Title 18 Appendix USCTitleAppendix 18a Online@118-34not31 no OLRC 2024-01-08T01:42:09 USCConverter 1.7.2 Title 18APPENDIX UNLAWFUL POSSESSION OR RECEIPT OF FIREARMS Current through 118-34not31   Item  Unlawful Possession or Receipt of Firearms (Repealed)  Interstate Agreement on Detainers ( Pub. L. 91538  Classified Information Procedures Act ( Pub. L. 96456  Federal Rules of Criminal Procedure UNLAWFUL POSSESSION OR RECEIPT OF FIREARMS [ 1201 to 1203. Repealed. Pub. L. 99308,  104(b) May 19, 1986 100 Stat. 459   Section 1201, Pub. L. 90351, title VII,  1201 June 19, 1968 82 Stat. 236 Pub. L. 90618, title III,  301(a)(1) Oct. 22, 1968 82 Stat. 1236  Section 1202, Pub. L. 90351, title VII,  1202 June 19, 1968 82 Stat. 236 Pub. L. 90618, title III,  301(a)(2) Oct. 22, 1968 82 Stat. 1236 Pub. L. 98473, title II Oct. 12, 1984 98 Stat. 2185 section 924 of this title  Section 1203, Pub. L. 90351, title VII,  1203 June 19, 1968 82 Stat. 237 Effective Date of Repeal Sections repealed effective 180 days after May 19, 1986 section 110(a) of Pub. L. 99308 section 921 of this title INTERSTATE AGREEMENT ON DETAINERS Pub. L. 91538 Dec. 9, 1970 84 Stat. 1397 Pub. L. 100690, title VII,  7059 Nov. 18, 1988 102 Stat. 4403  1. Short title  This Act may be cited as the Interstate Agreement on Detainers Act. ( Pub. L. 91538,  1 Dec. 9, 1970 84 Stat. 1397  2. Enactment into law of Interstate Agreement on Detainers  The Interstate Agreement on Detainers is hereby enacted into law and entered into by the United States on its own behalf and on behalf of the District of Columbia with all jurisdictions legally joining in substantially the following form: The contracting States solemnly agree that: Article I The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures. Article II As used in this agreement: (a) State shall mean a State of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico. (b) Sending State shall mean a State in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to article III hereof or at the time that a request for custody or availability is initiated pursuant to article IV hereof. (c) Receiving State shall mean the State in which trial is to be had on an indictment, information, or complaint pursuant to article III or article IV hereof. Article III (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint: Provided (b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections, or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested. (c) The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based. (d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations, or complaints on the basis of which detainers have been lodged against the prisoner from the State to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections, or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the State to which the prisoners request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoners written notice, request, and the certificate. If trial is not had on any indictment, information, or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. (e) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving State to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending State. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law. (f) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph (a) hereof shall void the request. Article IV (a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated: Provided And provided further (b) Upon request of the officers written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving State who has lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor. (c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. (d) Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending State has not affirmatively consented to or ordered such delivery. (e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoners being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. Article V (a) In response to a request made under article III or article IV hereof, the appropriate authority in a sending State shall offer to deliver temporary custody of such prisoner to the appropriate authority in the State where such indictment, information, or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in article III of this agreement. In the case of a Federal prisoner, the appropriate authority in the receiving State shall be entitled to temporary custody as provided by this agreement or to the prisoners presence in Federal custody at the place of trial, whichever custodial arrangement may be approved by the custodian. (b) The officer or other representative of a State accepting an offer of temporary custody shall present the following upon demand: (1) Proper identification and evidence of his authority to act for the State into whose temporary custody this prisoner is to be given. (2) A duly certified copy of the indictment, information, or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made. (c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect. (d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution. (e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending State. (f) During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow. (g) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending State and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law. (h) From the time that a party State receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending State, the State in which the one or more untried indictments, informations, or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping, and returning the prisoner. The provisions of this paragraph shall govern unless the States concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies, and officers of and in the government of a party State, or between a party State and its