United States) to the criminal action or proceeding in which the foreign documents in question are to be used, unless such party has, prior to the issuance of the commission, notified the court that he does not desire the selection of foreign counsel to represent him at the time of taking of such testimony. In cases of testimony taken on written interrogatories, such provision shall be made only upon the request of any such party prior to the issuance of such commission. Selection of foreign counsel shall be made by the party whom such foreign counsel is to represent within ten days prior to the taking of testimony or by the court from which the commission issued, upon the request of such party made within such time. (b) Any consular officer to whom a commission is addressed to take testimony, who is interested in the outcome of the criminal action or proceeding in which the foreign documents in question are to be used or has participated in the prosecution of such action or proceeding, whether by investigations, preparation of evidence, or otherwise, may be disqualified on his own motion or on that of the United States or any other party to such criminal action or proceeding made to the court from which the commission issued at any time prior to the execution thereof. If after notice and hearing, the court grants the motion, it shall instruct the consular officer thus disqualified to send the commission to any other consular officer of the United States named by the court, and such other officer shall execute the commission according to its terms and shall for all purposes be deemed the officer to whom the commission is addressed. (c) The provisions of this section and sections 3493—3496 of this title applicable to consular officers shall be applicable to diplomatic officers pursuant to such regulations as may be prescribed by the President. (June 25, 1948, ch. 645, § 1, 62 Stat. 834; May 24, 1949, ch. 139, § 53, 63 Stat. 96.) LEGISLATIVE HISTORY Reviser's Note.-Based on section 695b of title 28, U. S. C., 1940 ed., Judicial Code and Judiciary (June 20, 1936, ch. 640, § 3, 49 Stat. 1562). AMENDMENTS 1949-Subsec. (a) amended by act May 24, 1949, which substituted "section 1732" in lieu of "section 695". CROSS REFERENCES Records made in regular course of business, see section 1732 of Title 28, Judiciary and Judicial Procedure. FEDERAL RULES OF CRIMINAL PROCEDURE Proof of official record, see rule 27 following section 3771 of this title. FEDERAL RULES OF CIVIL PROCEDURE Proof of official records, see rule 44 following section 2072 of Title 28, Judiciary and Judicial Procedure. § 3493. Deposition to authenticate foreign documents. The consular officer to whom any commission authorized under section 3492 of this title is addressed shall take testimony in accordance with its terms. Every person whose testimony is taken shall be cautioned and sworn to testify the whole truth and carefully examined. His testimony shall be reduced to writing or typewriting by the consular officer taking the testimony, or by some person under his personal supervision, or by the witness himself, in the presence of the consular officer and by no other person, and shall, after it has been reduced to writing or typewriting, be subscribed by the witness. Every foreign document, with respect to which testimony is taken, shall be annexed to such testimony and subscribed by each witness who appears for the purpose of establishing the genuineness of such document. When counsel for all the parties attend the examination of any witness whose testimony is to be taken on written interrogatories, they may consent that oral interrogatories in addition to those accompanying the commission may be put to the witness. The consular officer taking any testimony shall require an interpreter to be present when his services are needed or are requested by any party or his attorney. (June 25, 1948, ch. 645, § 1, 62 Stat. 835.) LEGISLATIVE HISTORY Reviser's Note.-Based on section 695c of title 28, U. S. C., 1940 ed., Judicial Code and Judiciary (June 20, 1936, ch. 640, § 4, 49 Stat. 1563). CROSS REFERENCES Commission to consular officers to authenticate foreign documents, see section 3492 of this title. Fees for witnesses and interpreters, see section 3495 of this title. FEDERAL RULES OF CRIMINAL PROCEDURE Proof of official records, see rule 27 following section 3771 of this title. § 3494. Certification of genuineness of foreign document. If the consular officer executing any commission authorized under section 3492 of this title shall be satisfied, upon all the testimony taken, that a foreign document is genuine, he shall certify such document to be genuine under the seal of his office. Such certification shall include a statement that he is not subject to disqualification under the provisions of section 3492 of this title. He shall thereupon transmit, by mail, such foreign documents, together with the record of all testimony taken and the commission which has been executed, to the clerk of the court from which such commission issued, in the manner in which his official dispatches are transmitted to the Government. The clerk receiving any executed commission shall open it and shall make any foreign documents and record of testimony, transmitted with such commission, available for inspection by the parties to the criminal action or proceeding in which such documents are to be used, and said parties shall be furnished copies of such documents free of charge. (June 25, 1948, ch. 645, § 1, 62 Stat. 835.) LEGISLATIVE HISTORY Reviser's Note.