 A Federal Judicial Center Orientation Series for United States Magistrate Judges. Criminal litigation before Magistrate Judges. Part 4. Misdemeanors. Guilty pleas. Sentencing. Revocation of probation. And supervised release. With the Honorable Tommy E. Miller. Judge Miller was appointed United States Magistrate Judge for the Eastern District of Virginia in 1987. He is an officer of the Federal Magistrate Judges Association and serves on the Federal Judicial Center's Committee on Magistrate Judge Education. Welcome. In this program, I'll be discussing five proceedings related to Class A Misdemeanors. Trials, Guilty pleas, Sentencing, Revocation of Probation, and Supervised Release. I won't cover everything you will need to know about these proceedings, but I will review some of the most important matters you will need to address when you begin your duties. I recognize that many Magistrate Judges do not have a heavy criminal misdemeanor caseload. However, my discussion should give guidance to those of you who have an occasional misdemeanor case. The outline you received with this program presents an overview of the topics I will cover. It also provides additional notes and case references that have been accepted as law for some time. Keep in mind when referring to them that the law is constantly changing. I'll also be referring to the Federal Rules of Criminal Procedure from time to time during my discussion. Before I begin, I'd like to briefly review the basic jurisdictional provision for Magistrate Judges located in Title 28, Section 636 of the United States Code. Section 636A provides that each United States Magistrate Judge shall have within the territorial jurisdiction prescribed by his or her appointment the power to conduct trials in conformity with and subject to the limitations of Title 18, Section 3401 of the United States Code. In accordance with Section 3401, Magistrate Judges may try a person's accused of and sentenced person's convicted of federal misdemeanors if a district judge designates the Magistrate Judge to try misdemeanors and if the accused can sense in writing to have the case heard before a Magistrate Judge. United States Magistrate Judges try thousands of misdemeanor cases each year. These offenses range from violations of federal statute such as the Clean Water Act to theft of United States government property. Many misdemeanor offenses occur on United States property such as military post and national parks. These offenses may be a violation of a federal statute or the assimilation of a state criminal law pursuant to the Assimilative Crimes Act. A misdemeanor is an offense punishable by imprisonment for a term of one year or less. Under Title 18, Section 3559, misdemeanors are classified as Class A, B, or C misdemeanors depending on the maximum term of imprisonment allowable upon conviction. For example, the authorized punishment for a Class A misdemeanor is a maximum term of one year or less but more than six months. If the offense is a Class A misdemeanor, the defendant has a right to a jury trial because he or she is exposed to a period of imprisonment in excess of six months. But there is no right to a jury trial for Class B and C misdemeanors which carry a maximum potential sentence of six months or less. So from now on, whenever I refer to the right to a jury trial or waiver of the right to a jury trial, you'll know I'm talking about Class A misdemeanors. Now what about the trial of a misdemeanor case? A misdemeanor may be tried on an indictment, an information, or a criminal complaint. Unlike petty offenses, a misdemeanor case cannot proceed to trial on a citation or violation notice. The initial appearance is the defendant's first appearance before a judicial officer in the federal court system. It is governed by Rule 5 of the Federal Rules of Criminal Procedure. As a practical matter, the initial appearance of the defendant before a magistrate judge on a misdemeanor or other petty offense charge is often the date the case is actually tried. At the defendant's initial appearance, the court must identify the defendant and inform the defendant of his or her rights pursuant to Rule 58 of the Federal Rules of Criminal Procedure. The defendant must be advised of the charges against him or her and the maximum possible penalties, including the payment of any special assessment and restitution. The right to retain a lawyer or to request the appointment of counsel if the defendant is financially unable to obtain counsel. The right to remain silent and that any statement made by the defendant may be used against him or her. And the right to a trial before a district judge unless the defendant consents to a trial, judgment, and sentencing before a magistrate judge. If the defendant is charged with a Class A misdemeanor, the defendant must be advised that he or she has the right to a jury trial, either before a district judge or a magistrate judge. If the defendant is held in custody and charged with a misdemeanor other than a petty offense, the defendant is also entitled to a preliminary examination and must be advised of the circumstances under which he or she may obtain