Federal Rules of Criminal Procedure
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. §§ 256-258; and
(F) a
proceeding against a witness in a foreign country under 28 U.S.C. §
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. §
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. §§ 631-639.
(6) “Oath”
includes an affirmation.
(7)
“Organization” is defined in 18 U.S.C. § 18.
(8) “Petty
offense” is defined in 18 U.S.C. § 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. § 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.
(11) “Victim”
means a “crime victim” as defined in 18 U.S.C. § 3771(e).
(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.
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.
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.
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.
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. § 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;
(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, or a reliable electronic
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.
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 14 days after the initial appearance
if the defendant is in custody and no later than 21 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.
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. § 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. § 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. §
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 in a manner consistent with any guidelines
issued by the Attorney General and the Director of National
Intelligence.
(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 any guidelines jointly issued by
the Attorney General and the Director of National Intelligence under
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. § 479a-1.
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 that [FN*] section 3282.
(2) 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.
[(3) Redesignated (2)]
(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 14 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.
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.
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.
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.
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) in
determining a sentence, the court's obligation to calculate the
applicable sentencing-guideline range and to consider that range,
possible departures under the Sentencing Guidelines, and other
sentencing factors under 18 U.S.C. § 3553(a); 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.
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. § 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.
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 14 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.
(A) In General.
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:
(i) the name
of each witness--and the address and telephone number of each witness
other than a victim--that the government intends to rely on to establish
that the defendant was present at the scene of the alleged offense; and
(ii) each
government rebuttal witness to the defendant's alibi defense.
(B) Victim's Address
and Telephone Number. If the government intends to rely on a
victim's testimony to establish that the defendant was present at the
scene of the alleged offense and the defendant establishes a need for
the victim's address and telephone number, the court may:
(i) order the
government to provide the information in writing to the defendant or the
defendant's attorney; or
(ii) fashion
a reasonable procedure that allows preparation of the defense and also
protects the victim's interests.
(2) Time to Disclose.
Unless the court directs otherwise, an attorney for the government must
give its Rule 12.1(b)(1) disclosure within 14 days after the defendant
serves notice of an intended alibi defense under Rule 12.1(a)(2), but no
later than 14 days before trial.
(c) Continuing Duty to
Disclose.
(1) In General.
Both an attorney for the government and the defendant must promptly
disclose in writing to the other party the name of each additional
witness--and the address and telephone number of each additional witness
other than a victim--if:
(A) the
disclosing party learns of the witness before or during trial; and
(B) the
witness should have been disclosed under Rule 12.1(a) or (b) if the
disclosing party had known of the witness earlier.
(2) Address and
Telephone Number of an Additional Victim Witness. The address
and telephone number of an additional victim witness must not be
disclosed except as provided in Rule 12.1(b)(1)(B).
(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.
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. § 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.
§ 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.
(1) Failure to Give
Notice or to Submit to Examination. 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 if
the defendant fails to:
(A) give
notice under Rule 12.2(b); or
(B) submit to
an examination when ordered under Rule 12.2(c).
(2) Failure to
Disclose. The court may exclude any expert evidence for
which the defendant has failed to comply with the disclosure requirement
of Rule 12.2(c)(3).
(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.
Rule 12.3. Notice of a Public-Authority Defense
[Text of paragraph (a) effective until December
1, 2010, absent contrary Congressional action.]
(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 14 days
after receiving the defendant's notice, but no later than 21 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 21 days before trial.
(B) Defendant's
Response. Within 14 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 14 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.
[Text of paragraph (a) effective December 1,
2010, absent contrary Congressional action.]
(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 14 days
after receiving the defendant's notice, but no later than 21 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 21 days before trial.
(B) Defendant's
Response. Within 14 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 14 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 of each
witness--and the address and telephone number of each witness other than
a victim--that the government intends to rely on to oppose the
defendant's public-authority defense.
(D) Victim's Address
and Telephone Number. If the government intends to rely on a
victim's testimony to oppose the defendant's public-authority defense
and the defendant establishes a need for the victim's address and
telephone number, the court may:
(i) order the government to
provide the information in writing to the defendant or the defendant's
attorney; or
(ii) fashion a reasonable
procedure that allows for preparing the defense and also protects the
victim's interests.
