carried away shall create a rebuttable presumption that such person has been transported to interstate or foreign commerce.

(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any terms of years or for life. (As amended Oct. 24, 1972, Pub. L. 92-539, title II, § 201, 86 Stat. 1072.)

AMENDMENTS

1972 Subsec. (a). Pub. L. 92-539 substituted "Kidnaping" for "Transportation" in the section catchline and, in subsec. (a), extended the jurisdictional base to include acts committed within the special maritime, territorial, and aircraft jurisdiction of the United States, and to include acts committed against foreign officials and official guests, and struck out provisions relating to death penalty.

Subsec. (b). Pub. L. 92-539 added reference to subsec. (a)(1).

Subsec. (c). Pub. L. 92-539 substituted "by imprisonment for any term of years or for life" for "as provided in subsection (a)."

Chapter 75.-PASSPORTS AND VISAS

§ 1546. Fraud and misuse of visas, permits, and other entry documents.

Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, or document, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

Chapter 83.-POSTAL SERVICE

§ 1716. Injurious articles as nonmailable.

(a) All kinds of poison, and all articles and compositions containing poison, and all poisonous animals, insects, reptiles, and all explosives, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, and all disease germs or scabs, and all other natural or artificial articles, compositions, or material which may kill or injure another, or injure the mails or other property, whether or not sealed as first-class matter, are nonmailable matter and shall not be conveyed in the mails or delivered from any post office or station thereof, nor by any officer or employee of the Postal Service.

(b) The Postal Service may permit the transmission in the mails, under such rules and regulations as it shall prescribe as to preparation and packing, of any such articles which are not outwardly or of their own force dangerous or injurious to life, health, or property.

(c) The Postal Service is authorized and directed to permit the transmission in the mails, under regulations to be prescribed by it, of live scorpions which are to be used for purposes of medical research or for the manufacture of antivenom. Such regulations shall include such provisions with respect to the packaging of such live scorpions for transmission in

the mails as the Postal Service deems necessary or desirable for the protection of Postal Service personnel and of the public generally and for ease of handling by such personnel and by any individual connected with such research or manufacture. Nothing contained in this paragraph shall be construed to authorize the transmission in the mails of live scorpions by means of aircraft engaged in the carriage of passengers for compensation or hire.

(d) The transmission in the mails of poisonous drugs and medicines may be limited by the Postal Service to shipments of such articles from the manufacturer thereof or dealer therein to licensed physicians, surgeons, dentists, pharmacists, druggists, cosmetologists, barbers, and veterinarians under such rules and regulations as it shall prescribe.

(e) The transmission in the mails of poisons for scientific use, and which are not outwardly dangerous or of their own force dangerous or injurious to life, health, or property, may be limited by the Postal Service to shipments of such articles between the manufacturers thereof, dealers therein, bona fide research or experimental scientific laboratories, and such other persons who are employees of the Federal, a State, or local government, whose official duties are comprised, in whole or in part, of the use of such poisons, and who are designated by the head of the agency in which they are employed to receive or send such articles, under such rules and regulations as the Postal Service shall prescribe.

(f) All spirituous, vinous, malted, fermented, or other intoxicating liquors of any kinds are nonmailable and shall not be deposited in or carried through the mails.

(g) All knives having a blade which opens automatically (1) by hand pressure applied to a button or other device in the handle of the knife, or (2) by operation of inertia, gravity, or both, are nonmailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service. Such knives may be conveyed in the mails, under such regulations as the Postal Service shall prescribe

(1) to civilian or Armed Forces supply or procurement officers and employees of the Federal Government ordering, procuring, or purchasing such knives in connection with the activities of the Federal Government;

(2) to supply or procurement officers of the National Guard, the Air National Guard, or militia of a State, Territory, or the District of Columbia ordering, procuring, or purchasing such knives in connection with the activities of such organizations;

(3) to supply or procurement officers or employees of the municipal government of the District of Columbia or of the government of any State or Territory, or any county, city or other political subdivision of a State or Territory, ordering, procuring, or purchasing such knives in connection with the activities of such government; and

(4) to manufacturers of such knives or bona fide dealers therein in connection with any shipment made pursuant to an order from any person designated in paragraphs (1), (2), and (3).

