§ 3401. — Misdemeanors; application of probation laws.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC3401]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART II--CRIMINAL PROCEDURE
CHAPTER 219--TRIAL BY UNITED STATES MAGISTRATE JUDGES
Sec. 3401. Misdemeanors; application of probation laws
(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.
(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.)
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., Secs. 576, 576b, 576c, 576d
(Oct. 9, 1940, ch. 785, Secs. 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 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.
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.
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.
