. 2029; Pub. L. 100-690, title VII, Sec.

7072(a), Nov. 18, 1988, 102 Stat. 4405; Pub. L. 101-650, title III,

Sec. 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 102-572, title I,

Sec. 103, Oct. 29, 1992, 106 Stat. 4507; Pub. L. 104-317, title II,

Sec. 202(a), Oct. 19, 1996, 110 Stat. 3848; Pub. L. 106-518, title

II, Sec. 203(a), Nov. 13, 2000, 114 Stat. 2414.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 18, U.S.C., 1940 ed., Sec. 576, 576b, 576c, 576d

(Oct. 9, 1940, ch. 785, Sec. 1, 3-5, 54 Stat. 1058, 1059).

The phrase ''the commissioner shall have power to grant

probation'' was inserted in paragraph (c) in order to make clear

the authority of the commissioner to grant probation without

application to the District judge.

Four sections were consolidated herein with minor rearrangements

and deletion of unnecessary words.

AMENDMENTS

2000 - Subsec. (b). Pub. L. 106-518, Sec. 203(a)(1), struck out

''that is a class B misdemeanor charging a motor vehicle offense, a

class C misdemeanor, or an infraction,'' after ''petty offense''.

Subsec. (g). Pub. L. 106-518, Sec. 203(a)(2), substituted first

sentence for former first sentence which read: ''The magistrate

judge may, in a petty offense case involving a juvenile, that is a

class B misdemeanor charging a motor vehicle offense, a class C

misdemeanor, or an infraction, exercise all powers granted to the

district court under chapter 403 of this title.'', substituted

''the case of any misdemeanor, other than a petty offense,'' for

''any other class B or C misdemeanor case'' in second sentence, and

struck out at end ''No term of imprisonment shall be imposed by the

magistrate in any such case.''

1996 - Subsec. (b). Pub. L. 104-317, Sec. 202(a)(1), inserted '',

other than a petty offense that is a class B misdemeanor charging a

motor vehicle offense, a class C misdemeanor, or an infraction,''

after ''misdemeanor'', substituted ''tried before a district

judge'' for ''tried before a judge of the district court'' and ''by

a district judge'' for ''by a judge of the district court'',

substituted ''magistrate judge'' for ''magistrate'' in two places,

and substituted ''The magistrate judge may not proceed to try the

case unless the defendant, after such explanation, expressly

consents to be tried before the magistrate judge and expressly and

specifically waives trial, judgment, and sentencing by a district

judge. Any such consent and waiver shall be made in writing or

orally on the record.'' for ''The magistrate shall not proceed to

try the case unless the defendant, after such explanation, files a

written consent to be tried before the magistrate that specifically

waives trial, judgment, and sentencing by a judge of the district

court.''

Subsec. (g). Pub. L. 104-317, Sec. 202(a)(2), substituted ''The

magistrate judge may, in a petty offense case involving a juvenile,

that is a class B misdemeanor charging a motor vehicle offense, a

class C misdemeanor, or an infraction, exercise all powers granted

to the district court under chapter 403 of this title. The

magistrate judge may, in any other class B or C misdemeanor case

involving a juvenile in which consent to trial before a magistrate

judge has been filed under subsection (b), exercise all powers

granted to the district court under chapter 403 of this title.''

for ''The magistrate may, in a Class B or C misdemeanor case, or

infraction case, involving a juvenile in which consent to trial

before a magistrate has been filed under subsection (b) of this

section, exercise all powers granted to the district court under

chapter 403 of this title.''

1992 - Subsec. (d). Pub. L. 102-572, Sec. 103(1), substituted

''and to revoke, modify, or reinstate the probation of any person

granted probation by a magistrate judge'' for ''and to revoke or

reinstate the probation of any person granted probation by him''.

Subsecs. (h), (i). Pub. L. 102-572, Sec. 103(2), added subsecs.

(h) and (i).

1988 - Subsec. (g). Amendment by Pub. L. 100-690 directing that

''and section 4216'' be struck out after ''under chapter 402'' in

subsec. (g), was executed to subsec. (g) applicable to offenses

committed prior to Nov. 1, 1987, as the probable intent of

Congress, in view of the amendment by section 223(j) of Pub. L.

98-473. See 1984 Amendment notes below.

