[House Prints 108-7]
[From the U.S. Government Publishing Office]
FEDERAL RULES
OF
CRIMINAL PROCEDURE
____
DECEMBER 31, 2004
[GRAPHIC] [TIFF OMITTED]
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
108th Congress
2nd Session COMMITTEE PRINT No. 7
________________________________________________________________________
FEDERAL RULES
OF
CRIMINAL PROCEDURE
____
DECEMBER 31, 2004
[GRAPHIC] [TIFF OMITTED]
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250
Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
One Hundred Eighth Congress
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR S. SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North
WILLIAM L. JENKINS, Tennessee Carolina
CHRIS CANNON, Utah ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
JOHN N. HOSTETTLER, Indiana MAXINE WATERS, California
MARK GREEN, Wisconsin MARTIN T. MEEHAN,
RIC KELLER, Florida Massachusetts
MELISSA A. HART, Pennsylvania WILLIAM D. DELAHUNT,
JEFF FLAKE, Arizona Massachusetts
MIKE PENCE, Indiana ROBERT WEXLER, Florida
J. RANDY FORBES, Virginia TAMMY BALDWIN, Wisconsin
STEVE KING, Iowa ANTHONY D. WEINER, New York
JOHN R. CARTER, Texas ADAM B. SCHIFF, California
TOM FEENEY, Florida LINDA T. SANCHEZ, California
MARSHA BLACKBURN, Tennessee
Phil Kiko, Chief of Staff -- General Counsel
Perry Apelbaum, Minority Chief Counsel
Ted Kalo, Minority General Counsel
(ii)
FOREWORD
This document contains the Federal Rules of Criminal Procedure, as
amended to December 31, 2004. The rules have been promulgated and
amended by the United States Supreme Court pursuant to law, and further
amended by Acts of Congress. This document has been prepared by the
Committee in response to the need for an official up-to-date document
containing the latest amendments to the rules.
For the convenience of the user, where a rule has been amended a
reference to the date the amendment was promulgated and the date the
amendment became effective follows the text of the rule.
The Committee on Rules of Practice and Procedure and the Advisory
Committee on the Federal Rules of Criminal Procedure, Judicial
Conference of the United States, prepared notes explaining the purpose
and intent of the amendments to the rules. The Committee Notes may be
found in the Appendix to Title 18, United States Code, following the
particular rule to which they relate.
Chairman, Committee on the Judiciary.
December 31, 2004.
(iii)
AUTHORITY FOR PROMULGATION OF RULES
TITLE 28, UNITED STATES CODE
Sec. 2072. Rules of procedure and evidence; power to prescribe
(a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure and rules of evidence for cases in the
United States district courts (including proceedings before magistrates
thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no further force
or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final
for the purposes of appeal under section 1291 of this title.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4648, eff. Dec. 1, 1988; amended Pub. L. 101-650, title III, Sec. 315,
Dec. 1, 1990, 104 Stat. 5115.)
Sec. 2073. Rules of procedure and evidence; method of prescribing
(a)(1) The Judicial Conference shall prescribe and publish the
procedures for the consideration of proposed rules under this section.
(2) The Judicial Conference may authorize the appointment of
committees to assist the Conference by recommending rules to be
prescribed under sections 2072 and 2075 of this title. Each such
committee shall consist of members of the bench and the professional
bar, and trial and appellate judges.
(b) The Judicial Conference shall authorize the appointment of a
standing committee on rules of practice, procedure, and evidence under
subsection (a) of this section. Such standing committee shall review
each recommendation of any other committees so appointed and recommend
to the Judicial Conference rules of practice, procedure, and evidence
and such changes in rules proposed by a committee appointed under
subsection (a)(2) of this section as may be necessary to maintain
consistency and otherwise promote the interest of justice.
(c)(1) Each meeting for the transaction of business under this
chapter by any committee appointed under this section shall be open to
the public, except when the committee so meeting, in open session and
with a majority present, determines that it is in the public interest
that all or part of the remainder of the meeting on that day shall be
closed to the public, and states the reason for so closing the meeting.
Minutes of each meeting for the transaction of business under this
chapter shall be maintained by the committee and made available to the
public, except that any portion of such minutes, relating to a closed
meeting and made available to the public, may contain such deletions as
may be necessary to avoid frustrating the purposes of closing the
meeting.
(2) Any meeting for the transaction of business under this chapter,
by a committee appointed under this section, shall be preceded by
sufficient notice to enable all interested persons to attend.
(d) In making a recommendation under this section or under section
2072 or 2075, the body making that recommendation shall provide a
proposed rule, an explanatory note on the rule, and a written report
explaining the body's action, including any minority or other separate
views.
(e) Failure to comply with this section does not invalidate a rule
prescribed under section 2072 or 2075 of this title.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988; amended Pub. L. 103-394, title I, Sec. 104(e),
Oct. 22, 1994, 108 Stat. 4110.)
Sec. 2074. Rules of procedure and evidence; submission to Congress;
effective date
(a) The Supreme Court shall transmit to the Congress not later than
May 1 of the year in which a rule prescribed under section 2072 is to
become effective a copy of the proposed rule. Such rule shall take
effect no earlier than December 1 of the year in which such rule is so
transmitted unless otherwise provided by law. The Supreme Court may fix
the extent such rule shall apply to proceedings then pending, except
that the Supreme Court shall not require the application of such rule to
further proceedings then pending to the extent that, in the opinion of
the court in which such proceedings are pending, the application of such
rule in such proceedings would not be feasible or would work injustice,
in which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary
privilege shall have no force or effect unless approved by Act of
Congress.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988.)
HISTORICAL NOTE
The Supreme Court prescribes rules of criminal procedure for the
district courts pursuant to section 2072 of Title 28, United States
Code, as enacted by Title IV ``Rules Enabling Act'' of Pub. L. 100-702
(approved November 19, 1988, 102 Stat. 4648), effective December 1,
1988. Pursuant to section 2074 of Title 28, the Supreme Court transmits
to Congress (not later than May 1 of the year in which a rule prescribed
under section 2072 is to become effective) a copy of the proposed rule.
The rule takes effect no earlier than December 1 of the year in which
the rule is transmitted unless otherwise provided by law.
Prior to enactment of Pub. L. 100-702, the Supreme Court promulgated
rules of criminal procedure for the district courts pursuant to two
sections of Title 18, United States Code. Section 3771 authorized the
Court to prescribe rules for all criminal proceedings prior to and
including verdict, or finding of guilty or not guilty by the court, or
plea of guilty. Section 3772 empowered the Court to prescribe rules with
respect to all proceedings after verdict or finding of guilty by the
court, or plea of guilty.
Proceedings Prior to and Including Verdict
By act of June 29, 1940, ch. 445, 54 Stat. 688 (subsequently 18
United States Code, Sec. 3771), the Supreme Court was authorized to
prescribe general rules of criminal procedure prior to and including
verdict, finding of guilty or not guilty by the court, or plea of
guilty, in criminal proceedings. The rules, and subsequent amendments,
were not to take effect until (1) they had been first reported to
Congress by the Attorney General at the beginning of a regular session
and (2) after the close of that session.
Under a 1949 amendment to 18 U.S.C., Sec. 3771, the Chief Justice of
the United States, instead of the Attorney General, reported the rules
to Congress. In 1950, section 3771 was further amended so that
amendments to the rules could be reported to Congress not later than May
1 each year and become effective 90 days after being reported. Effective
December 1, 1988, section 3771 was repealed and supplanted by new
sections 2072 and 2074 of Title 28, United States Code, see first
paragraph of Historical Note above.
The original rules pursuant to act of June 30, 1940, were adopted by
order of the Court on December 26, 1944, transmitted to Congress by the
Attorney General on January 3, 1945, and became effective March 21, 1946
(327 U.S. 821; Cong. Rec., vol. 91, pt. 1, p. 17, Exec. Comm. 4; H. Doc.
12, 79th Cong.).
Amendments were adopted by order of the Court dated December 27,
1948, transmitted to Congress by the Attorney General on January 3,
1949, and became effective October 20, 1949 (335 U.S. 917, 949; Cong.
Rec., vol. 95, pt. 1, p. 13, Exec. Comm. 16; H. Doc. 30, 81st Cong.).
The amendments affected Rules 17(e)(2), 41(b)(3), 41(g), 54(a)(1),
54(b), 54(c), 55, 56, and 57(a) and Forms 1-27, inclusive.
Further amendments were adopted by order of the Court dated April 9,
1956, transmitted to Congress by the Chief Justice on the same day, and
became effective July 8, 1956 (350 U.S. 1017; Cong. Rec., vol. 102, pt.
5, p. 5973, Exec. Comm. 16; H. Doc. 377, 84th Cong.). The amendments
affected Rules 41(a), 46(a)(2), 54(a)(1), and 54(c).
Further amendments were adopted by order of the Court dated February
28, 1966, transmitted to Congress by the Chief Justice on the same day,
and became effective July 1, 1966 (383 U.S. 1087; Cong. Rec., vol. 112,
pt. 4, p. 4229, Exec. Comm. 2093; H. Doc. 390, 89th Cong.). The
amendments affected Rules 4, 5, 6, 7, 11, 14, 16, 17, 18, 20, 21, 23,
24, 25, 28, 29, 30, 32, 33, 34, 35, 37, 38, 40, 44, 45, 46, 49, 54, 55,
and 56, and Form 26, added new Rules 17.1 and 26.1, and rescinded Rules
19 and 45(c).
Further amendments were adopted by the Court by order dated December
4, 1967, transmitted to Congress by the Chief Justice on January 15,
1968, and became effective July 1, 1968, together with the new Federal
Rules of Appellate Procedure (389 U.S. 1125; Cong. Rec., vol. 114, pt.
1, p. 113, Exec. Comm. 1361; H. Doc. 204, 90th Cong.). The amendments
affected Rules 45(b), 49(c), 56, and 57, and abrogated the chapter
heading ``VIII. Appeal'', Rules 37, 38(b), (c), and 39, and Forms 26 and
27.
On March 1, 1971, the Court adopted additional amendments which were
transmitted to Congress by the Chief Justice on March 1, 1971. These
amendments became effective July 1, 1971 (401 U.S. 1025; Cong. Rec.,
vol. 117, pt. 4, p. 4629, Exec. Comm. 341; H. Doc. 92-57). The
amendments affected Rules 45(a) and 56.
Additional amendments were adopted by the Court by order dated April
24, 1972, transmitted to Congress by the Chief Justice, accompanied by
his letter of transmittal dated April 24, 1972. These amendments became
effective October 1, 1972 (406 U.S. 979; Cong. Rec., vol. 118, pt. 11,
p. 14262, Exec. Comm. 1903; H. Doc. 92-285). The amendments affected
Rules 1, 3, 4(b), (c), 5, 5.1, 6(b), 7(c), 9(b), (c), (d), 17(a), (g),
31(e), 32(b), 38(a), 40, 41, 44, 46, 50, 54, and 55.
Additional amendments were adopted by the Court by order dated March
18, 1974, transmitted to Congress by the Chief Justice on the same date.
These amendments became effective July 1, 1974 (415 U.S. 1056; Cong.
Rec., vol. 120, pt. 5, p. 7012, Exec. Comm. 2062; H. Doc. 93-241). The
amendments affected Rules 41(a) and 50.
Further amendments were proposed by the Court in its order dated
November 20, 1972, transmitted to Congress by the Chief Justice on
February 5, 1973 (409 U.S. 1132 and 419 U.S. 1133, 1136; Cong. Rec.,
vol. 119, pt. 3, p. 3247, Exec. Comm. 359; H. Doc. 93-46). Although
these amendments were to have become effective July 1, 1973, Public Law
93-12 (approved March 30, 1973, 87 Stat. 9) provided that the proposed
amendments ``shall have no force or effect except to the extent, and
with such amendments, as they may be expressly approved by Act of
Congress.'' Section 3 of Public Law 93-595 (approved January 2, 1975, 88
Stat. 1949) approved the amendments proposed by the Court, to be
effective July 1, 1975. The amendments affected Rules 26, 26.1, and 28.
In its order dated April 22, 1974, the Court proposed additional
amendments which were transmitted to Congress by the Chief Justice on
the same day. The amendments were to have become effective August 1,
1974 (416 U.S. 1001; Cong. Rec., vol. 120, pt. 9, p. 11472, Exec. Comm.
2223; H. Doc. 93-292). The effective date of the proposed amendments was
postponed until August 1, 1975, by Public Law 93-361 (approved July 30,
1974, 88 Stat. 397). Public Law 94-64 (approved July 31, 1975, 89 Stat.
370) approved the amendments proposed by the Court and further amended
the rules, to be effective December 1, 1975, except Rule 11(e)(6), to be
effective August 1, 1975. The amendments affected Rules 4, 9(a), 11, 12,
15, 16, 17(f), 20, 32(a), (c), (e), and 43, and added Rules 12.1, 12.2,
and 29.1.
Technical amendments to Rules 9(b), 9(c), 16(a), and 16(b) were made
by section 5 of Public Law 94-149 (approved Dec. 12, 1975, 89 Stat.
806).
Additional amendments were proposed by the Court by order dated
April 26, 1976, were transmitted to Congress by the Chief Justice on the
same day (425 U.S. 1157; Cong. Rec., vol. 122, pt. 9, p. 11117, Exec.
Comm. 3084; H. Doc. 94-464), and were to be effective August 1, 1976.
Public Law 94-349 (approved July 8, 1976, 90 Stat. 822) delayed the
effective date of the amendments to Rules 6(e), 23, 24, and 41(c)(2),
and the addition of Rule 40.1 until August 1, 1977, or until and to the
extent approved by Act of Congress, whichever is earlier. Also, it
approved the amendments to Rules 6(f), 41(a), and 50(b), to be effective
August 1, 1976. Public Law 95-78 (approved July 30, 1977, 91 Stat. 319)
disapproved the amendment to Rule 24 and the addition of Rule 40.1,
approved amendments to Rule 23, and modified and approved amendments to
Rules 6(e) and 41(c), to be effective October 1, 1977.
Additional amendments were proposed by the Court by order dated
April 30, 1979, were transmitted to Congress by the Chief Justice on the
same day (441 U.S. 970, 985; Cong. Rec., vol. 125, pt. 8, p. 9366, Exec.
Comm. 1456; H. Doc. 96-112), and were to be effective August 1, 1979.
Amendments to Rules 6(e), 7(c)(2), 9(a), 11(e)(2), 18, 32(c)(3)(E), 35,
and 41(a), (b), and (c) became effective August 1, 1979. Public Law 96-
42 (approved July 31, 1979, 93 Stat. 326) delayed the effective date of
the amendments to Rules 11(e)(6), 17(h), 32(f), and 44(c), and the
addition of new Rules 26.2 and 32.1, until December 1, 1980, or until
and to the extent approved by Act of Congress, whichever is earlier, and
modified and approved the amendment to Rule 40 to be effective August 1,
1979. In the absence of further action by Congress, the amendments that
were the subject of a delayed effective date pursuant to Public Law 96-
42 became effective December 1, 1980.
Additional amendments were adopted by the Court by order dated April
28, 1982, transmitted to Congress by the Chief Justice on the same day
(456 U.S. 1021; Cong. Rec., vol. 128, pt. 6, p. 8191, Exec. Comm. 3822;
H. Doc. 97-173), and became effective August 1, 1982. The amendments
affected Rules 1, 5(b), 9(a), (b)(1), (2), (c)(1), (2), 11(c)(1), (4),
(5), 20(b), 40(d)(1), (2), 45(a), 54(a), (b)(4), (c), and abrogated Rule
9(d).
An amendment to Rule 32(c)(2) was made by section 3 of Public Law
97-291 (approved October 12, 1982, 96 Stat. 1249.)
Additional amendments were adopted by the Court by order dated April
28, 1983, transmitted to Congress by the Chief Justice on the same day
(461 U.S. 1117; Cong. Rec., vol. 129, pt. 8, p. 10479, Exec. Comm. 1028;
H. Doc. 98-55), and became effective August 1, 1983. The amendments
affected Rules 6(e), (g), 11(a), (h), 12(i), 12.2(b), (c), (d), (e),
16(a), 23(b), 32(a), (c), (d), 35(b), and 55, and abrogated Rule 58 and
the Appendix of Forms.
Section 209 of Public Law 98-473 (approved October 12, 1984, 98
Stat. 1986) amended Rules 5(c), 15(a), 40(f), 46(a), (c), (e)(2), and
54(b)(3), and added Rule 46(h).
Section 215 of Public Law 98-473 (98 Stat. 2014, as amended) amended
Rules 6(e)(3)(C), 32(a)(1), (2), (c)(1) to (3), (d), 35, 38, 40(d)(1),
and 54(c), effective on the first day of the first calendar month
beginning 36 months after October 12, 1984 (November 1, 1987).
Section 404(a) of Public Law 98-473 (98 Stat. 2067) amended Rule
12.2(a). Section 404(b) to (d) of Public Law 98-473 would have amended
Rule 12.2(b) to (d), but the amendments by section 404(b) and (d) were
repealed by section 11(b) of Public Law 98-596 (approved October 30,
1984, 98 Stat. 3138) and the amendment by section 404(c) of Public Law
98-473 could not be executed because it directed the deletion of
language not found in the text of the Rule [that defect being cured by
section 11(a) of Public Law 98-596, which amended Rule 12.2(c) and (d)].
The amendments and repeals by section 11 of Public Law 98-596 are
effective on and after the date of enactment of Public Law 98-473
(October 12, 1984).
Additional amendments were adopted by the Court by order dated April
29, 1985, transmitted to Congress by the Chief Justice on the same day
(471 U.S. 1167; Cong. Rec., vol. 131, pt. 7, p. 9826, Exec. Comm. 1154;
H. Doc. 99-64), and became effective August 1, 1985. The amendments
affected Rules 6(e)(3), 11(c)(1), 12.1(f), 12.2(e), 35(b), 45(a), 49(e),
and 57. The amendment to Rule 35(b) was effective until November 1,
1986, when section 215(b) of Public Law 98-473 (approved October 12,
1984, 98 Stat. 2015) was to go into effect. Section 235(a)(1) of Public
Law 98-473, which originally provided for an effective date of November
1, 1986, for the amendments made by section 215(b) of Public Law 98-473,
was later amended by section 4 of Public Law 99-217 to provide for an
effective date of November 1, 1987.
Section 1009 of Public Law 99-570 (approved October 27, 1986, 100
Stat. 3207-8) amended Rule 35(b), effective on the date (November 1,
1987) of the taking effect of Rule 35(b) as amended by section 215(b) of
Public Law 98-473.
Sections 12(b), 24, 25(a), and 54(a) of Public Law 99-646 (approved
November 10, 1986, 100 Stat. 3594, 3597, 3607) affected Rules 12.2(c),
29(d), 32(c)(2)(B), and 32.1(b). The amendments to Rules 29(d) and
32.1(b) became effective 30 days after the date of enactment of Public
Law 99-646. The amendment to Rule 32(c)(2)(B) became effective November
1, 1987, when the amendment made by section 215(a)(5) of Public Law 98-
473 went into effect.
Additional amendments were adopted by the Court by order dated March
9, 1987, transmitted to Congress by the Chief Justice on the same day
(480 U.S. 1041; Cong. Rec., vol. 133, pt. 4, p. 5256, Exec. Comm. 825;
H. Doc. 100-47), and became effective August 1, 1987. The amendments
affected Rules 4(c)(1), (d)(3), (4), 5(c), 5.1(a), (c), 6(a), (c), (f),
7(b), (c)(1), (3), 10, 11(a)(2), (c)(2) to (5), (d), (e)(2), (4), 12(h),
12.1(a), (b) to (d), 12.2(a), (b), (d), 15(a) to (e), 16(a)(1)(A) to
(C), (b)(1)(B), (2), (c), 17(a), (d), (g), 17.1, 20, 21(a), (b), 24(a),
25, 26.2(a), (c), (f)(1), 30, 32(a), (c)(3)(A) to (E), 32.1, 33,
38(a)(2), (3), 40(a), (d)(3), (e), (f), 41(c)(1), (e), 42, 43(b), 44(a),
(c), 45(e), 46(b), (d), (g), 49(b), and 51.