(5) Additional Time.
The court may, for good cause, allow a party additional time to comply
with this rule.
[Text of paragraph (b) effective until December
1, 2010, absent contrary Congressional action.]
(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.
[Text of paragraph (b) effective December 1,
2010, absent contrary Congressional action.]
(b) Continuing Duty to
Disclose.
(1) In General.
Both an attorney for the government and the defendant must promptly
disclose in writing to the other party the name of any additional
witness--and the address, and telephone number of any additional witness
other than a victim--if:
(A) the
disclosing party learns of the witness before or during trial; and
(B) the
witness should have been disclosed under Rule 12.3(a)(4) if the
disclosing party had known of the witness earlier.
(2) Address and
Telephone Number of an Additional Victim-Witness. The address
and telephone number of an additional victim-witness must not be
disclosed except as provided in Rule 12.3(a)(4)(D).
(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.
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.
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.
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.
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. § 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.
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. § 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.
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.
(3) Subpoena for
Personal or Confidential Information About a Victim. After a
complaint, indictment, or information is filed, a subpoena requiring the
production of personal or confidential information about a victim may be
served on a third party only by court order. Before entering the order
and unless there are exceptional circumstances, the court must require
giving notice to the victim so that the victim can move to quash or
modify the subpoena or otherwise object.
(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. §
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. § 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.
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.
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, any victim, and the witnesses, and the prompt administration
of justice.
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. § 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.
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.
[Text of paragraph (b) effective until December
1, 2010, absent contrary Congressional action.]
(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.
[Text of paragraph (b) effective December 1,
2010, absent contrary Congressional action.]
(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, any victim, and the 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.
Rule 22. [Transferred]
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.
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.
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.
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. §§ 2072-2077.
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
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. § 2255.
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.
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.
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
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 14 days after a guilty verdict or after the court
discharges the jury, whichever is later.
(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.
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.
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)
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.
Rule 32. Sentencing and Judgment
(a) [Reserved.]
(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.
§ 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. § 3553,
and the court explains its finding on the record.
(B) Restitution.
If the law permits 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
Advisory 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:
(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)
information that assesses any financial, social, psychological, and
medical impact on any victim;
(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. § 3552(b), any resulting report and
recommendation;
(F) any other
information that the court requires, including information relevant to
the factors under 18 U.S.C. § 3553(a); and
(G) specify
whether the government seeks forfeiture under Rule 32.2 and any other
provision of law.
(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 the crime
who is present at sentencing and must permit the victim to be reasonably
heard.
(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.
Rule 32.1. Revoking or Modifying Probation or Supervised Release
[Text of paragraph (a) effective until December
1, 2010, absent contrary Congressional action.]
(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, or produces copies of those certified documents by
reliable electronic means; 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. § 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.
[Text of paragraph (a) effective December 1,
2010, absent contrary Congressional action.]
(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, or produces copies of those certified documents by
reliable electronic means; 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. § 3143(a)(1) pending further proceedings. The
burden of establishing by clear and convincing evidence 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;
(D) notice of
the person's right to retain counsel or to request that counsel be
appointed if the person cannot obtain counsel; and
(E) an
opportunity to make a statement and present any information in
mitigation.
(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
and an opportunity to make a statement and present any information in
mitigation.
(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. § 3563 and § 3565 (probation) and § 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.
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. The notice should not be designated as a count of the
indictment or information. The indictment or information need not
identify the property subject to forfeiture or specify the amount of any
forfeiture money judgment that the government seeks.
(b) Entering a
Preliminary Order of Forfeiture
(1) Forfeiture Phase
of the Trial.
(A) Forfeiture
Determinations. As soon as practical 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.
(B) Evidence and
Hearing. The court's determination may be based on evidence
already in the record, including any written plea agreement, and on any
additional evidence or information submitted by the parties and accepted
by the court as relevant and reliable. If the forfeiture is contested,
on either party's request the court must conduct a hearing after the
verdict or finding of guilty.