1984 - Subsecs. (g), (h). Pub. L. 98-473, Sec. 223(j)(1),

redesignated subsec. (h) as (g) and struck out former subsec. (g)

which related to powers of magistrate in case involving youthful

offender. Former subsec. (g), as amended by Pub. L. 100-690, read

as follows: ''The magistrate may, in a case involving a youth

offender in which consent to trial before a magistrate has been

filed under subsection (b) of this section, impose sentence and

exercise the other powers granted to the district court under

chapter 402 of this title, except that -

''(1) the magistrate may not sentence the youth offender to the

custody of the Attorney General pursuant to such chapter for a

period in excess of 1 year for conviction of a misdemeanor or 6

months for conviction of a petty offense;

''(2) such youth offender shall be released conditionally under

supervision no later than 3 months before the expiration of the

term imposed by the magistrate, and shall be discharged

unconditionally on or before the expiration of the maximum

sentence imposed; and

''(3) the magistrate may not suspend the imposition of sentence

and place the youth offender on probation for a period in excess

of 1 year for conviction of a misdemeanor or 6 months for

conviction of a petty offense.''

Pub. L. 98-473, Sec. 223(j)(2), which directed amendment of

subsec. (h) by substituting reference to Class B or C misdemeanor

case or an infraction case, for reference to petty offense case,

was executed to subsec. (g) as the probable intent of Congress in

view of redesignation of subsec. (h) as (g) by section 223(j)(1) of

Pub. L. 98-473, see above.

1979 - Pub. L. 96-82, Sec. 7(b), substituted ''Misdemeanors'' for

''Minor offenses'' in section catchline.

Subsec. (a). Pub. L. 96-82, Sec. 7(a)(1), substituted ''any

United States magistrate shall have jurisdiction to try persons

accused of, and sentence persons convicted of, misdemeanors

committed'' for ''and under such conditions as may be imposed by

the terms of the special designation, any United States magistrate

shall have jurisdiction to try persons accused of, and sentence

persons convicted of, minor offenses committed''.

Subsec. (b). Pub. L. 96-82, Sec. 7(a)(2), substituted reference

to persons charged with misdemeanors for reference to persons

charged with minor offenses, substituted reference to right to

trial, judgment, and sentencing for reference to right to trial,

and struck out provisions relating to the waiver of the right to a

trial by jury.

Subsec. (f). Pub. L. 96-82, Sec. 7(a)(3), substituted provisions

authorizing the district court to order misdemeanor proceedings to

be conducted before a district court judge for provisions defining

term ''minor offenses''.

Subsecs. (g), (h). Pub. L. 96-82, Sec. 7(a)(4), added subsecs.

(g) and (h).

1968 - Pub. L. 90-578 substituted ''Minor offenses'' for ''Petty

offenses'' and struck out provision for ''fees'' in section

catchline.

Subsec. (a). Pub. L. 90-578 provided for trial by a magistrate

rather than a commissioner of minor offenses instead of petty

offenses, under such conditions as may be imposed by the terms of

the special designation, required imposition of sentence after

conviction instead of sentencing of person committing the offense,

and omitted provision for trial of offense committed in any place

over which the Congress has exclusive power to legislate or over

which the United States has concurrent jurisdiction.

Subsec. (b). Pub. L. 90-578 provided that the person be charged

with a minor offense rather than a petty offense, prescribed trial

in district court for the district in which the offense was

committed, and required an explanation to be given of right to

trial before a district court judge with right to jury trial before

such judge and that the written consent to trial before the

magistrate specifically waive trial before the district court judge

and any right to a jury trial.

Subsec. (c). Pub. L. 90-578 substituted authorization for

magistrate to conduct presentence investigation for prior

provisions making probation laws applicable to persons tried by

commissioners having power to grant probation, now incorporated in

subsec. (d) of this section.

Subsec. (d). Pub. L. 90-578 incorporated existing provisions of

former subsec. (c) of this section in provisions designated as

subsec. (d), substituted ''magistrate'' for ''commissioner'',

authorized revocation or reinstatement of probation by the officer

granting the probation, and struck out former provision for receipt

of fees provided by law for services as a commissioner.

Subsec. (e). Pub. L. 90-578 substituted requirement that

proceedings before magistrates be taken down by a court reporter or

recorded by sound recording equipment and provision for

availability of a copy of the record of such proceedings for appeal

purposes to be paid by the Director at Federal expense when a

person is unable to pay or give security therefor for prior

provisions making the section inapplicable to the District of

Columbia and interpreting it as not repealing or limiting existing

jurisdiction, power or authority of commissioners appointed in the

several national parks.

Subsec. (f). Pub. L. 90-578 added subsec. (f).

1958 - Subsec. (e). Pub. L. 85-508 struck out provisions which

related to commissioners appointed for Alaska. See section 81A of

Title 28, Judiciary and Judicial Procedure, which establishes a

United States District Court for the State of Alaska.