Additional amendments were adopted by the Court by order dated April
25, 1988, transmitted to Congress by the Chief Justice on the same day
(485 U.S. 1057; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3516;
H. Doc. 100-186), and became effective August 1, 1988. The amendments
affected Rules 30 and 56.
Sections 6483, 7076, and 7089(c) of Public Law 100-690 (approved
November 18, 1988, 102 Stat. 4382, 4406, 4409) amended Rules 11(c)(1)
and 54(c), and added Rule 12.3.
Additional amendments were adopted by the Court by order dated April
25, 1989, transmitted to Congress by the Chief Justice on the same day
(490 U.S. 1135; Cong. Rec., vol. 135, pt. 6, p. 7542, Exec. Comm. 1059;
H. Doc. 101-55), and became effective December 1, 1989. The amendments
affected Rules 11(c)(1), 32(a), (c), 32.1(a), (b), 40(d), and 41(e).
Additional amendments were adopted by the Court by order dated May
1, 1990, transmitted to Congress by the Chief Justice on the same day
(495 U.S. 967; Cong. Rec., vol. 136, pt. 6, p. 9091, Ex. Comm. 3098; H.
Doc. 101-185), and became effective December 1, 1990. The amendments
affected Rules 5(b), 41(a), and 54(b)(4), (c), and added new Rule 58.
Additional amendments were adopted by the Court by order dated April
30, 1991, transmitted to Congress by the Chief Justice on the same day
(500 U.S. 991; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1191; H.
Doc. 102-78), and became effective December 1, 1991. The amendments
affected Rules 16(a), 32(c), 32.1(a), 35(b), (c), 46(h), 54(a), and
58(b), (d).
Additional amendments were adopted by the Court by order dated April
22, 1993, transmitted to Congress by the Chief Justice on the same day
(507 U.S. 1161; Cong. Rec., vol. 139, pt. 6, p. 8127, Ex. Comm. 1103; H.
Doc. 103-75), and became effective December 1, 1993. The amendments
affected Rules 1, 3, 4(c)(1), (d), 5, 5.1, 6(e)(4), (f), 9(a) to (c),
12(i), 16(a)(1)(E), (2), (b)(1)(C), 17(a), (g), 26.2(c), (d), (g),
32(e), 32.1(c), 40(a), (b), (d), (e), (f), 41(a), (c), (d), (g), 44(a),
46(i), 49(e), 50(b), 54(b)(3), (4), (c), 55, 57, and 58(a)(1), (b)(2),
(3), (c)(2), (d)(2), (g)(2), and added new Rule 26.3.
Additional amendments were adopted by the Court by order dated April
29, 1994, transmitted to Congress by the Chief Justice on the same day
(511 U.S. 1175; Cong. Rec., vol. 140, pt. 7, p. 8903, Ex. Comm. 3084; H.
Doc. 103-249), and became effective December 1, 1994. The amendments
affected Rules 16(a)(1)(A), 29(b), 32, and 40(d).
Sections 230101(b), (c) and 330003(h) of Public Law 103-322
(approved September 13, 1994, 108 Stat. 2078, 2141) affected Rules 32
and 46(i)(1). The amendments to Rule 32 became effective December 1,
1994. The amendment to Rule 46 became effective September 13, 1994.
Additional amendments were adopted by the Court by order dated April
27, 1995, transmitted to Congress by the Chief Justice on the same day
(514 U.S. 1159; Cong. Rec., vol. 141, pt. 8, p. 11745, Ex. Comm. 805; H.
Doc. 104-65), and became effective December 1, 1995. The amendments
affected Rules 5, 40, 43, 49, and 57.
An additional amendment was adopted by the Court by order dated
April 23, 1996, transmitted to Congress by the Chief Justice on the same
day (517 U.S. 1285; Cong. Rec., vol. 142, pt. 6, p. 8831, Ex. Comm.
2488; H. Doc. 104-202), and became effective December 1, 1996. The
amendment affected Rule 32(d)(2).
Sections 207(a) and 211 of Public Law 104-132 (approved April 24,
1996, 110 Stat. 1236, 1241) amended Rule 32(b), effective, to the extent
constitutionally permissible, for sentencing proceedings in cases in
which the defendant is convicted on or after the date of enactment of
Public Law 104-132.
Additional amendments were adopted by the Court by order dated April
11, 1997, transmitted to Congress by the Chief Justice on the same day
(520 U.S. 1313; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2796; H.
Doc. 105-68), and became effective December 1, 1997. The amendments
affected Rules 16 and 58.
Additional amendments were adopted by the Court by order dated April
24, 1998, transmitted to Congress by the Chief Justice on the same day
(523 U.S. 1227; H. Doc. 105-267), and became effective December 1, 1998.
The amendments affected Rules 5.1, 26.2, 31, 33, 35, and 43.
Additional amendments were adopted by the Court by order dated April
26, 1999, transmitted to Congress by the Chief Justice on the same day
(526 U.S. 1189; Cong. Rec., vol. 145, pt. 6, p. 7907, Ex. Comm. 1788; H.
Doc. 106-55), and became effective December 1, 1999. The amendments
affected Rules 6, 11, 24, and 54.
Additional amendments were adopted by the Court by order dated April
17, 2000, transmitted to Congress by the Chief Justice on the same day
(529 U.S. 1179; Cong. Rec., vol. 146, pt. 5, p. 6328, Ex. Comm. 7335; H.
Doc. 106-227), and became effective December 1, 2000. The amendments
affected Rules 7, 31, 32, and 38, and added new Rule 32.2.
Sections 203(a) and 219 of Public Law 107-56 (approved October 26,
2001, 115 Stat. 278, 291) amended Rules 6(e)(3)(C), (D) and 41(a).
Additional amendments were adopted by the Court by order dated April
29, 2002, transmitted to Congress by the Chief Justice on the same day
(535 U.S. 1157; Cong. Rec., vol. 148, p. H2104, Daily Issue, Ex. Comm.
6621; H. Doc. 107-203), and became effective December 1, 2002. The
amendments affected Rules 1 to 60.
Section 11019(b), (c) of Pub. L. 107-273 (approved November 2, 2002,
116 Stat. 1825, 1826) amended Rule 16(a)(1)(G), (b)(1)(C), effective
December 1, 2002.
Sections 4 and 895 of Pub. L. 107-296 (approved November 25, 2002,
116 Stat. 2142, 2256) which directed the amendment of Rule 6(e)(2),
(3)(A)(ii), (C)(i), (iii), effective 60 days after the date of enactment
of Pub. L. 107-296, could not be executed after the amendments of April
29, 2002, effective December 1, 2002.
Section 610(b) of Pub. L. 108-21 (approved April 30, 2003, 117 Stat.
692) amended Rule 7(c)(1).
An additional amendment was adopted by the Court by order dated
April 26, 2004, transmitted to Congress by the Chief Justice on the same
day (541 U.S. ----; Cong. Rec., vol. 150, p. H2482, Daily Issue, Ex.
Comm. 7865; H. Doc. 108-182), and became effective December 1, 2004. The
amendment affected Rule 35.
Section 6501(a) of Pub. L. 108-458 (approved December 17, 2004, 118
Stat. 3760) amended Rule 6(e).
Proceedings After Verdict
By act of February 24, 1933, ch. 119, 47 Stat. 904, as amended
(subsequently 18 United States Code, Sec. 3772), the Supreme Court was
authorized to prescribe general rules of criminal procedure with respect
to proceedings after verdict or finding of guilty by the court, or plea
of guilty, which became effective on dates fixed by the Court. These
rules were not required to be submitted to Congress.
Rules 32 to 39, inclusive, were adopted by order of the Court on
February 8, 1946, and became effective on March 21, 1946 (327 U.S. 825).
Prior rules promulgated on May 7, 1934 (292 U.S. 659), were not
specifically rescinded by that order but were superseded by these later
rules.
Amendments to Rules 37(a)(1), 38(a)(3), (c), and 39(b)(2) were
adopted by order of the Court dated December 27, 1948, and became
effective on January 1, 1949 (335 U.S. 917).
Additional amendment to Rule 37 was adopted by order of the Court
dated April 12, 1954, and became effective on July 1, 1954 (346 U.S.
941).
The Court adopted separate Federal Rules of Appellate Procedure by
order dated December 4, 1967, transmitted to Congress on January 15,
1968, effective July 1, 1968. As noted above, Rules 37, 38(b), (c), and
39, and Forms 26 and 27, were abrogated effective July 1, 1968, by that
same order.
Effective December 1, 1988, section 3772 of Title 18 was repealed
and supplanted by section 2072 of Title 28, United States Code, see
first paragraph of Historical Note above.
Committee Notes
Committee Notes prepared by the Committee on Rules of Practice and
Procedure and the Advisory Committee on the Federal Rules of Criminal
Procedure, Judicial Conference of the United States, explaining the
purpose and intent of the amendments are set out in the Appendix to
Title 18, United States Code, following the particular rule to which
they relate. In addition, the rules and amendments, together with
Committee Notes, are set out in the House documents listed above.
TABLE OF CONTENTS
____
Page
Foreword...................................................... iii
Authority for promulgation of rules........................... v
Historical note............................................... vii
RULES
Title I. Applicability
Rule 1. Scope; Definitions.....................................1
Rule 2. Interpretation.........................................2
Title II. Preliminary Proceedings
Rule 3. The Complaint..........................................2
Rule 4. Arrest Warrant or Summons on a Complaint...............2
Rule 5. Initial Appearance.....................................4
Rule 5.1. Preliminary Hearing..................................6
Title III. The Grand Jury, the Indictment, and the Information
Rule 6. The Grand Jury.........................................7
Rule 7. The Indictment and the Information....................11
Rule 8. Joinder of Offenses or Defendants.....................12
Rule 9. Arrest Warrant or Summons on an Indictment or
Information...................................12
Title IV. Arraignment and Preparation for Trial
Rule 10. Arraignment..........................................13
Rule 11. Pleas................................................14
Rule 12. Pleadings and Pretrial Motions.......................16
Rule 12.1. Notice of an Alibi Defense.........................17
Rule 12.2. Notice of an Insanity Defense; Mental Examination..18
Rule 12.3. Notice of a Public-Authority Defense...............20
Rule 12.4. Disclosure Statement...............................21
Rule 13. Joint Trial of Separate Cases........................21
Rule 14. Relief from Prejudicial Joinder......................22
Rule 15. Depositions..........................................22
Rule 16. Discovery and Inspection.............................23
Rule 17. Subpoena.............................................26
Rule 17.1. Pretrial Conference................................27
Title V. Venue
Rule 18. Place of Prosecution and Trial.......................28
Rule 19. (Reserved)
Rule 20. Transfer for Plea and Sentence.......................28
Rule 21. Transfer for Trial...................................29
Rule 22. (Transferred)
Title VI. Trial
Rule 23. Jury or Nonjury Trial................................29
Rule 24. Trial Jurors.........................................30
Rule 25. Judge's Disability...................................31
Rule 26. Taking Testimony.....................................31
Rule 26.1. Foreign Law Determination..........................31
Rule 26.2. Producing a Witness's Statement....................32
Rule 26.3. Mistrial...........................................32
Rule 27. Proving an Official Record...........................33
Rule 28. Interpreters.........................................33
Rule 29. Motion for a Judgment of Acquittal...................33
Rule 29.1. Closing Argument...................................34
Rule 30. Jury Instructions....................................34
Rule 31. Jury Verdict.........................................34
Title VII. Post-Conviction Procedures
Rule 32. Sentencing and Judgment..............................35
Rule 32.1. Revoking or Modifying Probation or Supervised Relea39
Title VII. Post-Conviction Procedures--Continued
Page
Rule 32.2. Criminal Forfeiture................................41
Rule 33. New Trial............................................43
Rule 34. Arresting Judgment...................................43
Rule 35. Correcting or Reducing a Sentence....................44
Rule 36. Clerical Error.......................................44
Rule 37. (Reserved)
Rule 38. Staying a Sentence or a Disability...................44
Rule 39. (Reserved)
Title VIII. Supplementary and Special Proceedings
Rule 40. Arrest for Failing to Appear in Another District.....46
Rule 41. Search and Seizure...................................46
Rule 42. Criminal Contempt....................................49
Title IX. General Provisions
Rule 43. Defendant's Presence.................................50
Rule 44. Right to and Appointment of Counsel..................50
Rule 45. Computing and Extending Time.........................51
Rule 46. Release from Custody; Supervising Detention..........52
Rule 47. Motions and Supporting Affidavits....................53
Rule 48. Dismissal............................................54
Rule 49. Serving and Filing Papers............................54
Rule 50. Prompt Disposition...................................54
Rule 51. Preserving Claimed Error.............................55
Rule 52. Harmless and Plain Error.............................55
Rule 53. Courtroom Photographing and Broadcasting Prohibited..55
Rule 54. (Transferred)
Rule 55. Records..............................................55
Rule 56. When Court Is Open...................................55
Rule 57. District Court Rules.................................56
Rule 58. Petty Offenses and Other Misdemeanors................56
Rule 59. (Deleted)
Rule 60. Title................................................59
FEDERAL RULES OF CRIMINAL PROCEDURE
Effective March 21, 1946, as amended to December 31, 2004
TITLE I. APPLICABILITY
Rule 1. Scope; Definitions______________________________________________
(a) Scope.
(1) In General. These rules govern the procedure in all
criminal proceedings in the United States district courts, the
United States courts of appeals, and the Supreme Court of the
United States.
(2) State or Local Judicial Officer. When a rule so states,
it applies to a proceeding before a state or local judicial
officer.
(3) Territorial Courts. These rules also govern the
procedure in all criminal proceedings in the following courts:
(A) the district court of Guam;
(B) the district court for the Northern Mariana
Islands, except as otherwise provided by law; and
(C) the district court of the Virgin Islands, except
that the prosecution of offenses in that court must be
by indictment or information as otherwise provided by
law.
(4) Removed Proceedings. Although these rules govern all
proceedings after removal from a state court, state law governs
a dismissal by the prosecution.
(5) Excluded Proceedings. Proceedings not governed by these
rules include:
(A) the extradition and rendition of a fugitive;
(B) a civil property forfeiture for violating a
federal statute;
(C) the collection of a fine or penalty;
(D) a proceeding under a statute governing juvenile
delinquency to the extent the procedure is inconsistent
with the statute, unless Rule 20(d) provides otherwise;
(E) a dispute between seamen under 22 U.S.C.
Sec. Sec. 256-258; and
(F) a proceeding against a witness in a foreign
country under 28 U.S.C. Sec. 1784.
(b) Definitions. The following definitions apply to these rules:
(1) ``Attorney for the government'' means:
(A) the Attorney General or an authorized assistant;
(B) a United States attorney or an authorized
assistant;
(C) when applicable to cases arising under Guam law,
the Guam Attorney General or other person whom Guam law
authorizes to act in the matter; and
(D) any other attorney authorized by law to conduct
proceedings under these rules as a prosecutor.
(2) ``Court'' means a federal judge performing functions
authorized by law.
(3) ``Federal judge'' means:
(A) a justice or judge of the United States as these
terms are defined in 28 U.S.C. Sec. 451;
(B) a magistrate judge; and
(C) a judge confirmed by the United States Senate
and empowered by statute in any commonwealth, territory,
or possession to perform a function to which a
particular rule relates.
(4) ``Judge'' means a federal judge or a state or local
judicial officer.
(5) ``Magistrate judge'' means a United States magistrate
judge as defined in 28 U.S.C. Sec. Sec. 631-639.
(6) ``Oath'' includes an affirmation.
(7) ``Organization'' is defined in 18 U.S.C. Sec. 18.
(8) ``Petty offense'' is defined in 18 U.S.C. Sec. 19.
(9) ``State'' includes the District of Columbia, and any
commonwealth, territory, or possession of the United States.
(10) ``State or local judicial officer'' means:
(A) a state or local officer authorized to act under
18 U.S.C. Sec. 3041; and
(B) a judicial officer empowered by statute in the
District of Columbia or in any commonwealth, territory,
or possession to perform a function to which a
particular rule relates.
(c) Authority of a Justice or Judge of the United States. When these
rules authorize a magistrate judge to act, any other federal judge may
also act.
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1982, eff. Aug.
1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 2. Interpretation__________________________________________________
These rules are to be interpreted to provide for the just
determination of every criminal proceeding, to secure simplicity in
procedure and fairness in administration, and to eliminate unjustifiable
expense and delay.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
TITLE II. PRELIMINARY PROCEEDINGS
Rule 3. The Complaint___________________________________________________
The complaint is a written statement of the essential facts
constituting the offense charged. It must be made under oath before a
magistrate judge or, if none is reasonably available, before a state or
local judicial officer.
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1993, eff. Dec.
1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 4. Arrest Warrant or Summons on a Complaint________________________
(a) Issuance. If the complaint or one or more affidavits filed with
the complaint establish probable cause to believe that an offense has
been committed and that the defendant committed it, the judge must issue
an arrest warrant to an officer authorized to execute it. At the request
of an attorney for the government, the judge must issue a summons,
instead of a warrant, to a person authorized to serve it. A judge may
issue more than one warrant or summons on the same complaint. If a
defendant fails to appear in response to a summons, a judge may, and
upon request of an attorney for the government must, issue a warrant.
(b) Form.
(1) Warrant. A warrant must:
(A) contain the defendant's name or, if it is
unknown, a name or description by which the defendant
can be identified with reasonable certainty;
(B) describe the offense charged in the complaint;
(C) command that the defendant be arrested and
brought without unnecessary delay before a magistrate
judge or, if none is reasonably available, before a
state or local judicial officer; and
(D) be signed by a judge.
(2) Summons. A summons must be in the same form as a warrant
except that it must require the defendant to appear before a
magistrate judge at a stated time and place.
(c) Execution or Service, and Return.
(1) By Whom. Only a marshal or other authorized officer may
execute a warrant. Any person authorized to serve a summons in a
federal civil action may serve a summons.
(2) Location. A warrant may be executed, or a summons
served, within the jurisdiction of the United States or anywhere
else a federal statute authorizes an arrest.
(3) Manner.
(A) A warrant is executed by arresting the
defendant. Upon arrest, an officer possessing the
warrant must show it to the defendant. If the officer
does not possess the warrant, the officer must inform
the defendant of the warrant's existence and of the
offense charged and, at the defendant's request, must
show the warrant to the defendant as soon as possible.
(B) A summons is served on an individual defendant:
(i) by delivering a copy to the defendant
personally; or
(ii) by leaving a copy at the defendant's
residence or usual place of abode with a person
of suitable age and discretion residing at that
location and by mailing a copy to the
defendant's last known address.
(C) A summons is served on an organization by
delivering a copy to an officer, to a managing or
general agent, or to another agent appointed or legally
authorized to receive service of process. A copy must
also be mailed to the organization's last known address
within the district or to its principal place of
business elsewhere in the United States.
(4) Return.
(A) After executing a warrant, the officer must
return it to the judge before whom the defendant is
brought in accordance with Rule 5. At the request of an
attorney for the government, an unexecuted warrant must
be brought back to and canceled by a magistrate judge
or, if none is reasonably available, by a state or local
judicial officer.
