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FUNCTIONS

The commissioner is a subordinate magistrate who has certain independent judicial functions. His duties and functions are set forth in the statutes of the United States, and in the Rules of the Supreme Court and the district courts governing procedure in criminal cases. As a judicial officer, he exercises independent duties of importance. There may be occasions when it may be necessary or desirable for him to confer with the district judge regarding certain duties of his office with which he is not familiar; if so, he should feel free to do so. Moreover, in any case where the commissioner desires the assistance and advice of the United States attorney or his assistants at any stage of a proceeding, or in conducting a preliminary examination, he should make a request of the United States attorney therefor. This also applies, of course, to the proper form of writs which the commissioner issues and the bonds and recognizances which he approves. At times the advice of United States law enforcement agencies may also be helpful. However, the commissioner should always bear in mind that his judicial decisions should be his own, based on the law and the facts in the light of his own best judgment.

COMPENSATION AND SUPPLIES

The only compensation which a commissioner is entitled to receive for services rendered in federal criminal cases is that which is authorized by law to be paid to him by the United States. See U.S.C., Title 28, (1948 Revision) § 633, printed in full in the appendix of this manual, and see also pp. 30-32, infra. The acceptance of compensation from any other source in payment of such services is illegal. The Criminal Code (U.S.C., Title 18 (1948 Revision), § 208) provides that it shall be a felony for any United States commissioner to ask, receive, or agree to receive any money, property, or value of any kind upon any agreement or understanding that his opinion, action, judgment or decision shall be influenced thereby. It would be unethical for a commissioner to represent any defendant in a criminal case in the United States courts at any stage of the proceedings. He may, however, if a member of the bar of the court, practice freely on the civil side. A supply on hand of blank forms for the usual functions of the commissioner's office is absolutely essential to the efficient discharge of his duties. In accordance with Public Law 497, 79th Congress, approved July 10, 1946 (U.S.C., Title 28 (1948 Revision) § 639) The Administrative Office of the United States Courts has prepared blank forms

adapted to the transaction of the business of commissioners, and these are supplied to them without cost upon requisition to the Administrative Office. Each commissioner should keep on hand a sufficient supply at least of the following forms: Complaint (Form A.O. 91); Warrant of Arrest (Form A.O. 90); Summons (Form A.O. 83); Subpoena (Form A.O. 89); Preliminary Appearance Bond (recognizance) Forms A.O. 96 and 98); Court Appearance Bond (Forms A.O. 94 and 99); Temporary Commitment (mittimus) (Forms A.O. 97 and 97a), and Final Commitment (mittimus) (Forms A.O. 92 and 92a). See p. 33, infra, for further information regarding supplies for commissioners.

Each commissioner must have also a docket book in which to record all official proceedings taken by or before him. The Act of July 10, 1946 (cited supra), provides that the Administrative Office shall supply such a docket, and accordingly, a loose leaf binder and suitable page forms to accommodate it for recording the proceedings in criminal cases (Form A.O. 100), at trials of petty offenses under the Act of October 9, 1940 (U.S.C., Title 18 (1948 Revision), §§ 3401-3402) (Form A.O. 101), and in other proceedings (Form A.O. 104), have been prepared and are available to all commissioners without cost to them upon requisition to the Administrative Office. The Judicial Conference of Senior Circuit Judges, at its Special Session in April 1947, acting upon recommendation of the Director of the Administrative Office of the United States Courts pursuant to Rule 55 of the Federal Rules of Criminal Procedure, approved Commissioners' Docket forms A.O. 100, 101 and 104, and prescribed their use by all United States Commissioners (see Administrative Office Bulletin 314, supp. 4, dated June 18, 1947).

The transcript is a copy of all docket entries made by the commissioner as the case progresses which must be filed with the clerk of the district court as soon as the case is closed (Rule 5(c)). The loose leaf page forms furnished by the Administrative Office for the docket are so designed that if the docket entries are typewritten, a carbon copy, made on a duplicate docket page, can be used as the transcript of record to be forwarded to the clerk of the district court when the case is closed.

REPORTS TO UNITED STATES ATTORNEY

In every criminal proceeding before a commissioner, it is very important that he make his reports faithfully and promptly to the United States attorney. The forms for these reports, both temporary

and final, are furnished the commissioner by the United States attorney. The temporary report is designed to furnish the United States attorney with the information he requires in connection with his duties and dockets in cases where defendants are brought before the commissioner and a preliminary examination under Rule 5 is necessary. The final report is designed for use in cases (1) where defendant waives preliminary examination and either furnishes bail, or is committed pending trial in default of bail, or (2) where the defendant, at the conclusion of a preliminary examination, either furnishes bail for his appearance at the trial or is finally committed in default thereof, or is discharged. These reports are essential for the reason that the United States attorney is required to know promptly the exact status of every case pending before or disposed of by the commissioner, in order that the Government may be prepared to appear before the court and deal with the cases properly and seasonably after the commissioner's jurisdiction has ended. Failure of the commissioner to make these reports promptly often results in confusion when one or more defendants appear in accordance with the terms and conditions of their bonds or recognizances and the United States attorney has not been advised in advance of their appearance by a report from the United States commissioner. If defendants are committed for trial in default of bail and the commissioner fails to report to the United States attorney, the disposition of the matter before the United States district court is invariably delayed and the defendant is prejudiced by being held in jail unnecessarily.