subdivisions, as to the payment of costs, or responsibilities therefor. Article VI (a) In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter. (b) No provision of this agreement, and no remedy made available by this agreement shall apply to any person who is adjudged to be mentally ill. Article VII Each State party to this agreement shall designate an officer who, acting jointly with like officers of other party States, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the State, information necessary to the effective operation of this agreement. Article VIII This agreement shall enter into full force and effect as to a party State when such State has enacted the same into law. A State party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any State shall not affect the status of any proceedings already initiated by inmates or by State officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof. Article IX This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence, or provision of this agreement is declared to be contrary to the constitution of any party State or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any State party hereto, the agreement shall remain in full force and effect as to the remaining States and in full force and effect as to the State affected as to all severable matters. ( Pub. L. 91538,  2 Dec. 9, 1970 84 Stat. 1397  3. Definition of term Governor for purposes of United States and District of Columbia  The term Governor as used in the agreement on detainers shall mean with respect to the United States, the Attorney General, and with respect to the District of Columbia, the Mayor of the District of Columbia. ( Pub. L. 91538,  3 Dec. 9, 1970 84 Stat. 1402   Transfer of Functions Mayor of the District of Columbia substituted in text for Commissioner of the District of Columbia pursuant to section 421 of Pub. L. 93198 Jan. 2, 1975 Pub. L. 93198, title VII,  711 Dec. 24, 1973 87 Stat. 818 section 421 of Pub. L. 93198  4. Definition of term appropriate court  The term appropriate court as used in the agreement on detainers shall mean with respect to the United States, the courts of the United States, and with respect to the District of Columbia, the courts of the District of Columbia, in which indictments, informations, or complaints, for which disposition is sought, are pending. ( Pub. L. 91538,  4 Dec. 9, 1970 84 Stat. 1402  5. Enforcement and cooperation by courts, departments, agencies, officers, and employees of United States and District of Columbia  All courts, departments, agencies, officers, and employees of the United States and of the District of Columbia are hereby directed to enforce the agreement on detainers and to cooperate with one another and with all party States in enforcing the agreement and effectuating its purpose. ( Pub. L. 91538,  5 Dec. 9, 1970 84 Stat. 1402  6. Regulations, forms, and instructions  For the United States, the Attorney General, and for the District of Columbia, the Mayor of the District of Columbia, shall establish such regulations, prescribe such forms, issue such instructions, and perform such other acts as he deems necessary for carrying out the provisions of this Act. ( Pub. L. 91538,  6 Dec. 9, 1970 84 Stat. 1403   Transfer of Functions Mayor of the District of Columbia substituted in text for Commissioner of the District of Columbia pursuant to section 421 of Pub. L. 93198 Jan. 2, 1975 Pub. L. 93198, title VII,  711 Dec. 24, 1973 87 Stat. 818 section 421 of Pub. L. 93198  7. Reservation of right to alter, amend, or repeal  The right to alter, amend, or repeal this Act is expressly reserved. ( Pub. L. 91538,  7 Dec. 9, 1970 84 Stat. 1403  8. Effective Date  This Act shall take effect on the ninetieth day after the date of its enactment. ( Pub. L. 91538,  8 Dec. 9, 1970 84 Stat. 1403   References in Text The date of its enactment, referred to in text, means Dec. 9, 1970  9. Special Provisions when United States is a Receiving State Notwithstanding any provision of the agreement on detainers to the contrary, in a case in which the United States is a receiving State (1) any order of a court dismissing any indictment, information, or complaint may be with or without prejudice. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: The seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of the agreement on detainers and on the administration of justice; and (2) it shall not be a violation of the agreement on detainers if prior to trial the prisoner is returned to the custody of the sending State pursuant to an order of the appropriate court issued after reasonable notice to the prisoner and the United States and an opportunity for a hearing. ( Pub. L. 91538,  9 Pub. L. 100690, title VII,  7059 Nov. 18, 1988 102 Stat. 4403 CLASSIFIED INFORMATION PROCEDURES ACT Pub. L. 96456 Oct. 15, 1980 94 Stat. 2025 Pub. L. 100690, title VII,  7020(g) Nov. 18, 1988 102 Stat. 4396 Pub. L. 106567, title VI,  607 Dec. 27, 2000 114 Stat. 2855 Pub. L. 107306, title VIII,  811(b)(3) Nov. 27, 2002 116 Stat. 2423 Pub. L. 108458, title I,  1071(f) Dec. 17, 2004 118 Stat. 3691 Pub. L. 109177, title V,  506(a)(8) Mar. 9, 2006 120 Stat. 248 Pub. L. 11116,  4 May 7, 2009 123 Stat. 1608  1. Definitions (a) Classified information, as used in this Act, means any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in paragraph r. of section 11 of the Atomic Energy Act of 1954 ( 42 U.S.C. 2014(y) (b) National security, as used in this Act, means the national defense and foreign relations of the United States. ( Pub. L. 96456,  1 Oct. 15, 1980 94 Stat. 2025  2. Pretrial conference  At any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution. Following such motion, or on its own motion, the court shall promptly hold a pretrial conference to establish the timing of requests for discovery, the