pretrial release. After advising the defendant of the rights provided for in Rule 58, the next step is for you to determine whether or not the defendant wants to have the case tried by a United States magistrate judge or a district judge. If the defendant desires the matter to be heard by a magistrate judge, the defendant must complete and sign AO Form 86A, a written consent to proceed before a United States magistrate judge. AO Form 86A requires three separate decisions on the part of the defendant. First, it sets forth the consent needed to have the defendant's case heard before a United States magistrate judge. Second, it asks if the defendant wants to waive the right to trial by jury. And third, if the defendant wants to waive the right to have 30 days to prepare for trial. If the defendant consents to proceed before a magistrate judge and waives both the right to trial by jury and his or her right to have 30 days to prepare for trial, then the defendant can be tried at his or her initial appearance. A request for a jury trial or a refusal to waive the speedy trial right ordinarily requires a continuance of the trial. The defendant should be advised in writing of the right to have a lawyer, if the defendant knowingly, voluntarily, and intelligently chooses not to have a lawyer, the defendant may waive that right and proceed without a lawyer. A suggested waiver form is included in the appendix to your written materials. Once the defendant consents to be tried before a magistrate judge, the defendant is then required to enter a plea to the charge. If the defendant declines to consent to trial before a magistrate judge, then the defendant shall be ordered to appear before a judge of the district court for further proceedings. We will assume, for the rest of this program, that the defendant has consented to proceed before a magistrate judge. Most United States Attorney's offices maintain an open file policy on misdemeanor cases. This helps to eliminate discovery disputes. However, defendants sometimes file motions pursuant to Rule 12B, such as motions challenging defects in the criminal information or motions to suppress evidence. Motions challenging the criminal information should be ruled on pre-trial. If the case is to be heard by a magistrate judge without a jury, the magistrate judge will usually consider motions such as a motion to suppress during the trial. If the defendant has requested a trial by jury, then the motion to suppress should be ruled on by the magistrate judge before a jury is impaneled. The selection and impaneling of a jury is beyond the scope of this program. I recommend that you review the Federal Judicial Center's videotape Administration of the Jury System in Conduct of the Jury Trial. You should note that Rule 24B of the Federal Rules of Criminal Procedure states that the government and the defendant are entitled to three peremptory challenges when selecting a jury for a misdemeanor case. There is a presumption in the Federal Rules of Criminal Procedure that felonies and class A misdemeanors be tried by a jury unless the defendant waves his or her right to a jury trial in writing. The government must consent to a non-jury trial and the court must approve both the waiver and the consent. All of these requirements are provided for in AO Form 86A. Now what about the trial? The trial of the case should follow the general outline set forth in Section 110 of the Bench Book for District Judges. Section 111 also sets forth the requirements for findings of fact and conclusions of law. You should remember that the court is required to make general findings of fact in all non-jury cases and to make specific findings of fact if requested to by counsel. The court's findings may be oral or if the court wishes it may issue a written opinion. You are encouraged to make your findings of fact orally and with sufficient detail so that a reviewing court will clearly know what fact findings you made in reaching your verdict. Failure to make specific findings of fact can result in reversible error. For instance, if you found the defendant guilty, you should make a factual finding on each of the essential elements of the crime. If the issue in the case was one of credibility, you should state which witness was more credible and why. Note that the entire trial and all other proceedings are required by Rule 58e to be taken down by a court reporter or recorded by audio equipment. Let's spend a few minutes on guilty pleas. Under Rule 11 of the Federal Rules of Criminal Procedure, a defendant may plead not guilty, guilty, or with the consent of the court, no low contenderate. Rule 11 also permits a defendant to enter a conditional plea of guilty or no low contenderate if the court approves and the government consents. Rule 11 and the case law place a heavy burden on the court to make certain that guilty pleas are voluntarily and intelligently entered by defendants. Experience has told us that the vast majority of criminal charges are not tried before a court or a jury, but are disposed of on guilty pleas. Impleading guilty and accused person waives three fundamental constitutional rights. The