-Based on section 695d of title 28, U. S. C., 1940 ed., Judicial Code and Judiciary (June 20, 1936, ch. 640, § 5, 49 Stat. 1563). § 3495. Fees and expenses of consuls, counsel, interpreters and witnesses. (a) The consular fees prescribed under section 1201 of Title 22, for official services in connection with the taking of testimony under sections 3492-3494 of this title, and the fees of any witness whose testimony is taken shall be paid by the party who applied for the commission pursuant to which such testimony was taken. Every witness under section 3493 of this title shall be entitled to receive, for each day's attendance, fees prescribed under section 3496 of this title. Every foreign counsel selected pursuant to a commission issued on application of the United States, and every interpreter whose services are required by a consular officer under section 3493 of this title, shall be paid by the United States, such compensation, together with such personal and incidental expense upon verified statements filed with the consular officer, as he may allow. Compensation and expenses of foreign counsel selected pursuant to a commission issued on application of any party other than the United States shall be paid by the party whom such counsel represents and shall be allowed in the same manner. (b) Whenever any party makes affidavit, prior to the issuance of a commission for the purpose of taking testimony, that he is not possesed of sufficient means and is actually unable to pay any fees and costs incurred under this section, such fees and costs shall, upon order of the court, be paid in the same manner as fees and costs are paid which are chargeable to the United States. (c) Any appropriation available for the payment of fees and costs in the case of witnesses subpenaed in behalf of the United States in criminal cases shall be available for any fees or costs which the United States is required to pay under this section. (June 25, 1948, ch. 645, § 1, 62 Stat. 836; May 24, 1949, ch. 139, § 54, 63 Stat. 96.) LEGISLATIVE HISTORY Reviser's Note.-Based on section 695f of title 28, U. S. C., 1940 ed., Judicial Code and Judiciary (June 20, 1936, ch. 640, § 7, 49 Stat. 1564). AMENDMENTS 1949-Subsec. (a) amended by act May 24, 1949, which substituted "section 1201" in lieu of "section 127". § 3496. Regulations by President as to commissions, fees of witnesses, counsel and interpreters. The President is authorized to prescribe regulations governing the manner of executing and returning commissions by consular officers under the provisions of sections 3492—3494 of this title and schedules of fees allowable to witnesses, foreign counsel, and interpreters under section 3495 of this title. (June 25, 1948, ch. 645, § 1, 62 Stat. 836.) LEGISLATIVE HISTORY Reviser's Note.-Based on section 695g of title 28, U. S. C., 1940 ed., Judicial Code and Judiciary (June 20, 1936, ch. 640, § 8, 49 Stat. 1564). Ex. ORD. No. 10307. DELEGATION OF AUTHORITY Ex. Ord. No. 10307, Nov. 26, 1951, 16 F. R. 11907, provided: By virtue of the authority vested in me by the act of August 8, 1950, 64 Stat. 419 (3 U. S. C. Supp. 301-303), I hereby delegate to the Secretary of State (1) the authority vested in the President by section 3496 of title 18 of the United States Code (62 Stat. 836) [this section] to prescribe regulations governing the manner of executing and returning commissions by consular officers under the provisions of sections 3492-3494 of the said title, and schedules of fees allowable to witnesses, foreign counsel, and interpreters under section 3495 of the said title, and (2) the authority vested in the President by section 3492 (c) of title 18 of the United States Code (62 Stat. 835) to prescribe regulations making the provisions of sections 3492-3496 of the said title applicable to diplomatic officers. Executive Order No. 8298 of December 4, 1939, entitled "Regulations Governing the Manner of Executing and; Returning Commissions by Officers of the Foreign Service in Criminal Cases, and Schedule of Fees and Compensation in Such Cases", is hereby revoked. § 3497. Account as evidence of embezzlement. Upon the trial of any indictment against any person for embezzling public money it shall be sufficient evidence, prima facie, for the purpose of showing a balance against such person, to produce a transcript from the books and proceedings of the General Accounting Office. (June 25, 1948, ch. 645, § 1, 62 Stat. 836.