(2) Preliminary Order.
(A) Contents of a
Specific 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, directing the forfeiture
of specific property, and directing the forfeiture of any substitute
property if the government has met the statutory criteria. The court
must enter the order without regard to any third party's interest in the
property. 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).
(B) Timing.
Unless doing so is impractical, the court must enter the preliminary
order sufficiently in advance of sentencing to allow the parties to
suggest revisions or modifications before the order becomes final as to
the defendant under Rule 32.2(b)(4).
(C) General Order.
If, before sentencing, the court cannot identify all the specific
property subject to forfeiture or calculate the total amount of the
money judgment, the court may enter a forfeiture order that:
(i) lists any
identified property;
(ii)
describes other property in general terms; and
(iii) states
that the order will be amended under Rule 32.2(e)(1) when additional
specific property is identified or the amount of the money judgment has
been calculated.
(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.
The court may include in the order of forfeiture conditions reasonably
necessary to preserve the property's value pending any appeal.
(4) Sentence and
Judgment.
(A) When Final.
At sentencing--or at any time before sentencing if the defendant
consents--the preliminary forfeiture order becomes final as to the
defendant. If the order directs the defendant to forfeit specific
property, it remains preliminary as to third parties until the ancillary
proceeding is concluded under Rule 32.2(c).
(B) Notice and
Inclusion in the Judgment. The court must include the
forfeiture when orally announcing the sentence or must otherwise ensure
that the defendant knows of the forfeiture at sentencing. The court must
also include the forfeiture order, directly or by reference, in the
judgment, but the court's failure to do so may be corrected at any time
under Rule 36.
(C) Time to Appeal.
The time for the defendant or the government to file an appeal from the
forfeiture order, or from the court's failure to enter an order, begins
to run when judgment is entered. If the court later amends or declines
to amend a forfeiture order to include additional property under Rule
32.2(e), the defendant or the government may file an appeal regarding
that property under Federal Rule of Appellate Procedure 4(b). The time
for that appeal runs from the date when the order granting or denying
the amendment becomes final.
(5) Jury
Determination.
(A) Retaining the
Jury. In any case tried before a jury, if the indictment or
information states that the government is seeking forfeiture, the court
must determine before the jury begins deliberating whether either party
requests that the jury be retained to determine the forfeitability of
specific property if it returns a guilty verdict.
(B) Special Verdict
Form. If a party timely requests to have the jury determine
forfeiture, the government must submit a proposed Special Verdict Form
listing each property subject to forfeiture and asking the jury to
determine whether the government has established the requisite nexus
between the property and the offense committed by the defendant.
(6) Notice of the
Forfeiture Order.
(A) Publishing and
Sending Notice. If the court orders the forfeiture of specific
property, the government must publish notice of the order and send
notice to any person who reasonably appears to be a potential claimant
with standing to contest the forfeiture in the ancillary proceeding.
(B) Content of the
Notice. The notice must describe the forfeited property, state
the times under the applicable statute when a petition contesting the
forfeiture must be filed, and state the name and contact information for
the government attorney to be served with the petition.
(C) Means of
Publication; Exceptions to Publication Requirement. Publication
must take place as described in Supplemental Rule G(4)(a)(iii) of the
Federal Rules of Civil Procedure, and may be by any means described in
Supplemental Rule G(4)(a)(iv). Publication is unnecessary if any
exception in Supplemental Rule G(4)(a)(i) applies.
(D) Means of Sending
the Notice. The notice may be sent in accordance with
Supplemental Rules G(4)(b)(iii)-(v) of the Federal Rules of Civil
Procedure.
(7) Interlocutory
Sale. At any time before entry of a final forfeiture order, the
court, in accordance with Supplemental Rule G(7) of the Federal Rules of
Civil Procedure, may order the interlocutory sale of property alleged to
be forfeitable.
(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).
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 14 days after the verdict or
finding of guilty.
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 14 days after the
court accepts a verdict or finding of guilty, or after a plea of guilty
or nolo contendere.