(B) The person to whom a summons was delivered for
service must return it on or before the return day.
(C) At the request of an attorney for the
government, a judge may deliver an unexecuted warrant,
an unserved summons, or a copy of the warrant or summons
to the marshal or other authorized person for execution
or service.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.
1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1,
1975; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 5. Initial Appearance______________________________________________
(a) In General.
(1) Appearance Upon an Arrest.
(A) A person making an arrest within the United
States must take the defendant without unnecessary delay
before a magistrate judge, or before a state or local
judicial officer as Rule 5(c) provides, unless a statute
provides otherwise.
(B) A person making an arrest outside the United
States must take the defendant without unnecessary delay
before a magistrate judge, unless a statute provides
otherwise.
(2) Exceptions.
(A) An officer making an arrest under a warrant
issued upon a complaint charging solely a violation of
18 U.S.C. Sec. 1073 need not comply with this rule if:
(i) the person arrested is transferred
without unnecessary delay to the custody of
appropriate state or local authorities in the
district of arrest; and
(ii) an attorney for the government moves
promptly, in the district where the warrant was
issued, to dismiss the complaint.
(B) If a defendant is arrested for violating
probation or supervised release, Rule 32.1 applies.
(C) If a defendant is arrested for failing to appear
in another district, Rule 40 applies.
(3) Appearance Upon a Summons. When a defendant appears in
response to a summons under Rule 4, a magistrate judge must
proceed under Rule 5(d) or (e), as applicable.
(b) Arrest Without a Warrant. If a defendant is arrested without a
warrant, a complaint meeting Rule 4(a)'s requirement of probable cause
must be promptly filed in the district where the offense was allegedly
committed.
(c) Place of Initial Appearance; Transfer to Another District.
(1) Arrest in the District Where the Offense Was Allegedly
Committed. If the defendant is arrested in the district where
the offense was allegedly committed:
(A) the initial appearance must be in that district;
and
(B) if a magistrate judge is not reasonably
available, the initial appearance may be before a state
or local judicial officer.
(2) Arrest in a District Other Than Where the Offense Was
Allegedly Committed. If the defendant was arrested in a district
other than where the offense was allegedly committed, the
initial appearance must be:
(A) in the district of arrest; or
(B) in an adjacent district if:
(i) the appearance can occur more promptly
there; or
(ii) the offense was allegedly committed
there and the initial appearance will occur on
the day of arrest.
(3) Procedures in a District Other Than Where the Offense
Was Allegedly Committed. If the initial appearance occurs in a
district other than where the offense was allegedly committed,
the following procedures apply:
(A) the magistrate judge must inform the defendant
about the provisions of Rule 20;
(B) if the defendant was arrested without a warrant,
the district court where the offense was allegedly
committed must first issue a warrant before the
magistrate judge transfers the defendant to that
district;
(C) the magistrate judge must conduct a preliminary
hearing if required by Rule 5.1 or Rule 58(b)(2)(G);
(D) the magistrate judge must transfer the defendant
to the district where the offense was allegedly
committed if:
(i) the government produces the warrant, a
certified copy of the warrant, a facsimile of
either, or other appropriate form of either; and
(ii) the judge finds that the defendant is
the same person named in the indictment,
information, or warrant; and
(E) when a defendant is transferred and discharged,
the clerk must promptly transmit the papers and any bail
to the clerk in the district where the offense was
allegedly committed.
(d) Procedure in a Felony Case.
(1) Advice. If the defendant is charged with a felony, the
judge must inform the defendant of the following:
(A) the complaint against the defendant, and any
affidavit filed with it;
(B) the defendant's right to retain counsel or to
request that counsel be appointed if the defendant
cannot obtain counsel;
(C) the circumstances, if any, under which the
defendant may secure pretrial release;
(D) any right to a preliminary hearing; and
(E) the defendant's right not to make a statement,
and that any statement made may be used against the
defendant.
(2) Consulting with Counsel. The judge must allow the
defendant reasonable opportunity to consult with counsel.
(3) Detention or Release. The judge must detain or release
the defendant as provided by statute or these rules.
(4) Plea. A defendant may be asked to plead only under Rule
10.
(e) Procedure in a Misdemeanor Case. If the defendant is charged
with a misdemeanor only, the judge must inform the defendant in
accordance with Rule 58(b)(2).
(f) Video Teleconferencing. Video teleconferencing may be used to
conduct an appearance under this rule if the defendant consents.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.
1, 1972; Apr. 28, 1982, eff. Aug. 1, 1982; Oct. 12, 1984; Mar. 9, 1987,
eff. Aug. 1, 1987; May 1, 1990, eff. Dec. 1, 1990; Apr. 22, 1993, eff.
Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec.
1, 2002.)
Rule 5.1. Preliminary Hearing_____________________________________________
(a) In General. If a defendant is charged with an offense other than
a petty offense, a magistrate judge must conduct a preliminary hearing
unless:
(1) the defendant waives the hearing;
(2) the defendant is indicted;
(3) the government files an information under Rule 7(b)
charging the defendant with a felony;
(4) the government files an information charging the
defendant with a misdemeanor; or
(5) the defendant is charged with a misdemeanor and consents
to trial before a magistrate judge.
(b) Selecting a District. A defendant arrested in a district other
than where the offense was allegedly committed may elect to have the
preliminary hearing conducted in the district where the prosecution is
pending.
(c) Scheduling. The magistrate judge must hold the preliminary
hearing within a reasonable time, but no later than 10 days after the
initial appearance if the defendant is in custody and no later than 20
days if not in custody.
(d) Extending the Time. With the defendant's consent and upon a
showing of good cause--taking into account the public interest in the
prompt disposition of criminal cases--a magistrate judge may extend the
time limits in Rule 5.1(c) one or more times. If the defendant does not
consent, the magistrate judge may extend the time limits only on a
showing that extraordinary circumstances exist and justice requires the
delay.
(e) Hearing and Finding. At the preliminary hearing, the defendant
may cross-examine adverse witnesses and may introduce evidence but may
not object to evidence on the ground that it was unlawfully acquired. If
the magistrate judge finds probable cause to believe an offense has been
committed and the defendant committed it, the magistrate judge must
promptly require the defendant to appear for further proceedings.
(f) Discharging the Defendant. If the magistrate judge finds no
probable cause to believe an offense has been committed or the defendant
committed it, the magistrate judge must dismiss the complaint and
discharge the defendant. A discharge does not preclude the government
from later prosecuting the defendant for the same offense.
(g) Recording the Proceedings. The preliminary hearing must be
recorded by a court reporter or by a suitable recording device. A
recording of the proceeding may be made available to any party upon
request. A copy of the recording and a transcript may be provided to any
party upon request and upon any payment required by applicable Judicial
Conference regulations.
(h) Producing a Statement.
(1) In General. Rule 26.2(a)-(d) and (f) applies at any
hearing under this rule, unless the magistrate judge for good
cause rules otherwise in a particular case.
(2) Sanctions for Not Producing a Statement. If a party
disobeys a Rule 26.2 order to deliver a statement to the moving
party, the magistrate judge must not consider the testimony of a
witness whose statement is withheld.
(As added Apr. 24, 1972, eff. Oct. 1, 1972; amended Mar. 9, 1987, eff.
Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec.
1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)
TITLE III. THE GRAND JURY, THE INDICTMENT, AND THE INFORMATION
Rule 6. The Grand Jury__________________________________________________
(a) Summoning a Grand Jury.
(1) In General. When the public interest so requires, the
court must order that one or more grand juries be summoned. A
grand jury must have 16 to 23 members, and the court must order
that enough legally qualified persons be summoned to meet this
requirement.
(2) Alternate Jurors. When a grand jury is selected, the
court may also select alternate jurors. Alternate jurors must
have the same qualifications and be selected in the same manner
as any other juror. Alternate jurors replace jurors in the same
sequence in which the alternates were selected. An alternate
juror who replaces a juror is subject to the same challenges,
takes the same oath, and has the same authority as the other
jurors.
(b) Objection to the Grand Jury or to a Grand Juror.
(1) Challenges. Either the government or a defendant may
challenge the grand jury on the ground that it was not lawfully
drawn, summoned, or selected, and may challenge an individual
juror on the ground that the juror is not legally qualified.
(2) Motion to Dismiss an Indictment. A party may move to
dismiss the indictment based on an objection to the grand jury
or on an individual juror's lack of legal qualification, unless
the court has previously ruled on the same objection under Rule
6(b)(1). The motion to dismiss is governed by 28 U.S.C.
Sec. 1867(e). The court must not dismiss the indictment on the
ground that a grand juror was not legally qualified if the
record shows that at least 12 qualified jurors concurred in the
indictment.
(c) Foreperson and Deputy Foreperson. The court will appoint one
juror as the foreperson and another as the deputy foreperson. In the
foreperson's absence, the deputy foreperson will act as the foreperson.
The foreperson may administer oaths and affirmations and will sign all
indictments. The foreperson--or another juror designated by the
foreperson--will record the number of jurors concurring in every
indictment and will file the record with the clerk, but the record may
not be made public unless the court so orders.
(d) Who May Be Present.
(1) While the Grand Jury Is in Session. The following
persons may be present while the grand jury is in session:
attorneys for the government, the witness being questioned,
interpreters when needed, and a court reporter or an operator of
a recording device.
(2) During Deliberations and Voting. No person other than
the jurors, and any interpreter needed to assist a hearing-
impaired or speech-impaired juror, may be present while the
grand jury is deliberating or voting.
(e) Recording and Disclosing the Proceedings.
(1) Recording the Proceedings. Except while the grand jury
is deliberating or voting, all proceedings must be recorded by a
court reporter or by a suitable recording device. But the
validity of a prosecution is not affected by the unintentional
failure to make a recording. Unless the court orders otherwise,
an attorney for the government will retain control of the
recording, the reporter's notes, and any transcript prepared
from those notes.
(2) Secrecy.
(A) No obligation of secrecy may be imposed on any
person except in accordance with Rule 6(e)(2)(B).
(B) Unless these rules provide otherwise, the
following persons must not disclose a matter occurring
before the grand jury:
(i) a grand juror;
(ii) an interpreter;
(iii) a court reporter;
(iv) an operator of a recording device;
(v) a person who transcribes recorded
testimony;
(vi) an attorney for the government; or
(vii) a person to whom disclosure is made
under Rule 6(e)(3)(A)(ii) or (iii).
(3) Exceptions.
(A) Disclosure of a grand-jury matter--other than
the grand jury's deliberations or any grand juror's
vote--may be made to:
(i) an attorney for the government for use
in performing that attorney's duty;
(ii) any government personnel--including
those of a state, state subdivision, Indian
tribe, or foreign government--that an attorney
for the government considers necessary to assist
in performing that attorney's duty to enforce
federal criminal law; or
(iii) a person authorized by 18 U.S.C.
Sec. 3322.
(B) A person to whom information is disclosed under
Rule 6(e)(3)(A)(ii) may use that information only to
assist an attorney for the government in performing that
attorney's duty to enforce federal criminal law. An
attorney for the government must promptly provide the
court that impaneled the grand jury with the names of
all persons to whom a disclosure has been made, and must
certify that the attorney has advised those persons of
their obligation of secrecy under this rule.
(C) An attorney for the government may disclose any
grand-jury matter to another federal grand jury.
(D) An attorney for the government may disclose any
grand-jury matter involving foreign intelligence,
counterintelligence (as defined in 50 U.S.C. Sec. 401a),
or foreign intelligence information (as defined in Rule
6(e)(3)(D)(iii)) to any federal law enforcement,
intelligence, protective, immigration, national defense,
or national security official to assist the official
receiving the information in the performance of that
official's duties. An attorney for the government may
also disclose any grand jury matter involving, within
the United States or elsewhere, a threat of attack or
other grave hostile acts of a foreign power or its
agent, a threat of domestic or international sabotage or
terrorism, or clandestine intelligence gathering
activities by an intelligence service or network of a
foreign power or by its agent, to any appropriate
Federal, State, State subdivision, Indian tribal, or
foreign government official, for the purpose of
preventing or responding to such threat or activities.
(i) Any official who receives information
under Rule 6(e)(3)(D) may use the information
only as necessary in the conduct of that
person's official duties subject to any
limitations on the unauthorized disclosure of
such information. Any State, State subdivision,
Indian tribal, or foreign government official
who receives information under Rule 6(e)(3)(D)
may use the information only consistent with
such guidelines as the Attorney General and the
Director of National Intelligence shall jointly
issue.
(ii) Within a reasonable time after
disclosure is made under Rule 6(e)(3)(D), an
attorney for the government must file, under
seal, a notice with the court in the district
where the grand jury convened stating that such
information was disclosed and the departments,
agencies, or entities to which the disclosure
was made.
(iii) As used in Rule 6(e)(3)(D), the term
``foreign intelligence information'' means:
(a) information, whether or not it concerns a United States person, that
relates to the ability of the United States to protect against--
actual or potential attack or other grave hostile acts of a
foreign power or its agent;
sabotage or international terrorism by a foreign power or its
agent; or
clandestine intelligence activities by an intelligence service
or network of a foreign power or by its agent; or
(b) information, whether or not it concerns a United States person, with
respect to a foreign power or foreign territory that relates to--
the national defense or the security of the United States; or
the conduct of the foreign affairs of the United States.
(E) The court may authorize disclosure--at a time,
in a manner, and subject to any other conditions that it
directs--of a grand-jury matter:
(i) preliminarily to or in connection with a
judicial proceeding;
(ii) at the request of a defendant who shows
that a ground may exist to dismiss the
indictment because of a matter that occurred
before the grand jury;
(iii) at the request of the government, when
sought by a foreign court or prosecutor for use
in an official criminal investigation;
(iv) at the request of the government if it
shows that the matter may disclose a violation
of State, Indian tribal, or foreign criminal
law, as long as the disclosure is to an
appropriate state, state-subdivision, Indian
tribal, or foreign government official for the
purpose of enforcing that law; or
(v) at the request of the government if it
shows that the matter may disclose a violation
of military criminal law under the Uniform Code
of Military Justice, as long as the disclosure
is to an appropriate military official for the
purpose of enforcing that law.
(F) A petition to disclose a grand-jury matter under
Rule 6(e)(3)(E)(i) must be filed in the district where
the grand jury convened. Unless the hearing is ex
parte--as it may be when the government is the
petitioner--the petitioner must serve the petition on,
and the court must afford a reasonable opportunity to
appear and be heard to:
(i) an attorney for the government;
(ii) the parties to the judicial proceeding;
and
(iii) any other person whom the court may
designate.
(G) If the petition to disclose arises out of a
judicial proceeding in another district, the petitioned
court must transfer the petition to the other court
unless the petitioned court can reasonably determine
whether disclosure is proper. If the petitioned court
decides to transfer, it must send to the transferee
court the material sought to be disclosed, if feasible,
and a written evaluation of the need for continued
grand-jury secrecy. The transferee court must afford
those persons identified in Rule 6(e)(3)(F) a reasonable
opportunity to appear and be heard.
(4) Sealed Indictment. The magistrate judge to whom an
indictment is returned may direct that the indictment be kept
secret until the defendant is in custody or has been released
pending trial. The clerk must then seal the indictment, and no
person may disclose the indictment's existence except as
necessary to issue or execute a warrant or summons.
(5) Closed Hearing. Subject to any right to an open hearing
in a contempt proceeding, the court must close any hearing to
the extent necessary to prevent disclosure of a matter occurring
before a grand jury.
(6) Sealed Records. Records, orders, and subpoenas relating
to grand-jury proceedings must be kept under seal to the extent
and as long as necessary to prevent the unauthorized disclosure
of a matter occurring before a grand jury.
(7) Contempt. A knowing violation of Rule 6, or of
guidelines jointly issued by the Attorney General and the
Director of National Intelligence pursuant to Rule 6, may be
punished as a contempt of court.
(f) Indictment and Return. A grand jury may indict only if at least
12 jurors concur. The grand jury--or its foreperson or deputy
foreperson--must return the indictment to a magistrate judge in open
court. If a complaint or information is pending against the defendant
and 12 jurors do not concur in the indictment, the foreperson must
promptly and in writing report the lack of concurrence to the magistrate
judge.
(g) Discharging the Grand Jury. A grand jury must serve until the
court discharges it, but it may serve more than 18 months only if the
court, having determined that an extension is in the public interest,
extends the grand jury's service. An extension may be granted for no
more than 6 months, except as otherwise provided by statute.
(h) Excusing a Juror. At any time, for good cause, the court may
excuse a juror either temporarily or permanently, and if permanently,
the court may impanel an alternate juror in place of the excused juror.
(i) ``Indian Tribe'' Defined. ``Indian tribe'' means an Indian tribe
recognized by the Secretary of the Interior on a list published in the
Federal Register under 25 U.S.C. Sec. 479a-1.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.
1, 1972; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; July 30, 1977,
eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1983, eff.
Aug. 1, 1983; Oct. 12, 1984, eff. Nov. 1, 1987; Apr. 29, 1985, eff. Aug.
1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 26, 1999, eff. Dec. 1, 1999; Oct. 26, 2001; Apr. 29, 2002,
eff. Dec. 1, 2002; Nov. 25, 2002; Dec. 17, 2004.)
Rule 7. The Indictment and the Information______________________________
(a) When Used.
(1) Felony. An offense (other than criminal contempt) must
be prosecuted by an indictment if it is punishable:
(A) by death; or
(B) by imprisonment for more than one year.
(2) Misdemeanor. An offense punishable by imprisonment for
one year or less may be prosecuted in accordance with Rule
58(b)(1).
(b) Waiving Indictment. An offense punishable by imprisonment for
more than one year may be prosecuted by information if the defendant--in
open court and after being advised of the nature of the charge and of
the defendant's rights--waives prosecution by indictment.
(c) Nature and Contents.
(1) In General. The indictment or information must be a
plain, concise, and definite written statement of the essential
facts constituting the offense charged and must be signed by an
attorney for the government. It need not contain a formal
introduction or conclusion. A count may incorporate by reference
an allegation made in another count. A count may allege that the
means by which the defendant committed the offense are unknown
or that the defendant committed it by one or more specified
means. For each count, the indictment or information must give
the official or customary citation of the statute, rule,
regulation, or other provision of law that the defendant is
alleged to have violated. For purposes of an indictment referred
to in section 3282 of title 18, United States Code, for which
the identity of the defendant is unknown, it shall be sufficient
for the indictment to describe the defendant as an individual
whose name is unknown, but who has a particular DNA profile, as
that term is defined in section 3282.
(2) Criminal Forfeiture. No judgment of forfeiture may be
entered in a criminal proceeding unless the indictment or the
information provides notice that the defendant has an interest
in property that is subject to forfeiture in accordance with the
applicable statute.
(3) Citation Error. Unless the defendant was misled and
thereby prejudiced, neither an error in a citation nor a
citation's omission is a ground to dismiss the indictment or
information or to reverse a conviction.
(d) Surplusage. Upon the defendant's motion, the court may strike
surplusage from the indictment or information.
(e) Amending an Information. Unless an additional or different
offense is charged or a substantial right of the defendant is
prejudiced, the court may permit an information to be amended at any
time before the verdict or finding.
(f) Bill of Particulars. The court may direct the government to file
a bill of particulars. The defendant may move for a bill of particulars
before or within 10 days after arraignment or at a later time if the
court permits. The government may amend a bill of particulars subject to
such conditions as justice requires.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.
1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 9, 1987, eff. Aug. 1,
1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1,
2002; Apr. 30, 2003.)
Rule 8. Joinder of Offenses or Defendants_______________________________
(a) Joinder of Offenses. The indictment or information may charge a
defendant in separate counts with 2 or more offenses if the offenses
charged--whether felonies or misdemeanors or both--are of the same or
similar character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan.