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., §§ 179, 355; section 668 of title 28, U. S. C., 1940 ed., Judicial Code and Judiciary (R. S. § 887; Mar. 4, 1909, ch. 321, §§ 93, 225, 35 Stat. 1105, 1133; June 10, 1921, ch. 18, § 304, 42 Stat. 24). This section is a consolidation of section 179 of title 18, U. S. C., 1940 ed., with similar provisions of section 355 of title 18, U. S. C., 1940 ed., and section 668 of title 28, U. S. C., 1940 ed., Judicial Code and Judiciary, with changes of phraseology only except that "General Accounting Office" was substituted for "Treasury Department". Other provisions of said section 355 of title 18, U. S. C., 1940 ed., are incorporated in section 1711 of this title. Words in second sentence of said section 355 of title 18, U. S. C., 1940 ed., which preceded the semicolon therein and which read "Any failure to produce or to pay over any such money or property, when required so to do as above provided, shall be taken to be prima facie evidence of such embezzlement" were omitted as surplusage, because such failure to produce or to pay over such money or property constitutes embezzlement. (See sections 653 and 1711 of this title.) CROSS REFERENCES Accounting generally for public money, see section 643 of this title. Admissibility of Government records and papers, see section 1733 of Title 28, Judiciary and Judicial Procedure. Certified transcripts of General Accounting Office admissible in evidence, see section 46 of Title 31, Money and Finance. Embezzlement of public money, see section 641 of this title. Refusal to pay as evidence of embezzlement, see section 3487 of this title. § 3498. Depositions-(rule). SEE FEDERAL RULES OF CRIMINAL PROCEDURE Time, manner and conditions of taking depositions; costs; notice; use; objections; written interrogatories, Rule 15. Subpoenas on taking depositions, Rule 17 (f). (June 25, 1948, ch. 645, § 1, 62 Stat. 836.) § 3499. Contempt of court by witness-(rule). (June 25, 1948, ch. 645, § 1, 62 Stat. 836.) Sec. Chapter 225.-VERDICT 3531. Return; several defendants; conviction of less offense; poll of jury-Rule. 3532. Setting aside verdict of guilty; judgment notwithstanding verdict-Rule. of punishment, such judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases. Where the judgment directs imprisonment until the fine or penalty imposed is paid, the issue of execution on the judgment shall not discharge the defendant from imprisonment until the amount of the judgment is paid. (June 25, 1948, ch. 645, § 1, 62 Stat. 837.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., § 569 (R. S. § 1041). Minor changes were made in phraseology. CROSS REFERENCES Discharge of indigent prisoner, see section 3569 of this title. FEDERAL RULES OF CIVIL PROCEDURE Execution, see rule 69 following section 2072 of Title 28, Judiciary and Judicial Procedure. FEDERAL RULES OF CRIMINAL PROCEDURE Bond for payment of fine pending appeal, see rule 38 (a) (3) following section 3771 of this title. Depositing the whole or part of fine pending appeal, see rule 38 (a) (3). Examination of assets pending appeal, see rule 38 (a) (3). Order restraining dissipation of assets pending appeal, see rule 38 (a) (3). Stay of fine, see rule 38 (a) (3). § 3566. Execution of death sentence. The manner of inflicting the punishment of death shall be that prescribed by the laws of the place within which the sentence is imposed. The United States marshal charged with the execution of the sentence may use available local facilities and the services of an appropriate local official or employ some other person for such purpose, and pay the cost thereof in an amount approved by the Attorney General. If the laws of the place within which sentence is imposed make no provision for the infliction of the penalty of death, then the court shall designate some other place in which such sentence shall be executed in the manner prescribed by the laws thereof. (June 25, 1948, ch. 645, § 1, 62 Stat. 837.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., § 542 (Mar. 4, 1909, ch. 321, § 323, 35 Stat. 1151, June 9, 1937, ch. 367, 50 Stat. 304). Word "place" was substituted for "State" in three places, so as to make it clear that this section applies to a district, possession or territory, as well as to a state. In a recent Hawaiian case in which the death penalty was imposed, this section was the only authority for the execution in the manner prescribed by Hawaiian law. Minor changes were made in phraseology. CROSS REFERENCES Addition to the judgment of death that the body of the offender be delivered to a surgeon for dissection, see section 3567 of this title. § 3567. Death sentence may prescribe dissection. The court before which any person is convicted of murder in the first degree, or rape, may, in its discretion, add to the judgment of death, that the body of the offender be delivered to a surgeon for dissection; and the marshal who executes such judgment shall deliver the body, after execution, to such surgeon as the court may direct; and such surgeon, or some person appointed by him, shall receive and take away the body at the time of execution. (June 25, 1948, ch. 645, § 1, 62 Stat. 838.