Rule 35. Correcting or Reducing a Sentence
(a) Correcting Clear
Error. Within 14 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 the defendant, after sentencing, provided
substantial assistance in investigating or prosecuting another person.
(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.
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
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. § 3556 or notice under 18 U.S.C. § 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.
Rule 39. [Reserved]
Rule 40. Arrest for Failing to Appear in Another District or for
Violating Conditions of Release Set in Another District
(a) In General.
A person must be taken without unnecessary delay before a magistrate
judge in the district of arrest if the person has been arrested under a
warrant issued in another district for:
(i) failing
to appear as required by the terms of that person's release under 18
U.S.C. §§ 3141-3156 or by a subpoena; or
(ii)
violating conditions of release set in another district.
(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.
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.
(D) “Domestic
terrorism” and “international terrorism” have the meanings set out in 18
U.S.C. § 2331.
(E) “Tracking
device” has the meaning set out in 18 U.S.C. § 3117(b).
(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;
(3) a
magistrate judge--in an investigation of domestic terrorism or
international terrorism--with authority in any district in which
activities related to the terrorism may have occurred has authority to
issue a warrant for a person or property within or outside that
district;
(4) a
magistrate judge with authority in the district has authority to issue a
warrant to install within the district a tracking device; the warrant
may authorize use of the device to track the movement of a person or
property located within the district, outside the district, or both; and
(5) a
magistrate judge having authority in any district where activities
related to the crime may have occurred, or in the District of Columbia,
may issue a warrant for property that is located outside the
jurisdiction of any state or district, but within any of the following:
(A) a United
States territory, possession, or commonwealth;
(B) the
premises--no matter who owns them--of a United States diplomatic or
consular mission in a foreign state, including any appurtenant building,
part of a building, or land used for the mission's purposes; or
(C) a
residence and any appurtenant land owned or leased by the United States
and used by United States personnel assigned to a United States
diplomatic or consular mission in a foreign state.
(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) In General.
After receiving an affidavit or other information, a magistrate
judge--or if authorized by Rule 41(b), 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 or to install and use a tracking device.
(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 reliable electronic means.
(B) Recording
Testimony. Upon learning that an applicant is requesting a
warrant under Rule 41(d)(3)(A), 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.
(A) Warrant to Search
for and Seize a Person or Property. Except for a
tracking-device 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:
(i) execute
the warrant within a specified time no longer than 14 days;
(ii) execute
the warrant during the daytime, unless the judge for good cause
expressly authorizes execution at another time; and
(iii) return
the warrant to the magistrate judge designated in the warrant.
(B) Warrant Seeking
Electronically Stored Information. A warrant under Rule
41(e)(2)(A) may authorize the seizure of electronic storage media or the
seizure or copying of electronically stored information. Unless
otherwise specified, the warrant authorizes a later review of the media
or information consistent with the warrant. The time for executing the
warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or
on-site copying of the media or information, and not to any later
off-site copying or review.
(C) Warrant for a
Tracking Device. A tracking-device warrant must identify the
person or property to be tracked, designate the magistrate judge to whom
it must be returned, and specify a reasonable length of time that the
device may be used. The time must not exceed 45 days from the date the
warrant was issued. The court may, for good cause, grant one or more
extensions for a reasonable period not to exceed 45 days each. The
warrant must command the officer to:
(i) complete
any installation authorized by the warrant within a specified time no
longer than 10 calendar days;
(ii) perform
any installation authorized by the warrant during the daytime, unless
the judge for good cause expressly authorizes installation at another
time; and
(iii) return
the warrant to the 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. If the applicant reads the contents of the
proposed duplicate original warrant, the magistrate judge must enter
those contents into an original warrant. If the applicant transmits the
contents by reliable electronic means, that transmission may serve as
the original warrant.
(C) Modification.
The magistrate judge may modify the original warrant. The judge must
transmit any modified warrant to the applicant by reliable electronic
means under Rule 41(e)(3)(D) or direct the applicant to modify the
proposed duplicate original warrant accordingly.