provision of notice required by section 5 of this Act, and the initiation of the procedure established by section 6 of this Act. In addition, at the pretrial conference the court may consider any matters which relate to classified information or which may promote a fair and expeditious trial. No admission made by the defendant or by any attorney for the defendant at such a conference may be used against the defendant unless the admission is in writing and is signed by the defendant and by the attorney for the defendant. ( Pub. L. 96456,  2 Oct. 15, 1980 94 Stat. 2025  3. Protective orders  Upon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case in a district court of the United States. ( Pub. L. 96456,  3 Oct. 15, 1980 94 Stat. 2025  4. Discovery of classified information by defendants  The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. ( Pub. L. 96456,  4 Oct. 15, 1980 94 Stat. 2025  5. Notice of defendants intention to disclose classified information (a)  Notice by Defendant If a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant, the defendant shall, within the time specified by the court or, where no time is specified, within thirty days prior to trial, notify the attorney for the United States and the court in writing. Such notice shall include a brief description of the classified information. Whenever a defendant learns of additional classified information he reasonably expects to disclose at any such proceeding, he shall notify the attorney for the United States and the court in writing as soon as possible thereafter and shall include a brief description of the classified information. No defendant shall disclose any information known or believed to be classified in connection with a trial or pretrial proceeding until notice has been given under this subsection and until the United States has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in section 6 of this Act, and until the time for the United States to appeal such determination under section 7 has expired or any appeal under section 7 by the United States is decided. (b)  Failure to Comply If the defendant fails to comply with the requirements of subsection (a) the court may preclude disclosure of any classified information not made the subject of notification and may prohibit the examination by the defendant of any witness with respect to any such information. ( Pub. L. 96456,  5 Oct. 15, 1980 94 Stat. 2026  6. Procedure for cases involving classified information (a)  Motion for Hearing Within the time specified by the court for the filing of a motion under this section, the United States may request the court to conduct a hearing to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding. Upon such a request, the court shall conduct such a hearing. Any hearing held pursuant to this subsection (or any portion of such hearing specified in the request of the Attorney General) shall be held in camera if the Attorney General certifies to the court in such petition that a public proceeding may result in the disclosure of classified information. As to each item of classified information, the court shall set forth in writing the basis for its determination. Where the United States motion under this subsection is filed prior to the trial or pretrial proceeding, the court shall rule prior to the commencement of the relevant proceeding. (b)  Notice (1) Before any hearing is conducted pursuant to a request by the United States under subsection (a), the United States shall provide the defendant with notice of the classified information that is at issue. Such notice shall identify the specific classified information at issue whenever that information previously has been made available to the defendant by the United States. When the United States has not previously made the information available to the defendant in connection with the case, the information may be described by generic category, in such forms as the court may approve, rather than by identification of the specific information of concern to the United States. (2) Whenever the United States requests a hearing under subsection (a), the court, upon request of the defendant, may order the United States to provide the defendant, prior to trial, such details as to the portion of the indictment or information at issue in the hearing as are needed to give the defendant fair notice to prepare for the hearing. (c)  Alternative Procedure for Disclosure of Classified Information (1) Upon any determination by the court authorizing the disclosure of specific classified information under the procedures established by this section, the United States may move that, in lieu of the disclosure of such specific classified information, the court order (A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; or (B) the substitution for such classified information of a summary of the specific classified information. The court shall grant such a motion of the United States if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information. The court shall hold a hearing on any motion under this section. Any such hearing shall be held in camera at the request of the Attorney General. (2) The United States may, in connection with a motion under paragraph (1), submit to the court an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the United States, the court shall examine such affidavit in camera and ex parte. (d)  Sealing of Records of In Camera Hearings If at the close of an in camera hearing under this Act (or any portion of a hearing under this Act that is held in camera) the court determines that the classified information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing shall be sealed and preserved by the court for use in the event of an appeal. The defendant may seek reconsideration of the courts determination prior