BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 1 - Criminal Pre-Trial

    1.13 Referrals To Magistrate Judges (Criminal Matters) (FRCP 58 and 59; 28 USC 636)

        1.13.1 Referrals To Magistrate Judges: Procedure
        1.13.2 Referrals To Magistrate Judges: Specific Proceedings
        1.13.3 Referrals To Magistrate Judges: Other Sources [Reserved]    

The general procedure for referring matters to magistrate judges is set forth in FRCP 59, which became effective December 1, 2005:

(a) Nondispositive Matters. A district judge may refer to a magistrate judge for determination any matter that does not dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings and, when appropriate, enter on the record an oral or written order stating the determination. . . .

(b) Dispositive Matters.

(1) . . . A district judge may refer to a magistrate judge for recommendation a defendant's motion to dismiss or quash an indictment or information, a motion to suppress evidence, or any matter that may dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings. A record must be made of any evidentiary proceeding and of any proceeding if the magistrate judge considers it necessary. The magistrate judge must enter on the record a recommendation for disposing of the matter, including any proposed findings of fact.

In either case, the parties have ten days to object to the order or recommendation, unless the court sets a longer period. "Failure to object in accordance with this rule waives a party’s right to review," FRCP 59(a) and (b)(2), although the district court retains discretion to review the decision. The Advisory Committee Notes to Rule 59 emphasize that, "[a]lthough the rule distinguishes between ‘dispositive’ and ‘nondispositive’ matters, it does not attempt to define or otherwise catalog motions that may fall within either category. Instead, that task is left to the case law."

Listed below are duties in criminal matters that are covered in Sections 1, 2, and 4 of this Benchbook and that may be referred to magistrate judges. See also 28 USC 636. Most districts have local rules or standing orders governing referrals to magistrate judges.

1. bail proceedings and detention hearings. 18 USC 3041, 3141–3148; 28 USC 636(a)(2). (See supra section 1.03: Release or detention pending trial.)

2. arraignments, and may take not guilty pleas in felony cases. [FOOTNOTE 2] 28 USC 636(b)(1)(A). (See supra section 1.07: Arraignment and plea.)

3. trial, judgment, and sentencing in a petty offense case; for other misdemeanors, the defendant’s express consent to be tried before a magistrate judge in writing or orally on the record is required. The defendant must also specifically waive trial, judgment, and sentencing by a district judge. See FRCP 58(b)(2)(E) and (3)(A); 18 USC 3401(b); 28 USC 636(a)(3)–(5). A judgment of conviction or sentence by a magistrate judge may be appealed to the district court. 18 USC 3402. FRCP 58 governs trials and appeals of misdemeanors and petty offenses. (See generally infra section 2.03: Trial outline—criminal.)

4. pretrial matters:

(a) A magistrate judge may hear and determine non-dispositive pretrial matters in felony cases, [FOOTNOTE 3] including discovery and appointment of counsel. A district court may reconsider a magistrate judge’s ruling on a non-dispositive matter if it is "clearly erroneous or contrary to law." 28 USC 636(b)(1)(A) and FRCP 59(a).

(b) A magistrate judge may hear and submit to the district court proposed findings of fact and recommended determinations of dispositive pretrial matters, such as a motion to suppress evidence or to dismiss an indictment. 28 USC 636(b)(1)(B) and FRCP 58(b)(1). A district court must make a de novo determination of those portions of proposed findings and recommendations to which the parties object, 28 USC 636(b)(1)(C) and FRCP 58(b)(3), but need not hold a de novo hearing of all the evidence, United States v. Raddatz, 447 U.S. 667 (1980).

See generally infra section 2.03: Trial outline—criminal.

5. voir dire in a felony case, if the parties consent. Peretz v. United States, 111 S. Ct. 2661 (1991). A magistrate judge may not conduct voir dire in a felony trial if the defendant objects. Gomez v. United States, 490 U.S. 858 (1989). (See infra section 2.06: Standard voir dire questions—criminal.)

6. probation and supervised release modification hearings:

(a) A magistrate judge may revoke, modify, or reinstate probation and modify, revoke, or terminate supervised release if any magistrate judge imposed the probation or supervised release in a misdemeanor case. 18 USC 3401(d), (h).

(b) In other cases, a district court judge may designate a magistrate judge to conduct hearings to modify, revoke, or terminate supervised release, and to submit to the district judge proposed findings of fact and recommend disposition under 18 USC 3583(e). 18 USC 3401(i). [FOOTNOTE 4]

See generally infra section 4.02: Revocation of probation or supervised release.

7. an omnibus hearing, subject to any right of review before a district court of dispositive matters. 28 USC 636(b)(1)(A) and (B).

8. extradition hearings. 18 USC 3184; Ward v. Rutherford, 921 F.2d 286 (D.C. Cir. 1990), cert. dismissed, 111 S. Ct. 2844 (1991). (See supra section 7.05: Foreign extradition proceedings.)

9. "additional duties [that] are not inconsistent with the Constitution and laws of the United States." 28 USC 636(b)(3). For examples of additional duties and case law on § 636(b)(3), see Inventory of United States Magistrate Judge Duties 112–40 (December 1999).

Footnote 1:     The Administrative Office also provides an online web page summarizing more recent decisions and articles relating to the duties and authority of magistrate judges at http://jnet.ao.dcn/Judges/Magistrate_Judges/Authority/Decisions.html. 

Footnote 2:    Note that your circuit may allow a magistrate judge to take a plea of guilty in a felony case if the defendant consents. See Inventory of United States Magistrate Judge Duties 124–26. It is recommended that this consent be in writing and expressly waive the right to enter the plea before an Article III judge. It is also advisable for the district court, at the start of the sentencing hearing, to state on the record that it, too, accepts the defendant’s plea of guilty, based upon information provided at the plea hearing and contained in the presentence report.

Footnote 3:    The Supreme Court held that decisions touching the core trial features of a felony case may be delegated to a magistrate judge only if expressly authorized by statute. Gomez v. United States, 490 U.S. 858 (1989).

Footnote 4:    The Ninth Circuit held that neither 28 USC 636 nor 18 USC 3401 authorizes a magistrate judge to conduct probation revocation hearings in a felony case without the defendant’s consent. See United States v. Colacurcio, 84 F.3d 326, 329–34 (9th Cir. 1996) (reversed). See also United States v. Curry, 767 F.2d 328, 331 (7th Cir. 1985) (magistrate judge not authorized by 28 U.S.C. § 636(b)(3) to conduct probation revocation hearings without the defendant’s consent); Banks v. United States, 614 F.2d 95, 97–98 (6th Cir. 1980) (same).