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

        1.05 Commitment To Another District (Removal Proceedings) (FRCP 5, 32.1, and 40) [FOOTNOTE 1]

        1.05.1 Commitment To Another District (Removal Proceedings): Inquiries And Procedures
        1.05.2 Commitment To Another District (Removal Proceedings): Other Sources

[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.]

A.     Arrest of an individual in this district for an alleged offense committed in another district (U.S. attorney will have filed a Petition for Removal) FRCP 5(c).

1. Ascertain from the U.S. attorney or arresting officer, or from court file materials received from the charging district

(a) where the alleged offense was committed;

(b) when the defendant was arrested and whether the arrest was with or without a warrant; and

(c) whether an indictment has been returned or an information or complaint filed.

2. If the arrest in this district was without a warrant (which rarely occurs):

(a) The defendant cannot be ordered transferred until a complaint and warrant are issued in the charging district.

(b) The complaint must be filed promptly. See FRCP 5(b).

3. If it is not evident, ask the defendant if he or she can speak and understand English. If the defendant has an attorney, ask if counsel 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.

If the defendant is a foreign national, regardless of immigration status, advise the defendant of the right to consular notification and access. [FOOTNOTE 2]

4. Without asking the defendant to state his or her name or other identifying information at this time, advise the defendant of his or her

(a) general rights under FRCP 5 (nature of charge, right to counsel, right to remain silent—see supra section 1.01: Initial appearance);

(b) right to waive removal and voluntarily return to the district where charges are pending;

(c) right, if charges are based on complaint and warrant, to

(i) have a preliminary examination in this district;

(ii) have a preliminary examination in the district where the charges are pending; or

(iii) waive preliminary examination.

(d) right to an identity hearing and the right to waive that hearing;

(e) right under FRCP 20 to plead guilty or nolo contendere in this district if both U.S. attorneys consent.

5. If the defendant appears without counsel, appoint counsel or allow time for the defendant to retain counsel; set an appropriate hearing or examination date to allow counsel time to confer and elect options.

6. If the defendant appears with counsel or after counsel has been appointed or retained, ascertain which of the above options (4(b)–4(d) of this section) he or she desires, then sign an Order of Removal (whereby the defendant returns voluntarily) or set an appropriate examination or hearing date.

(a) If the defendant waives the right to an identity hearing, have the defendant state his or her full name and age for the record.

(b) Set the date of the hearing or examination to allow time for inquiry into possible FRCP 20 transfer.

(c) Keep in mind Speedy Trial Act requirements (see infra section 1.10: Speedy Trial Act).

7. Determine whether to release or detain the defendant pending further proceedings. A request for detention or the amount of bail previously fixed in the district where charges are pending must be taken into account but is not binding. A different action, however, requires reasons in writing. Note that the defendant is entitled to only one detention hearing and may wish to reserve that right until after being transferred to the charging district.

[Note: If there are any victims of the offense present, give them an "opportunity to be reasonably heard" regarding the defendant’s possible release. 18 USC 3771(a)(4).]

8. Conduct hearings:

(a) Preliminary hearing (FRCP 5.1).

(b) Identity hearing (FRCP 5(c)(3)(D)(ii))

(i) Hear evidence as to physical descriptions, fingerprints, handwriting, hearsay statements, telephone checks with charging district, photographs, probation officer’s testimony, etc.

(ii) The government has the burden of proof to show probable cause that the person arrested is the person named in the charging instrument.

(c) FRCP 20 transfer plea (see supra section 1.04: Offense committed in another district).

9. Order the defendant held and transferred (Order of Removal), or discharged; transmit papers and any bail to the clerk of the charging district.

B.     Arrest of a probationer or a supervised releasee in a district other than the district of supervision (FRCP 32.1(a)(5)). [FOOTNOTE 3]

1. Determine the time and place of, and authority for, the arrest; inform the defendant of the charges; and advise the defendant of general rights (nature of charge, right to counsel, right to remain silent).

2. Ascertain if jurisdiction has been or will be transferred to this district pursuant to 18 USC 3605 (made applicable to supervised releasees by 18 USC 3586). If so, proceed under FRCP 32.1 as a normal revocation case in this district.

3. If the alleged violation occurred in this district and if jurisdiction is not transferred, schedule and hold a prompt preliminary hearing after counsel has been secured.

(a) If probable cause is found, hold the defendant to answer in the supervising district, and order him or her transferred there.

(b) If no probable cause is found, dismiss the proceedings and notify the supervising court.

4. If the alleged violation occurred in a district other than this one, schedule and hold a prompt identity hearing (unless waived) after counsel has been secured.

(a) If, upon production of certified copies of the probation order, warrant, and application for warrant, the defendant is found to be the person named in the warrant, hold the defendant to answer in the supervising district and order him or her transferred there.

Or

(b) Dismiss the proceedings and notify the supervising court if you find the defendant is not the person so named.

[Note: An amendment to FRCP 40(a), effective December 1, 2006, specifically authorizes magistrate judges to set release conditions for persons arrested under a warrant issued in another district for violating conditions of release set in that district.]

C.     Arrest for failure to appear in another district (bench warrant) (FRCP 40(a) and (b)).

When the person has been arrested in this district on a warrant issued in another district for failure to appear, pursuant to a subpoena or the terms of his or her release:

1. Determine the time and place of, and authority for, the arrest; inform the defendant of the charges; and advise the defendant of general rights (nature of charges, right to counsel, right to remain silent).

2. Schedule and hold an identity hearing (unless waived) after counsel has been secured.

(a) If, upon production of the warrant or a certified copy you find that the person before the court is the person named in the warrant, hold the defendant to answer in the district where the warrant was issued and order him or her transferred there.

Or

(b) Dismiss the proceedings and notify the district where the warrant was issued if you find the defendant is not the person so named.

3. The court may modify any previous release or detention order issued by the other district, but must state in writing the reasons for doing so. FRCP 40(c).

4. Note that the Crime Victims’ Rights Act, 18 USC 3771, may be applicable to this hearing.

Footnote 1:    Effective December 1, 2002, Rule 40 was completely revised and much of it relocated to Rule 5.

Footnote 2:    For more detailed guidance relating to the arrest and detention of foreign nationals, see Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them on the U.S. Department of State website, http://travel.state.gov/consul_ notify. html. See particularly the sections “Steps to Follow When a Foreign National Is Arrested or Detained” and “Suggested Statements to Arrested or Detained Foreign Nationals.”

Footnote 3:     Note that the Crime Victims’ Rights Act, 18 USC 3771, may apply if the violation that caused the arrest involved the commission of a federal crime. It was unclear at the time of this printing whether the rights of victims of the original offense carry over to court proceedings for violations of probation or supervised release.

David N. Adair, Jr., The Bail Reform Act of 1984, at 13 (3d ed. 2006)