(D) Signing the
Warrant. Upon determining to issue the warrant, the magistrate
judge must immediately sign the original warrant, enter on its face the
exact date and time it is issued, and transmit it by reliable electronic
means to the applicant or direct the applicant to sign the judge's name
on the duplicate original warrant.
(f) Executing and
Returning the Warrant.
(1) Warrant to Search
for and Seize a Person or Property.
(A) Noting the Time.
The officer executing the warrant must enter on it the exact date and
time it was executed.
(B) 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. In a case involving the seizure of
electronic storage media or the seizure or copying of electronically
stored information, the inventory may be limited to describing the
physical storage media that were seized or copied. The officer may
retain a copy of the electronically stored information that was seized
or copied.
(C) Receipt.
The officer executing the warrant must 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 leave a copy of the warrant and
receipt at the place where the officer took the property.
(D) 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.
(2) Warrant for a
Tracking Device.
(A) Noting the Time.
The officer executing a tracking-device warrant must enter on it the
exact date and time the device was installed and the period during which
it was used.
(B) Return.
Within 10 calendar days after the use of the tracking device has ended,
the officer executing the warrant must return it to the judge designated
in the warrant.
(C) Service.
Within 10 calendar days after the use of the tracking device has ended,
the officer executing a tracking-device warrant must serve a copy of the
warrant on the person who was tracked or whose property was tracked.
Service may be accomplished by delivering a copy to the person who, or
whose property, was tracked; or by leaving a copy at the person's
residence or usual place of abode with an individual of suitable age and
discretion who resides at that location and by mailing a copy to the
person's last known address. Upon request of the government, the judge
may delay notice as provided in Rule 41(f)(3).
(3) Delayed Notice.
Upon the government's request, a magistrate judge--or if authorized by
Rule 41(b), a judge of a state court of record--may delay any notice
required by this rule if the delay is authorized by statute.
(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.
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. § 636(e). The
contempt order must recite the facts, be signed by the judge, and be
filed with the clerk.
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. § 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.
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.
Rule 45. Computing and Extending Time
(a) Computing Time.
The following rules apply in computing any time period specified in
these rules, in any local rule or court order, or in any statute that
does not specify a method of computing time.
(1) Period Stated in
Days or a Longer Unit. When the period is stated in days or a
longer unit of time:
(A) exclude
the day of the event that triggers the period;
(B) count
every day, including intermediate Saturdays, Sundays, and legal
holidays; and
(C) include
the last day of the period, but if the last day is a Saturday, Sunday,
or legal holiday, the period continues to run until the end of the next
day that is not a Saturday, Sunday, or legal holiday.
(2) Period Stated in
Hours. When the period is stated in hours:
(A) begin
counting immediately on the occurrence of the event that triggers the
period;
(B) count
every hour, including hours during intermediate Saturdays, Sundays, and
legal holidays; and
(C) if the
period would end on a Saturday, Sunday, or legal holiday, the period
continues to run until the same time on the next day that is not a
Saturday, Sunday, or legal holiday.
(3) Inaccessibility of
the Clerk's Office. Unless the court orders otherwise, if the
clerk's office is inaccessible:
(A) on the
last day for filing under Rule 45(a)(1), then the time for filing is
extended to the first accessible day that is not a Saturday, Sunday, or
legal holiday; or
(B) during
the last hour for filing under Rule 45(a)(2), then the time for filing
is extended to the same time on the first accessible day that is not a
Saturday, Sunday, or legal holiday.
(4) “Last Day”
Defined. Unless a different time is set by a statute, local
rule, or court order, the last day ends:
(A) for
electronic filing, at midnight in the court's time zone; and
(B) for
filing by other means, when the clerk's office is scheduled to close.
(5) “Next Day”
Defined. The “next day” is determined by continuing to count
forward when the period is measured after an event and backward when
measured before an event.
(6) “Legal Holiday”
Defined. “Legal holiday” means:
(A) the day
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, or Christmas
Day;
(B) any day
declared a holiday by the President or Congress; and
(C) for
periods that are measured after an event, any other day declared a
holiday by the state where the district court is located.