The Postal Service may require, as a condition of conveying any such knife in the mails, that any person proposing to mail such knife explain in writing to the satisfaction of the Postal Service that the mailing of such knife will not be in violation of this section.

(h) Any advertising, promotional, or sales matter which solicits or induces the mailing of anything declared nonmailable by this section is likewise nonmailable unless such matter contains wrapping or packaging instructions which are in accord with regulations promulgated by the Postal Service. (As amended Dec. 15, 1971, Pub. L. 92-191, § 1, 85 Stat. 647.)

AMENDMENTS

1971-Subsecs. (a)-(g). Pub. L. 92-191 designated the existing seven paragraphs preceding the penal provisions as subsecs. (a)–(g) respectively.

Subsec. (h). Pub. L. 92-191 added subsec. (h).

EFFECTIVE DATE OF 1971 AMENDMENT

Section 3 of Pub. L. 92-191 provided that: "The amendments made by this Act [adding subsec. (h) of this section and subsec. (g) of section 3001 of Title 39] shall become effective at the beginning of the third calendar month following the date of enactment of this Act [Dec. 15, 1971] or on the date section 3001 of title 39, United States Code, becomes effective pursuant to section 15(a) of Public Law 91-375 [set out as a note preceding section 101 of Title 39], whichever is the later."

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 39 section 3001.

Chapter 93.-PUBLIC OFFICERS AND EMPLOYEES § 1905. Disclosure of confidential information generally.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 15 sections 330b, 1914, 1944, 2055; title 29 section 664; title 33 sections 1318, 1320, 1322; title 42 sections 1857c-9, 4912; title 46 section 1463.

Chapter 95.-RACKETEERING

§ 1955. Prohibition of illegal gambling businesses.

(b) As used in this section

(1) "illegal gambling business" means a gambling business which

(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

Chapter 101.-RECORDS AND REPORTS § 2074. False weather reports.

TRANSFER OF FUNCTIONS

The effective date of Reorg. Plan No. 4 of 1970, referred to in the note under this section in the 1970 ed. of the Code, is Oct. 3, 1970, and not Oct. 30, 1970, as shown therein.

Chapter 201.-GENERAL PROVISIONS

§ 3006A. Adequate representation of defendants. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 28 section 753.

Chapter 203.-ARREST AND COMMITMENT § 3041. Power of courts and magistrates.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 16 section 1031.

Chapter 207.-RELEASE

§ 3152. Definitions.

CHANGE OF NAME

"Superior Court of the District of Columbia" was so renamed from "District of Columbia Court of General Sessions" on authority of District of Columbia Court Reorganization Act of 1970 provisions, for redesignation of courts in laws applicable exclusively to the District of Columbia, contained in section 155(a) of Pub. L. 91-358, title I, July 29, 1970, 84 Stat. 570, effective the first day of the seventh calendar month which begins after July 29, 1970.

Chapter 219.-TRIAL BY UNITED STATES
MAGISTRATES

§ 3401. Minor offenses; application of probation laws. SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 16 section 4601-6a.

Chapter 231.-PROBATION

§ 3651. Suspension of sentence and probation.

The court may require a person who is an addict within the meaning of section 4251(a) of this title, or a drug dependent person within the meaning of section 2(q) of the Public Health Service Act, as amended (42 U.S.C. 201), as a condition of probation, to participate in the community supervision programs authorized by section 4255 of this title for all or part of the period of probation: Provided, That the Attorney General certifies a suitable program is available. If the Attorney General determines that the person's participation in the program should be terminated, because the person can derive no further significant benefits from participation or because his participation adversely affects the rehabilitation of other participants, he shall so notify the court, which shall thereupon, by order, make such other provision with respect to the person on probation as it deems appropriate. The defendant's liability for any fine or other punishment imposed as to which probation is granted, shall be fully discharged by the fulfillment of the terms and conditions of probation. (As amended May 11, 1972, Pub. L. 92-293, § 1, 86 Stat. 136.)

AMENDMENTS

1972-Pub. L. 92-293 added paragraph permitting court to require an addict or a drug dependent person to participate in the community supervision programs as a condition of probation if the Attorney General certifies to the availability of such a program, and authorized Attorney General to determine effectiveness of treatment of probationer and probationer's effect on other particlpants and, if effect is adverse, to notify the court so it can make such other provision for the probationer as it deems appropriate.

