This new rule is largely a restatement of the Rules of Procedure for the Trial of Misdemeanors before United States Magistrates which were promulgated in 1980 to replace the Rules for the Trial of Minor Offenses before United States Magistrates (1970). The Committee believed that a new single rule should be incorporated into the Rules of Criminal Procedure where those charged with its execution could readily locate it and realize its relationship with the other Rules. A number of technical changes have been made throughout the rule and unless otherwise noted, no substantive changes were intended in those amendments. The Committee envisions no major changes in the way in which the trial of misdemeanors and petty offenses are currently handled.

The title of the rule has been changed by deleting the phrase “Before United States Magistrates” to indicate that this rule may be used by district judges as well as magistrates. The phrase “and Petty Offenses” has been added to the title and elsewhere throughout the rule because the term “misdemeanor” does not include an “infraction.” See 18 U.S.C. § 3559 (a). A petty offense, however, is defined in 18 U.S.C. § 19 as a Class B misdemeanor, a Class C misdemeanor, or an infraction, with limitations on fines of no more than $5,000 for an individual and $10,000 for an organization.

Subdivision (a) is an amended version of current Magistrates Rule 1. Deletion of the phrase “before United States Magistrates under 18 U.S.C. § 3401” in Rule 1 (a) will enable district judges to use the abbreviated procedures of this rule. Consistent with that change, the term “magistrate” is amended to read “the court,” wherever appropriate throughout the rule, to indicate that both judges and magistrates may use the rule. The last sentence in (a)(1) has been amended to reflect that the rule also governs an appeal from a magistrate’s decision to a judge of the district court. An appeal from a district judge’s decision would be governed by the Federal Rules of Appellate Procedure. Subdivision (a)(2) rephrases prior language in Magistrate Rule 1 (b). Subdivision (a)(3) adds a statutory reference to 18 U.S.C. § 19, which defines a petty offense as a “Class B misdemeanor, a Class C misdemeanor, or an infraction” with the $5,000 and $10,000 fine limitations noted supra. The phrase “regardless of the penalty authorized by law” has been deleted.

Subdivision (b) is an amended version of current Magistrates Rule 2. The last sentence in current Rule 2 (a) has been deleted because 18 U.S.C. § 3401 (a), provides that a magistrate will have jurisdiction to try misdemeanor cases when specially designated to do so by the district court or courts served by the Magistrate.

Subdivision (b)(2) reflects the standard rights advisements currently included in Magistrates Rule 2 with several amendments. Subdivision (b)(2)(A) specifically requires that the defendant be advised of all penalties which may be imposed upon conviction, including specifically a special assessment and restitution. A number of technical, nonsubstantive, changes have been made in the contents of advisement of rights. A substantive change is reflected in subdivision (b)(2)(G), currently Magistrates Rule 2 (b)(7), and (8). That rule currently provides that, unless the prosecution is on an indictment or information, a defendant who is charged with a misdemeanor other than a petty offense has a right to a preliminary hearing, if the defendant does not consent to be tried by the magistrate. As amended, only a defendant in custody has a right to a preliminary hearing.

Subdivision (b)(3)(A) is based upon Magistrates Rule 2 (c) and has been amended by deleting the last sentence, which provides that trial may occur within 30 days “upon written consent of the defendant.” The change is warranted because the Speedy Trial Act does not apply to petty offenses. See 18 U.S.C. § 3172 (2). Subdivision (b)(3)(B), “Failure to Consent,” currently appears in Magistrates Rule 3 (a). The first sentence has been amended to make it applicable to all misdemeanor and petty offense defendants who fail to consent. The last sentence of Rule 3 (a) has been deleted entirely. Because the clerk is responsible for all district court case files, including those for misdemeanor and petty offense cases tried by magistrates, it is not necessary to state that the file be transmitted to the clerk of court.

Subdivision (c) is an amended version of current Magistrates Rule 3 with the exception of Rule 3 (a), which, as noted supra is now located in subdivision (b)(3)(B) of the new rule. The phrase “petty offense for which no sentence of imprisonment will be imposed” has been deleted because the heading for subdivision (c) limits its application to those petty offenses. The Committee recognizes that subdivision (c)(2) might result in attempted forum shopping. See, e.g., United States v. Shaw, 467 F. Supp. 86 (W.D. La. 1979), affm’d, 615 F. 2d 251 (5th Cir. 1980). In order to maintain a streamlined and less formal procedure which is consistent with the remainder of the Rule, subdivision (c)(2) does not require the formal “consent” of the United States Attorneys involved before a waiver of venue may be accomplished. Cf. Rule 20 (Transfer From the District for Plea and Sentence). The Rule specifically envisions that there will be communication and coordination between the two districts involved. To that end, reasonable efforts should be made to contact the United States Attorney in the district in which the charges were instituted. Subdivision (c)(4), formerly Rule 3 (d), now specifically provides that the defendant be advised of the right to appeal the sentence. This subdivision is also amended to provide for advising the defendant of the right to appeal a sentence under the Sentencing Reform Act when the defendant is sentenced following a plea of guilty. Both amendments track the language of Rule 32 (a)(2), as amended by the Sentencing Reform Act.