privilege against self-incrimination, the right to a trial by jury, and the right to confront one's accusers. The consequences of a guilty plea are enormous to the defendant. Therefore, you must exercise great care and sensitivity when conducting these proceedings. Section 1.06 of the Bench Book for United States District Judges contains a suggested colloquy for accepting guilty pleas. I should also mention that the requirements for conducting these proceedings are contained in the legal manual for United States magistrate judges and the federal rules of criminal procedure. Now the first thing the court must do is identify the defendant and review the nature of the charges, the maximum possible penalty, and any special assessment or restitution possibilities with the defendant. The court should also review the consent form that the defendant signed granting the magistrate judge authority to try and sentence the defendant. If the defendant is not represented by counsel, the court must make certain that the defendant understands that he or she has the right to be represented by an attorney at every stage of the proceedings, and if necessary, a point one to represent the defendant. In addition, if the defendant is financially unable to retain an attorney, the court must inform the defendant that it has authority to appoint an attorney for the defendant and require reimbursement for the cost of the attorney. The defendant also has a constitutional right to waive counsel and to represent himself or herself if he or she chooses to do so. However, it requires that the defendant knowingly, intelligently, and voluntarily waive the right to counsel. This means that you must make clear on the record that the defendant is fully aware of the hazards and disadvantages of self-representation. If the defendant has counsel or has knowingly, intelligently, and voluntarily waived his or her right to counsel, then you may question the defendant as to the voluntariness of the plea. You must advise the defendant that he or she has the right to plead not guilty and the right to be tried by a jury, that if a plea of not guilty is entered, the burden is on the government to prove the case beyond a reasonable doubt. And that the defendant or the defendant's counsel has the right to cross-examine witnesses and appeal all aspects of the case, and that he or she has the right against compelled self-incrimination on a not guilty plea. But that if he or she pleads guilty, all rights against self-incrimination are waived. As I said earlier, it's essential that you make clear on the record that the defendant is fully aware of the hazards and disadvantages of self-representation. This means that you must inform the defendant, one, that he or she loses all of these rights when he or she pleads guilty. Two, that there will be no trial and accept under limited circumstances no appeal. And three, that the court can sentence the defendant to the maximum sentence under the law. If this is the type of case that requires a calculation of the sentencing guidelines, then the court must take extra care to advise the defendant of the guidelines. This means that you must ask if the defendant and counsel have discussed how the sentencing guidelines might apply to the case. If the defendant is not represented by counsel, the court should instruct the defendant that the guidelines are complex and that he or she may have some difficulty understanding them. The defendant should also be warned about possible delays due to the preparation of the pre-sentence report and calculation of the appropriate sentencing guidelines. In addition, be certain to inform the defendant that the defendant and the government will have an opportunity to challenge the facts reported by the probation officer as well as the calculation of the guidelines. The court must inform the defendant that after the guideline range is determined, the court has authority in some circumstances to impose a sentence that is more severe or less severe than the sentence called for by the guidelines. The court must also explain that the government may have the right to appeal the sentence that the court imposes. Finally, the defendant must be advised that if he or she is sentenced to prison, there will be no opportunity to be released on parole since parole has been abolished. If there is no plea agreement in the case or an agreement that other charges will be dismissed or a non-bonding sentence recommendation, the court must inform the defendant that if it chooses not to accept the sentencing recommendation that he or she will still be bound by the guilty plea and have no right to withdraw it. If there is a plea agreement where a specific sentence is to be imposed and the agreed upon sentence includes a prison term, make certain that you inform the defendant that the sentence will be in accordance with the plea agreement, that parole has been abolished so he or she will not be released on parole, and that he or she does not have a right to withdraw the guilty plea. Rule 11 requires the court to consider restitution as part of any sentence. Therefore, you must inform the defendant that the court