BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 1 - Criminal Pre-Trial
1.04 Offense Committed In Another District (FRCP 5(c)(3), 20)
1.04.1
Offense Committed In Another District: Inquiries And Procedures
1.04.2 Offense
Committed In Another District: Other Sources [Reserved]
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
1.04.1 Offense Committed In Another District: Inquiries and Procedures
[Note: Under the Crime Victims’ Rights Act, 18 USC 3771(a)(2) and (3), any victim of the offense has the right to notice of "any public court proceeding . . . involving the crime . . . of the accused," and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if so, whether the government has fulfilled its duty to notify them.]
The following procedure applies if the defendant and the government consent to transfer the prosecution of an offense committed in another district to the district where the defendant was arrested or is being held. FRCP 20(a).
A. Preliminary
Have the oath administered and ask the defendant:
1. What is your full name?
2. How old are you?
3. How far did you go in school? What is your employment experience?
[If you are not sure the defendant understands English, ask the defendant:]
4. Are you able to speak and understand English?
[If the defendant has an attorney, ask counsel if he or she has been able to communicate with the defendant in English. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28
USC 1827.]5. Are you currently or have you recently been under the care of a physician or a psychiatrist, or been hospitalized or treated for narcotics addiction? Have you taken any drugs, medicine, or pills or drunk any alcoholic beverage in the past twenty-four hours?
[If the answer to either question is yes, pursue the subject with the defendant and with counsel to determine that the defendant is currently competent to waive proceedings in the district where the offense was committed.]
6. Do you have an attorney?
[If he or she does not have an attorney, inform the defendant of the right to counsel and appoint counsel if the defendant qualifies. See supra section 1.02: Assignment of counsel or pro se representation.]
B.
Obtain a waiver of indictment if one is required (see infra section 1.06: Waiver of indictment).C.
Explain that the defendant’s case cannot be handled in this court unless he or she wishes to plead guilty or nolo contendere. [Note: For juveniles, see 18 USC 5031 and FRCP 20(d).]D. Question the defendant to ascertain on the record that the defendant understands he or she is agreeing to
1. plead guilty or nolo contendere;
2. waive proceedings in the district in which the crime was allegedly committed; and
3. be proceeded against in this court.
E. Explain to the defendant and ask if the defendant understands that
1. he or she has a right to be tried in the district where the crime is alleged to have been committed;
2. he or she cannot be convicted or sentenced in this court unless he or she consents freely; and
3. if he or she does not consent to be proceeded against in this court, he or she may be proceeded against in the district in which the crime was allegedly committed.
F. Obtain the defendant’s written statement incorporating the understanding described above.
G. Obtain the written consents of the U.S. attorneys.
H. Take the defendant’s plea. [Note: All points should be covered in taking the plea, as in an ordinary arraignment. See relevant portions of infra sections 1.07: Arraignment and plea and 2.01: Taking pleas of guilty or nolo contendere.]
I. If the defendant or the government does not consent to proceedings in this court, follow the procedures in FRCP 5(c)(3) for transfer to another district. See also infra section 1.05: Commitment to another district (removal proceedings).
BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
1.04.2 Offense Committed In Another District: Other Sources [Reserved]