(b) Joinder of Defendants. The indictment or information may charge
2 or more defendants if they are alleged to have participated in the
same act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses. The defendants may be charged in
one or more counts together or separately. All defendants need not be
charged in each count.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 9. Arrest Warrant or Summons on an Indictment or Information_______
(a) Issuance. The court must issue a warrant--or at the government's
request, a summons--for each defendant named in an indictment or named
in an information if one or more affidavits accompanying the information
establish probable cause to believe that an offense has been committed
and that the defendant committed it. The court may issue more than one
warrant or summons for the same defendant. If a defendant fails to
appear in response to a summons, the court may, and upon request of an
attorney for the government must, issue a warrant. The court must issue
the arrest warrant to an officer authorized to execute it or the summons
to a person authorized to serve it.
(b) Form.
(1) Warrant. The warrant must conform to Rule 4(b)(1) except
that it must be signed by the clerk and must describe the
offense charged in the indictment or information.
(2) Summons. The summons must be in the same form as a
warrant except that it must require the defendant to appear
before the court at a stated time and place.
(c) Execution or Service; Return; Initial Appearance.
(1) Execution or Service.
(A) The warrant must be executed or the summons
served as provided in Rule 4(c)(1), (2), and (3).
(B) The officer executing the warrant must proceed
in accordance with Rule 5(a)(1).
(2) Return. A warrant or summons must be returned in
accordance with Rule 4(c)(4).
(3) Initial Appearance. When an arrested or summoned
defendant first appears before the court, the judge must proceed
under Rule 5.
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec.
1, 1975; July 31, 1975, eff. Dec. 1, 1975; Dec. 12, 1975; Apr. 30, 1979,
eff. Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff.
Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)
TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL
Rule 10. Arraignment_____________________________________________________
(a) In General. An arraignment must be conducted in open court and
must consist of:
(1) ensuring that the defendant has a copy of the indictment
or information;
(2) reading the indictment or information to the defendant
or stating to the defendant the substance of the charge; and
then
(3) asking the defendant to plead to the indictment or
information.
(b) Waiving Appearance. A defendant need not be present for the
arraignment if:
(1) the defendant has been charged by indictment or
misdemeanor information;
(2) the defendant, in a written waiver signed by both the
defendant and defense counsel, has waived appearance and has
affirmed that the defendant received a copy of the indictment or
information and that the plea is not guilty; and
(3) the court accepts the waiver.
(c) Video Teleconferencing. Video teleconferencing may be used to
arraign a defendant if the defendant consents.
(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 11. Pleas___________________________________________________________
(a) Entering a Plea.
(1) In General. A defendant may plead not guilty, guilty, or
(with the court's consent) nolo contendere.
(2) Conditional Plea. With the consent of the court and the
government, a defendant may enter a conditional plea of guilty
or nolo contendere, reserving in writing the right to have an
appellate court review an adverse determination of a specified
pretrial motion. A defendant who prevails on appeal may then
withdraw the plea.
(3) Nolo Contendere Plea. Before accepting a plea of nolo
contendere, the court must consider the parties' views and the
public interest in the effective administration of justice.
(4) Failure to Enter a Plea. If a defendant refuses to enter
a plea or if a defendant organization fails to appear, the court
must enter a plea of not guilty.
(b) Considering and Accepting a Guilty or Nolo Contendere Plea.
(1) Advising and Questioning the Defendant. Before the court
accepts a plea of guilty or nolo contendere, the defendant may
be placed under oath, and the court must address the defendant
personally in open court. During this address, the court must
inform the defendant of, and determine that the defendant
understands, the following:
(A) the government's right, in a prosecution for
perjury or false statement, to use against the defendant
any statement that the defendant gives under oath;
(B) the right to plead not guilty, or having already
so pleaded, to persist in that plea;
(C) the right to a jury trial;
(D) the right to be represented by counsel--and if
necessary have the court appoint counsel--at trial and
at every other stage of the proceeding;
(E) the right at trial to confront and cross-examine
adverse witnesses, to be protected from compelled self-
incrimination, to testify and present evidence, and to
compel the attendance of witnesses;
(F) the defendant's waiver of these trial rights if
the court accepts a plea of guilty or nolo contendere;
(G) the nature of each charge to which the defendant
is pleading;
(H) any maximum possible penalty, including
imprisonment, fine, and term of supervised release;
(I) any mandatory minimum penalty;
(J) any applicable forfeiture;
(K) the court's authority to order restitution;
(L) the court's obligation to impose a special
assessment;
(M) the court's obligation to apply the Sentencing
Guidelines, and the court's discretion to depart from
those guidelines under some circumstances; and
(N) the terms of any plea-agreement provision
waiving the right to appeal or to collaterally attack
the sentence.
(2) Ensuring That a Plea Is Voluntary. Before accepting a
plea of guilty or nolo contendere, the court must address the
defendant personally in open court and determine that the plea
is voluntary and did not result from force, threats, or promises
(other than promises in a plea agreement).
(3) Determining the Factual Basis for a Plea. Before
entering judgment on a guilty plea, the court must determine
that there is a factual basis for the plea.
(c) Plea Agreement Procedure.
(1) In General. An attorney for the government and the
defendant's attorney, or the defendant when proceeding pro se,
may discuss and reach a plea agreement. The court must not
participate in these discussions. If the defendant pleads guilty
or nolo contendere to either a charged offense or a lesser or
related offense, the plea agreement may specify that an attorney
for the government will:
(A) not bring, or will move to dismiss, other
charges;
(B) recommend, or agree not to oppose the
defendant's request, that a particular sentence or
sentencing range is appropriate or that a particular
provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does or does not apply
(such a recommendation or request does not bind the
court); or
(C) agree that a specific sentence or sentencing
range is the appropriate disposition of the case, or
that a particular provision of the Sentencing
Guidelines, or policy statement, or sentencing factor
does or does not apply (such a recommendation or request
binds the court once the court accepts the plea
agreement).
(2) Disclosing a Plea Agreement. The parties must disclose
the plea agreement in open court when the plea is offered,
unless the court for good cause allows the parties to disclose
the plea agreement in camera.
(3) Judicial Consideration of a Plea Agreement.
(A) To the extent the plea agreement is of the type
specified in Rule 11(c)(1)(A) or (C), the court may
accept the agreement, reject it, or defer a decision
until the court has reviewed the presentence report.
(B) To the extent the plea agreement is of the type
specified in Rule 11(c)(1)(B), the court must advise the
defendant that the defendant has no right to withdraw
the plea if the court does not follow the recommendation
or request.
(4) Accepting a Plea Agreement. If the court accepts the
plea agreement, it must inform the defendant that to the extent
the plea agreement is of the type specified in Rule 11(c)(1)(A)
or (C), the agreed disposition will be included in the judgment.
(5) Rejecting a Plea Agreement. If the court rejects a plea
agreement containing provisions of the type specified in Rule
11(c)(1)(A) or (C), the court must do the following on the
record and in open court (or, for good cause, in camera):
(A) inform the parties that the court rejects the
plea agreement;
(B) advise the defendant personally that the court
is not required to follow the plea agreement and give
the defendant an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea
is not withdrawn, the court may dispose of the case less
favorably toward the defendant than the plea agreement
contemplated.
(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may
withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no
reason; or
(2) after the court accepts the plea, but before it imposes
sentence if:
(A) the court rejects a plea agreement under Rule
11(c)(5); or
(B) the defendant can show a fair and just reason
for requesting the withdrawal.
(e) Finality of a Guilty or Nolo Contendere Plea. After the court
imposes sentence, the defendant may not withdraw a plea of guilty or
nolo contendere, and the plea may be set aside only on direct appeal or
collateral attack.
(f) Admissibility or Inadmissibility of a Plea, Plea Discussions,
and Related Statements. The admissibility or inadmissibility of a plea,
a plea discussion, and any related statement is governed by Federal Rule
of Evidence 410.
(g) Recording the Proceedings. The proceedings during which the
defendant enters a plea must be recorded by a court reporter or by a
suitable recording device. If there is a guilty plea or a nolo
contendere plea, the record must include the inquiries and advice to the
defendant required under Rule 11(b) and (c).
(h) Harmless Error. A variance from the requirements of this rule is
harmless error if it does not affect substantial rights.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec.
1, 1975; July 31, 1975, eff. Aug. 1 and Dec. 1, 1975; Apr. 30, 1979,
eff. Aug. 1, 1979, and Dec. 1, 1980; Apr. 28, 1982, eff. Aug. 1, 1982;
Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar.
9, 1987, eff. Aug. 1, 1987; Nov. 18, 1988; Apr. 25, 1989, eff. Dec. 1,
1989; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 12. Pleadings and Pretrial Motions__________________________________
(a) Pleadings. The pleadings in a criminal proceeding are the
indictment, the information, and the pleas of not guilty, guilty, and
nolo contendere.
(b) Pretrial Motions.
(1) In General. Rule 47 applies to a pretrial motion.
(2) Motions That May Be Made Before Trial. A party may raise
by pretrial motion any defense, objection, or request that the
court can determine without a trial of the general issue.
(3) Motions That Must Be Made Before Trial. The following
must be raised before trial:
(A) a motion alleging a defect in instituting the
prosecution;
(B) a motion alleging a defect in the indictment or
information--but at any time while the case is pending,
the court may hear a claim that the indictment or
information fails to invoke the court's jurisdiction or
to state an offense;
(C) a motion to suppress evidence;
(D) a Rule 14 motion to sever charges or defendants;
and
(E) a Rule 16 motion for discovery.
(4) Notice of the Government's Intent to Use Evidence.
(A) At the Government's Discretion. At the
arraignment or as soon afterward as practicable, the
government may notify the defendant of its intent to use
specified evidence at trial in order to afford the
defendant an opportunity to object before trial under
Rule 12(b)(3)(C).
(B) At the Defendant's Request. At the arraignment
or as soon afterward as practicable, the defendant may,
in order to have an opportunity to move to suppress
evidence under Rule 12(b)(3)(C), request notice of the
government's intent to use (in its evidence-in-chief at
trial) any evidence that the defendant may be entitled
to discover under Rule 16.
(c) Motion Deadline. The court may, at the arraignment or as soon
afterward as practicable, set a deadline for the parties to make
pretrial motions and may also schedule a motion hearing.
(d) Ruling on a Motion. The court must decide every pretrial motion
before trial unless it finds good cause to defer a ruling. The court
must not defer ruling on a pretrial motion if the deferral will
adversely affect a party's right to appeal. When factual issues are
involved in deciding a motion, the court must state its essential
findings on the record.
(e) Waiver of a Defense, Objection, or Request. A party waives any
Rule 12(b)(3) defense, objection, or request not raised by the deadline
the court sets under Rule 12(c) or by any extension the court provides.
For good cause, the court may grant relief from the waiver.
(f) Recording the Proceedings. All proceedings at a motion hearing,
including any findings of fact and conclusions of law made orally by the
court, must be recorded by a court reporter or a suitable recording
device.
(g) Defendant's Continued Custody or Release Status. If the court
grants a motion to dismiss based on a defect in instituting the
prosecution, in the indictment, or in the information, it may order the
defendant to be released or detained under 18 U.S.C. Sec. 3142 for a
specified time until a new indictment or information is filed. This rule
does not affect any federal statutory period of limitations.
(h) Producing Statements at a Suppression Hearing. Rule 26.2 applies
at a suppression hearing under Rule 12(b)(3)(C). At a suppression
hearing, a law enforcement officer is considered a government witness.
(As amended Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec.
1, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 12.1. Notice of an Alibi Defense______________________________________
(a) Government's Request for Notice and Defendant's Response.
(1) Government's Request. An attorney for the government may
request in writing that the defendant notify an attorney for the
government of any intended alibi defense. The request must state
the time, date, and place of the alleged offense.
(2) Defendant's Response. Within 10 days after the request,
or at some other time the court sets, the defendant must serve
written notice on an attorney for the government of any intended
alibi defense. The defendant's notice must state:
(A) each specific place where the defendant claims
to have been at the time of the alleged offense; and
(B) the name, address, and telephone number of each
alibi witness on whom the defendant intends to rely.
(b) Disclosing Government Witnesses.
(1) Disclosure. If the defendant serves a Rule 12.1(a)(2)
notice, an attorney for the government must disclose in writing
to the defendant or the defendant's attorney:
(A) the name, address, and telephone number of each
witness the government intends to rely on to establish
the defendant's presence at the scene of the alleged
offense; and
(B) each government rebuttal witness to the
defendant's alibi defense.
(2) Time to Disclose. Unless the court directs otherwise, an
attorney for the government must give its Rule 12.1(b)(1)
disclosure within 10 days after the defendant serves notice of
an intended alibi defense under Rule 12.1(a)(2), but no later
than 10 days before trial.
(c) Continuing Duty to Disclose. Both an attorney for the government
and the defendant must promptly disclose in writing to the other party
the name, address, and telephone number of each additional witness if:
(1) the disclosing party learns of the witness before or
during trial; and
(2) the witness should have been disclosed under Rule
12.1(a) or (b) if the disclosing party had known of the witness
earlier.
(d) Exceptions. For good cause, the court may grant an exception to
any requirement of Rule 12.1(a)-(c).
(e) Failure to Comply. If a party fails to comply with this rule,
the court may exclude the testimony of any undisclosed witness regarding
the defendant's alibi. This rule does not limit the defendant's right to
testify.
(f) Inadmissibility of Withdrawn Intention. Evidence of an intention
to rely on an alibi defense, later withdrawn, or of a statement made in
connection with that intention, is not, in any civil or criminal
proceeding, admissible against the person who gave notice of the
intention.
(As added Apr. 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975, eff.
Dec. 1, 1975; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug.
1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 12.2. Notice of an Insanity Defense; Mental Examination_______________
(a) Notice of an Insanity Defense. A defendant who intends to assert
a defense of insanity at the time of the alleged offense must so notify
an attorney for the government in writing within the time provided for
filing a pretrial motion, or at any later time the court sets, and file
a copy of the notice with the clerk. A defendant who fails to do so
cannot rely on an insanity defense. The court may, for good cause, allow
the defendant to file the notice late, grant additional trial-
preparation time, or make other appropriate orders.
(b) Notice of Expert Evidence of a Mental Condition. If a defendant
intends to introduce expert evidence relating to a mental disease or
defect or any other mental condition of the defendant bearing on either
(1) the issue of guilt or (2) the issue of punishment in a capital case,
the defendant must--within the time provided for filing a pretrial
motion or at any later time the court sets--notify an attorney for the
government in writing of this intention and file a copy of the notice
with the clerk. The court may, for good cause, allow the defendant to
file the notice late, grant the parties additional trial-preparation
time, or make other appropriate orders.
(c) Mental Examination.
(1) Authority to Order an Examination; Procedures.
(A) The court may order the defendant to submit to a
competency examination under 18 U.S.C. Sec. 4241.
(B) If the defendant provides notice under Rule
12.2(a), the court must, upon the government's motion,
order the defendant to be examined under 18 U.S.C.
Sec. 4242. If the defendant provides notice under Rule
12.2(b) the court may, upon the government's motion,
order the defendant to be examined under procedures
ordered by the court.
(2) Disclosing Results and Reports of Capital Sentencing
Examination. The results and reports of any examination
conducted solely under Rule 12.2(c)(1) after notice under Rule
12.2(b)(2) must be sealed and must not be disclosed to any
attorney for the government or the defendant unless the
defendant is found guilty of one or more capital crimes and the
defendant confirms an intent to offer during sentencing
proceedings expert evidence on mental condition.
(3) Disclosing Results and Reports of the Defendant's Expert
Examination. After disclosure under Rule 12.2(c)(2) of the
results and reports of the government's examination, the
defendant must disclose to the government the results and
reports of any examination on mental condition conducted by the
defendant's expert about which the defendant intends to
introduce expert evidence.
(4) Inadmissibility of a Defendant's Statements. No
statement made by a defendant in the course of any examination
conducted under this rule (whether conducted with or without the
defendant's consent), no testimony by the expert based on the
statement, and no other fruits of the statement may be admitted
into evidence against the defendant in any criminal proceeding
except on an issue regarding mental condition on which the
defendant:
(A) has introduced evidence of incompetency or
evidence requiring notice under Rule 12.2(a) or (b)(1),
or
(B) has introduced expert evidence in a capital
sentencing proceeding requiring notice under Rule
12.2(b)(2).
(d) Failure to Comply. If the defendant fails to give notice under
Rule 12.2(b) or does not submit to an examination when ordered under
Rule 12.2(c), the court may exclude any expert evidence from the
defendant on the issue of the defendant's mental disease, mental defect,
or any other mental condition bearing on the defendant's guilt or the
issue of punishment in a capital case.
(e) Inadmissibility of Withdrawn Intention. Evidence of an intention
as to which notice was given under Rule 12.2(a) or (b), later withdrawn,
is not, in any civil or criminal proceeding, admissible against the
person who gave notice of the intention.
(As added Apr. 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975, eff.
Dec. 1, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984; Oct. 30,
1984, eff. Oct. 12, 1984; Apr. 29, 1985, eff. Aug. 1, 1985; Nov. 10,
1986; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 12.3. Notice of a Public-Authority Defense____________________________
(a) Notice of the Defense and Disclosure of Witnesses.
(1) Notice in General. If a defendant intends to assert a
defense of actual or believed exercise of public authority on
behalf of a law enforcement agency or federal intelligence
agency at the time of the alleged offense, the defendant must so
notify an attorney for the government in writing and must file a
copy of the notice with the clerk within the time provided for
filing a pretrial motion, or at any later time the court sets.
The notice filed with the clerk must be under seal if the notice
identifies a federal intelligence agency as the source of public
authority.
(2) Contents of Notice. The notice must contain the
following information:
(A) the law enforcement agency or federal
intelligence agency involved;
(B) the agency member on whose behalf the defendant
claims to have acted; and
(C) the time during which the defendant claims to
have acted with public authority.
(3) Response to the Notice. An attorney for the government
must serve a written response on the defendant or the
defendant's attorney within 10 days after receiving the
defendant's notice, but no later than 20 days before trial. The
response must admit or deny that the defendant exercised the
public authority identified in the defendant's notice.
(4) Disclosing Witnesses.
(A) Government's Request. An attorney for the
government may request in writing that the defendant
disclose the name, address, and telephone number of each
witness the defendant intends to rely on to establish a
public-authority defense. An attorney for the government
may serve the request when the government serves its
response to the defendant's notice under Rule
12.3(a)(3), or later, but must serve the request no
later than 20 days before trial.
(B) Defendant's Response. Within 7 days after
receiving the government's request, the defendant must
serve on an attorney for the government a written
statement of the name, address, and telephone number of
each witness.
(C) Government's Reply. Within 7 days after
receiving the defendant's statement, an attorney for the
government must serve on the defendant or the
defendant's attorney a written statement of the name,
address, and telephone number of each witness the
government intends to rely on to oppose the defendant's
public-authority defense.
(5) Additional Time. The court may, for good cause, allow a
party additional time to comply with this rule.
(b) Continuing Duty to Disclose. Both an attorney for the government
and the defendant must promptly disclose in writing to the other party
the name, address, and telephone number of any additional witness if:
(1) the disclosing party learns of the witness before or
during trial; and
(2) the witness should have been disclosed under Rule
12.3(a)(4) if the disclosing party had known of the witness
earlier.
(c) Failure to Comply. If a party fails to comply with this rule,
the court may exclude the testimony of any undisclosed witness regarding
the public-authority defense. This rule does not limit the defendant's
right to testify.