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., § 543 (Mar. 4, 1909, ch. 321, § 331, 35 Stat. 1152). CROSS REFERENCES Rescue of body of executed offender as offense, see section 754 of this title. § 3568. Effective date of sentence. The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term. (June 25, 1948, ch. 645, § 1, 62 Stat. 838.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., § 709a (June 29, 1932, ch. 310, § 1, 47 Stat. 381). Minor change in phraseology was made. FEDERAL RULES OF CRIMINAL PROCEDURE Correction or reduction of sentence, see rule 35 following section 3771 of this title. Election to commence service of sentence of imprisonment, see rule 38 (a) (2). Sentence and judgment, see rule 32. FEDERAL FORMS OF CRIMINAL PROCEDURE Form of judgment and commitment, see form 25 following section 3771 of this title. § 3569. Discharge of indigent prisoner. (a) When a poor convict, sentenced for violation of any law of the United States by any court established by enactment of Congress, to be imprisoned and pay a fine, or fine and costs, or to pay a fine, or fine and costs, has been confined in prison thirty days, solely for the nonpayment of such fine, or fine and costs, such convict may make application in writing to the nearest United States commissioner in the district where he is imprisoned setting forth his inability to pay such fine, or fine and costs, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter. If on examination it shall appear to him that such convict is unable to pay such fine, or fine and costs, and that he has not any property exceeding $20 in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath: "I do solemnly swear that I have not any property, real or personal, exceeding $20, except such as is by law exempt from being taken on civil process for debt; 24626-53—vol. 2-59 and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God." Upon taking such oath such convict shall be discharged; and the commissioner shall file with the institution in which the convict is confined, a certificate setting forth the facts. In case the convict is found by the commissioner to possess property valued at an amount in excess of said exemption, nevertheless, if the Attorney General finds that the retention by such convict of all of such property is reasonably necessary for his support or that of his family, such convict shall be released without further imprisonment solely for the nonpayment of such fine, or fine and costs; or if he finds that the retention by such convict of any part of such property is reasonably necessary for his support or that of his family, such convict shall be released without further imprisonment solely for nonpayment of such fine or fines and costs upon payment on account of his fine and costs, of that portion of his property in excess of the amount found to be reasonably necessary for his support or that of his family. (b) Any such indigent prisoner in a Federal institution may, in the first instance, make his application to the warden of such institution, who shall have all the powers of a United States Commissioner in such matters, and upon proper showing in support of the application shall administer the oath required by subsection (a) of this section, discharge the prisoner, and file his certificate to that effect in the records of the institution. Any such indigent prisoner, to whom the warden shall fail or refuse to administer the oath may apply to the nearest Commissioner for the relief authorized by this section and the Commissioner shall proceed de novo to hear and determine the matter. (June 25, 1948, ch. 645, § 1, 62 Stat. 838.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., § 641 (R. S. §§ 1042, 5296; May 28, 1896, ch. 252, § 19, 29 Stat. 184; Mar. 2, 1901, ch. 814, 31 Stat. 956; May 24, 1935, ch. 142, 49 Stat. 289; June 29, 1940, ch. 449, § 4, 54 Stat. 692; July 10, 1946, ch. 547, 60 Stat. 524, 525). Words "for violation of any law of the United States by any court established by enactment of Congress," were substituted at beginning of section for "by any court of the United States", to make clear that this section extends to the territories and possessions as well as within the continental United States and the District of Columbia. The Act of June 29, 1940, ch. 449, § 4, 54 Stat. 692 amending R. S. § 5296, inadvertently omitted the provision of the Act of May 24, 1935, ch. 142, 49 Stat. 289, which extended the application of the section to Alaska. The revised section repairs this omission and gives legislative sanction to an administrative construction which has continued the application of the statute to cases arising in Alaska. The words in parentheses naming the State where oath is administered were deleted as unnecessary and misleading since the law of the place where the property has its situs is controlling as to exemptions. Minor changes of phraseology were also made. CROSS REFERENCES Collection of fines and penalties, see section 3565 of this title. District Court of Alaska as court of United States, see section 101a of Title 48, Territories and Insular Possessions. § 3570. Presidential remission as affecting unremitted part. Whenever, by the judgment of any court or judicial officer of the United States, in any criminal proceeding, any person is sentenced to two kinds of punishment, the one pecuniary and the other corporal, the President's remission in whole or in part of either kind shall not impair the legal validity of the other kind, or of any portion of either kind, not remitted. (June 25, 1948, ch. 645, § 1, 62 Stat. 839.