Time: Wed Jun 18 17:20:47 1997
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Date: Wed, 18 Jun 1997 17:19:42 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Federal Rules of Criminal Procedure

28 U.S.C. 2072.  Rules of procedure and evidence;
power to prescribe

On the subject of rules, don't miss 28 U.S.C. 2072,
which grants authority to the U.S. Supreme Court
to promulgate rules for the USDC, but fails to
mention the DCUS.  I conclude, therefore, that
the U.S. Supreme Court has no authority to 
promulgate rules for the DCUS, because that
court is just not mentioned in 2072!  And this
section embraces both civil and criminal
rules, and rules of evidence, because it mentions
"practice, procedure, and evidence".  So, now the
SC can promulgate rules of criminal procedure,
but only for the USDC, but the USDC has no 
criminal jurisdiction whatsoever.  

Go figure!

See 18 U.S.C. 3231 for proof of that statement.  


What's your construction?

Remember the Wizard of Oz?  The "Oz" is a metaphor
for the abbreviation we all use for "ounce".  The
wizard of gold is a little man behind the curtain,
pulling strings to make his calliope whistle and

Toot!  Toot!!  Whew!  Whew!!

/s/ Paul Mitchell

At 04:53 PM 6/18/97 -0700, you wrote:
>Hi Paul,
>   I was just about to send the below critique of the controlling sections
>of the Federal Rules of Criminal Procedure to my friends, but just thought
>that maybe I should pass them before you in case I am way off, or making
>blunders in my understanding and interpretation of Rule 1 and 54.
>Only if you have time.
>ckerr - Sui Juris, juris et de jure
>All Natural Rights Reserved Without Prejudice.
>[Remember to ignore the titles of each Title, Subtitle, Rule, Subrule,
>whatever.  It's always the first sentance easly (sometimes) noticed
>because of the capitolization of keywords.]
>           TITLE 18 - APPENDIX
>HEAD       Rule 1. Scope
>STATUTE      These rules govern the procedure in all criminal proceedings
>           in the courts of the United States, as provided in Rule 54(a);
>           and, whenever specifically provided in one of the rules, to
>           preliminary, supplementary, and special proceedings before
>           United States magistrate judges and at proceedings before state
>           and local judicial officers.
>           [Yeah, you go look at 54(a) and it says that Art III courts can
>           only govern removal to the Art. IV courts.  This is the most
>           missleading paragraph in these Rules.  It alludes that most of
>           these rules are for Art. III courts, but when you read the
>           first paragraph in 53(a) is says the opposite.  This is all
>           Art. IV stuff with a line or two particular to Art. III
>           courts.]
>SOURCE     (As amended Apr. 24, 1972, eff.  Oct. 1, 1972; Apr. 28, 1982,
>           eff. Aug. 1, 1982; Apr. 22, 1993, eff.  Dec. 1, 1993.)
>             1. These rules are prescribed under the authority of two acts
>           of Congress, namely: the Act of June 29, 1940, c. 445, 18
>           U.S.C. 687 (see 3771) (Proceedings in criminal cases prior to
>           and including verdict; power of Supreme Court to prescribe
>           rules), and the Act of November 21, 1941, c. 492, 18 U.S.C. 689
>           (see 3771, 3772) (Proceedings to punish for criminal contempt
>           of court; application to sections 687 and 688).
>           [They define acts of Congress below. Municiple.  So, could
>           this mean that the damn term "contempt of court" is municiple
>           to D.C.???]
>             2. The courts of the United States covered by the rules are
>           enumerated in Rule 54(a). In addition to Federal courts in the
>           continental United States they include district courts in
>           Alaska, Hawaii, Puerto Rico and the Virgin Islands. In the
>           Canal Zone only the rules governing proceedings after verdict,
>           finding or plea of guilty are applicable.
>           [This is interesting.  I can't figure out what the hell the
>           second sentance is saying.  It's like an incomplete sentance or
>           something.  Is it including tribunals from Alaska, Hawaii,
>           Puerto Rico and the Virgin Islands into the term "courts of the
>           United States"??  It must be, because look at the next part. 
>           And why are Alaska and Hawaii holding some status similar to
>           Puerto Rico and V.I.???]
>             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.
>             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.
>           [Ok. Pretty clear. So just Rules 3, 4, and 5 where it states
>           such.]
>           [Lets look at Rule 54 which is the one control was transfered
>           to from Rule 1 above.]
>CITE       18 USC Rule 54
>           TITLE 18 - APPENDIX
>           X. GENERAL PROVISIONS HEAD Rule 54. Application and Exception