(d) Protective Procedures Unaffected. This rule does not limit the
court's authority to issue appropriate protective orders or to order
that any filings be under seal.
(e) Inadmissibility of Withdrawn Intention. Evidence of an intention
as to which notice was given under Rule 12.3(a), later withdrawn, is
not, in any civil or criminal proceeding, admissible against the person
who gave notice of the intention.
(As added Nov. 18, 1988; amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 12.4. Disclosure Statement____________________________________________
(a) Who Must File.
(1) Nongovernmental Corporate Party. Any nongovernmental
corporate party to a proceeding in a district court must file a
statement that identifies any parent corporation and any
publicly held corporation that owns 10% or more of its stock or
states that there is no such corporation.
(2) Organizational Victim. If an organization is a victim of
the alleged criminal activity, the government must file a
statement identifying the victim. If the organizational victim
is a corporation, the statement must also disclose the
information required by Rule 12.4(a)(1) to the extent it can be
obtained through due diligence.
(b) Time for Filing; Supplemental Filing. A party must:
(1) file the Rule 12.4(a) statement upon the defendant's
initial appearance; and
(2) promptly file a supplemental statement upon any change
in the information that the statement requires.
(As added Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 13. Joint Trial of Separate Cases___________________________________
The court may order that separate cases be tried together as though
brought in a single indictment or information if all offenses and all
defendants could have been joined in a single indictment or information.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 14. Relief from Prejudicial Joinder_________________________________
(a) Relief. If the joinder of offenses or defendants in an
indictment, an information, or a consolidation for trial appears to
prejudice a defendant or the government, the court may order separate
trials of counts, sever the defendants' trials, or provide any other
relief that justice requires.
(b) Defendant's Statements. Before ruling on a defendant's motion to
sever, the court may order an attorney for the government to deliver to
the court for in camera inspection any defendant's statement that the
government intends to use as evidence.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 2002, eff. Dec.
1, 2002.)
Rule 15. Depositions_____________________________________________________
(a) When Taken.
(1) In General. A party may move that a prospective witness
be deposed in order to preserve testimony for trial. The court
may grant the motion because of exceptional circumstances and in
the interest of justice. If the court orders the deposition to
be taken, it may also require the deponent to produce at the
deposition any designated material that is not privileged,
including any book, paper, document, record, recording, or data.
(2) Detained Material Witness. A witness who is detained
under 18 U.S.C. Sec. 3144 may request to be deposed by filing a
written motion and giving notice to the parties. The court may
then order that the deposition be taken and may discharge the
witness after the witness has signed under oath the deposition
transcript.
(b) Notice.
(1) In General. A party seeking to take a deposition must
give every other party reasonable written notice of the
deposition's date and location. The notice must state the name
and address of each deponent. If requested by a party receiving
the notice, the court may, for good cause, change the
deposition's date or location.
(2) To the Custodial Officer. A party seeking to take the
deposition must also notify the officer who has custody of the
defendant of the scheduled date and location.
(c) Defendant's Presence.
(1) Defendant in Custody. The officer who has custody of the
defendant must produce the defendant at the deposition and keep
the defendant in the witness's presence during the examination,
unless the defendant:
(A) waives in writing the right to be present; or
(B) persists in disruptive conduct justifying
exclusion after being warned by the court that
disruptive conduct will result in the defendant's
exclusion.
(2) Defendant Not in Custody. A defendant who is not in
custody has the right upon request to be present at the
deposition, subject to any conditions imposed by the court. If
the government tenders the defendant's expenses as provided in
Rule 15(d) but the defendant still fails to appear, the
defendant--absent good cause--waives both the right to appear
and any objection to the taking and use of the deposition based
on that right.
(d) Expenses. If the deposition was requested by the government, the
court may--or if the defendant is unable to bear the deposition
expenses, the court must--order the government to pay:
(1) any reasonable travel and subsistence expenses of the
defendant and the defendant's attorney to attend the deposition;
and
(2) the costs of the deposition transcript.
(e) Manner of Taking. Unless these rules or a court order provides
otherwise, a deposition must be taken and filed in the same manner as a
deposition in a civil action, except that:
(1) A defendant may not be deposed without that defendant's
consent.
(2) The scope and manner of the deposition examination and
cross-examination must be the same as would be allowed during
trial.
(3) The government must provide to the defendant or the
defendant's attorney, for use at the deposition, any statement
of the deponent in the government's possession to which the
defendant would be entitled at trial.
(f) Use as Evidence. A party may use all or part of a deposition as
provided by the Federal Rules of Evidence.
(g) Objections. A party objecting to deposition testimony or
evidence must state the grounds for the objection during the deposition.
(h) Depositions by Agreement Permitted. The parties may by agreement
take and use a deposition with the court's consent.
(As amended Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec.
1, 1975; Oct. 12, 1984; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002,
eff. Dec. 1, 2002.)
Rule 16. Discovery and Inspection________________________________________
(a) Government's Disclosure.
(1) Information Subject to Disclosure.
(A) Defendant's Oral Statement. Upon a defendant's
request, the government must disclose to the defendant
the substance of any relevant oral statement made by the
defendant, before or after arrest, in response to
interrogation by a person the defendant knew was a
government agent if the government intends to use the
statement at trial.
(B) Defendant's Written or Recorded Statement. Upon
a defendant's request, the government must disclose to
the defendant, and make available for inspection,
copying, or photographing, all of the following:
(i) any relevant written or recorded
statement by the defendant if:
the statement is within the government's possession, custody, or
control; and
the attorney for the government knows--or through due diligence
could know--that the statement exists;
(ii) the portion of any written record
containing the substance of any relevant oral
statement made before or after arrest if the
defendant made the statement in response to
interrogation by a person the defendant knew was
a government agent; and
(iii) the defendant's recorded testimony
before a grand jury relating to the charged
offense.
(C) Organizational Defendant. Upon a defendant's
request, if the defendant is an organization, the
government must disclose to the defendant any statement
described in Rule 16(a)(1)(A) and (B) if the government
contends that the person making the statement:
(i) was legally able to bind the defendant
regarding the subject of the statement because
of that person's position as the defendant's
director, officer, employee, or agent; or
(ii) was personally involved in the alleged
conduct constituting the offense and was legally
able to bind the defendant regarding that
conduct because of that person's position as the
defendant's director, officer, employee, or
agent.
(D) Defendant's Prior Record. Upon a defendant's
request, the government must furnish the defendant with
a copy of the defendant's prior criminal record that is
within the government's possession, custody, or control
if the attorney for the government knows--or through due
diligence could know--that the record exists.
(E) Documents and Objects. Upon a defendant's
request, the government must permit the defendant to
inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects,
buildings or places, or copies or portions of any of
these items, if the item is within the government's
possession, custody, or control and:
(i) the item is material to preparing the
defense;
(ii) the government intends to use the item
in its case-in-chief at trial; or
(iii) the item was obtained from or belongs
to the defendant.
(F) Reports of Examinations and Tests. Upon a
defendant's request, the government must permit a
defendant to inspect and to copy or photograph the
results or reports of any physical or mental examination
and of any scientific test or experiment if:
(i) the item is within the government's
possession, custody, or control;
(ii) the attorney for the government knows--
or through due diligence could know--that the
item exists; and
(iii) the item is material to preparing the
defense or the government intends to use the
item in its case-in-chief at trial.
(G) Expert Witnesses. At the defendant's request,
the government must give to the defendant a written
summary of any testimony that the government intends to
use under Rules 702, 703, or 705 of the Federal Rules of
Evidence during its case-in-chief at trial. If the
government requests discovery under subdivision
(b)(1)(C)(ii) and the defendant complies, the government
must, at the defendant's request, give to the defendant
a written summary of testimony that the government
intends to use under Rules 702, 703, or 705 of the
Federal Rules of Evidence as evidence at trial on the
issue of the defendant's mental condition. The summary
provided under this subparagraph must describe the
witness's opinions, the bases and reasons for those
opinions, and the witness's qualifications.
(2) Information Not Subject to Disclosure. Except as Rule
16(a)(1) provides otherwise, this rule does not authorize the
discovery or inspection of reports, memoranda, or other internal
government documents made by an attorney for the government or
other government agent in connection with investigating or
prosecuting the case. Nor does this rule authorize the discovery
or inspection of statements made by prospective government
witnesses except as provided in 18 U.S.C. Sec. 3500.
(3) Grand Jury Transcripts. This rule does not apply to the
discovery or inspection of a grand jury's recorded proceedings,
except as provided in Rules 6, 12(h), 16(a)(1), and 26.2.
(b) Defendant's Disclosure.
(1) Information Subject to Disclosure.
(A) Documents and Objects. If a defendant requests
disclosure under Rule 16(a)(1)(E) and the government
complies, then the defendant must permit the government,
upon request, to inspect and to copy or photograph
books, papers, documents, data, photographs, tangible
objects, buildings or places, or copies or portions of
any of these items if:
(i) the item is within the defendant's
possession, custody, or control; and
(ii) the defendant intends to use the item
in the defendant's case-in-chief at trial.
(B) Reports of Examinations and Tests. If a
defendant requests disclosure under Rule 16(a)(1)(F) and
the government complies, the defendant must permit the
government, upon request, to inspect and to copy or
photograph the results or reports of any physical or
mental examination and of any scientific test or
experiment if:
(i) the item is within the defendant's
possession, custody, or control; and
(ii) the defendant intends to use the item
in the defendant's case-in-chief at trial, or
intends to call the witness who prepared the
report and the report relates to the witness's
testimony.
(C) Expert Witnesses. The defendant must, at the
government's request, give to the government a written
summary of any testimony that the defendant intends to
use under Rules 702, 703, or 705 of the Federal Rules of
Evidence as evidence at trial, if--
(i) the defendant requests disclosure under
subdivision (a)(1)(G) and the government
complies; or
(ii) the defendant has given notice under
Rule 12.2(b) of an intent to present expert
testimony on the defendant's mental condition.
This summary must describe the witness's opinions, the
bases and reasons for those opinions, and the witness's
qualifications[.]
(2) Information Not Subject to Disclosure. Except for
scientific or medical reports, Rule 16(b)(1) does not authorize
discovery or inspection of:
(A) reports, memoranda, or other documents made by
the defendant, or the defendant's attorney or agent,
during the case's investigation or defense; or
(B) a statement made to the defendant, or the
defendant's attorney or agent, by:
(i) the defendant;
(ii) a government or defense witness; or
(iii) a prospective government or defense
witness.
(c) Continuing Duty to Disclose. A party who discovers additional
evidence or material before or during trial must promptly disclose its
existence to the other party or the court if:
(1) the evidence or material is subject to discovery or
inspection under this rule; and
(2) the other party previously requested, or the court
ordered, its production.
(d) Regulating Discovery.
(1) Protective and Modifying Orders. At any time the court
may, for good cause, deny, restrict, or defer discovery or
inspection, or grant other appropriate relief. The court may
permit a party to show good cause by a written statement that
the court will inspect ex parte. If relief is granted, the court
must preserve the entire text of the party's statement under
seal.
(2) Failure to Comply. If a party fails to comply with this
rule, the court may:
(A) order that party to permit the discovery or
inspection; specify its time, place, and manner; and
prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the
undisclosed evidence; or
(D) enter any other order that is just under the
circumstances.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec.
1, 1975; July 31, 1975, eff. Dec. 1, 1975; Dec. 12, 1975; Apr. 28, 1983,
eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec.
1, 1994; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 29, 2002, eff. Dec. 1,
2002; Nov. 2, 2002, eff. Dec. 1, 2002.)
Rule 17. Subpoena________________________________________________________
(a) Content. A subpoena must state the court's name and the title of
the proceeding, include the seal of the court, and command the witness
to attend and testify at the time and place the subpoena specifies. The
clerk must issue a blank subpoena--signed and sealed--to the party
requesting it, and that party must fill in the blanks before the
subpoena is served.
(b) Defendant Unable to Pay. Upon a defendant's ex parte
application, the court must order that a subpoena be issued for a named
witness if the defendant shows an inability to pay the witness's fees
and the necessity of the witness's presence for an adequate defense. If
the court orders a subpoena to be issued, the process costs and witness
fees will be paid in the same manner as those paid for witnesses the
government subpoenas.
(c) Producing Documents and Objects.
(1) In General. A subpoena may order the witness to produce
any books, papers, documents, data, or other objects the
subpoena designates. The court may direct the witness to produce
the designated items in court before trial or before they are to
be offered in evidence. When the items arrive, the court may
permit the parties and their attorneys to inspect all or part of
them.
(2) Quashing or Modifying the Subpoena. On motion made
promptly, the court may quash or modify the subpoena if
compliance would be unreasonable or oppressive.
(d) Service. A marshal, a deputy marshal, or any nonparty who is at
least 18 years old may serve a subpoena. The server must deliver a copy
of the subpoena to the witness and must tender to the witness one day's
witness-attendance fee and the legal mileage allowance. The server need
not tender the attendance fee or mileage allowance when the United
States, a federal officer, or a federal agency has requested the
subpoena.
(e) Place of Service.
(1) In the United States. A subpoena requiring a witness to
attend a hearing or trial may be served at any place within the
United States.
(2) In a Foreign Country. If the witness is in a foreign
country, 28 U.S.C. Sec. 1783 governs the subpoena's service.
(f) Issuing a Deposition Subpoena.
(1) Issuance. A court order to take a deposition authorizes
the clerk in the district where the deposition is to be taken to
issue a subpoena for any witness named or described in the
order.
(2) Place. After considering the convenience of the witness
and the parties, the court may order--and the subpoena may
require--the witness to appear anywhere the court designates.
(g) Contempt. The court (other than a magistrate judge) may hold in
contempt a witness who, without adequate excuse, disobeys a subpoena
issued by a federal court in that district. A magistrate judge may hold
in contempt a witness who, without adequate excuse, disobeys a subpoena
issued by that magistrate judge as provided in 28 U.S.C. Sec. 636(e).
(h) Information Not Subject to a Subpoena. No party may subpoena a
statement of a witness or of a prospective witness under this rule. Rule
26.2 governs the production of the statement.
(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1,
1975; July 31, 1975, eff. Dec. 1, 1975; Apr. 30, 1979, eff. Dec. 1,
1980; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 17.1. Pretrial Conference_____________________________________________
On its own, or on a party's motion, the court may hold one or more
pretrial conferences to promote a fair and expeditious trial. When a
conference ends, the court must prepare and file a memorandum of any
matters agreed to during the conference. The government may not use any
statement made during the conference by the defendant or the defendant's
attorney unless it is in writing and is signed by the defendant and the
defendant's attorney.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 9, 1987, eff.
Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)
TITLE V. VENUE
Rule 18. Place of Prosecution and Trial__________________________________
Unless a statute or these rules permit otherwise, the government
must prosecute an offense in a district where the offense was committed.
The court must set the place of trial within the district with due
regard for the convenience of the defendant and the witnesses, and the
prompt administration of justice.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug.
1, 1979; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 19. [Reserved]______________________________________________________
Rule 20. Transfer for Plea and Sentence__________________________________
(a) Consent to Transfer. A prosecution may be transferred from the
district where the indictment or information is pending, or from which a
warrant on a complaint has been issued, to the district where the
defendant is arrested, held, or present if:
(1) the defendant states in writing a wish to plead guilty
or nolo contendere and to waive trial in the district where the
indictment, information, or complaint is pending, consents in
writing to the court's disposing of the case in the transferee
district, and files the statement in the transferee district;
and
(2) the United States attorneys in both districts approve
the transfer in writing.
(b) Clerk's Duties. After receiving the defendant's statement and
the required approvals, the clerk where the indictment, information, or
complaint is pending must send the file, or a certified copy, to the
clerk in the transferee district.
(c) Effect of a Not Guilty Plea. If the defendant pleads not guilty
after the case has been transferred under Rule 20(a), the clerk must
return the papers to the court where the prosecution began, and that
court must restore the proceeding to its docket. The defendant's
statement that the defendant wished to plead guilty or nolo contendere
is not, in any civil or criminal proceeding, admissible against the
defendant.
(d) Juveniles.
(1) Consent to Transfer. A juvenile, as defined in 18 U.S.C.
Sec. 5031, may be proceeded against as a juvenile delinquent in
the district where the juvenile is arrested, held, or present
if:
(A) the alleged offense that occurred in the other
district is not punishable by death or life
imprisonment;
(B) an attorney has advised the juvenile;
(C) the court has informed the juvenile of the
juvenile's rights--including the right to be returned to
the district where the offense allegedly occurred--and
the consequences of waiving those rights;
(D) the juvenile, after receiving the court's
information about rights, consents in writing to be
proceeded against in the transferee district, and files
the consent in the transferee district;
(E) the United States attorneys for both districts
approve the transfer in writing; and
(F) the transferee court approves the transfer.
(2) Clerk's Duties. After receiving the juvenile's written
consent and the required approvals, the clerk where the
indictment, information, or complaint is pending or where the
alleged offense occurred must send the file, or a certified
copy, to the clerk in the transferee district.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec.
1, 1975; July 31, 1975, eff. Dec. 1, 1975; Apr. 28, 1982, eff. Aug. 1,
1982; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 21. Transfer for Trial______________________________________________
(a) For Prejudice. Upon the defendant's motion, the court must
transfer the proceeding against that defendant to another district if
the court is satisfied that so great a prejudice against the defendant
exists in the transferring district that the defendant cannot obtain a
fair and impartial trial there.
(b) For Convenience. Upon the defendant's motion, the court may
transfer the proceeding, or one or more counts, against that defendant
to another district for the convenience of the parties and witnesses and
in the interest of justice.
(c) Proceedings on Transfer. When the court orders a transfer, the
clerk must send to the transferee district the file, or a certified
copy, and any bail taken. The prosecution will then continue in the
transferee district.
(d) Time to File a Motion to Transfer. A motion to transfer may be
made at or before arraignment or at any other time the court or these
rules prescribe.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1,
1987; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 22. [Transferred]___________________________________________________
TITLE VI. TRIAL
Rule 23. Jury or Nonjury Trial___________________________________________
(a) Jury Trial. If the defendant is entitled to a jury trial, the
trial must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.
(b) Jury Size.
(1) In General. A jury consists of 12 persons unless this
rule provides otherwise.
(2) Stipulation for a Smaller Jury. At any time before the
verdict, the parties may, with the court's approval, stipulate
in writing that:
(A) the jury may consist of fewer than 12 persons;
or
(B) a jury of fewer than 12 persons may return a
verdict if the court finds it necessary to excuse a
juror for good cause after the trial begins.
(3) Court Order for a Jury of 11. After the jury has retired
to deliberate, the court may permit a jury of 11 persons to
return a verdict, even without a stipulation by the parties, if
the court finds good cause to excuse a juror.
(c) Nonjury Trial. In a case tried without a jury, the court must
find the defendant guilty or not guilty. If a party requests before the
finding of guilty or not guilty, the court must state its specific
findings of fact in open court or in a written decision or opinion.
(As amended Feb. 28, 1966, eff. July 1, 1966; July 30, 1977, eff. Oct.
1, 1977; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 24. Trial Jurors____________________________________________________
(a) Examination.
(1) In General. The court may examine prospective jurors or
may permit the attorneys for the parties to do so.
(2) Court Examination. If the court examines the jurors, it
must permit the attorneys for the parties to:
(A) ask further questions that the court considers
proper; or
(B) submit further questions that the court may ask
if it considers them proper.
(b) Peremptory Challenges. Each side is entitled to the number of
peremptory challenges to prospective jurors specified below. The court
may allow additional peremptory challenges to multiple defendants, and
may allow the defendants to exercise those challenges separately or
jointly.
(1) Capital Case. Each side has 20 peremptory challenges
when the government seeks the death penalty.