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., §§ 568, 723 (Mar. 4, 1909, ch. 321, § 327, 35 Stat. 1151; June 25, 1910, ch. 387, § 10, 36 Stat. 821). Words "pardon or" before "remit" and "pardoned or" before "remitted", were omitted as unnecessary in view of the pardoning power of the President under Const. Art. 2, § 2, cl. 1. "The power of the President is not subject to legislative control." Ex parte Gerland, 1866, 4 Wall. 380. (See also notes of decisions, note 5, U. S. C. A. Const. Art. 2, § 2, cl. 1.) CROSS REFERENCES Commutation of sentence Good conduct, see section 4161 of this title. Industrial good time, see section 4162 of this title. Narcotic addicts, application of this section, see section 259 (b) of Title 42, The Public Health and Welfare. Pardon of certain crimes precluding deportation of aliens, see section 155 (a) of Title 8, Aliens and Nationality. Presidential reprieves and pardons, see Const. Art. 2, § 2, cl. 1. § 3571. Clerical mistakes-(rule). SEE FEDERAL RULES OF CRIMINAL PROCEDURE Court empowered to correct clerical mistakes in judgments, orders, or record, Rule 36. (June 25, 1948, ch. 645, § 1, 62 Stat. 839.) § 3572. Correction or reduction of sentence-(rule). (June 25, 1948, ch. 645, § 1, 62 Stat. 839.) § 3573. Arrest or setting aside of judgment-(rule). SEE FEDERAL RULES OF CRIMINAL PROCEDURE Arrest of Judgment, grounds and motion, time, Rule 34. Setting aside judgment and permitting withdrawal of plea of guilty, Rule 32 (d). (June 25, 1948, ch. 645, § 1, 62 Stat. 839.) § 3574. Stay of execution; supersedeas-(rule). SEE FEDERAL RULES OF CRIMINAL PROCEDURE Death or imprisonment sentence, fines stayed on appeal; conditions and power of court, Rule 38 (a). (June 25, 1948, ch. 645, § 1, 62 Stat. 839.) AMENDMENTS 1951-Act Aug. 24, 1951, ch. 546, § 1, 65 Stat. 609, amended analysis by adding item "3619". § 3611. Firearms possessed by convicted felons. A judgment of conviction for transporting a stolen motor vehicle in interstate or foreign commerce or for committing or attempting to commit a felony in violation of any law of the United States involving the use of threats, force, or violence or perpetrated in whole or in part by the use of firearms, may, in addition to the penalty provided by law for such offense, order the confiscation and disposal of firearms and ammunition found in the possession or under the immediate control of the defendant at the time of his arrest. The court may direct the delivery of such firearms or ammunition to the law-enforcement agency which apprehended such person, for its use or for any other disposition in its discretion. (June 25, 1948, ch. 645, § 1, 62 Stat. 839.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., § 645 (June 13, 1939, ch. 197, 53 Stat. 814). The condensation and simplification of this section clarifies its intent to confiscate the firearms taken from persons convicted of crimes of violence without any real change of substance. § 3612. Bribe moneys. Moneys received or tendered in evidence in any United States Court, or before any officer thereof, which have been paid to or received by any official as a bribe, shall, after the final disposition of the case, proceeding or investigation, be deposited in the registry of the court to be disposed of in accordance with the order of the court, to be subject, however, to the provisions of section 2042 of Title 28. (June 25, 1948, ch. 645, § 1, 62 Stat. 840; May 24, 1949, ch. 139, § 55, 63 Stat. 96.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., § 570 (Jan. 7, 1925, ch. 33, 43 Stat. 726). Changes were made in phraseology. AMENDMENTS 1949-Act May 24, 1949 amended section by substituting "section 2042" in lieu of "section 852". CROSS REFERENCES Appropriation account for return of unclaimed money deposited by clerks of courts to be covered into trust fund receipt account of Treasury, see section 725p (b) (14) of Title 31, Money and Finance. Withdrawal of money deposited in court, see section 2042 of Title 28, Judiciary and Judicial Procedure. § 3613. Fines for setting grass and timber fires. In all cases arising under sections 1855 and 1856 of this title the fines collected shall be paid into the public-school fund of the county in which the lands where the offense was committed are situated. (June 25, 1948, ch. 645, § 1, 62 Stat. 840.) LEGISLATIVE HISTORY Reviser's Note.-Based on title 18, U. S. C., 1940 ed., § 108 (Mar. 4, 1909, ch. 321, § 54, 35 Stat. 1099). CROSS REFERENCES Fires left unattended and unextinguished, see section 1856 of this title. Timber set afire, see section 1855 of this title. |