Subdivision (d) is an amended version of Magistrates Rule 4. The amendments are technical in nature and no substantive change is intended.

Subdivision (e) consists of the first sentence of Magistrates Rule 5. The second sentence of that Rule was deleted as being inconsistent with 28 U.S.C. § 753 (b) which gives the court discretion to decide how the proceedings will be recorded. The third sentence is deleted to preclude routine waivers of a verbatim record and to insure that all petty offenses are recorded.

Subdivision (f) replaces Magistrates Rule 6 and simply incorporates by reference Rule 33.

Subdivision (g) is an amended version of Magistrates Rule 7. Because the new rule may be used by both magistrates and judges, subdivision (g)(1) was added to make it clear that the Federal Rules of Appellate Procedure govern any appeal in a case tried by a district judge pursuant to the new rule. Subdivision (g)(2)(B), based upon Magistrates Rule 7 (b), now provides for appeal of a sentence by a magistrate and is thus consistent with the provisions of 18 U.S.C. § 3742 (f). Finally, subdivision (g)(3) is based upon Magistrates Rule 7 (d) but has been amended to provide that a stay of execution is applicable, if an appeal is taken from a sentence as well as from a conviction. This change is consistent with the recent amendment of Rule 38 by the Sentencing Reform Act.

The new rule does not include Magistrates Rules 8 and 9. Rule 8 has been deleted because the subject of local rules is covered in Rule 57. Rule 9, which defined a petty offense, is now covered in 18 U.S.C. § 19.

The amendments are technical. No substantive changes are intended.

The Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge.

The Federal Courts Improvement Act of 1996, Sec. 202, amended 18 U.S.C. § 3401 (b) and 28 U.S.C. § 636(a) to remove the requirement that a defendant must consent to a trial before a magistrate judge in a petty offense that is a class B misdemeanor charging a motor vehicle offense, a class C misdemeanor, or an infraction. Section 202 also changed 18 U.S.C. § 3401 (b) to provide that in all other misdemeanor cases, the defendant may consent to trial either orally on the record or in writing. The amendments to Rule 58 (b)(2) and (3) conform the rule to the new statutory language and include minor stylistic changes.

The language of Rule 58 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

The title of the rule has been changed to “Petty Offenses and Other Misdemeanors.” In Rule 58 (c)(2)(B) (regarding waiver of venue), the Committee amended the rule to require that the “district clerk,” instead of the magistrate judge, inform the original district clerk if the defendant waives venue and the prosecution proceeds in the district where the defendant was arrested. The Committee intends no change in practice.

In Rule 58 (g)(1) and (g)(2)(A), the Committee deleted as unnecessary the word “decision” because its meaning is covered by existing references to an “order, judgment, or sentence” by a district judge or magistrate judge. In the Committee’s view, deletion of that term does not amount to a substantive change.

Subdivision (b)(2)(G). Rule 58 (b)(2)(G) sets out the advice to be given to defendants at an initial appearance on a misdemeanor charge, other than a petty offense. As currently written, the rule is restricted to those cases where the defendant is held in custody, thus creating a conflict and some confusion when compared to Rule 5.1(a) concerning the right to a preliminary hearing. Paragraph (G) is incomplete in its description of the circumstances requiring a preliminary hearing. In contrast, Rule 5.1(a) is a correct statement of the law concerning the defendant’s entitlement to a preliminary hearing and is consistent with 18 U.S.C. § 3060 in this regard. Rather than attempting to define, or restate, in Rule 58 when a defendant may be entitled to a Rule 5.1 preliminary hearing, the rule is amended to direct the reader to Rule 5.1.

Changes Made After Publication and Comment. The Committee [made] no changes to the Rule or Committee note after publication.

The times set in the former rule at 10 days have been revised to 14 days. See the Committee Note to Rule 45 (a).

The Federal Rules of Appellate Procedure, referred to in subd. (g)(1), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.