to or during trial. (e)  Prohibition on Disclosure of Classified Information by Defendant, Relief for Defendant When United States Opposes Disclosure (1) Whenever the court denies a motion by the United States that it issue an order under subsection (c) and the United States files with the court an affidavit of the Attorney General objecting to disclosure of the classified information at issue, the court shall order that the defendant not disclose or cause the disclosure of such information. (2) Whenever a defendant is prevented by an order under paragraph (1) from disclosing or causing the disclosure of classified information, the court shall dismiss the indictment or information; except that, when the court determines that the interests of justice would not be served by dismissal of the indictment or information, the court shall order such other action, in lieu of dismissing the indictment or information, as the court determines is appropriate. Such action may include, but need not be limited to (A) dismissing specified counts of the indictment or information; (B) finding against the United States on any issue as to which the excluded classified information relates; or (C) striking or precluding all or part of the testimony of a witness. An order under this paragraph shall not take effect until the court has afforded the United States an opportunity to appeal such order under section 7, and thereafter to withdraw its objection to the disclosure of the classified information at issue. (f)  Reciprocity Whenever the court determines pursuant to subsection (a) that classified information may be disclosed in connection with a trial or pretrial proceeding, the court shall, unless the interests of fairness do not so require, order the United States to provide the defendant with the information it expects to use to rebut the classified information. The court may place the United States under a continuing duty to disclose such rebuttal information. If the United States fails to comply with its obligation under this subsection, the court may exclude any evidence not made the subject of a required disclosure and may prohibit the examination by the United States of any witness with respect to such information. ( Pub. L. 96456,  6 Oct. 15, 1980 94 Stat. 2026  7. Interlocutory appeal (a) An interlocutory appeal by the United States taken before or after the defendant has been placed in jeopardy shall lie to a court of appeals from a decision or order of a district court in a criminal case authorizing the disclosure of classified information, imposing sanctions for nondisclosure of classified information, or refusing a protective order sought by the United States to prevent the disclosure of classified information. (b) An appeal taken pursuant to this section either before or during trial shall be expedited by the court of appeals. Prior to trial, an appeal shall be taken within fourteen days after the decision or order appealed from and the trial shall not commence until the appeal is resolved. If an appeal is taken during trial, the trial court shall adjourn the trial until the appeal is resolved and the court of appeals (1) shall hear argument on such appeal within four days of the adjournment of the trial, excluding intermediate weekends and holidays, (2) may dispense with written briefs other than the supporting materials previously submitted to the trial court, (3) shall render its decision within four days of argument on appeal, excluding intermediate weekends and holidays, and (4) may dispense with the issuance of a written opinion in rendering its decision. Such appeal and decision shall not affect the right of the defendant, in a subsequent appeal from a judgment of conviction, to claim as error reversal by the trial court on remand of a ruling appealed from during trial. ( Pub. L. 96456,  7 Oct. 15, 1980 94 Stat. 2028 Pub. L. 11116,  4 May 7, 2009 123 Stat. 1608  Amendments 2009Subsec. (b). Pub. L. 11116,  4(1) Subsec. (b)(1). Pub. L. 11116,  4(2) Subsec. (b)(3). Pub. L. 11116,  4(3) Effective Date of 2009 Amendment Amendment by Pub. L. 11116 Dec. 1, 2009 section 7 of Pub. L. 11116 section 109 of Title 11  8. Introduction of classified information (a)  Classification Status Writings, recordings, and photographs containing classified information may be admitted into evidence without change in their classification status. (b)  Precautions by Court The court, in order to prevent unnecessary disclosure of classified information involved in any criminal proceeding, may order admission into evidence of only part of a writing, recording, or photograph, or may order admission into evidence of the whole writing, recording, or photograph with excision of some or all of the classified information contained therein, unless the whole ought in fairness be considered. (c)  Taking of Testimony During the examination of a witness in any criminal proceeding, the United States may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible. Following such an objection, the court shall take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified information. Such action may include requiring the United States to provide the court with a proffer of the witness response to the question or line of inquiry and requiring the defendant to provide the court with a proffer of the nature of the information he seeks to elicit. ( Pub. L. 96456,  8 Oct. 15, 1980 94 Stat. 2028  9. Security procedures (a) Within one hundred and twenty days of the date of the enactment of this Act, the Chief Justice of the United States, in consultation with the Attorney General, the Director of National Intelligence, and the Secretary of Defense, shall prescribe rules establishing procedures for the protection against unauthorized disclosure of any classified information in the custody of the