CHAPTER III.

SERVICE OF PROCESS.

General instructions...

Docketing, delivering, and reporting service of writs..

Procedure in serving..

Summoning jurors..

Reports involving property interests of the Government and collections of revenues and debts due the United States..

Resistance or defiance of Federal authority, special deputies, possemen

GENERAL INSTRUCTIONS.

205. When deputies are absent from their official headquarters in the service of process, they should keep the marshal constantly advised of their whereabouts, reporting at the close of each day where they are located and where they expect to be on succeeding days.

206. Unserved process remaining in the hands of a marshal or his deputy must be delivered to the succeeding marshal upon request; likewise an outgoing deputy must deliver to his principal, upon request, all process remaining in his hands. (See 30 Stat. L., 1237.)

207. A warrant of arrest does not run beyond the district in which it issues. Fees and expenses for serving such writs in another district are not allowable. (See 1 Comp., 127, and 10 Comp., 438.)

208. While a warrant of arrest does not run beyond the district where issued, it may be used in another district as a foundation for securing the removal and arrest of the defendant. (See sec. 1014, R. S. U. S., and 10 Comp., 438.)

209. Warrants of arrest must contain a sufficient description of the person to be apprehended to enable identification. Otherwise deputies are not entitled to fees or expenses for serving them. Simple John Doe warrants are not valid or legal writs. (See 16 Comp., 891.)

210. All copies of writs should be made in the marshal's office by the office force.

DOCKETING, DELIVERING, AND REPORTING

SERVICE OF WRITS.

211. Ordinarily writs issued by clerks of courts and commissioners should be sent directly to the marshal's office for docketing and distribution among the deputies for service. Instructions as to docketing will be found in paragraph 252a.

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212. If circumstances will not admit of the delay incident to sending writs to the marshal's office, they may be handed or mailed directly to the deputy located nearest the probable place of service, but in all such cases the deputy must immediately notify the marshal on Form 645, giving all the information indicated by the form.

213. After docketing, writs should be sent to the deputy nearest the probable place of service, unless the deputies have been assigned to certain territory, in which event they should be distributed according to such assignments. The question of unnecessary travel is involved in every case where a writ is served by a deputy who is not nearest the place of service, and explanation will be required incident to the allowance of mileage or expenses.

214. A report of the service of each writ prepared on Form 32 should be promptly transmitted to the marshal's office.

PROCEDURE IN SERVING.

215. Subpoenas should be served, as far as practicable, on trips taken for the purpose of executing warrants. It is the duty of deputies to exercise all reasonable diligence in locating witnesses. The service of subpoenas may not be intrusted to private individuals.

216. When subpoenas are served on salaried Government officials or employees, they should be notified that they will receive actual expenses only and advised that they should obtain receipts for lodging, subsistence, hire of vehicles, stage fare, and other like items.

217. With the exceptions noted below, defendants must be taken before the commissioner or other judicial officer having jurisdiction nearest the place of arrest. If such official is absent or does not hear the case, the prisoner should be taken before the next nearest official having jurisdiction. (See pars. 427 to 433; see also 28 Stat. L., 416.)

218. The following are modifications of the rule requiring defendants to be taken before the nearest commissioner:

(a) If a defendant is arrested on a commissioner's warrant, based on an indictment found in another district, he need not be taken before a commissioner unless to give bond, but may be taken direct to the judge for a warrant of removal to be issued.

(b) Commissioners may be specially designated in Chinese-exclusion cases. (See pars. 432 and 433.)

(c) Persons arrested on writs of capias should be taken directly to court, if in session, unless the defendant desires to and can give bond for his appearance, in which case he should be taken before the nearest commissioner for that purpose. (See Comp. to Marshal Allen, Oct. 17, 1900.)

SUMMONING JURORS.

219. Provisions governing the method of drawing jurors, their qualifications, exemptions, etc., will be found in chapter 12 of the Judicial Code. (See 36 Stat. L., 1164 to 1166.)

220. Writs of venire facias are ordinarily served and returned by the marshal or his deputies. If the marshal or his deputy is interested in the event of the cause, special appointment may be made. by the court for the service of the writ. (See sec. 279, Judicial Code.) 221. Persons residing elsewhere than at the place where court is held should be served by registered mail. (See sec. 279, Judicial Code.) The receipts for the registered letters obtained by the Post Office Department from the persons so summoned may be returned to the clerk of the court with the return of service of the venire.

222. The marshal should see that there is printed or stamped upon the reverse side of each summons for a juror (Form 58), mailed or otherwise served, the following notice:

SPECIAL NOTICE.-If you have moved out of the judicial district, wish to claim exemption from jury service, or desire to be excused from such duty, you should state the facts briefly and clearly, supporting your statement by affidavit and mailing it at once to the United States district judge. Unless so ordered by the court, mileage or per diems will not be paid to any person who, desiring to be excused or having removed from the district, fails to observe the above instructions.