(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) Exception.
The court may not extend the time to take any action under Rule 35,
except as stated in that rule.
(c) Additional Time
After Certain Kinds of Service. Whenever a party must or may
act within a specified period after service and service is made in the
manner provided under Federal Rule of Civil Procedure 5(b)(2)(C), (D),
(E), or (F), 3 days are added after the period would otherwise expire
under subdivision (a).
Rule 46. Release from Custody; Supervising Detention
(a) Before Trial.
The provisions of 18 U.S.C. §§ 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. § 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. § 3142(c)(1)(B)(xi) property under
18 U.S.C. § 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.
§ 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.
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 7 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.
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.
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.
Rule 49.1. Privacy Protection for Filings Made with the Court
(a) Redacted Filings.
Unless the court orders otherwise, in an electronic or paper filing with
the court that contains an individual's social-security number,
taxpayer-identification number, or birth date, the name of an individual
known to be a minor, a financial-account number, or the home address of
an individual, a party or nonparty making the filing may include only:
(1) the last
four digits of the social-security number and taxpayer-identification
number;
(2) the year
of the individual's birth;
(3) the
minor's initials;
(4) the last
four digits of the financial-account number; and
(5) the city
and state of the home address.
(b) Exemptions from
the Redaction Requirement. The redaction requirement does not
apply to the following:
(1) a
financial-account number or real property address that identifies the
property allegedly subject to forfeiture in a forfeiture proceeding;
(2) the
record of an administrative or agency proceeding;
(3) the
official record of a state-court proceeding;
(4) the
record of a court or tribunal, if that record was not subject to the
redaction requirement when originally filed;
(5) a filing
covered by Rule 49.1(d);
(6) a pro se
filing in an action brought under 28 U.S.C. §§ 2241, 2254, or 2255;
(7) a court
filing that is related to a criminal matter or investigation and that is
prepared before the filing of a criminal charge or is not filed as part
of any docketed criminal case;
(8) an arrest
or search warrant; and
(9) a
charging document and an affidavit filed in support of any charging
document.
(c) Immigration Cases.
A filing in an action brought under 28 U.S.C. § 2241 that relates to the
petitioner's immigration rights is governed by Federal Rule of Civil
Procedure 5.2.
(d) Filings Made Under
Seal. The court may order that a filing be made under seal
without redaction. The court may later unseal the filing or order the
person who made the filing to file a redacted version for the public
record.
(e) Protective Orders.
For good cause, the court may by order in a case:
(1) require
redaction of additional information; or
(2) limit or
prohibit a nonparty's remote electronic access to a document filed with
the court.
(f) Option for
Additional Unredacted Filing Under Seal. A person making a
redacted filing may also file an unredacted copy under seal. The court
must retain the unredacted copy as part of the record.
(g) Option for Filing
a Reference List. A filing that contains redacted information
may be filed together with a reference list that identifies each item of
redacted information and specifies an appropriate identifier that
uniquely corresponds to each item listed. The list must be filed under
seal and may be amended as of right. Any reference in the case to a
listed identifier will be construed to refer to the corresponding item
of information.
(h) Waiver of
Protection of Identifiers. A person waives the protection of
Rule 49.1(a) as to the person's own information by filing it without
redaction and not under seal.
Rule 50. Prompt Disposition
Scheduling preference must be
given to criminal proceedings as far as practicable.
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.
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.
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.
Rule 54. [Transferred
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.
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
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.
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. § 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.
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. § 3013, and restitution
under 18 U.S.C. § 3556;
(B) the right
to retain counsel;
(C) the right
to request the appointment of counsel if the defendant is unable to
retain counsel--unless the charge is a petty offense for which the
appointment of counsel is not required;
(D) the
defendant's right not to make a statement, and that any statement made
may be used against the 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) any 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 14 days of its entry if a district judge's
order could similarly be appealed. The party appealing must file a
notice with the clerk specifying the order being appealed and must serve
a copy on the adverse party.