(2) Other Felony Case. The government has 6 peremptory
challenges and the defendant or defendants jointly have 10
peremptory challenges when the defendant is charged with a crime
punishable by imprisonment of more than one year.
(3) Misdemeanor Case. Each side has 3 peremptory challenges
when the defendant is charged with a crime punishable by fine,
imprisonment of one year or less, or both.
(c) Alternate Jurors.
(1) In General. The court may impanel up to 6 alternate
jurors to replace any jurors who are unable to perform or who
are disqualified from performing their duties.
(2) Procedure.
(A) Alternate jurors must have the same
qualifications and be selected and sworn in the same
manner as any other juror.
(B) Alternate jurors replace jurors in the same
sequence in which the alternates were selected. An
alternate juror who replaces a juror has the same
authority as the other jurors.
(3) Retaining Alternate Jurors. The court may retain
alternate jurors after the jury retires to deliberate. The court
must ensure that a retained alternate does not discuss the case
with anyone until that alternate replaces a juror or is
discharged. If an alternate replaces a juror after deliberations
have begun, the court must instruct the jury to begin its
deliberations anew.
(4) Peremptory Challenges. Each side is entitled to the
number of additional peremptory challenges to prospective
alternate jurors specified below. These additional challenges
may be used only to remove alternate jurors.
(A) One or Two Alternates. One additional peremptory
challenge is permitted when one or two alternates are
impaneled.
(B) Three or Four Alternates. Two additional
peremptory challenges are permitted when three or four
alternates are impaneled.
(C) Five or Six Alternates. Three additional
peremptory challenges are permitted when five or six
alternates are impaneled.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1,
1987; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 25. Judge's Disability______________________________________________
(a) During Trial. Any judge regularly sitting in or assigned to the
court may complete a jury trial if:
(1) the judge before whom the trial began cannot proceed
because of death, sickness, or other disability; and
(2) the judge completing the trial certifies familiarity
with the trial record.
(b) After a Verdict or Finding of Guilty.
(1) In General. After a verdict or finding of guilty, any
judge regularly sitting in or assigned to a court may complete
the court's duties if the judge who presided at trial cannot
perform those duties because of absence, death, sickness, or
other disability.
(2) Granting a New Trial. The successor judge may grant a
new trial if satisfied that:
(A) a judge other than the one who presided at the
trial cannot perform the post-trial duties; or
(B) a new trial is necessary for some other reason.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1,
1987; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 26. Taking Testimony________________________________________________
In every trial the testimony of witnesses must be taken in open
court, unless otherwise provided by a statute or by rules adopted under
28 U.S.C. Sec. Sec. 2072-2077.
(As amended Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 2002, eff. Dec.
1, 2002.)
Rule 26.1. Foreign Law Determination_______________________________________
A party intending to raise an issue of foreign law must provide the
court and all parties with reasonable written notice. Issues of foreign
law are questions of law, but in deciding such issues a court may
consider any relevant material or source--including testimony--without
regard to the Federal Rules of Evidence.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff.
July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 26.2. Producing a Witness's Statement_________________________________
(a) Motion to Produce. After a witness other than the defendant has
testified on direct examination, the court, on motion of a party who did
not call the witness, must order an attorney for the government or the
defendant and the defendant's attorney to produce, for the examination
and use of the moving party, any statement of the witness that is in
their possession and that relates to the subject matter of the witness's
testimony.
(b) Producing the Entire Statement. If the entire statement relates
to the subject matter of the witness's testimony, the court must order
that the statement be delivered to the moving party.
(c) Producing a Redacted Statement. If the party who called the
witness claims that the statement contains information that is
privileged or does not relate to the subject matter of the witness's
testimony, the court must inspect the statement in camera. After
excising any privileged or unrelated portions, the court must order
delivery of the redacted statement to the moving party. If the defendant
objects to an excision, the court must preserve the entire statement
with the excised portion indicated, under seal, as part of the record.
(d) Recess to Examine a Statement. The court may recess the
proceedings to allow time for a party to examine the statement and
prepare for its use.
(e) Sanction for Failure to Produce or Deliver a Statement. If the
party who called the witness disobeys an order to produce or deliver a
statement, the court must strike the witness's testimony from the
record. If an attorney for the government disobeys the order, the court
must declare a mistrial if justice so requires.
(f) ``Statement'' Defined. As used in this rule, a witness's
``statement'' means:
(1) a written statement that the witness makes and signs, or
otherwise adopts or approves;
(2) a substantially verbatim, contemporaneously recorded
recital of the witness's oral statement that is contained in any
recording or any transcription of a recording; or
(3) the witness's statement to a grand jury, however taken
or recorded, or a transcription of such a statement.
(g) Scope. This rule applies at trial, at a suppression hearing
under Rule 12, and to the extent specified in the following rules:
(1) Rule 5.1(h) (preliminary hearing);
(2) Rule 32(i)(2) (sentencing);
(3) Rule 32.1(e) (hearing to revoke or modify probation or
supervised release);
(4) Rule 46(j) (detention hearing); and
(5) Rule 8 of the Rules Governing Proceedings under 28
U.S.C. Sec. 2255.
(As added Apr. 30, 1979, eff. Dec. 1, 1980; amended Mar. 9, 1987, eff.
Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec.
1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 26.3. Mistrial________________________________________________________
Before ordering a mistrial, the court must give each defendant and
the government an opportunity to comment on the propriety of the order,
to state whether that party consents or objects, and to suggest
alternatives.
(As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 29, 2002, eff.
Dec. 1, 2002.)
Rule 27. Proving an Official Record______________________________________
A party may prove an official record, an entry in such a record, or
the lack of a record or entry in the same manner as in a civil action.
(As amended Apr. 29, 2002, eff. Dec, 1, 2002.)
Rule 28. Interpreters____________________________________________________
The court may select, appoint, and set the reasonable compensation
for an interpreter. The compensation must be paid from funds provided by
law or by the government, as the court may direct.
(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, eff. July
1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 29. Motion for a Judgment of Acquittal______________________________
(a) Before Submission to the Jury. After the government closes its
evidence or after the close of all the evidence, the court on the
defendant's motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction. The court
may on its own consider whether the evidence is insufficient to sustain
a conviction. If the court denies a motion for a judgment of acquittal
at the close of the government's evidence, the defendant may offer
evidence without having reserved the right to do so.
(b) Reserving Decision. The court may reserve decision on the
motion, proceed with the trial (where the motion is made before the
close of all the evidence), submit the case to the jury, and decide the
motion either before the jury returns a verdict or after it returns a
verdict of guilty or is discharged without having returned a verdict. If
the court reserves decision, it must decide the motion on the basis of
the evidence at the time the ruling was reserved.
(c) After Jury Verdict or Discharge.
(1) Time for a Motion. A defendant may move for a judgment
of acquittal, or renew such a motion, within 7 days after a
guilty verdict or after the court discharges the jury, whichever
is later, or within any other time the court sets during the 7-
day period.
(2) Ruling on the Motion. If the jury has returned a guilty
verdict, the court may set aside the verdict and enter an
acquittal. If the jury has failed to return a verdict, the court
may enter a judgment of acquittal.
(3) No Prior Motion Required. A defendant is not required to
move for a judgment of acquittal before the court submits the
case to the jury as a prerequisite for making such a motion
after jury discharge.
(d) Conditional Ruling on a Motion for a New Trial.
(1) Motion for a New Trial. If the court enters a judgment
of acquittal after a guilty verdict, the court must also
conditionally determine whether any motion for a new trial
should be granted if the judgment of acquittal is later vacated
or reversed. The court must specify the reasons for that
determination.
(2) Finality. The court's order conditionally granting a
motion for a new trial does not affect the finality of the
judgment of acquittal.
(3) Appeal.
(A) Grant of a Motion for a New Trial. If the court
conditionally grants a motion for a new trial and an
appellate court later reverses the judgment of
acquittal, the trial court must proceed with the new
trial unless the appellate court orders otherwise.
(B) Denial of a Motion for a New Trial. If the court
conditionally denies a motion for a new trial, an
appellee may assert that the denial was erroneous. If
the appellate court later reverses the judgment of
acquittal, the trial court must proceed as the appellate
court directs.
(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 10, 1986, eff. Dec.
10, 1986; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 29.1. Closing Argument________________________________________________
Closing arguments proceed in the following order:
(a) the government argues;
(b) the defense argues; and
(c) the government rebuts.
(As added Apr. 22, 1974, eff. Dec. 1, 1975; amended Apr. 29, 2002, eff.
Dec. 1, 2002.)
Rule 30. Jury Instructions_______________________________________________
(a) In General. Any party may request in writing that the court
instruct the jury on the law as specified in the request. The request
must be made at the close of the evidence or at any earlier time that
the court reasonably sets. When the request is made, the requesting
party must furnish a copy to every other party.
(b) Ruling on a Request. The court must inform the parties before
closing arguments how it intends to rule on the requested instructions.
(c) Time for Giving Instructions. The court may instruct the jury
before or after the arguments are completed, or at both times.
(d) Objections to Instructions. A party who objects to any portion
of the instructions or to a failure to give a requested instruction must
inform the court of the specific objection and the grounds for the
objection before the jury retires to deliberate. An opportunity must be
given to object out of the jury's hearing and, on request, out of the
jury's presence. Failure to object in accordance with this rule
precludes appellate review, except as permitted under Rule 52(b).
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1,
1987; Apr. 25, 1988, eff. Aug. 1, 1988; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 31. Jury Verdict____________________________________________________
(a) Return. The jury must return its verdict to a judge in open
court. The verdict must be unanimous.
(b) Partial Verdicts, Mistrial, and Retrial.
(1) Multiple Defendants. If there are multiple defendants,
the jury may return a verdict at any time during its
deliberations as to any defendant about whom it has agreed.
(2) Multiple Counts. If the jury cannot agree on all counts
as to any defendant, the jury may return a verdict on those
counts on which it has agreed.
(3) Mistrial and Retrial. If the jury cannot agree on a
verdict on one or more counts, the court may declare a mistrial
on those counts. The government may retry any defendant on any
count on which the jury could not agree.
(c) Lesser Offense or Attempt. A defendant may be found guilty of
any of the following:
(1) an offense necessarily included in the offense charged;
(2) an attempt to commit the offense charged; or
(3) an attempt to commit an offense necessarily included in
the offense charged, if the attempt is an offense in its own
right.
(d) Jury Poll. After a verdict is returned but before the jury is
discharged, the court must on a party's request, or may on its own, poll
the jurors individually. If the poll reveals a lack of unanimity, the
court may direct the jury to deliberate further or may declare a
mistrial and discharge the jury.
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 24, 1998, eff. Dec.
1, 1998; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1,
2002.)
TITLE VII. POST-CONVICTION PROCEDURES
Rule 32. Sentencing and Judgment_________________________________________
(a) Definitions. The following definitions apply under this rule:
(1) ``Crime of violence or sexual abuse'' means:
(A) a crime that involves the use, attempted use, or
threatened use of physical force against another's
person or property; or
(B) a crime under 18 U.S.C. Sec. Sec. 2241-2248 or
Sec. Sec. 2251-2257.
(2) ``Victim'' means an individual against whom the
defendant committed an offense for which the court will impose
sentence.
(b) Time of Sentencing.
(1) In General. The court must impose sentence without
unnecessary delay.
(2) Changing Time Limits. The court may, for good cause,
change any time limits prescribed in this rule.
(c) Presentence Investigation.
(1) Required Investigation.
(A) In General. The probation officer must conduct a
presentence investigation and submit a report to the
court before it imposes sentence unless:
(i) 18 U.S.C. Sec. 3593(c) or another
statute requires otherwise; or
(ii) the court finds that the information in
the record enables it to meaningfully exercise
its sentencing authority under 18 U.S.C.
Sec. 3553, and the court explains its finding on
the record.
(B) Restitution. If the law requires restitution,
the probation officer must conduct an investigation and
submit a report that contains sufficient information for
the court to order restitution.
(2) Interviewing the Defendant. The probation officer who
interviews a defendant as part of a presentence investigation
must, on request, give the defendant's attorney notice and a
reasonable opportunity to attend the interview.
(d) Presentence Report.
(1) Applying the Sentencing Guidelines. The presentence
report must:
(A) identify all applicable guidelines and policy
statements of the Sentencing Commission;
(B) calculate the defendant's offense level and
criminal history category;
(C) state the resulting sentencing range and kinds
of sentences available;
(D) identify any factor relevant to:
(i) the appropriate kind of sentence, or
(ii) the appropriate sentence within the
applicable sentencing range; and
(E) identify any basis for departing from the
applicable sentencing range.
(2) Additional Information. The presentence report must also
contain the following information:
(A) the defendant's history and characteristics,
including:
(i) any prior criminal record;
(ii) the defendant's financial condition;
and
(iii) any circumstances affecting the
defendant's behavior that may be helpful in
imposing sentence or in correctional treatment;
(B) verified information, stated in a
nonargumentative style, that assesses the financial,
social, psychological, and medical impact on any
individual against whom the offense has been committed;
(C) when appropriate, the nature and extent of
nonprison programs and resources available to the
defendant;
(D) when the law provides for restitution,
information sufficient for a restitution order;
(E) if the court orders a study under 18 U.S.C.
Sec. 3552(b), any resulting report and recommendation;
and
(F) any other information that the court requires.
(3) Exclusions. The presentence report must exclude the
following:
(A) any diagnoses that, if disclosed, might
seriously disrupt a rehabilitation program;
(B) any sources of information obtained upon a
promise of confidentiality; and
(C) any other information that, if disclosed, might
result in physical or other harm to the defendant or
others.
(e) Disclosing the Report and Recommendation.
(1) Time to Disclose. Unless the defendant has consented in
writing, the probation officer must not submit a presentence
report to the court or disclose its contents to anyone until the
defendant has pleaded guilty or nolo contendere, or has been
found guilty.
(2) Minimum Required Notice. The probation officer must give
the presentence report to the defendant, the defendant's
attorney, and an attorney for the government at least 35 days
before sentencing unless the defendant waives this minimum
period.
(3) Sentence Recommendation. By local rule or by order in a
case, the court may direct the probation officer not to disclose
to anyone other than the court the officer's recommendation on
the sentence.
(f) Objecting to the Report.
(1) Time to Object. Within 14 days after receiving the
presentence report, the parties must state in writing any
objections, including objections to material information,
sentencing guideline ranges, and policy statements contained in
or omitted from the report.
(2) Serving Objections. An objecting party must provide a
copy of its objections to the opposing party and to the
probation officer.
(3) Action on Objections. After receiving objections, the
probation officer may meet with the parties to discuss the
objections. The probation officer may then investigate further
and revise the presentence report as appropriate.
(g) Submitting the Report. At least 7 days before sentencing, the
probation officer must submit to the court and to the parties the
presentence report and an addendum containing any unresolved objections,
the grounds for those objections, and the probation officer's comments
on them.
(h) Notice of Possible Departure from Sentencing Guidelines. Before
the court may depart from the applicable sentencing range on a ground
not identified for departure either in the presentence report or in a
party's prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The notice
must specify any ground on which the court is contemplating a departure.
(i) Sentencing.
(1) In General. At sentencing, the court:
(A) must verify that the defendant and the
defendant's attorney have read and discussed the
presentence report and any addendum to the report;
(B) must give to the defendant and an attorney for
the government a written summary of--or summarize in
camera--any information excluded from the presentence
report under Rule 32(d)(3) on which the court will rely
in sentencing, and give them a reasonable opportunity to
comment on that information;
(C) must allow the parties' attorneys to comment on
the probation officer's determinations and other matters
relating to an appropriate sentence; and
(D) may, for good cause, allow a party to make a new
objection at any time before sentence is imposed.
(2) Introducing Evidence; Producing a Statement. The court
may permit the parties to introduce evidence on the objections.
If a witness testifies at sentencing, Rule 26.2(a)-(d) and (f)
applies. If a party fails to comply with a Rule 26.2 order to
produce a witness's statement, the court must not consider that
witness's testimony.
(3) Court Determinations. At sentencing, the court:
(A) may accept any undisputed portion of the
presentence report as a finding of fact;
(B) must--for any disputed portion of the
presentence report or other controverted matter--rule on
the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or
because the court will not consider the matter in
sentencing; and
(C) must append a copy of the court's determinations
under this rule to any copy of the presentence report
made available to the Bureau of Prisons.
(4) Opportunity to Speak.
(A) By a Party. Before imposing sentence, the court
must:
(i) provide the defendant's attorney an
opportunity to speak on the defendant's behalf;
(ii) address the defendant personally in
order to permit the defendant to speak or
present any information to mitigate the
sentence; and
(iii) provide an attorney for the government
an opportunity to speak equivalent to that of
the defendant's attorney.
(B) By a Victim. Before imposing sentence, the court
must address any victim of a crime of violence or sexual
abuse who is present at sentencing and must permit the
victim to speak or submit any information about the
sentence. Whether or not the victim is present, a
victim's right to address the court may be exercised by
the following persons if present:
(i) a parent or legal guardian, if the
victim is younger than 18 years or is
incompetent; or
(ii) one or more family members or relatives
the court designates, if the victim is deceased
or incapacitated.
(C) In Camera Proceedings. Upon a party's motion and
for good cause, the court may hear in camera any
statement made under Rule 32(i)(4).
(j) Defendant's Right to Appeal.
(1) Advice of a Right to Appeal.
(A) Appealing a Conviction. If the defendant pleaded
not guilty and was convicted, after sentencing the court
must advise the defendant of the right to appeal the
conviction.
(B) Appealing a Sentence. After sentencing--
regardless of the defendant's plea--the court must
advise the defendant of any right to appeal the
sentence.
(C) Appeal Costs. The court must advise a defendant
who is unable to pay appeal costs of the right to ask
for permission to appeal in forma pauperis.
(2) Clerk's Filing of Notice. If the defendant so requests,
the clerk must immediately prepare and file a notice of appeal
on the defendant's behalf.
(k) Judgment.
(1) In General. In the judgment of conviction, the court
must set forth the plea, the jury verdict or the court's
findings, the adjudication, and the sentence. If the defendant
is found not guilty or is otherwise entitled to be discharged,
the court must so order. The judge must sign the judgment, and
the clerk must enter it.
(2) Criminal Forfeiture. Forfeiture procedures are governed
by Rule 32.2.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.
1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1,
1975; Apr. 30, 1979, eff. Aug. 1, 1979, and Dec. 1, 1980; Oct. 12, 1982;
Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, eff. Nov. 1, 1987; Mar.
9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30,
1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29,
1994, eff. Dec. 1, 1994; Sept. 13, 1994, eff. Dec. 1, 1994; Apr. 23,
1996, eff. Dec. 1, 1996; Apr. 24, 1996; Apr. 17, 2000, eff. Dec. 1,
2000; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 32.1. Revoking or Modifying Probation or Supervised Release___________
(a) Initial Appearance.
(1) Person In Custody. A person held in custody for
violating probation or supervised release must be taken without
unnecessary delay before a magistrate judge.
(A) If the person is held in custody in the district
where an alleged violation occurred, the initial
appearance must be in that district.
(B) If the person is held in custody in a district
other than where an alleged violation occurred, the
initial appearance must be in that district, or in an
adjacent district if the appearance can occur more
promptly there.
(2) Upon a Summons. When a person appears in response to a
summons for violating probation or supervised release, a
magistrate judge must proceed under this rule.
(3) Advice. The judge must inform the person of the
following:
(A) the alleged violation of probation or supervised
release;
(B) the person's right to retain counsel or to
request that counsel be appointed if the person cannot
obtain counsel; and
(C) the person's right, if held in custody, to a
preliminary hearing under Rule 32.1(b)(1).
