Local Rule LCrR 58.2: PROCEDURES APPLICABLE TO COLLATERAL FORFEITURES, PETTY OFFENSES, AND CLASS A MISDEMEANORS

LCrR 58.2 PROCEDURES APPLICABLE TO COLLATERAL FORFEITURES, PETTY OFFENSES, AND CLASS A MISDEMEANORS

(a) Effect of Payment of a Collateral Forfeiture. The payment of a collateral in lieu of appearance is a "civil penalty," is not an admission of guilt, and shall not be deemed a "criminal conviction" for any purpose.

(b) Procedures Applicable to Processing and Trial of Petty and Class A Misdemeanor Offenses.

(1) Scheduling of Court Days. The Clerk of Court shall establish and calendar court days for the hearing of petty and misdemeanor offenses as the Clerk of Court deems necessary.

(2) Attendance. Persons charged and the charging officer must be present on scheduled court days. Most cases will be resolved at the first court day, and persons charged with offenses and charging officers should be prepared to dispose of their cases that day. The Clerk of Court or any judicial officer may adjudicate pretrial motions to continue. Continuances upon good cause shown will be the exception, not the rule.

(3) Charging Instruments. Determining which charging instruments to issue, and the charging instruments on which to proceed, are within the government's sound discretion as provided by Fed. R. Crim. P. 58(b)(1).

(A) Initial Charging Instrument. Any misdemeanor (Class A, petty, or infraction) may be commenced by issuing a violation notice.

(B) Sending the Violation to CVB. In accordance with the rules promulgated by the Central Violations Bureau ("CVB"), any officer issuing a violation notice must mail the notice to the CVB within three (3) business days of issuance. Failure to do so may result in summary dismissal of the violation notice, referral of the matter to the government, or further Court action.

(C) Charging Instrument Sufficient for Trial. Trial of a petty offense or infraction may proceed on a violation notice. Fed. R. Crim. P. 58(b)(1). Trial of a Class A misdemeanor may proceed on an indictment, information, or complaint. Id. Where a Class A misdemeanor is initially charged through a violation notice, the government should be prepared by the first scheduled court day to supersede the violation notice with an appropriate trial instrument or stipulate that it is only proceeding on the lesser-included petty offense.

(4) Plea Negotiations. Plea negotiations are anticipated by the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 11. Enough time will be set aside at the beginning of the court day for each person charged or their attorney to discuss their charges with the government.

(5) Collaterals on the Day of Court. The government has full authority to dispose of any charge before trial in any manner the government deems appropriate. In recognition of this important duty, the government may, within the confines of plea negotiations, allow resolution of any violation notice by way of payment of a collateral forfeiture ("collateral"), may raise or lower a collateral (not to exceed the maximum possible fine), and may convert a mandatory appearance into a collateral up to and through the day of court. Fed. R. Crim. P. 58(d)(1).

(6) Calendar Call. Court will commence after the government indicates it has had sufficient time for plea negotiations.

(7) Taking of Pleas. Where a charge is resolved through a plea of guilty, the Court will provide the person charged with a combined initial appearance, an abbreviated Rule 11 proceeding, and a sentencing hearing.

(8) Appointment of Counsel. The Court will consider appointing counsel in cases where the government indicates there is a possibility of imprisonment. Persons desiring Court-appointed counsel should fill out an appropriate affidavit of indigency the day of court. The Federal Defender may assist persons in making such requests, which may be tendered for approval before court so the Federal Defender may participate in the plea-negotiation process.

(9) Trials. Where a person charged tenders a plea of not guilty, the Court will afford such person a bench trial. In Class A misdemeanors where a jury trial is requested or where the person charged does not consent to proceed before a United States Magistrate Judge, such charges will be transferred to a United States District Judge. Once transferred to a United States District Judge, "Class A" misdemeanors will only be remanded to the United States Magistrate Judge where the United States District Judge so directs.

(10) Sentencing. If a person is found guilty after either a plea or trial, the Court will proceed immediately to sentencing. In a Class B misdemeanor or infraction (also known as "petty offenses"), no presentence report is required. In a Class A misdemeanor, a person charged may waive preparation of a presentence report or the Court may direct the preparation of an abbreviated report.

(11) Payment of Fines. Immediate payment of the fine and special assessment is required by way of mail payment. The Court does not accept cash payments. Where the Court allows deferred payment, defendant must provide the Clerk of Court with his or her Social Security number, driver's license number, and phone number.

(12) Failure to Appear. At the conclusion of all matters, the Court will determine who has failed to appear. Where a person fails to appear on an offense for which a collateral was issued, a warrant for arrest shall issue, allowing either payment of twice the collateral in lieu of arrest or an arrest without bond. The United States Marshal may contact the government or a United States Magistrate Judge (or the judge's staff) for permission to accept a lesser amount as circumstances may warrant. Where a person fails to appear on an offense for which a mandatory appearance was issued, the Court shall issue a warrant for arrest.

(13) Dismissal for Insufficient Address. Where a person charged with an offense cannot be located and noticed to come to court by the CVB based on the information provided by the charging officer, the Court will administratively dismiss such violation notice without prejudice. See U.S.M.J. Manual, CVB, at 4-5 (2003). The charging officer may, thereafter, issue a new violation notice to such person if further investigation provides the issuing officer with a better address. The charging officer must check with the CVB or the government, not the Clerk of Court, as to the status of any violation notice.

(14) Non-Current Warrants. Warrants that have not been served after eight (8) months shall be disposed of in a manner consistent with the rules, regulations, and standards promulgated by the CVB. Any such dismissal shall be without prejudice as to the charging agency or the government taking whatever action it deems appropriate in further prosecution of such alleged offenses.

(c) Arrests

(1) Field Bonds. Officers may issue unsecured "field bonds" on forms approved by the Court to assure any person's appearance. The forms may be used where the accused is not a danger to himself and/or the community and has no known history of failure to appear. If the person arrested qualifies for a field bond, the officer must advise the arrestee of the right to be taken before a judicial officer within a reasonable time and that, by signing a field bond, the arrestee waives that right.

(2) Appearance before a Judicial Officer. Unless a field bond is used, an arrested person shall be promptly brought before a United States Magistrate Judge or, in the event a United States Magistrate Judge is not reasonably available, before a state judicial officer as authorized by 18 U.S.C. § 3041. The arresting officer must use best efforts to contact the Clerk of Court and advise the Court of such arrest before arriving at the courthouse.

(3) Custody. The United States Marshal only takes custody of a defendant who is arrested by another agency after a United States Magistrate Judge has found probable cause for the arrest. See 28 C.F.R. § 0.111(k). Where an officer houses a defendant in a facility overnight, the arresting officer must secure the defendant from the local jail facility and promptly take the defendant before a United States Magistrate Judge for an initial appearance. See Fed. R. Crim. P. 5(a). The arresting officer must use best efforts to contact the Clerk of Court and advise the Court of such arrest before arriving at the courthouse.