United States district courts, courts of appeal, or Supreme Court. Such rules, and any changes in such rules, shall be submitted to the appropriate committees of Congress and shall become effective forty-five days after such submission. (b) Until such time as rules under subsection (a) first become effective, the Federal courts shall in each case involving classified information adapt procedures to protect against the unauthorized disclosure of such information. ( Pub. L. 96456,  9 Oct. 15, 1980 94 Stat. 2029 Pub. L. 108458, title I,  1071(f) Dec. 17, 2004 118 Stat. 3691   References in Text The date of the enactment of this Act, referred to in subsec. (a), means Oct. 15, 1980 Amendments 2004Subsec. (a). Pub. L. 108458 Effective Date of 2004 Amendment For Determination by President that amendment by Pub. L. 108458 Apr. 21, 2005 Apr. 21, 2005 section 3001 of Title 50 Amendment by Pub. L. 108458 Dec. 17, 2004 section 1097(a) of Pub. L. 108458 section 3001 of Title 50 Revised Security Procedures Established Pursuant to Pub. L. 96456 94 Stat. 2025 1. Purpose Pub. L. 96456 94 Stat. 2025  ... [T]he Chief Justice of the United States, in consultation with the Attorney General, the Director of National Intelligence, and the Secretary of Defense, shall prescribe rules establishing procedures for the protection against unauthorized disclosure of any classified information in the custody of the United States district courts, courts of appeal, or Supreme Court. . . . These revised procedures apply in all criminal proceedings involving classified information, and appeals therefrom, before the United States district courts, the courts of appeal and the Supreme Court, and supersede the Security Procedures issued on February 12, 1981 2. Classified Information Security Officer The classified information security officer must be an individual with demonstrated competence in security matters. Prior to designation, the Department of Justice Security Officer must certify in writing that the classified information security officer is properly cleared, i.e., possesses the necessary clearance for the level and category of classified information involved. The classified information security officer will be responsible to the court for the security of all classified information in the courts custody, including, but not limited to, any pleadings or other filings created in connection with the proceedings, and any form of information contained in any format, including testimony, notes, photographs, transcripts, documents, digital files, audio files or video files, stored on any type of equipment ( e.g. 3. Secure Location in camera The secure location must be within the federal courthouse, unless it is determined that no available location in the courthouse meets, or can reasonably be adapted to meet, the security requirements of the Executive Branch applicable to the level and category of classified information involved. In the event that no suitable location exists within the courthouse, upon recommendation by the classified information security officer, the court will designate another United States Government facility located within the vicinity of the courthouse, as the secure location. The classified information security officer must make necessary arrangements to ensure that the security requirements of the Executive Branch applicable to the level and category of classified information involved are met and must conduct or arrange for such inspection of the secure location as may be necessary. The classified information security officer must, in consultation with the United States Marshal, arrange for the installation of security devices and take such other measures as may be necessary to protect against any unauthorized access to or disclosure of classified information. All of the aforementioned activities must be conducted in a manner that does not interfere with the orderly proceedings of the court. Prior to any hearing or other proceeding, the classified information security officer must certify to the court that the location to be used is secure. 4. Personnel SecurityCourt Personnel The court shall timely notify the classified information security officer of the names of court personnel who may require access to classified information. The classified information security officer will then notify the Department of Justice Security Officer, who will promptly make arrangements to obtain any necessary security clearances. All security clearance requests will be reviewed and determinations will be made in accordance with the adjudication standards of the Executive Branch applicable to the level and category of classified information involved. The classified information security officer, on behalf of the Department of Justice Security Officer, will advise the court when the necessary security clearances have been obtained. When necessary, the court may request that security clearances for certain court personnel be expedited. If security clearances cannot be obtained promptly, United States Government personnel possessing the appropriate security clearances may be temporarily assigned to assist the court. If a proceeding is required to be recorded and an official court reporter having the necessary security clearance is unavailable, the court may request the classified information security officer or the attorney for the government to have a cleared reporter designated to act as a reporter in the proceedings. The reporter so designated must take the oath of office as prescribed by 28 U.S.C.  753(a). Justices, judges and cleared court personnel may disclose classified information only to persons who possess both the appropriate security clearance and the requisite need to know the information in the performance of an official function. However, nothing contained in these procedures precludes a judge from performing his or her official duties, including giving appropriate instructions to a jury. Any security concern regarding classified information and involving court personnel or persons acting for the court must be referred to the court and the Department of Justice Security Officer for appropriate action. 