(a) Scope.
(1) In General. These rules apply in petty offense and other
misdemeanor cases and on appeal to a district judge in a case
tried by a magistrate judge, unless this rule provides other-
wise.
(2) Petty Offense Case Without Imprisonment. In a case in-
volving a petty offense for which no sentence of imprisonment
will be imposed, the court may follow any provision of these
rules that is not inconsistent with this rule and that the court
considers appropriate.
(3) Definition. As used in this rule, the term ‘‘petty offense
for which no sentence of imprisonment will be imposed’’
means a petty offense for which the court determines that, in
the event of conviction, no sentence of imprisonment will be
imposed.
(b) Pretrial Procedure.
(1) Charging Document. The trial of a misdemeanor may pro-
ceed on an indictment, information, or complaint. The trial of
a petty offense may also proceed on a citation or violation no-
tice.
(2) Initial Appearance. At the defendant’s initial appearance
on a petty offense or other misdemeanor charge, the mag-
istrate judge must inform the defendant of the following:
(A) the charge, and the minimum and maximum pen-
alties, including imprisonment, fines, any special assess-
ment under 18 U.S.C. §
3013, and restitution under 18 U.S.C.
§3556;
(B) the right to retain counsel;
(C) the right to request the appointment of counsel if the
defendant is unable to retain counsel—unless the charge is
a petty offense for which the appointment of counsel is not
required;
(D) the defendant’s right not to make a statement, and
that any statement made may be used against the defend-
ant;
(E) the right to trial, judgment, and sentencing before a
district judge—unless:
(i) the charge is a petty offense; or
(ii) the defendant consents to trial, judgment, and
sentencing before a magistrate judge;
(F) the right to a jury trial before either a magistrate
judge or a district judge—unless the charge is a petty of-
fense;
(G) any right to a preliminary hearing under Rule 5.1,
and the general circumstances, if any, under which the de-
fendant may secure pretrial release; and
(H) that a defendant who is not a United States citizen
may request that an attorney for the government or a fed-
eral law enforcement official notify a consular officer from
the defendant’s country of nationality that the defendant
has been arrested—but that even without the defendant’s
request, a treaty or other international agreement may re-
quire consular notification.
(3) Arraignment.
(A) Plea Before a Magistrate Judge. A magistrate judge
may take the defendant’s plea in a petty offense case. In
every other misdemeanor case, a magistrate judge may
take the plea only if the defendant consents either in writ-
ing or on the record to be tried before a magistrate judge
and specifically waives trial before a district judge. The
defendant may plead not guilty, guilty, or (with the con-
sent of the magistrate judge) nolo contendere.
(B) Failure to Consent. Except in a petty offense case, the
magistrate judge must order a defendant who does not con-
sent to trial before a magistrate judge to appear before a
district judge for further proceedings.
(c) Additional Procedures in Certain Petty Offense Cases. The
following procedures also apply in a case involving a petty offense
for which no sentence of imprisonment will be imposed:
(1) Guilty or Nolo Contendere Plea. The court must not ac-
cept a guilty or nolo contendere plea unless satisfied that the
defendant understands the nature of the charge and the maxi-
mum possible penalty.
(2) Waiving Venue.
(A) Conditions of Waiving Venue. If a defendant is ar-
rested, held, or present in a district different from the one
where the indictment, information, complaint, citation, or
violation notice is pending, the defendant may state in
writing a desire to plead guilty or nolo contendere; to
waive venue and trial in the district where the proceeding
is pending; and to consent to the court’s disposing of the
case in the district where the defendant was arrested, is
held, or is present.
(B) Effect of Waiving Venue. Unless the defendant later
pleads not guilty, the prosecution will proceed in the dis-
trict where the defendant was arrested, is held, or is
present. The district clerk must notify the clerk in the
original district of the defendant’s waiver of venue. The
defendant’s statement of a desire to plead guilty or nolo
contendere is not admissible against the defendant.
(3) Sentencing. The court must give the defendant an oppor-
tunity to be heard in mitigation and then proceed imme-
diately to sentencing. The court may, however, postpone sen-
tencing to allow the probation service to investigate or to per-
mit either party to submit additional information.
(4) Notice of a Right to Appeal. After imposing sentence in a
case tried on a not-guilty plea, the court must advise the de-
fendant of a right to appeal the conviction and of any right to
appeal the sentence. If the defendant was convicted on a plea
of guilty or nolo contendere, the court must advise the defend-
ant of any right to appeal the sentence.
(d) Paying a Fixed Sum in Lieu of Appearance.
(1) In General. If the court has a local rule governing forfeit-
ure of collateral, the court may accept a fixed-sum payment
in lieu of the defendant’s appearance and end the case, but the
fixed sum may not exceed the maximum fine allowed by law.
(2) Notice to Appear. If the defendant fails to pay a fixed
sum, request a hearing, or appear in response to a citation or
violation notice, the district clerk or a magistrate judge may
issue a notice for the defendant to appear before the court on
a date certain. The notice may give the defendant an addi-
tional opportunity to pay a fixed sum in lieu of appearance.
The district clerk must serve the notice on the defendant by
mailing a copy to the defendant’s last known address.
(3) Summons or Warrant. Upon an indictment, or upon a
showing by one of the other charging documents specified in
Rule 58(b)(1) of probable cause to believe that an offense has
been committed and that the defendant has committed it, the
court may issue an arrest warrant or, if no warrant is re-
quested by an attorney for the government, a summons. The
showing of probable cause must be made under oath or under
penalty of perjury, but the affiant need not appear before the
court. If the defendant fails to appear before the court in re-
sponse to a summons, the court may summarily issue a war-
rant for the defendant’s arrest.
(e) Recording the Proceedings. The court must record any pro-
ceedings under this rule by using a court reporter or a suitable re-
cording device.
(f) New Trial. Rule 33 applies to a motion for a new trial.
(g) Appeal.
(1) From a District Judge’s Order or Judgment. The Federal
Rules of Appellate Procedure govern an appeal from a district
judge’s order or a judgment of conviction or sentence.
(2) From a Magistrate Judge’s Order or Judgment.
(A) Interlocutory Appeal. Either party may appeal an
order of a magistrate judge to a district judge within 14
days of its entry if a district judge’s order could similarly
be appealed. The party appealing must file a notice with
the clerk specifying the order being appealed and must
serve a copy on the adverse party.
(B) Appeal from a Conviction or Sentence. A defendant may
appeal a magistrate judge’s judgment of conviction or sen-
tence to a district judge within 14 days of its entry. To ap-
peal, the defendant must file a notice with the clerk speci-
fying the judgment being appealed and must serve a copy
on an attorney for the government.
(C) Record. The record consists of the original papers and
exhibits in the case; any transcript, tape, or other record-
ing of the proceedings; and a certified copy of the docket
entries. For purposes of the appeal, a copy of the record of
the proceedings must be made available to a defendant
who establishes by affidavit an inability to pay or give se-
curity for the record. The Director of the Administrative
Office of the United States Courts must pay for those cop-
ies.
(D) Scope of Appeal. The defendant is not entitled to a
trial de novo by a district judge. The scope of the appeal
is the same as in an appeal to the court of appeals from a
judgment entered by a district judge.
(3) Stay of Execution and Release Pending Appeal. Rule 38 ap-
plies to a stay of a judgment of conviction or sentence. The
court may release the defendant pending appeal under the law
relating to release pending appeal from a district court to a
court of appeals.