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February 10, 1960

UNITED STATES of America, Plaintiff,
Howard KRAPF, d/b/a Krapf Trucking Service

The opinion of the court was delivered by: HARTSHORNE

A criminal information in twelve counts was filed against defendant for violation of the Motor Carriers chapter of the Interstate Commerce Act, 49 U.S.C.A. ยง 322(a), both as enacted in 1949 and as thereafter amended in 1957. Upon the imposition of sentence on a plea of guilty to seven counts, the United States Marshal in charge of fingerprinting in this District attempted to fingerprint the defendant, to which the defendant objected. Thereupon counsel on both sides submitted to the Court the question of the propriety of such fingerprinting.

 Defendant's prime objection to being fingerprinted is based upon his contention that his violations do not constitute an offense or crime of such a nature that the Marshal is authorized to fingerprint him, plus some ancillary objections hereinafter alluded to.

 The original Act only fixed a maximum penalty for each offense so that a fine of but $ 1 was lawful. The amendment cured this apparent defect by fixing a minimum penalty as well. Both acts only penalized violations which were 'knowingly and willfully' done, and provided for a fine 'upon conviction', and that 'each day of such violation shall constitute a separate offense.'

 The Congressional statutes are searched in vain for any authority in express words for the fingerprinting of anyone. The only action taken by the Congress in that regard apparently is the Annual Appropriations Act for the Departments of State, Justice, the Judiciary, and related agencies, which for the fiscal year ending June 30, 1959 appropriates 'for expenses necessary for the detection and prosecution of crimes against the United States * * * acquisition, collection, classification and preservation of identification and other records and their exchange with, and for the official use of, the duly authorized officials of the Federal Government, of State, cities, and other institutions * * *' P.L. 85-474; 72 Stat. 244; U.S. Code Congressional and Administrative News, 85th Cong. 2d Sess. 1958, p. 292. The only additional Congressional authority impliedly existing for Federal fingerprinting is the provision that 'The United States Marshal and his deputies, in executing the laws of the United States within a state, may exercise the same powers which a sheriff of such state may exercise in executing the laws thereof.' Title 28 U.S.C.A. ยง 549; Act June 25, 1948, Chap. 646, 62 Stat. 912. In other words, a United States Marshal has the same powers in executing the laws of the United States in the state where the Marshal serves, as the Sheriff of such state has in executing the state laws. So the question, is, what fingerprinting power does a New Jersey Sheriff have under the State law, which, by appropriate analogy under the Federal law, inheres in the United States Marshal?

 But it cannot be validly argued that the absence of a Federal statute expressly authorizing United States Marshals to fingerprint deprives them of the right to do so, this on the theory that a statute which imposes the duty to convict persons of Federal criminal violations carries with it by implication every reasonable means necessary to effectuate that conviction. United States v. Kelly, 2 Cir., 1932, 55 F.2d 67, 83 A.L.R. 122. The Court there said, at page 70:

 'We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced both in jurisdictions where there are statutory provisions regulating it and where it has no sanction other than the common law.'

 But the question still remains, what is the general authority of the New Jersey Sheriff to fingerprint, now vested in the United States Marshal by analogy under the above mentioned Federal Act?

 The New Jersey statute in question provides:

 'The sheriffs * * * shall immediately upon the arrest of any person for an indictable offense, * * * (plus other provisions here immaterial) take the fingerprints of such person according to the fingerprint system of identification established by the Superintendent of State Police * * *.'

 N.J.S.A. 53:1-15 (Brackets this Court's)

 The New Jersey statutes further provide:

 'The supervisor of the state bureau of identification shall cooperate with the bureaus in other states and with the bureau in the department of justice of the United States and shall develop and carry on an interstate, national and international system of identification within the requirements of the state bureau of identification.' N.J.S.A. 53:1-19.

 Accordingly, the United States Marshal, irrespective of other authority here inapplicable, is authorized, as is a New Jersey Sheriff, to 'take the fingerprints of * * *' any person arrested 'for an indictable offense.' The immediate question for decision therefore is whether or not Section 322(a), of the violation of which the defendant here was convicted, creates 'an indictable offense.'

 It is, of course, well settled that there are many offenses of a criminal nature, both State and Federal, which are not common law crimes nor constitutional crimes within the provisions of the United States Constitution, Article III, or Amendment VI. *fn1" Such offenses do not require a jury trial. Callan v. Wilson, 1888, 127 U.S. 540, 8 S. Ct. 1301, ...

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