223. When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel. If the marshal or his deputy is disqualified, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn as provided by law. (See 36 Stat. L., 1165.)

224. When special juries are ordered in any district court, they shall be returned by the marshals in the same manner and form as is required in such cases by the laws of the several States. (See 36 Stat. L., 1165.)

225. Every grand jury impaneled before any district court shall consist of not less than 16 nor more than 23 persons. If of the persons summoned less than 16 attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. (See 36 Stat. L., 1165.)

REPORTS INVOLVING PROPERTY INTERESTS OF THE GOVERNMENT AND COLLECTIONS BY EXECUTION OR OTHERWISE OF REVENUES AND DEBTS DUE THE UNITED STATES.

227. On receipt of an execution, distress warrant, or other writ requiring the collection of money, or the sale or seizure of property, in all civil United States cases (except internal revenue), the marshal shall immediately report to the Solicitor of the Treasury, on Form 3, the date of the receipt of the same and other information therein required, and shall perform his duty zealously in searching for property, in making levy, sale, and return, or in any other usual and proper efforts for the collection of the money.

228. Immediately after the return of any of such writs, or order of sale, the marshal shall make further report to the Solicitor of the Treasury, on Form 4 of all that has been done under the writ; and shall also make a similar report to the district attorney.

229. Where a marshal, in a United States case (except internal revenue), makes a seizure or a levy, he will report to the Solicitor of the Treasury a full description of the property seized or levied upon, in whose possession found, where, how, by whom; upon what terms kept, and how long it will be necessary to keep it.

230. In cases where the return is, in substance, "no property to be found," the marshal will also specially report to the Solicitor of the Treasury and district attorney the situation, residence, and circumstances of the party against whom the writ was issued; whether the debtor has any means within or out of the district which can be reached by the United States; or whether the debt is valueless.

231. If at a marshal's sale in a United States case (except internal revenue), no one bids to the amount of the execution, or one-half of the cash value of the property offered, he will postpone the sale, and give notice to the United States attorney and the Solicitor of the Treasury, except in cases where by such postponement the lien would be lost, or the interest of the Government otherwise seriously jeopardized. In the latter case, if he shall deem it necessary, to save the debt, he will consider the United States as bidding such amount, not greater than one-half the cash value of the property, as he shall deem proper for its interest. Should the United States become the purchaser of the property, the marshal will take care of the same and promptly report all action.

232. When real estate shall be purchased at a marshal's sale by or for the United States (except in internal-revenue cases), the marshal will immediately transmit to the Solicitor of the Treasury his certificate of sale, according to the law and usages in his district; and when the purchaser shall be entitled thereto, such marshal shall execute his deed for the property to the United States, cause the same to be placed on

record, and immediately thereafter transmit such deed to the Solicitor of the Treasury.

233. If the real estate sold is not redeemed, he will immediately report the fact to the Solicitor of the Treasury.

234. On receiving money in the United States cases (except internal revenue) marshals will promptly pay same over to the clerk of the court, report the matter to the district attorney and the Solicitor of the Treasury, stating when, from whom, and on what account it was received.

235. Marshals will give notice in writing to the district attorney of all acts of trespass and all breaches of the customs revenue or other laws (except internal revenue) whereby pecuniary penalties in favor of the United States have been incurred by the wrongdoers which shall come to the knowledge of such officer or of which he shall be credibly informed, stating the particular act, with the time when committed, and the names of the witnesses, if known, and shall immediately forward to the Solicitor a copy of such notice.

236. These instructions apply to forfeited recognizance cases arising from violations of internal-revenue laws, such cases being included in the class of general civil cases and not as internal revenue.

237. United States marshals will report to the Solicitor of the Treasury the existence and situation of any property belonging to the United States which is not in the care of any officer or agent of the Government, to the end that it may be protected and preserved. If he shall discover that any claim in favor of the Government, not in his hands, can be collected, he will report to the Attorney General, and recommend the best mode of proceeding. He will also report immediately to the Attorney General any default of a United States attorney, clerk, collector, or other person engaged in the collection of any debt due to the United States, or of the customs revenue, or in the disbursement of any money belonging to the Government.

RESISTANCE OR DEFIANCE OF FEDERAL
AUTHORITY.

238. If special deputies or possemen should be needed, by reason of unusual resistance or defiance of Federal authority, actual or anticipated, action should be taken as directed in paragraphs 349 to 354 entitled "Extraordinary Expenses."