is required to impose restitution if it is applicable in the particular case. It is usually helpful at this point to ask the government if it intends to request restitution and if so, the mount to be requested. After advising the defendant of his or her rights, I ask, are you pleading guilty because you are in fact guilty of the offense? And the vast majority of cases the defendant answers, yes. However, on occasion the defendant asserts innocence, but advises the court that he or she is pleading guilty because the government's evidence will show that he or she is guilty beyond a reasonable doubt. The court has authority to accept such a plea. You should further ask the defendant if he or she understands all of the rights that have been explained and if he or she has any questions of the court and further whether the plea of guilty was voluntary and without any threat or promise from anyone other than the promise contained in the plea agreement, if there is a plea agreement, which may have been presented to the court. This is because the court is not to enter a judgment upon the defendant's plea of guilty until it is satisfied that there is a factual basis for the plea. The type of factual inquiry the court should make is not specified in Rule 11. However, the court must be satisfied that the particular conduct the defendant admits having committed constitutes in fact the offense charged. If you determine that there is no factual basis for the charge for which the plea of guilty is being offered, then the plea should not be accepted and a specific finding to that effect should be made for the record. A not guilty plea should then be entered on the defendant's behalf. If on the other hand you find that each of the requirements of Rule 11 has been satisfied, you should make a finding or findings to that effect and enter a finding of guilty. If a defendant has been tried and found guilty, the case then proceeds to sentencing. The Sentencing Reform Act of 1984 governs the rules and procedures relating to sentencing. Among other things, the Act established the United States Sentencing Commission and directed it to develop a set of uniform guidelines for the courts to use in determining criminal sentences. The guidelines are contained in a book entitled, The United States Sentencing Commission Guidelines Manual. I'll be referring to the manual as the sentencing guidelines throughout the remainder of the program. Many judges have written over the years that sentencing is the most serious and difficult part of their job. Magistered judges must first determine whether, in fact, the sentencing guidelines apply to the offense of conviction. Many assimilated misdemeanors, such as driving under the influence of alcohol, are not subject to sentencing guideline calculations. Petty offenses are also not covered by the sentencing guidelines, but many federal statutes such as Lorsony of Government Property require sentencing guideline calculation. Calculation of sentencing guidelines is well beyond the scope of this program. However, both the Federal Judicial Center and the United States Sentencing Commission have comprehensive training materials, including videotapes, handbooks, and other documents that can assist you in understanding the federal sentencing guidelines. In addition, each probation office has highly trained probation officers who can help you with sentencing guideline questions. Further, if you have a question on a specific case, the Sentencing Commission maintains a staffed hotline for guideline questions at its Washington, D.C. headquarters. If you try very many misdemeanor cases, a comprehensive knowledge of the federal sentencing guidelines is a must. Now let's discuss the pre-sentence report. Rule 32C and the Sentencing Reform Act direct a probation officer to conduct a pre-sentence investigation and to report the results to the court prior to sentencing. The probation officer acts as an independent investigator. He or she works for the court to determine the complete circumstances surrounding the offense so that the appropriate sentencing guideline calculation may be made. The elements of guideline calculation include information such as the defendant's role in the offense, the defendant's criminal history, and the defendant's ability to pay fines and restitution. For example, one factor affecting the guideline calculation includes whether the defendant has clearly accepted responsibility for the offense. Under Rule 32, a pre-sentence report must include the officer's recommendations as to the appropriate guideline classification for the case. After the probation officer prepares the pre-sentence report, the officer discloses it to the defendant, counsel for the defendant, and the government. This gives the parties an opportunity to raise objections to the report. If there are any objections to the report, the probation officer may recalculate the guidelines in accordance with the objections. That is, if the probation officer finds the objections are correct. If there are still matters in dispute or objections to the calculation of guidelines, these disputed matters are to be noted in the