In no case is the fact that the defendant is alleged to be such an offender to be disclosed to the jury. If the court finds that the filing of the notice as a public record might prejudice fair consideration of a pending criminal matter, the notice is to be sealed and is not to be filed as a public record, produced under subpoena, or otherwise made public during the pendency of the criminal matter, except on order of the court. It is, however, to be subject to inspection by the defendant who is alleged to be a dangerous special offender or by his counsel.

This rule makes one significant change in existing law. Omitted from this subdivision is the present provision that "in no case shall the fact that the defendant is alleged to be a dangerous special offender be an issue upon the trial. . . be disclosed before any plea of guilty or nolo contendere or verdict or finding of guilty to the presiding judge without the consent of the parties." 66

The provision that dangerous special offender status shall not be an issue at the trial has been deleted as unnecessary. However, the express provision that prohibits disclosure to the jury of the allegation that the defendant is a dangerous special offender is retained in the rule. Thus, under this formulation of the rule there is no prohibition against disclosure of the allegation of dangerous special offender status to a judge of the district court. The present prohibition was considered inappropriate and somewhat impractical. The judiciary must deal regularly with matters that would be considered prejudicial to the rights of defendants if admitted at trial. It might be different if there were no judicial purpose to be served in the disclosure of the pretrial notice to the judge, but a judge must implement the provision carried over from existing law for sealing the pretrial notice. Disqualification of a judge in certain districts would create practical difficulties, interfering possibly with a speedy trial of the charges. The Committee has concluded that the simple fact that a judge knows of allegations made by the attorney for the government is not a sufficient reason for disqualification of the judge.

Subdivision (b) of the rule concerns the hearing that is required to determine dangerous special offender status. The subdivision provides that, after a defendant alleged to be a dangerous special offender is found guilty or enters a plea of guilty or nolo contendere, and before sentence is imposed, the court is to fix a time for, and to hold, a hearing to determine whether the defendant should be sentenced as a dangerous special offender. The hearing is to be held before the court sitting without a jury, and the defendant and the government are both entitled to assistance of counsel, compulsory process, and cross-examination of any witnesses that appear at the hearing. If it appears by a preponderance of the information, including information submitted during the trial, during the sentencing hearing, and in so much of the presentence report as the court relies on, that the defendant is a dangerous special offender and that a sentence as a dangerous special offender is warranted to protect the public from further crimes of the defendant, the court is then to sentence the defendant in accordance with the provisions of sections 2301 (c) and 2302(b). The court is required to place in the record its findings, including an identification of the information relied upon in making its findings.

66 18 U.S.C. 3575 (a).

Rule 35.

Rule 38.

Rule 40.

At present 18 U.S.C. 3575(b) requires that the defendant and the United States be given notice at least ten days prior to the scheduled date of the hearing on dangerous special offender status. This ten-day notice requirement has not been retained because it is unnecessary due to the requirement of a pretrial notice of the special offender proceeding. In any event, without specific requirement, the Committee expects that adequate notice of, and adequate time to prepare for, the hearing will be afforded the defendant and the attorney for the gov

ernment.

It is not necessary for subdivision (b) of this rule to carry over the provisions of 18 U.S.C. 3575 (b) regarding inspection of the presentence report and related matter. Comparable provisions appear in Rule 32 (c) (3) of these rules. Subdivision (b) of this rule represents no substantial change in the present law found in 18 U.S.C. 3575 (b) and current Rule 32.

RULE 35. CORRECTION OR REDUCTION OF SENTENCE

At present, the last sentence of Rule 35 provides that a court may reduce "a sentence upon revocation of probation." Again, such wording is no longer appropriate, since the procedure now contained in 18 U.S.C. 3651 has been abolished and probation has become a sentence in itself. To update this rule, the last sentence is rewritten to permit a reduction of a "sentence of probation."

RULE 38. STAY OF EXECUTION

At present, Rule 38 provides for the staying of sentences of death, imprisonment, the payment of a fine, and of an order placing a defendant on probation, "if an appeal is taken." The new provisions for review of sentences, by logical extension, require changes in Rule 38. Accordingly, each of the relettered subdivisions of Rule 38 has been written to allow for stay of sentence if an appeal is taken "from a conviction or a petition for review of sentence is filed." Moreover, since probation has been made into a sentence, as such, under the Code, the phrase, "sentence of probation," has been used in subdivision (d) instead of "an order placing the defendant on probation."