>           STATUTE 
>              (a) Courts. These rules apply to all criminal proceedings in
>           the United States District Courts; in the District Court
>           of Guam; in the District Court for the Northern Mariana
>           Islands, except as otherwise provided in articles IV and V of
>           the covenant provided by the Act of March 24, 1976 (90 Stat.
>           263); in the District Court of the Virgin Islands; and (except
>           as otherwise provided in the Canal Zone code) in the United
>           States District Court for the District of the Canal Zone; in
>           the United States Courts of Appeals; and in the Supreme Court
>           of the United States; except that the prosecution of offenses
>           in the District Court of the Virgin Islands shall be by
>           indictment of information as otherwise provided by law.
>           [All territorial tribunals.  "Courts of Appeals" is upper
>           cased, so is Art. IV tribunal. I wish I could tell for the
>           "Supreme Court", but I can't.  Seems to be a special case
>           court.]
>             (b) Proceedings. 
>               (1) Removed Proceedings. These rules apply to criminal
>             prosecutions removed to the United States district courts
>             from state courts and govern all procedure after removal,
>             except that dismissal by the attorney for the prosecution
>             shall be governed by state law.
>             [Most important paragraph here.]
>               (2) Offenses Outside a District or State. These rules
>             apply to proceedings for offenses committed upon the high
>             seas or elsewhere out of the jurisdiction of any particular
>             state or district, except that such proceedings may be had in
>             any district authorized by 18 U.S.C. Sec. 3238.
>             [Here is an example of where the title is missleading.  It
>             upper cases District and State in title which suggests
>             federal, but lower cases in text which is Union districts or
>             states.]
>               (4) Proceedings Before United States Magistrate Judges.
>             Proceedings involving misdemeanors and other petty offenses
>             are governed by Rule 58.
>             (c) Application of Terms. As used in these rules the
>           following terms have the designated meanings.
>             ''Act of Congress'' includes any act of Congress locally
>           applicable to and in force in the District of Columbia, in
>           Puerto Rico, in a territory or in an insular possession.
>           [Ah, here it is. Simply amazing.]
>             ''Civil action'' refers to a civil action in a district
>           court.
>           [Territorial courts.]
>             ''District court'' includes all district courts named in
>           subdivision (a) of this rule.
>           [They were all territorial courts.]
>             ''Judge of the United States'' includes a judge of a district
>           court, court of appeals, or the Supreme Court.
>           [Art. III courts.]
>             ''Law'' includes statutes and judicial decisions.
>           [So just statutes and judicial decisions are considered Law
>           here.]
>             ''Magistrate judge'' includes a United States magistrate
>           judge as defined in 28 U.S.C. Sec. 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 office  authorized by 18 U.S.C. Sec.
>           3041 to perform the functions prescribed in Rules 3, 4, and 5.
>           [This term can include EITHER an Art. III or IV judge.  The 
>           Art. III judges would be the ones mentioned after the coma
>           in the line pointed out.  Compare to the magistrate term that
>           is qualified by the adjective "Federal".  Also note how they
>           put 'Commonwealth' before Puerto Rico which is _some_ jural
>           society other than 'Puerto Rico'.]
>             ''Federal magistrate judge'' means a United States magistrate
>           judge as defined in 28 U.S.C. Sec. 631-639, a judge of the 
>           United States or 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.
>           [So these are just Art. IV magistrates.]
>             ''Oath'' includes affirmations.
>             ''Petty offense'' is defined in 18 U.S.C. Sec. 19.
>             ''State'' includes District of Columbia, Puerto Rico,
>           territory and insular possession.
>           [Notice they use upper and lower case throughout these rules.
>           So here it specifies upper case is to refer to the federal
>           States.]
>             ''United States magistrate judge'' means the officer
>           authorized by 28 U.S.C. Sec. 631-639.
>           [Lower case 'magistrate' lower case 'judge'. These are Art. IV]

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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