Sec.

Chapter 301.-GENERAL PROVISIONS

4001. Limitation on detention: control of prisons.

AMENDMENTS

1971-Pub. L. 92–128, § 1 (c), Sept. 25, 1971, 85 Stat. 347, substituted "Limitation on detention; control of prisons" for "Control by Attorney General" in item 4001.

§ 4001. Limitation on detention; control of prisons.

(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

(b) (1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promuglate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended and the applicable regulations.

(2) The Attorney General may establish and conduct industries, farms, and other activities and classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation. (As amended Sept. 25, 1971, Pub. L. 92-128, § 1, 85 Stat. 347.)

AMENDMENTS

1971-Pub. L. 92–128, § 1(b), substituted "Limitation on detention; control of prisons" for "Control by Attorney General" in the section heading.

Subsec. (a). Pub. L. 92–128, § 1(a), added subsec. (a). Subsec. (b). Pub. L. 92-128, § 1(a), designated the first and second pars. as pars. (1) and (2) of subsec. (b) of this section.

Chapter 307.-EMPLOYMENT

CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 40 section 48.

§ 4124. Purchase of prison-made products by Federal departments.

TRANSFER OF FUNCTIONS

All functions vested by law (including reorganization plan) in the Bureau of the Budget or the Director of the Budget were transferred to the President of the United States by section 101 of 1970 Reorg. Plan No. 2, eff. July 1, 1970, 35 F.R. 7959, 84 Stat. 2085. Section 102 of 1970 Reorg. Plan No. 2, redesignated the Bureau of the Budget as the Office of Management and Budget. See Office of Management and Budget note set out under this section in the main volume.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 40 section 48.

Chapter 311.-PAROLE

§ 4202. Prisoners eligible.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 21 section 848.

§ 4203. Application and release; terms and conditions. (a)

The Board may require a parolee, or a prisoner released pursuant to section 4164 of this title, who is an addict within the meaning of section 4251 (a) of this title, or a drug dependent person within the meaning of section 2(q) of the Public Health Service Act, as amended (42 U.S.C. 201), as a condition of parole or release to participate in the community supervision programs authorized by section 4255 of this

title for all or part of the period of parole: Provided, That the Attorney General certifies a suitable program is available. If the Attorney General determines that the person's participation in the program should be terminated, because the person can derive no further significant benefits from participation or because his participation adversely affects the rehabilitation of other participants, he shall so notify the Board of Parole, which shall thereupon make such other provision with respect to the person as it deems appropriate.

A person residing in a residential community treatment center may be required to pay such costs incident to residence as the Attorney General deems appropriate.

Each order of parole shall fix the limits of the parolee's residence which may be changed in the discretion of the Board.

(As amended May 11, 1972, Pub. L. 92–293, § 2, 86 Stat. 136.)

AMENDMENTS

1972-Subsec. (a). Pub. L. 92-293 added paragraph permitting Board of Parole to require addicts and drug dependent persons to participate in community supervision programs if the Attorney General certifies to the availability of such programs and authorized Attorney General to determine effectiveness of treatment of probation and probationer's effect on other participants and, if effect is adverse, to notify Board of Parole so it can make such other provision for the probationer as it deems appropriate.

Chapter 314.-NARCOTIC ADDICTS

§ 4251. Definitions.

As used in this chapter

*

(c) "Treatment" includes confinement and treatment in an institution and under supervised aftercare in the community and includes, but is not limited to, medical, educational, social, psychological, and vocational services, corrective and preventive guidance and training, and other rehabilitative services designed to protect the public and benefit the addict by eliminating his dependence on addicting drugs, or by controlling his dependence, and his susceptibility to addiction.

(As amended Pub. L. 92-420, § 3, Sept. 16, 1972, 86 Stat. 677.)

AMENDMENTS

1972 Subsec. (c). Pub. L. 92-420 substituted "by eliminating his dependence on addicting drugs, or by controlling his dependence," for "by correcting his antisocial tendencies and ending his dependence on addicting drugs".