pre-sentence report and presented to the court for resolution. The court must resolve the issues on the record or determine that no such findings are necessary since the issues will not affect sentencing and make findings as to the appropriate sentencing factors and the guideline range. In a guideline case, subsequent to imposing sentence, the court must prepare a report for the sentencing commission setting forth the guideline range and any reasons for departing from the sentencing guideline range. Your clerk of court or local probation officer can provide you with additional information regarding your reporting requirements. Regardless of whether the case requires calculation under the sentencing guidelines, the court is required to apply the provisions of the Sentencing Reform Act of 1984. The options may be more limited if the case is a sentencing guideline case than if it is a non-sentencing guideline case. These options include probation, imprisonment, fines, and restitution. As you will see, probation is an option in many cases. If probation is imposed, the court must impose the condition that the defendant not commit another federal, state, or local crime during the term of probation, or possess an illegal controlled substance. Title 18, section 3563 of the Code lists mandatory and discretionary conditions of probation. And section 5b1.4 of the Sentencing Guidelines manuals also contains a list of recommended conditions of probation. In addition, the court may also impose any other reasonable condition of probation applicable in the case. You should note that there is no requirement that probation be supervised by the probation office and further that a jail term with some limitations may be imposed as a condition of probation. As mentioned before, a magistrate judge has the authority in a Class A misdemeanor case to impose a sentence of up to one year in prison. Sentencing guideline calculations frequently narrow that range. However, the court can go outside of. That is, depart from the guideline range if circumstances warrant. Section 3553b of Title 18 of the Code directs the court to impose a sentence within the guideline range unless it finds that there exists an aggravating or mitigating circumstance of a kind or degree, not adequately taken into consideration by the sentencing commission in formulating the guidelines that should result in a sentence different from that described in the guidelines. If the court departs from the guideline range, it must state its reasons for doing so. Furthermore, the court is required to give reasonable notice to the defendant if it is contemplating an upward departure and likewise to the government if it is contemplating a downward departure. If you feel that some physical restriction is necessary but do not feel that jail is proper for the individual defendant, you may substitute home detention or confinement in a community treatment center for imprisonment. If a term of imprisonment is imposed, the court has the discretion to order a term of supervised release to follow imprisonment. Supervised release is an additional period of supervision following imprisonment and carries additional punishment beyond that originally set for the offense. The sentencing guidelines do not require supervised release unless a sentence is for more than one year. The maximum term of the supervised release for a class A misdemeanor is one year. The conditions of supervised release are the same as those for probation. The court may also impose a fine on a defendant. In fact, if a class A misdemeanor is covered by the sentencing guidelines, the court is required to impose a fine and the amount of the fine must be sufficient to ensure that the fine taken together with other sanctions is punitive. However, the court may impose a lesser fine, or waive the fine if a defendant establishes an inability to pay or the payment would undudely burden his or her dependence. If no fine is imposed in a guideline case, the court is still required to consider alternative sanctions, such as community service. Fines should not only include the specific fine payment, but also an amount sufficient to pay for the cost of imprisonment, community treatment center, probation, or supervised release. Congress has provided for alternative fines, that is fines that are not provided for in the particular criminal code section. These provisions are contained in Title 18, Section 3571 of the code. The court is required to impose a special assessment for each violation of a class A misdemeanor. The code does not authorize the court to waive in position of this special assessment. The court is also required to consider restitution in each case, pursuant to Section 3553A7 of Title 18 of the code. If a court orders only partial restitution or no restitution at all, it must state its reasons for doing so. If the case before the court is a sentencing guideline case, the court's failure to order restitution may be considered a departure from the guidelines, and the court must state its reasons for doing so. On the other hand, if the court finds that the defendant could not reasonably pay restitution, or the