(4) Appearance in the District With Jurisdiction. If the
person is arrested or appears in the district that has
jurisdiction to conduct a revocation hearing--either originally
or by transfer of jurisdiction--the court must proceed under
Rule 32.1(b)-(e).
(5) Appearance in a District Lacking Jurisdiction. If the
person is arrested or appears in a district that does not have
jurisdiction to conduct a revocation hearing, the magistrate
judge must:
(A) if the alleged violation occurred in the
district of arrest, conduct a preliminary hearing under
Rule 32.1(b) and either:
(i) transfer the person to the district that
has jurisdiction, if the judge finds probable
cause to believe that a violation occurred; or
(ii) dismiss the proceedings and so notify
the court that has jurisdiction, if the judge
finds no probable cause to believe that a
violation occurred; or
(B) if the alleged violation did not occur in the
district of arrest, transfer the person to the district
that has jurisdiction if:
(i) the government produces certified copies
of the judgment, warrant, and warrant
application; and
(ii) the judge finds that the person is the
same person named in the warrant.
(6) Release or Detention. The magistrate judge may release
or detain the person under 18 U.S.C. Sec. 3143(a) pending
further proceedings. The burden of establishing that the person
will not flee or pose a danger to any other person or to the
community rests with the person.
(b) Revocation.
(1) Preliminary Hearing.
(A) In General. If a person is in custody for
violating a condition of probation or supervised
release, a magistrate judge must promptly conduct a
hearing to determine whether there is probable cause to
believe that a violation occurred. The person may waive
the hearing.
(B) Requirements. The hearing must be recorded by a
court reporter or by a suitable recording device. The
judge must give the person:
(i) notice of the hearing and its purpose,
the alleged violation, and the person's right to
retain counsel or to request that counsel be
appointed if the person cannot obtain counsel;
(ii) an opportunity to appear at the hearing
and present evidence; and
(iii) upon request, an opportunity to
question any adverse witness, unless the judge
determines that the interest of justice does not
require the witness to appear.
(C) Referral. If the judge finds probable cause, the
judge must conduct a revocation hearing. If the judge
does not find probable cause, the judge must dismiss the
proceeding.
(2) Revocation Hearing. Unless waived by the person, the
court must hold the revocation hearing within a reasonable time
in the district having jurisdiction. The person is entitled to:
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(C) an opportunity to appear, present evidence, and
question any adverse witness unless the court determines
that the interest of justice does not require the
witness to appear; and
(D) notice of the person's right to retain counsel
or to request that counsel be appointed if the person
cannot obtain counsel.
(c) Modification.
(1) In General. Before modifying the conditions of probation
or supervised release, the court must hold a hearing, at which
the person has the right to counsel.
(2) Exceptions. A hearing is not required if:
(A) the person waives the hearing; or
(B) the relief sought is favorable to the person and
does not extend the term of probation or of supervised
release; and
(C) an attorney for the government has received
notice of the relief sought, has had a reasonable
opportunity to object, and has not done so.
(d) Disposition of the Case. The court's disposition of the case is
governed by 18 U.S.C. Sec. 3563 and Sec. 3565 (probation) and Sec. 3583
(supervised release).
(e) Producing a Statement. Rule 26.2(a)-(d) and (f) applies at a
hearing under this rule. If a party fails to comply with a Rule 26.2
order to produce a witness's statement, the court must not consider that
witness's testimony.
(As added Apr. 30, 1979, eff. Dec. 1, 1980; amended Nov. 10, 1986, eff.
Dec. 10, 1986; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec.
1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 32.2. Criminal Forfeiture_____________________________________________
(a) Notice to the Defendant. A court must not enter a judgment of
forfeiture in a criminal proceeding unless the indictment or information
contains notice to the defendant that the government will seek the
forfeiture of property as part of any sentence in accordance with the
applicable statute.
(b) Entering a Preliminary Order of Forfeiture.
(1) In General. As soon as practicable after a verdict or
finding of guilty, or after a plea of guilty or nolo contendere
is accepted, on any count in an indictment or information
regarding which criminal forfeiture is sought, the court must
determine what property is subject to forfeiture under the
applicable statute. If the government seeks forfeiture of
specific property, the court must determine whether the
government has established the requisite nexus between the
property and the offense. If the government seeks a personal
money judgment, the court must determine the amount of money
that the defendant will be ordered to pay. The court's
determination may be based on evidence already in the record,
including any written plea agreement or, if the forfeiture is
contested, on evidence or information presented by the parties
at a hearing after the verdict or finding of guilt.
(2) Preliminary Order. If the court finds that property is
subject to forfeiture, it must promptly enter a preliminary
order of forfeiture setting forth the amount of any money
judgment or directing the forfeiture of specific property
without regard to any third party's interest in all or part of
it. Determining whether a third party has such an interest must
be deferred until any third party files a claim in an ancillary
proceeding under Rule 32.2(c).
(3) Seizing Property. The entry of a preliminary order of
forfeiture authorizes the Attorney General (or a designee) to
seize the specific property subject to forfeiture; to conduct
any discovery the court considers proper in identifying,
locating, or disposing of the property; and to commence
proceedings that comply with any statutes governing third-party
rights. At sentencing--or at any time before sentencing if the
defendant consents--the order of forfeiture becomes final as to
the defendant and must be made a part of the sentence and be
included in the judgment. The court may include in the order of
forfeiture conditions reasonably necessary to preserve the
property's value pending any appeal.
(4) Jury Determination. Upon a party's request in a case in
which a jury returns a verdict of guilty, the jury must
determine whether the government has established the requisite
nexus between the property and the offense committed by the
defendant.
(c) Ancillary Proceeding; Entering a Final Order of Forfeiture.
(1) In General. If, as prescribed by statute, a third party
files a petition asserting an interest in the property to be
forfeited, the court must conduct an ancillary proceeding, but
no ancillary proceeding is required to the extent that the
forfeiture consists of a money judgment.
(A) In the ancillary proceeding, the court may, on
motion, dismiss the petition for lack of standing, for
failure to state a claim, or for any other lawful
reason. For purposes of the motion, the facts set forth
in the petition are assumed to be true.
(B) After disposing of any motion filed under Rule
32.2(c)(1)(A) and before conducting a hearing on the
petition, the court may permit the parties to conduct
discovery in accordance with the Federal Rules of Civil
Procedure if the court determines that discovery is
necessary or desirable to resolve factual issues. When
discovery ends, a party may move for summary judgment
under Federal Rule of Civil Procedure 56.
(2) Entering a Final Order. When the ancillary proceeding
ends, the court must enter a final order of forfeiture by
amending the preliminary order as necessary to account for any
third-party rights. If no third party files a timely petition,
the preliminary order becomes the final order of forfeiture if
the court finds that the defendant (or any combination of
defendants convicted in the case) had an interest in the
property that is forfeitable under the applicable statute. The
defendant may not object to the entry of the final order on the
ground that the property belongs, in whole or in part, to a
codefendant or third party; nor may a third party object to the
final order on the ground that the third party had an interest
in the property.
(3) Multiple Petitions. If multiple third-party petitions
are filed in the same case, an order dismissing or granting one
petition is not appealable until rulings are made on all the
petitions, unless the court determines that there is no just
reason for delay.
(4) Ancillary Proceeding Not Part of Sentencing. An
ancillary proceeding is not part of sentencing.
(d) Stay Pending Appeal. If a defendant appeals from a conviction or
an order of forfeiture, the court may stay the order of forfeiture on
terms appropriate to ensure that the property remains available pending
appellate review. A stay does not delay the ancillary proceeding or the
determination of a third party's rights or interests. If the court rules
in favor of any third party while an appeal is pending, the court may
amend the order of forfeiture but must not transfer any property
interest to a third party until the decision on appeal becomes final,
unless the defendant consents in writing or on the record.
(e) Subsequently Located Property; Substitute Property.
(1) In General. On the government's motion, the court may at
any time enter an order of forfeiture or amend an existing order
of forfeiture to include property that:
(A) is subject to forfeiture under an existing order
of forfeiture but was located and identified after that
order was entered; or
(B) is substitute property that qualifies for
forfeiture under an applicable statute.
(2) Procedure. If the government shows that the property is
subject to forfeiture under Rule 32.2(e)(1), the court must:
(A) enter an order forfeiting that property, or
amend an existing preliminary or final order to include
it; and
(B) if a third party files a petition claiming an
interest in the property, conduct an ancillary
proceeding under Rule 32.2(c).
(3) Jury Trial Limited. There is no right to a jury trial
under Rule 32.2(e).
(As added Apr. 17, 2000, eff. Dec. 1, 2000; amended Apr. 29, 2002, eff.
Dec. 1, 2002.)
Rule 33. New Trial_______________________________________________________
(a) Defendant's Motion. Upon the defendant's motion, the court may
vacate any judgment and grant a new trial if the interest of justice so
requires. If the case was tried without a jury, the court may take
additional testimony and enter a new judgment.
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new trial
grounded on newly discovered evidence must be filed within 3
years after the verdict or finding of guilty. If an appeal is
pending, the court may not grant a motion for a new trial until
the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on
any reason other than newly discovered evidence must be filed
within 7 days after the verdict or finding of guilty, or within
such further time as the court sets during the 7-day period.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1,
1987; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 34. Arresting Judgment______________________________________________
(a) In General. Upon the defendant's motion or on its own, the court
must arrest judgment if:
(1) the indictment or information does not charge an
offense; or
(2) the court does not have jurisdiction of the charged
offense.
(b) Time to File. The defendant must move to arrest judgment within
7 days after the court accepts a verdict or finding of guilty, or after
a plea of guilty or nolo contendere, or within such further time as the
court sets during the 7-day period.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 2002, eff. Dec.
1, 2002.)
Rule 35. Correcting or Reducing a Sentence_______________________________
(a) Correcting Clear Error. Within 7 days after sentencing, the
court may correct a sentence that resulted from arithmetical, technical,
or other clear error.
(b) Reducing a Sentence for Substantial Assistance.
(1) In General. Upon the government's motion made within one
year of sentencing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided
substantial assistance in investigating or prosecuting
another person; and
(B) reducing the sentence accords with the
Sentencing Commission's guidelines and policy
statements.
(2) Later Motion. Upon the government's motion made more
than one year after sentencing, the court may reduce a sentence
if the defendant's substantial assistance involved:
(A) information not known to the defendant until one
year or more after sentencing;
(B) information provided by the defendant to the
government within one year of sentencing, but which did
not become useful to the government until more than one
year after sentencing; or
(C) information the usefulness of which could not
reasonably have been anticipated by the defendant until
more than one year after sentencing and which was
promptly provided to the government after its usefulness
was reasonably apparent to the defendant.
(3) Evaluating Substantial Assistance. In evaluating whether
the defendant has provided substantial assistance, the court may
consider the defendant's presentence assistance.
(4) Below Statutory Minimum. When acting under Rule 35(b),
the court may reduce the sentence to a level below the minimum
sentence established by statute.
(c) ``Sentencing'' Defined. As used in this rule, ``sentencing''
means the oral announcement of the sentence.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug.
1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, eff. Nov. 1,
1987; Apr. 29, 1985, eff. Aug. 1, 1985; Oct. 27, 1986, eff. Nov. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 24, 1998, eff. Dec. 1,
1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2004, eff. Dec. 1,
2004.)
Rule 36. Clerical Error__________________________________________________
After giving any notice it considers appropriate, the court may at
any time correct a clerical error in a judgment, order, or other part of
the record, or correct an error in the record arising from oversight or
omission.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 37. [Reserved]______________________________________________________
Rule 38. Staying a Sentence or a Disability______________________________
(a) Death Sentence. The court must stay a death sentence if the
defendant appeals the conviction or sentence.
(b) Imprisonment.
(1) Stay Granted. If the defendant is released pending
appeal, the court must stay a sentence of imprisonment.
(2) Stay Denied; Place of Confinement. If the defendant is
not released pending appeal, the court may recommend to the
Attorney General that the defendant be confined near the place
of the trial or appeal for a period reasonably necessary to
permit the defendant to assist in preparing the appeal.
(c) Fine. If the defendant appeals, the district court, or the court
of appeals under Federal Rule of Appellate Procedure 8, may stay a
sentence to pay a fine or a fine and costs. The court may stay the
sentence on any terms considered appropriate and may require the
defendant to:
(1) deposit all or part of the fine and costs into the
district court's registry pending appeal;
(2) post a bond to pay the fine and costs; or
(3) submit to an examination concerning the defendant's
assets and, if appropriate, order the defendant to refrain from
dissipating assets.
(d) Probation. If the defendant appeals, the court may stay a
sentence of probation. The court must set the terms of any stay.
(e) Restitution and Notice to Victims.
(1) In General. If the defendant appeals, the district
court, or the court of appeals under Federal Rule of Appellate
Procedure 8, may stay--on any terms considered appropriate--any
sentence providing for restitution under 18 U.S.C. Sec. 3556 or
notice under 18 U.S.C. Sec. 3555.
(2) Ensuring Compliance. The court may issue any order
reasonably necessary to ensure compliance with a restitution
order or a notice order after disposition of an appeal,
including:
(A) a restraining order;
(B) an injunction;
(C) an order requiring the defendant to deposit all
or part of any monetary restitution into the district
court's registry; or
(D) an order requiring the defendant to post a bond.
(f) Forfeiture. A stay of a forfeiture order is governed by Rule
32.2(d).
(g) Disability. If the defendant's conviction or sentence creates a
civil or employment disability under federal law, the district court, or
the court of appeals under Federal Rule of Appellate Procedure 8, may
stay the disability pending appeal on any terms considered appropriate.
The court may issue any order reasonably necessary to protect the
interest represented by the disability pending appeal, including a
restraining order or an injunction.
(As amended Dec. 27, 1948, eff. Jan. 1, 1949; Feb. 28, 1966, eff. July
1, 1966; Dec. 4, 1967, eff. July 1, 1968; Apr. 24, 1972, eff. Oct. 1,
1972; Oct. 12, 1984, eff. Nov. 1, 1987; Mar. 9, 1987, eff. Aug. 1, 1987;
Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 39. [Reserved]______________________________________________________
TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS
Rule 40. Arrest for Failing to Appear in Another District________________
(a) In General. If a person is arrested under a warrant issued in
another district for failing to appear--as required by the terms of that
person's release under 18 U.S.C. Sec. Sec. 3141-3156 or by a subpoena--
the person must be taken without unnecessary delay before a magistrate
judge in the district of the arrest.
(b) Proceedings. The judge must proceed under Rule 5(c)(3) as
applicable.
(c) Release or Detention Order. The judge may modify any previous
release or detention order issued in another district, but must state in
writing the reasons for doing so.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.
1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1,
1982; Oct. 12, 1984, eff. Oct. 12, 1984, and Nov. 1, 1987; Mar. 9, 1987,
eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 22, 1993, eff.
Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 27, 1995, eff. Dec.
1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 41. Search and Seizure______________________________________________
(a) Scope and Definitions.
(1) Scope. This rule does not modify any statute regulating
search or seizure, or the issuance and execution of a search
warrant in special circumstances.
(2) Definitions. The following definitions apply under this
rule:
(A) ``Property'' includes documents, books, papers,
any other tangible objects, and information.
(B) ``Daytime'' means the hours between 6:00 a.m.
and 10:00 p.m. according to local time.
(C) ``Federal law enforcement officer'' means a
government agent (other than an attorney for the
government) who is engaged in enforcing the criminal
laws and is within any category of officers authorized
by the Attorney General to request a search warrant.
(b) Authority to Issue a Warrant. At the request of a federal law
enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the district--or if
none is reasonably available, a judge of a state court of record
in the district--has authority to issue a warrant to search for
and seize a person or property located within the district;
(2) a magistrate judge with authority in the district has
authority to issue a warrant for a person or property outside
the district if the person or property is located within the
district when the warrant is issued but might move or be moved
outside the district before the warrant is executed; and
(3) a magistrate judge--in an investigation of domestic
terrorism or international terrorism (as defined in 18 U.S.C.
Sec. 2331)--having authority in any district in which activities
related to the terrorism may have occurred, may issue a warrant
for a person or property within or outside that district.
(c) Persons or Property Subject to Search or Seizure. A warrant may
be issued for any of the following:
(1) evidence of a crime;
(2) contraband, fruits of crime, or other items illegally
possessed;
(3) property designed for use, intended for use, or used in
committing a crime; or
(4) a person to be arrested or a person who is unlawfully
restrained.
(d) Obtaining a Warrant.
(1) Probable Cause. After receiving an affidavit or other
information, a magistrate judge or a judge of a state court of
record must issue the warrant if there is probable cause to
search for and seize a person or property under Rule 41(c).
(2) Requesting a Warrant in the Presence of a Judge.
(A) Warrant on an Affidavit. When a federal law
enforcement officer or an attorney for the government
presents an affidavit in support of a warrant, the judge
may require the affiant to appear personally and may
examine under oath the affiant and any witness the
affiant produces.
(B) Warrant on Sworn Testimony. The judge may wholly
or partially dispense with a written affidavit and base
a warrant on sworn testimony if doing so is reasonable
under the circumstances.
(C) Recording Testimony. Testimony taken in support
of a warrant must be recorded by a court reporter or by
a suitable recording device, and the judge must file the
transcript or recording with the clerk, along with any
affidavit.
(3) Requesting a Warrant by Telephonic or Other Means.
(A) In General. A magistrate judge may issue a
warrant based on information communicated by telephone
or other appropriate means, including facsimile
transmission.
(B) Recording Testimony. Upon learning that an
applicant is requesting a warrant, a magistrate judge
must:
(i) place under oath the applicant and any
person on whose testimony the application is
based; and
(ii) make a verbatim record of the
conversation with a suitable recording device,
if available, or by a court reporter, or in
writing.
(C) Certifying Testimony. The magistrate judge must
have any recording or court reporter's notes
transcribed, certify the transcription's accuracy, and
file a copy of the record and the transcription with the
clerk. Any written verbatim record must be signed by the
magistrate judge and filed with the clerk.
(D) Suppression Limited. Absent a finding of bad
faith, evidence obtained from a warrant issued under
Rule 41(d)(3)(A) is not subject to suppression on the
ground that issuing the warrant in that manner was
unreasonable under the circumstances.
(e) Issuing the Warrant.
(1) In General. The magistrate judge or a judge of a state
court of record must issue the warrant to an officer authorized
to execute it.
(2) Contents of the Warrant. The warrant must identify the
person or property to be searched, identify any person or
property to be seized, and designate the magistrate judge to
whom it must be returned. The warrant must command the officer
to:
(A) execute the warrant within a specified time no
longer than 10 days;
(B) execute the warrant during the daytime, unless
the judge for good cause expressly authorizes execution
at another time; and
(C) return the warrant to the magistrate judge
designated in the warrant.
(3) Warrant by Telephonic or Other Means. If a magistrate
judge decides to proceed under Rule 41(d)(3)(A), the following
additional procedures apply:
(A) Preparing a Proposed Duplicate Original Warrant.
The applicant must prepare a ``proposed duplicate
original warrant'' and must read or otherwise transmit
the contents of that document verbatim to the magistrate
judge.
(B) Preparing an Original Warrant. The magistrate
judge must enter the contents of the proposed duplicate
original warrant into an original warrant.
(C) Modifications. The magistrate judge may direct
the applicant to modify the proposed duplicate original
warrant. In that case, the judge must also modify the
original warrant.
(D) Signing the Original Warrant and the Duplicate
Original Warrant. Upon determining to issue the warrant,
the magistrate judge must immediately sign the original
warrant, enter on its face the exact time it is issued,
and direct the applicant to sign the judge's name on the
duplicate original warrant.