RULE 40. COMMITMENT TO ANOTHER DISTRICT; REMOVAL

This rule has been changed to update citations in subdivisions (b) (2) and (b) (4), and to add a new subdivision (c). Subdivision (c) provides that, in removing a person from one district to another, only one warrant of removal is necessary, and a copy of that warrant may be given to the officer from whose custody the person is taken, with another copy given to the officer to whose custody the person is committed, and the original warrant, with the executed return thereon, being returned to the clerk of the district to which the person is removed. This carries over in revised form, without substantial change, 18 U.S.C. 3049.

Rule 53.

RULE 41. SEARCH AND SEIZURE

At present, subdivision (c) of Rule 41 provides that the search warrant is to be directed to a "civil officer of the United States authorized to enforce or assist in enforcing any law." In place of the quoted language, this rule uses simply "a federal law enforcement officer," which is defined comprehensively in section 111 of the Code. The sentence in which this change occurs has otherwise been rewritten but without making substantive changes.

Most of subdivision (d) of this rule is new and has been inserted (necessitating a relettering of the subdivisions) simply to reenact the present provisions of 18 U.S.C. 3105 and 3109.67 While the form of these statutes has been changed in this rule, there is no intention to change the content of the existing statutes or the general case law that has developed in their interpretation.

Under subdivision (d) (1) of Rule 41, a warrant may be executed by either the officer to whom it is directed or by any other officer authorized by law to execute such a warrant, and such an officer may be assisted in executing the warrant by other persons acting at his request and in his presence. This restates current 18 U.S.C. 3105, deleting as unnecessary the provision prohibiting the execution of a warrant by any person not mentioned in the provision.

Under subdivision (d) (2) of the rule, the officer is authorized to break open any outer or inner door or window of a building, or any part of a building, or anything in a building, to execute the warrant if, after notice of his authority and purpose, he is refused admittance, or if necessary to liberate himself or a person assisting him in the execution of the warrant. This makes stylistic changes only in the present statute, and the provision leaves present law unchanged.99

The changes that have been made in this rule are, in general, to conform the rule to changes that have been made in the Code. Citations have been updated in subdivisions (b) (2), (3), and (5). Stylistic changes have been made in subdivisions (b) (2), (3), (4), and (5), and in subdivision (c).

Other changes have been made in subdivision (c) of the rule which consists of a number of definitions. Inasmuch as "attorney for the government" is defined for purposes of the Federal Rules of Criminal Procedure in section 111 of the revised Code, a comparable part of the definition of that term in present Rule 54 has been omitted. The definition of "magistrate" has been changed by deleting several words at the end as being out of date. "Minor offense" and "petty offense" have been redefined in terms of the revised title 18.70 The definition of "state" has been omitted since the word is defined as comprehensively in section 111 of the Code.

07 Subdivision (d) (3) dealing with the giving of a receipt for property taken is drawn from existing Rule 41(d).

69 18 U.S.C. 3109.

See, e.g., United States v. Gervato, 474 F.2d 40 (3d Cir.), cert. denied, 414 U.S. 864 (1973).

70 See the discussion of section 103 of the Act regarding the Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates.

RULES OF PROCEDURE FOR THE TRIAL OF MINOR OFFENSES

BEFORE UNITED STATES MAGISTRATES

Section 103 of the reported bill reenacts the Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates. These rules are reenacted for much the same reasons that the Federal Rules of Criminal Procedure are reenacted in section 102 of the Act.

It has been necessary to make only one conforming change in the Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates. These rules employ the terms "minor offense" and "petty offense." "Minor offense" is defined now in 18 U.S.C. 3401(f) (and the definition is incorporated by reference in Rule 54 of the Federal Rules of Criminal Procedure). "Petty offense" is defined now in 18 U.S.C. 1(3). Since the new Code categorizes offenses differently, it is necessary to redefine the terms "minor offense" and "petty offense." For that purpose a new rule (Rule 12) has been added to these rules. The new definitions parallel the old terms, but there are significant differences.

Rule 12(1) defines "minor offense" to mean a misdemeanor or an infraction. This works no real change, but the exceptions (limiting the jurisdiction of Federal magistrates that currently are written into the definition of "minor offense" in 18 U.S.C. 3401 (f)) have not been retained in the corresponding section of the code-section 3302-nor have they been incorporated here. The change is not basically in the rule but in the scope of section 3302.

Rule 12(2) defines "petty offense" to mean a Class B or C misdemeanor or an infraction. The fines authorized for misdemeanors and infractions under the new section 2201 (b) are much larger than the maximum fine of $500 involved in the present definition of "petty offense" in 18 U.S.C. 1(3)." The change is, again, not basically in the rule but in the fine provisions of the Code.

"The citation to 18 U.S.C. 1(3) has been deleted from Rule 9 of these rules.

(1103)