-CHANGE-

CHANGE OF NAME

''United States magistrate judge'', ''magistrate judge'', and

''magistrate judges'' substituted for ''United States magistrate'',

''magistrate'', and ''magistrates'', respectively, in subsecs. (a),

(c), (e), and (f), and ''magistrate judge under'' substituted for

''magistrate under'' in subsec. (d), pursuant to section 321 of

Pub. L. 101-650, set out as a note under section 631 of Title 28,

Judiciary and Judicial Procedure.

-MISC4-

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-572 effective Jan. 1, 1993, see section

1101 of Pub. L. 102-572, set out as a note under section 905 of

Title 2, The Congress.

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.

EFFECTIVE DATE OF 1968 AMENDMENT

Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when

a later effective date is applicable, which is the earlier of date

when implementation of amendment by appointment of magistrates (now

United States magistrate judges) and assumption of office takes

place or third anniversary of enactment of Pub. L. 90-578 on Oct.

17, 1968, see section 403 of Pub. L. 90-578, set out as a note

under section 631 of Title 28, Judiciary and Judicial Procedure.

EFFECTIVE DATE OF 1958 AMENDMENT

Amendment by Pub. L. 85-508 effective Jan. 3, 1959, on admission

of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959,

24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of

Pub. L. 85-508, see notes set out under section 81A of Title 28,

Judiciary and Judicial Procedure, and preceding former section 21

of Title 48, Territories and Insular Possessions.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 5032 of this title; title

7 section 1011; title 16 sections 460d, 460l-6a, 551, 670j, 1338;

title 28 sections 636, 1915; title 43 sections 373b, 1733; title 48

sections 1912, 1934.

-CITE-

18 USC Sec. 3402 01/06/03

-EXPCITE-

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART II - CRIMINAL PROCEDURE

CHAPTER 219 - TRIAL BY UNITED STATES MAGISTRATE JUDGES

-HEAD-

Sec. 3402. Rules of procedure, practice and appeal (FOOTNOTE 1)

-STATUTE-

(FOOTNOTE 1) Section catchline was not amended to conform to

change made in text by Pub. L. 100-702.

In all cases of conviction by a United States magistrate judge an

appeal of right shall lie from the judgment of the magistrate judge

to a judge of the district court of the district in which the

offense was committed.

-SOURCE-

(June 25, 1948, ch. 645, 62 Stat. 831; Pub. L. 90-578, title III,

Sec. 302(b), Oct. 17, 1968, 82 Stat. 1116; Pub. L. 100-702, title

IV, Sec. 404(b)(2), Nov. 19, 1988, 102 Stat. 4651; Pub. L. 101-650,

title III, Sec. 321, Dec. 1, 1990, 104 Stat. 5117.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 18 U.S.C., 1940 ed., Sec. 576a (Oct. 9, 1940, ch.

685, Sec. 2, 54 Stat. 1059).

AMENDMENTS

1988 - Pub. L. 100-702 struck out second par. which read as

follows: ''The Supreme Court shall prescribe rules of procedure and

practice for the trial of cases before magistrates and for taking

and hearing of appeals to the judges of the district courts of the

United States.''

1968 - Pub. L. 90-578 provided that the appeal shall be of right,

substituted ''a United States magistrate'', ''magistrate'', and

''magistrates'' for ''United States commissioners'',

''commissioner'', and ''commissioners'', respectively, and provided

that the appeals be to the judge of the district court and not to

the district court and that the rules of the Supreme Court relate

to appeals to the judges of the district courts rather than to the

district courts.

-CHANGE-

CHANGE OF NAME

''United States magistrate judge'' and ''magistrate judge''

substituted for ''United States magistrate'' and ''magistrate'',

respectively, in text pursuant to section 321 of Pub. L. 101-650,

set out as a note under section 631 of Title 28, Judiciary and

Judicial Procedure.

-MISC4-

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-702 effective Dec. 1, 1988, see section

407 of Pub. L. 100-702, set out as a note under section 2071 of

Title 28, Judiciary and Judicial Procedure.

EFFECTIVE DATE OF 1968 AMENDMENT

Amendment by Pub. L. 90-578 effective Oct. 17, 1968, except when

a later effective date is applicable, which is the earlier of date

when implementation of amendment by appointment of magistrates (now

United States magistrate judges) and assumption of office takes

place or third anniversary of enactment of Pub. L. 90-578 on Oct.

17, 1968, see section 403 of Pub. L. 90-578, set out as a note

under section 631 of title 28, Judiciary and Judicial Procedure.

-CITE-