(f) Executing and Returning the Warrant.
(1) Noting the Time. The officer executing the warrant must
enter on its face the exact date and time it is executed.
(2) Inventory. An officer present during the execution of
the warrant must prepare and verify an inventory of any property
seized. The officer must do so in the presence of another
officer and the person from whom, or from whose premises, the
property was taken. If either one is not present, the officer
must prepare and verify the inventory in the presence of at
least one other credible person.
(3) Receipt. The officer executing the warrant must:
(A) give a copy of the warrant and a receipt for the
property taken to the person from whom, or from whose
premises, the property was taken; or
(B) leave a copy of the warrant and receipt at the
place where the officer took the property.
(4) Return. The officer executing the warrant must promptly
return it--together with a copy of the inventory--to the
magistrate judge designated on the warrant. The judge must, on
request, give a copy of the inventory to the person from whom,
or from whose premises, the property was taken and to the
applicant for the warrant.
(g) Motion to Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property may
move for the property's return. The motion must be filed in the district
where the property was seized. The court must receive evidence on any
factual issue necessary to decide the motion. If it grants the motion,
the court must return the property to the movant, but may impose
reasonable conditions to protect access to the property and its use in
later proceedings.
(h) Motion to Suppress. A defendant may move to suppress evidence in
the court where the trial will occur, as Rule 12 provides.
(i) Forwarding Papers to the Clerk. The magistrate judge to whom the
warrant is returned must attach to the warrant a copy of the return, of
the inventory, and of all other related papers and must deliver them to
the clerk in the district where the property was seized.
(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Apr. 9, 1956, eff. July
8, 1956; Apr. 24, 1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July 1,
1974; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; July 30, 1977, eff.
Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 9, 1987, eff. Aug.
1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; May 1, 1990, eff. Dec. 1,
1990; Apr. 22, 1993, eff. Dec. 1, 1993; Oct. 26, 2001; Apr. 29, 2002,
eff. Dec. 1, 2002.)
Rule 42. Criminal Contempt_______________________________________________
(a) Disposition After Notice. Any person who commits criminal
contempt may be punished for that contempt after prosecution on notice.
(1) Notice. The court must give the person notice in open
court, in an order to show cause, or in an arrest order. The
notice must:
(A) state the time and place of the trial;
(B) allow the defendant a reasonable time to prepare
a defense; and
(C) state the essential facts constituting the
charged criminal contempt and describe it as such.
(2) Appointing a Prosecutor. The court must request that the
contempt be prosecuted by an attorney for the government, unless
the interest of justice requires the appointment of another
attorney. If the government declines the request, the court must
appoint another attorney to prosecute the contempt.
(3) Trial and Disposition. A person being prosecuted for
criminal contempt is entitled to a jury trial in any case in
which federal law so provides and must be released or detained
as Rule 46 provides. If the criminal contempt involves
disrespect toward or criticism of a judge, that judge is
disqualified from presiding at the contempt trial or hearing
unless the defendant consents. Upon a finding or verdict of
guilty, the court must impose the punishment.
(b) Summary Disposition. Notwithstanding any other provision of
these rules, the court (other than a magistrate judge) may summarily
punish a person who commits criminal contempt in its presence if the
judge saw or heard the contemptuous conduct and so certifies; a
magistrate judge may summarily punish a person as provided in 28 U.S.C.
Sec. 636(e). The contempt order must recite the facts, be signed by the
judge, and be filed with the clerk.
(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1,
2002.)
TITLE IX. GENERAL PROVISIONS
Rule 43. Defendant's Presence____________________________________________
(a) When Required. Unless this rule, Rule 5, or Rule 10 provides
otherwise, the defendant must be present at:
(1) the initial appearance, the initial arraignment, and the
plea;
(2) every trial stage, including jury impanelment and the
return of the verdict; and
(3) sentencing.
(b) When Not Required. A defendant need not be present under any of
the following circumstances:
(1) Organizational Defendant. The defendant is an
organization represented by counsel who is present.
(2) Misdemeanor Offense. The offense is punishable by fine
or by imprisonment for not more than one year, or both, and with
the defendant's written consent, the court permits arraignment,
plea, trial, and sentencing to occur in the defendant's absence.
(3) Conference or Hearing on a Legal Question. The
proceeding involves only a conference or hearing on a question
of law.
(4) Sentence Correction. The proceeding involves the
correction or reduction of sentence under Rule 35 or 18 U.S.C.
Sec. 3582(c).
(c) Waiving Continued Presence.
(1) In General. A defendant who was initially present at
trial, or who had pleaded guilty or nolo contendere, waives the
right to be present under the following circumstances:
(A) when the defendant is voluntarily absent after
the trial has begun, regardless of whether the court
informed the defendant of an obligation to remain during
trial;
(B) in a noncapital case, when the defendant is
voluntarily absent during sentencing; or
(C) when the court warns the defendant that it will
remove the defendant from the courtroom for disruptive
behavior, but the defendant persists in conduct that
justifies removal from the courtroom.
(2) Waiver's Effect. If the defendant waives the right to be
present, the trial may proceed to completion, including the
verdict's return and sentencing, during the defendant's absence.
(As amended Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec.
1, 1975; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 27, 1995, eff. Dec. 1,
1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 44. Right to and Appointment of Counsel_____________________________
(a) Right to Appointed Counsel. A defendant who is unable to obtain
counsel is entitled to have counsel appointed to represent the defendant
at every stage of the proceeding from initial appearance through appeal,
unless the defendant waives this right.
(b) Appointment Procedure. Federal law and local court rules govern
the procedure for implementing the right to counsel.
(c) Inquiry Into Joint Representation.
(1) Joint Representation. Joint representation occurs when:
(A) two or more defendants have been charged jointly
under Rule 8(b) or have been joined for trial under Rule
13; and
(B) the defendants are represented by the same
counsel, or counsel who are associated in law practice.
(2) Court's Responsibilities in Cases of Joint
Representation. The court must promptly inquire about the
propriety of joint representation and must personally advise
each defendant of the right to the effective assistance of
counsel, including separate representation. Unless there is good
cause to believe that no conflict of interest is likely to
arise, the court must take appropriate measures to protect each
defendant's right to counsel.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.
1, 1972; Apr. 30, 1979, eff. Dec. 1, 1980; Mar. 9, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 45. Computing and Extending Time____________________________________
(a) Computing Time. The following rules apply in computing any
period of time specified in these rules, any local rule, or any court
order:
(1) Day of the Event Excluded. Exclude the day of the act,
event, or default that begins the period.
(2) Exclusion from Brief Periods. Exclude intermediate
Saturdays, Sundays, and legal holidays when the period is less
than 11 days.
(3) Last Day. Include the last day of the period unless it
is a Saturday, Sunday, legal holiday, or day on which weather or
other conditions make the clerk's office inaccessible. When the
last day is excluded, the period runs until the end of the next
day that is not a Saturday, Sunday, legal holiday, or day when
the clerk's office is inaccessible.
(4) ``Legal Holiday'' Defined. As used in this rule, ``legal
holiday'' means:
(A) the day set aside by statute for observing:
(i) New Year's Day;
(ii) Martin Luther King, Jr.'s Birthday;
(iii) Washington's Birthday;
(iv) Memorial Day;
(v) Independence Day;
(vi) Labor Day;
(vii) Columbus Day;
(viii) Veterans' Day;
(ix) Thanksgiving Day;
(x) Christmas Day; and
(B) any other day declared a holiday by the
President, the Congress, or the state where the district
court is held.
(b) Extending Time.
(1) In General. When an act must or may be done within a
specified period, the court on its own may extend the time, or
for good cause may do so on a party's motion made:
(A) before the originally prescribed or previously
extended time expires; or
(B) after the time expires if the party failed to
act because of excusable neglect.
(2) Exceptions. The court may not extend the time to take
any action under Rules 29, 33, 34, and 35, except as stated in
those rules.
(c) Additional Time After Service. When these rules permit or
require a party to act within a specified period after a notice or a
paper has been served on that party, 3 days are added to the period if
service occurs in the manner provided under Federal Rule of Civil
Procedure 5(b)(2)(B), (C), or (D).
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1,
1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1982, eff. Aug. 1, 1982;
Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr.
29, 2002, eff. Dec. 1, 2002.)
Rule 46. Release from Custody; Supervising Detention_____________________
(a) Before Trial. The provisions of 18 U.S.C. Sec. Sec. 3142 and
3144 govern pretrial release.
(b) During Trial. A person released before trial continues on
release during trial under the same terms and conditions. But the court
may order different terms and conditions or terminate the release if
necessary to ensure that the person will be present during trial or that
the person's conduct will not obstruct the orderly and expeditious
progress of the trial.
(c) Pending Sentencing or Appeal. The provisions of 18 U.S.C.
Sec. 3143 govern release pending sentencing or appeal. The burden of
establishing that the defendant will not flee or pose a danger to any
other person or to the community rests with the defendant.
(d) Pending Hearing on a Violation of Probation or Supervised
Release. Rule 32.1(a)(6) governs release pending a hearing on a
violation of probation or supervised release.
(e) Surety. The court must not approve a bond unless any surety
appears to be qualified. Every surety, except a legally approved
corporate surety, must demonstrate by affidavit that its assets are
adequate. The court may require the affidavit to describe the following:
(1) the property that the surety proposes to use as
security;
(2) any encumbrance on that property;
(3) the number and amount of any other undischarged bonds
and bail undertakings the surety has issued; and
(4) any other liability of the surety.
(f) Bail Forfeiture.
(1) Declaration. The court must declare the bail forfeited
if a condition of the bond is breached.
(2) Setting Aside. The court may set aside in whole or in
part a bail forfeiture upon any condition the court may impose
if:
(A) the surety later surrenders into custody the
person released on the surety's appearance bond; or
(B) it appears that justice does not require bail
forfeiture.
(3) Enforcement.
(A) Default Judgment and Execution. If it does not
set aside a bail forfeiture, the court must, upon the
government's motion, enter a default judgment.
(B) Jurisdiction and Service. By entering into a
bond, each surety submits to the district court's
jurisdiction and irrevocably appoints the district clerk
as its agent to receive service of any filings affecting
its liability.
(C) Motion to Enforce. The court may, upon the
government's motion, enforce the surety's liability
without an independent action. The government must serve
any motion, and notice as the court prescribes, on the
district clerk. If so served, the clerk must promptly
mail a copy to the surety at its last known address.
(4) Remission. After entering a judgment under Rule
46(f)(3), the court may remit in whole or in part the judgment
under the same conditions specified in Rule 46(f)(2).
(g) Exoneration. The court must exonerate the surety and release any
bail when a bond condition has been satisfied or when the court has set
aside or remitted the forfeiture. The court must exonerate a surety who
deposits cash in the amount of the bond or timely surrenders the
defendant into custody.
(h) Supervising Detention Pending Trial.
(1) In General. To eliminate unnecessary detention, the
court must supervise the detention within the district of any
defendants awaiting trial and of any persons held as material
witnesses.
(2) Reports. An attorney for the government must report
biweekly to the court, listing each material witness held in
custody for more than 10 days pending indictment, arraignment,
or trial. For each material witness listed in the report, an
attorney for the government must state why the witness should
not be released with or without a deposition being taken under
Rule 15(a).
(i) Forfeiture of Property. The court may dispose of a charged
offense by ordering the forfeiture of 18 U.S.C. Sec. 3142(c)(1)(B)(xi)
property under 18 U.S.C. Sec. 3146(d), if a fine in the amount of the
property's value would be an appropriate sentence for the charged
offense.
(j) Producing a Statement.
(1) In General. Rule 26.2(a)-(d) and (f) applies at a
detention hearing under 18 U.S.C. Sec. 3142, unless the court
for good cause rules otherwise.
(2) Sanctions for Not Producing a Statement. If a party
disobeys a Rule 26.2 order to produce a witness's statement, the
court must not consider that witness's testimony at the
detention hearing.
(As amended Apr. 9, 1956, eff. July 8, 1956; Feb. 28, 1966, eff. July 1,
1966; Apr. 24, 1972, eff. Oct. 1, 1972; Oct. 12, 1984; Mar. 9, 1987,
eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
Dec. 1, 1993; Sept. 13, 1994; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 47. Motions and Supporting Affidavits_______________________________
(a) In General. A party applying to the court for an order must do
so by motion.
(b) Form and Content of a Motion. A motion--except when made during
a trial or hearing--must be in writing, unless the court permits the
party to make the motion by other means. A motion must state the grounds
on which it is based and the relief or order sought. A motion may be
supported by affidavit.
(c) Timing of a Motion. A party must serve a written motion--other
than one that the court may hear ex parte--and any hearing notice at
least 5 days before the hearing date, unless a rule or court order sets
a different period. For good cause, the court may set a different period
upon ex parte application.
(d) Affidavit Supporting a Motion. The moving party must serve any
supporting affidavit with the motion. A responding party must serve any
opposing affidavit at least one day before the hearing, unless the court
permits later service.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 48. Dismissal_______________________________________________________
(a) By the Government. The government may, with leave of court,
dismiss an indictment, information, or complaint. The government may not
dismiss the prosecution during trial without the defendant's consent.
(b) By the Court. The court may dismiss an indictment, information,
or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information against a defendant; or
(3) bringing a defendant to trial.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 49. Serving and Filing Papers_______________________________________
(a) When Required. A party must serve on every other party any
written motion (other than one to be heard ex parte), written notice,
designation of the record on appeal, or similar paper.
(b) How Made. Service must be made in the manner provided for a
civil action. When these rules or a court order requires or permits
service on a party represented by an attorney, service must be made on
the attorney instead of the party, unless the court orders otherwise.
(c) Notice of a Court Order. When the court issues an order on any
post-arraignment motion, the clerk must provide notice in a manner
provided for in a civil action. Except as Federal Rule of Appellate
Procedure 4(b) provides otherwise, the clerk's failure to give notice
does not affect the time to appeal, or relieve--or authorize the court
to relieve--a party's failure to appeal within the allowed time.
(d) Filing. A party must file with the court a copy of any paper the
party is required to serve. A paper must be filed in a manner provided
for in a civil action.
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1,
1968; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr.
29, 2002, eff. Dec. 1, 2002.)
Rule 50. Prompt Disposition______________________________________________
Scheduling preference must be given to criminal proceedings as far
as practicable.
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July
1, 1974; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; Apr. 22, 1993,
eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 51. Preserving Claimed Error________________________________________
(a) Exceptions Unnecessary. Exceptions to rulings or orders of the
court are unnecessary.
(b) Preserving a Claim of Error. A party may preserve a claim of
error by informing the court--when the court ruling or order is made or
sought--of the action the party wishes the court to take, or the party's
objection to the court's action and the grounds for that objection. If a
party does not have an opportunity to object to a ruling or order, the
absence of an objection does not later prejudice that party. A ruling or
order that admits or excludes evidence is governed by Federal Rule of
Evidence 103.
(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 52. Harmless and Plain Error________________________________________
(a) Harmless Error. Any error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.
(b) Plain Error. A plain error that affects substantial rights may
be considered even though it was not brought to the court's attention.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 53. Courtroom Photographing and Broadcasting Prohibited_____________
Except as otherwise provided by a statute or these rules, the court
must not permit the taking of photographs in the courtroom during
judicial proceedings or the broadcasting of judicial proceedings from
the courtroom.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 54. [Transferred] \1\_______________________________________________
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\1\ All of Rule 54 was moved to Rule 1.
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Rule 55. Records_________________________________________________________
The clerk of the district court must keep records of criminal
proceedings in the form prescribed by the Director of the Administrative
Office of the United States Courts. The clerk must enter in the records
every court order or judgment and the date of entry.
(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1983, eff. Aug. 1,
1983; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 56. When Court Is Open______________________________________________
(a) In General. A district court is considered always open for any
filing, and for issuing and returning process, making a motion, or
entering an order.
(b) Office Hours. The clerk's office--with the clerk or a deputy in
attendance--must be open during business hours on all days except
Saturdays, Sundays, and legal holidays.
(c) Special Hours. A court may provide by local rule or order that
its clerk's office will be open for specified hours on Saturdays or
legal holidays other than than those set aside by statute for observing
New Year's Day, Martin Luther King, Jr.'s Birthday, Washington's
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day,
Veterans' Day, Thanksgiving Day, and Christmas Day.
(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1,
1971; Apr. 25, 1988, eff. Aug. 1, 1988; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 57. District Court Rules____________________________________________
(a) In General.
(1) Adopting Local Rules. Each district court acting by a
majority of its district judges may, after giving appropriate
public notice and an opportunity to comment, make and amend
rules governing its practice. A local rule must be consistent
with--but not duplicative of--federal statutes and rules adopted
under 28 U.S.C. Sec. 2072 and must conform to any uniform
numbering system prescribed by the Judicial Conference of the
United States.
(2) Limiting Enforcement. A local rule imposing a
requirement of form must not be enforced in a manner that causes
a party to lose rights because of an unintentional failure to
comply with the requirement.
(b) Procedure When There Is No Controlling Law. A judge may regulate
practice in any manner consistent with federal law, these rules, and the
local rules of the district. No sanction or other disadvantage may be
imposed for noncompliance with any requirement not in federal law,
federal rules, or the local district rules unless the alleged violator
was furnished with actual notice of the requirement before the
noncompliance.
(c) Effective Date and Notice. A local rule adopted under this rule
takes effect on the date specified by the district court and remains in
effect unless amended by the district court or abrogated by the judicial
council of the circuit in which the district is located. Copies of local
rules and their amendments, when promulgated, must be furnished to the
judicial council and the Administrative Office of the United States
Courts and must be made available to the public.
(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Dec. 4, 1967, eff. July
1, 1968; Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 58. Petty Offenses and Other Misdemeanors___________________________
(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
otherwise.
(2) Petty Offense Case Without Imprisonment. In a case
involving 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
proceed on an indictment, information, or complaint. The trial
of a petty offense may also proceed on a citation or violation
notice.
(2) Initial Appearance. At the defendant's initial
appearance on a petty offense or other misdemeanor charge, the
magistrate judge must inform the defendant of the following:
(A) the charge, and the minimum and maximum
penalties, including imprisonment, fines, any special
assessment under 18 U.S.C. Sec. 3013, and restitution
under 18 U.S.C. Sec. 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
defendant;
(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 offense; and
(G) if the defendant is held in custody and charged
with a misdemeanor other than a petty offense, the right
to a preliminary hearing under Rule 5.1, and the general
circumstances, if any, under which the defendant may
secure pretrial release.
(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 writing 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 consent 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 consent 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
accept a guilty or nolo contendere plea unless satisfied that
the defendant understands the nature of the charge and the
maximum possible penalty.
(2) Waiving Venue.
(A) Conditions of Waiving Venue. If a defendant is
arrested, 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 district 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
opportunity to be heard in mitigation and then proceed
immediately to sentencing. The court may, however, postpone
sentencing to allow the probation service to investigate or to
permit 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
defendant 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
defendant 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
forfeiture 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 additional
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 requested 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 response to a summons, the
court may summarily issue a warrant for the defendant's arrest.
(e) Recording the Proceedings. The court must record any proceedings
under this rule by using a court reporter or a suitable recording
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
10 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 sentence to a district judge within 10
days of its entry. To appeal, the defendant must file a
notice with the clerk specifying 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 recording 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 security for the record. The
Director of the Administrative Office of the United
States Courts must pay for those copies.
(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
applies 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.
(As added May 1, 1990, eff. Dec. 1, 1990; amended Apr. 30, 1991, eff.
Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec.
1, 1997; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 59. [Deleted]_______________________________________________________
Rule 60. Title___________________________________________________________
These rules may be known and cited as the Federal Rules of Criminal
Procedure.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)