(B) Appeal from a
Conviction or Sentence. A defendant may appeal a magistrate
judge's judgment of conviction or sentence to a district judge within 14
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.
Rule 59. Matters Before a Magistrate Judge
(a) Nondispositive
Matters. A district judge may refer to a magistrate judge for
determination any matter that does not dispose of a charge or defense.
The magistrate judge must promptly conduct the required proceedings and,
when appropriate, enter on the record an oral or written order stating
the determination. A party may serve and file objections to the order
within 14 days after being served with a copy of a written order or
after the oral order is stated on the record, or at some other time the
court sets. The district judge must consider timely objections and
modify or set aside any part of the order that is contrary to law or
clearly erroneous. Failure to object in accordance with this rule waives
a party's right to review.
(b) Dispositive
Matters.
(1) Referral to
Magistrate Judge. A district judge may refer to a magistrate
judge for recommendation a defendant's motion to dismiss or quash an
indictment or information, a motion to suppress evidence, or any matter
that may dispose of a charge or defense. The magistrate judge must
promptly conduct the required proceedings. A record must be made of any
evidentiary proceeding and of any other proceeding if the magistrate
judge considers it necessary. The magistrate judge must enter on the
record a recommendation for disposing of the matter, including any
proposed findings of fact. The clerk must immediately serve copies on
all parties.
(2) Objections to
Findings and Recommendations. Within 14 days after being served
with a copy of the recommended disposition, or at some other time the
court sets, a party may serve and file specific written objections to
the proposed findings and recommendations. Unless the district judge
directs otherwise, the objecting party must promptly arrange for
transcribing the record, or whatever portions of it the parties agree to
or the magistrate judge considers sufficient. Failure to object in
accordance with this rule waives a party's right to review.
(3) De Novo Review of
Recommendations. The district judge must consider de novo any
objection to the magistrate judge's recommendation. The district judge
may accept, reject, or modify the recommendation, receive further
evidence, or resubmit the matter to the magistrate judge with
instructions.
Rule 60. Victim's Rights
(a) In General.
(1) Notice of a
Proceeding. The government must use its best efforts to give
the victim reasonable, accurate, and timely notice of any public court
proceeding involving the crime.
(2) Attending the
Proceeding. The court must not exclude a victim from a public
court proceeding involving the crime, unless the court determines by
clear and convincing evidence that the victim's testimony would be
materially altered if the victim heard other testimony at that
proceeding. In determining whether to exclude a victim, the court must
make every effort to permit the fullest attendance possible by the
victim and must consider reasonable alternatives to exclusion. The
reasons for any exclusion must be clearly stated on the record.
(3) Right to Be Heard
on Release, a Plea, or Sentencing. The court must permit a
victim to be reasonably heard at any public proceeding in the district
court concerning release, plea, or sentencing involving the crime.
(b) Enforcement and
Limitations.
(1) Time for Deciding
a Motion. The court must promptly decide any motion asserting a
victim's rights described in these rules.
(2) Who May Assert the
Rights. A victim's rights described in these rules may be
asserted by the victim, the victim's lawful representative, the attorney
for the government, or any other person as authorized by 18 U.S.C. §
3771(d) and (e).
(3) Multiple Victims.
If the court finds that the number of victims makes it impracticable to
accord all of them their rights described in these rules, the court must
fashion a reasonable procedure that gives effect to these rights without
unduly complicating or prolonging the proceedings.
(4) Where Rights May
Be Asserted. A victim's rights described in these rules must be
asserted in the district where a defendant is being prosecuted for the
crime.
(5) Limitations on
Relief. A victim may move to reopen a plea or sentence only if:
(A) the
victim asked to be heard before or during the proceeding at issue, and
the request was denied;
(B) the
victim petitions the court of appeals for a writ of mandamus within 10
days after the denial, and the writ is granted; and
(C) in the
case of a plea, the accused has not pleaded to the highest offense
charged.
(6) No New Trial.
A failure to afford a victim any right described in these rules is not
grounds for a new trial.
Rule 61. Title
These rules may be known and
cited as the Federal Rules of Criminal Procedure. |