EFFECTIVE DATE OF 1972 AMENDMENT Amendment of subsec. (c) by Pub. L. 92-420 applicable to cases pending in a district court of the United States in which an appearance has not been made prior to Sept. 16, 1972, see section 5 of Pub. L. 92-420, set out as a note under section 2901 of Title 28, Judiciary and Judicial Procedure.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3651, 4203 of this title.

§ 4255. Supervision in the community.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3651, 4203 of this title.

II. PRELIMINARY PROCEEDINGS

Rule 5.1 Preliminary examination.

I. SCOPE, PURPOSE AND CONSTRUCTION

RULE 1. SCOPE

These rules govern the procedure in all criminal proceedings in the courts of the United States, as defined in Rule 54 (c); and, whenever specifically provided in one of the rules, to preliminary, supplementary, and special proceedings before United States magistrates and at proceedings before state and local judicial officers. (As amended Apr. 24, 1972, eff. Oct. 1, 1972.)

NOTES OF ADVISORY COMMITTEE ON RULES

1972 AMENDMENT

The rule is amended to make clear that the rules are applicable to courts of the United States and, where the rule so provides, to proceedings before United States magistrates and state or local judicial officers.

Primarily these rules are intended to govern proceedings in criminal cases triable in the United States District Court. Special rules have been promulgated, pursuant to the authority set forth in 28 U.S.C. § 636 (c), for the trial of "minor offenses" before United States magistrates. (See Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates (January 27, 1971).)

However, there is inevitably some overlap between the two sets of rules. The Rules of Criminal Procedure for the United States District Courts deal with preliminary, supplementary, and special proceedings which will often be conducted before United States magistrates. This is true, for example, with regard to rule 3-The Complaint; rule 4-Arrest Warrant or Summons Upon Complaint; rule 5Initial Appearance Before the Magistrate; and rule 5.1Preliminary Examination. It is also true, for example, of supplementary and special proceedings such as rule 40Commitment to Another District, Removal; rule 41Search and Seizure; and rule 46-Release from Custody. Other of these rules, where applicable, also apply to proceedings before United States magistrates. See Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates, rule 1-Scope:

These rules govern the procedure and practice for the trial of minor offenses (including petty offenses) before United States magistrates under Title 18, U.S.C. § 3401, and for appeals in such cases to judges of the district courts. To the extent that pretrial and trial procedure and practice are not specifically covered by these rules, the Federal Rules of Criminal Procedure apply as to minor offenses other than petty offenses. All other proceedings in criminal matters, other than petty offenses, before United States magistrates are governed by the Federal Rules of Criminal Procedure.

State and local judicial officers are governed by these rules, but only when the rule specifically so provides. This is the case of rule 3-The Complaint; rule 4-Arrest Warrant or Summons Upon Complaint; and rule 5-Initial Appearance Before the Magistrate. These rules confer authority upon the "magistrate," a term which is defined in new rule 54 as follows:

Page 395

"Magistrate" includes a United States magistrate as defined in 28 U.S.C. §§ 631-639, a judge of the United States, another judge or judicial officer specifically empowered by statute in force in any territory or possession, the commonwealth of Puerto Rico, or the District of Columbia, to perform a function to which a particular rule relates, and a state or local judicial officer, authorized by 18 U.S.C. § 3041 to perform the functions prescribed in rules 3, 4, and 5.

Rule 41 provides that a search warant may be issued by "a judge of a state court of record" and thus confers that authority upon appropriate state judicial officers. The scope of rules 1 and 54 is discussed in C. Wright, Federal Practice and Procedure: Criminal §§ 21, 871-874 (1969, Supp. 1971), and 8 and 8A J. Moore, Federal Practice chapters 1 and 54 (2d ed. Cipes 1970, Supp. 1971).

II. PRELIMINARY PROCEEDINGS

RULE 3. THE COMPLAINT

The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate. (As amended Apr. 24, 1972, eff. Oct. 1, 1972.)

NOTES OF ADVISORY COMMITTEE ON RULES
1972 AMENDMENT

The amendment deletes the reference to "commissioner or other officer empowered to commit persons charged with offenses against the United States" and substitutes therefor "magistrate."

The change is editorial in nature to conform the language of the rule to the recently enacted Federal Magistrates Act. The term "magistrate" is defined in rule 54.

RULE 4. WARRANT OR SUMMONS UPON COMPLAINT

(d) Form.