restitution would cause an unreasonable hardship on the defendant's dependence, then the court may decide not to order any restitution at all. If both a fine and restitution order is entered, the court should order that the restitution payments be made first. There are two other sentencing provisions that the court may consider an imposing sentence. First, the court may order a defendant to perform services for the benefit of the victim of the offense in lieu of a monetary restitution with the consent of the victim, pursuant to Title 18, Section 3663B4 of the code. And second, if a defendant is charged with a drug possession offense, then the court may deny the defendant federal benefits pursuant to Title 21, Section 862B of the code. These benefits may be restored at the completion of a supervised drug rehabilitation program and our community service in accordance with the judgment of the court. You should note that Rule 32A1C requires you to address the defendant personally and provide the defendant an opportunity to speak to you prior to imposing sentence. After sentencing in a case and after the appeal time has lapsed, the court has very limited authority to change a sentence. Defendants will frequently write the court and request that they be released from jail or have their fines reduced or modified. The court has no authority to change a sentence after it's given. However, Rule 35 permits the court to correct a sentence if it is determined on appeal to have been imposed in an illegal manner or as a result of inaccurate application of the sentencing guidelines. Now let's turn our discussion to revocation of probation and supervised release. The Sentencing Commission has issued policy statements on the subject of revocation of probation and supervised release. These policy statements are located in Section 7B1.1 of the Sentencing Guidelines Manual. The Commission's policy statements provide for three grades of violations, which allow for longer prison terms for more serious violations. The Commission's policy statements give the court authority to revoke probation for more serious violations of probation or supervised release. They also give the court discretion to withhold a revocation of probation for the lowest level of probation violations. You should note that a probation violation warrant or summons must be issued prior to the expiration of probation or supervised release. This prevents the expiration of probation and allows for a revocation hearing. After the case has gone to trial on a plea of not guilty and the defendant is sentenced, the court must advise the defendant of his or her right to appeal. The court must also give oral notice of the defendant's right to appeal and form a poprus if it is appropriate. I'd recommend that you inform the defendant that the clerk of court will file a notice of appeal if the defendant requested. After you have pronounced the sentence orally in open court, you must sign a judgment order and enter it into the official records of the court. This commences the 10-day period within which the defendant is entitled to appeal the conviction to a district judge. If the defendant files an appeal, you should be aware that the sentence is not automatically stayed. The provisions of Rule 38 must be applied for any stay of execution of sentence. If the sentence is not stayed, the court may recommend that the defendant be retained in the area by the U.S. Marshals Office for a period reasonably necessary to permit the defendant to assist in the preparation of the appeal. Conditions of release for defendant on appeal are governed by Title 18, Section 3143B of the Code. If a defendant is found guilty and sentenced to a term of imprisonment, the court must order the defendant detained pending appeal unless it finds, by clear and convincing evidence, that the defendant is not likely to flee or pose a danger to the safety of any other person or the community and that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal and order for a new trial, or sentence that does not include a term of imprisonment or a reduced sentence to a term of imprisonment less than the total of the time already served for the expected duration of the appeal process. Finally, appeals from magistrate judges are to be taken to a district judge. From there, they go to the Circuit Court of Appeals and a further review is warranted on to the Supreme Court of the United States. This concludes my discussion of misdemeanor cases before United States magistrate judges. It's impossible to cover everything related to misdemeanors, guilty pleas and sentencing in such a short period of time. Therefore, I urge you to use the resources mentioned in this program, including the legal manual for United States magistrate judges, the bench book for United States district judges and the federal rules of criminal procedure when conducting matters in these areas. Also, you should note that the Sentencing Commission is authorized to pulmigate amendments to the guidelines and submit them to Congress each year. As a result, you should be certain to stay abreast of the most recent developments in this area. Good luck.