JUVENILE AND INCOMPETENT DEFENDANTS

If a defendant is under 18 years of age, the Federal Juvenile Delinquency Act (U.S.C., Title 18 (1948 Revision), § § 5031-5037) applies. One of the objects of this Act is the avoidance of jail detention of juveniles. In such a case, if the future appearance of the juvenile may be reasonably expected the United States commissioner should admit the juvenile to nominal bond, or release him on his own recognizance, or to a parent, guardian, or some other responsible person or agency. In case it is necessary to detain a juvenile, he should be committed to a juvenile detention home, if such an institution is available. The commissioner should notify the United States probation officer promptly of the action taken in all juvenile cases on a form supplied him for this purpose by the Administrative Office of the United States Courts (Form A.O. 105), and he should notify the

United States attorney of those cases in which probable cause is found. It is particularly desirable that prompt hearings be afforded all juveniles, as is contemplated by the Act.

In a criminal case in which it appears to the commissioner that the defendant is unable because of language difficulties to comprehend the substance of the charge or the consequences of successful prosecution, the commissioner should generally decline to proceed beyond a temporary commitment for a day or two until the prosecution furnishes a competent interpreter. A similar lack of comprehension resulting from mental incapacity should be reported forthwith to the court.

BASIC STATUTES AND RULES GOVERNING PROCEDURE

In the appendix attached to this manual, the basic statutes which govern the duties of the commissioner in the usual criminal case are set forth verbatim as they appear in the 1948 revisions of titles 18 and 28 of the United States Code, effective September 1, 1948, together with pertinent excerpts from the Rules of Criminal Procedure for the District Courts of the United States which were prescribed by the Supreme Court of the United States and became effective on March 21, 1946 in accordance with the Act of June 29, 1940, (U.S.C., Title 18 (1948 Revision), § § 3771-3772). Under that Act after the rules took effect, "all laws in conflict" with them became "of no further force and effect." In many instances the rules merely restated the statutes or made explicit the practice that had been followed under them, but in several important respects the rules modified the statutory procedure, and to the extent that this was so, the statutes were superseded. Probably the most important effect upon the statutory procedure relating to commissioners made by the rules was their modification of the former requirement of U.S.C., Title 18 (1946 Edition), § 591, that arrest, imprisonment, or bail of an offender for trial in the United States courts should be agreeable to the usual mode of process against offenders in the state where he was found. The Rules of Criminal Procedure were intended to prescribe a uniform practice to be followed in proceedings before commissioners, and "to abrogate any existing requirement of conformity to state procedure on any point what

" To the extent that the Rules or statutes not inconsistent

1. See the Notes to the Rules of Criminal Procedure prepared by the Advisory Committee on Rules of Criminal Procedure which, by appointment of the Supreme Court, assisted it in the preparation of the Rules, Notes to Rules 3, 5(b) and (c) and 57(b), Senate Document No. 175, 79th Congress, 2nd session, pages 3, 8, and 106. In the 1948 Revision of Title 18 of the United States Code, Title 18 591 was rewritten and so enacted as to accord with this interpretation. See U.S.C. Title 18 (1948 Revision), § 3041, and the note to that section in the Report of the Committee on the Judiciary of the House of Representatives on H.R. 3190, 80th Congress (House Report No. 304, 80th Cong., p. A 152).

with the Rules do not prescribe detailed steps to be followed, local rules of the district courts, and the decisions and orders of the federal judges are now to be consulted for guidance rather than the state practice.

THE COMPLAINT

The initial step in a criminal proceeding before the United States commissioner is the filing of a complaint. The complaint, and not the warrant, is the foundation of the proceeding. Rule 3 requires the complaint to be a sworn "written statement of the essential facts constituting the offense charged." It should set forth the name and official position, if any, of the complainant; the name and residence of the accused, if known; and a short description of the offense charged. If the accused is not known by name, he may be charged as "John Doe." The complaint is not necessarily filed on the mere request or suggestion of an investigating officer or other person. On the contrary, the commissioner should always examine on oath the person making the complaint as well as any witness who may appear before him. The commissioner should reduce the complaint to writing and require it to be dated, signed, and sworn to by at least one complainant and filed with him.

The approval "in writing" by the United States attorney of the sworn complaint of a private citizen is required where violations of the Internal Revenue laws are alleged (U.S.C., Title 18 (1948 Revision), § 3045). No instruction or official authorization or approval is required by law for the filing of complaints in other cases. However, in all cases, generally regardless of the particular offense involved, where a private citizen complains, it is a good practice, since the burden of prosecution will fall on the United States attorney's office, that the complainant should be referred to the United States attorney before a complaint is filed, at least in absence of an emergency requiring immediate action of the commissioner.

Where two or more defendants are charged with having committed an offense at the same time and place, they should be joined in a single complaint. It will be noted, however, that for the purpose of claiming fees under subdivisions (3) and (5) of U.S.C., Title 28 (1948 Revision) § 633 (a), it is provided that each accused person is to be considered as "a case."

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WARRANT OF ARREST AND SUMMONS

The procedure and prerequisites for issuance of a warrant of arrest by a commissioner are governed by Rule 4 of the Rules of Criminal

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