(1) Warrant. The warrant shall be signed by the magistrate and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought before the nearest available magistrate.

(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before a magistrate at a stated time and place.

(c) Execution or service; and return.

(1) By whom. The warrant shall be executed by a marshal or by some other officer authorized by law. The summons may be served by any person authorized to serve a summons in a civil action.

(2) Territorial limits. The warrant may be exe. cuted or the summons may be served at any place within the jurisdiction of the United States.

(3) Manner. The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant, as soon as possible. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by mailing it to the defendant's last known address.

(4) Return. The officer executing a warrant shall make return thereof to the magistrate or other officer before whom the defendant is brought pursuant to Rule 5. At the request of the attorney for the government any unexecuted warrant shall be returned to the magistrate by whom it was issued and shall be cancelled by him. On or before the return day the person to whom a summons was delivered for services shall make return thereof to the magistrate before whom the summons is returnable. At the request of the attorney for the government made at any time while the complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the magistrate to the marshall or other authorized person for execution or service. (As amended Apr. 24, 1972, eff. Oct. 1, 1972.)

NOTES OF ADVISORY COMMITTEES ON RULES

1972 AMENDMENT

Throughout the rule the term "magistrate" is substituted for the term "commisioner." Magistrate is defined in rule 54 to include a judge of the United States, a United States magistrate, and those state and local judicial officers specified in 18 U.S.C. § 3041.

RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE (a) In general.

An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate or, in the event that a federal magistrate is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C. § 3041. If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith which shall comply with the requirements of Rule 4(a) with respect to the showing of probable cause. When a person, arrested with or without a warrant or given a summons, appears initially before the magistrate, the magistrate shall proceed in accordance with the applicable subdivisions of this rule.

(b) Minor offenses.

If the charge against the defendant is a minor offense triable by a United States magistrate under 18 U.S.C. § 3401, the United States magistrate shall proceed in accordance with the Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates.

(c) Offenses not triable by the United States magistrate.

If the charge against the defendant is not triable by the United States magistrate, the defendant shall not be called upon to plead. The magistrate shall inform the defendant of the complaint against him and of any affidavit filed therewith, of his right to retain counsel, of his right to request the assignment of counsel if he is unable to obtain counsel, and of the general circumstances under which he may secure pretrial release. He shall inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall also inform the defendant of his right to a preliminary examination. He shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided by statute or in these rules.

A defendant is entitled to a preliminary examination, unless waived, when charged with any offense, other than a petty offense, which is to be tried by a judge of the district court. If the defendant waives preliminary examination, the magistrate shall forthwith hold him to answer in the district court. If the defendant does not waive the preliminary examination, the magistrate shall schedule a preliminary examination. Such examination shall be held within a reasonable time but in any event not later than 10 days following the initial appearance if the defendant is in custody and no later than 20 days if he is not in custody, provided, however, that the preliminary examination shall not be held if the defendant is indicted or if an information against the defendant is filed in district court before the date set for the preliminary examination. With the consent of the defendant and upon a showing of good cause, taking into account the public interest in the prompt disposition of criminal cases, time limits specified in this subdivision may be extended one or more times by a federal magistrate. In the absence of such consent by the defendant, time limits may be extended by a judge of the United States only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice. (As amended Apr. 24, 1972, eff. Oct. 1, 1972.)

NOTES OF ADVISORY COMMITTEE ON RULES
1972 AMENDMENT

There are a number of changes made in rule 5 which are designed to improve the editorial clarity of the rule; to conform the rule to the Federal Magistrates Act; and to deal explicitly in the rule with issues as to which the rule was silent and the law uncertain.

The principal editorial change is to deal separately with the initial appearance before the magistrate and the preliminary examination. They are dealt with together in old rule 5. They are separated in order to prevent confusion as to whether they constitute a single or two separate proceedings. Although the preliminary examination can be held at the time of the initial appearance, in practice this ordinarily does not occur. Usually counsel need time to prepare for the preliminary examination and as a consequence a separate date is typically set for the preliminary examination.

Because federal magistrates are reasonably available to conduct initial appearances, the rule is drafted on the assumption that the initial appearance is before a federal magistrate. If experience under the act indicates that there must be frequent appearances before state or local judicial officers it may be desirable to draft an additional