5. Persons Acting for the Defense 6. Jury At any time during trial, the trial judge should consider, based on a party request or sua sponte 7. Custody and Storage of Classified Materials. a. Materials Covered e.g. b. Safekeeping For other than temporary storage (e.g., a brief court recess), the classified information security officer must ensure that the storage area in which these containers will be located meets Executive Branch standards applicable to the level and category of classified information involved. The secure storage area may be located within either the federal courthouse or the facilities of another United States Government agency. c. Transmittal of Classified Information 8. Operating Routine. a. Access to Court Records b. Access to Other Discoverable Information c. Telephone and Computer Security d. Disposal of Classified Material 9. Records Security. a. Classification Markings Any and all materials potentially containing classified information filed by the defense must be filed under seal with the classified information security officer. The classified information security officer may permit counsel to file, on the public docket, non-substantive pleadings or documents ( e.g. b. Accountability System 10. Transmittal of the Record on Appeal Any court records containing classified information must be maintained, through the pendency of any direct appeal, at a secure location that is reasonably accessible and approved by the classified information security officer, and must be stored in a proper security container. 11. Final Disposition 12. Expenses 13. Interpretation 14. Term 15. Effective Date Effective this 15th day of January, 2011, having taken into account the views of the Attorney General of the United States, the Director of National Intelligence, and the Secretary of Defense, as required by law. [The revised security procedures set out above were issued Dec. 1, 2010 Feb. 12, 1981  9A. Coordination requirements relating to the prosecution of cases involving classified information (a)  Briefings Required The Assistant Attorney General for the Criminal Division or the Assistant Attorney General for National Security, as appropriate, and the appropriate United States attorney, or the designees of such officials, shall provide briefings to the senior agency official, or the designee of such official, with respect to any case involving classified information that originated in the agency of such senior agency official. (b)  Timing of Briefings Briefings under subsection (a) with respect to a case shall occur (1) as soon as practicable after the Department of Justice and the United States attorney concerned determine that a prosecution or potential prosecution could result; and (2) at such other times thereafter as are necessary to keep the senior agency official concerned fully and currently informed of the status of the prosecution. (c)  Senior Agency Official Defined In this section, the term senior agency official has the meaning given that term in section 1.1 of Executive Order No. 12958. ( Pub. L. 96456,  9A Pub. L. 106567, title VI,  607 Dec. 27, 2000 114 Stat. 2855 Pub. L. 109177, title V,  506(a)(8) Mar. 9, 2006 120 Stat. 248   References in Text Executive Order No. 12958, referred to in subsec. (c), which was formerly set out as a note under section 435 (now section 3161) of Title 50, War and National Defense, was revoked by Ex. Ord. No. 13526,  6.2(g), Dec. 29, 2009 Amendments 2006Subsec. (a). Pub. L. 109177  10. Identification of information related to the national defense  In any prosecution in which the United States must establish that material relates to the national defense or constitutes classified information, the United States shall notify the defendant, within the time before trial specified by the court, of the portions of the material that it reasonably expects to rely upon to establish the national defense or classified information element of the offense. ( Pub. L. 96456,  10 Oct. 15, 1980 94 Stat. 2029  11. Amendments to the Act  Sections 1 through 10 of this Act may be amended as provided in section 2076, title 28, United States Code. ( Pub. L. 96456,  11 Oct. 15, 1980 94 Stat. 2029  12. Attorney General guidelines (a) Within one hundred and eighty days of enactment of this Act, the Attorney General shall issue guidelines specifying the factors to be used by the Department of Justice in rendering a decision whether to prosecute a violation of Federal law in which, in the judgment of the Attorney General, there is a possibility that classified information will be revealed. Such guidelines shall be transmitted to the appropriate committees of Congress. (b) When the Department of Justice decides not to prosecute a violation of Federal law pursuant to subsection (a), an appropriate official of the Department of Justice shall prepare written findings detailing the reasons for the decision not to prosecute. The findings shall include (1) the intelligence information which the Department of Justice officials believe might be disclosed, (2) the purpose for which the information might be disclosed, (3) the probability that the information would be disclosed, and (4) the possible consequences such disclosure would have on the national security. ( Pub. L. 96456,  12 Oct. 15, 1980 94 Stat. 2029   References in Text The enactment of this Act, referred to in subsec. (a), means Oct. 15, 1980  13. Reports to Congress (a) Consistent with applicable authorities and duties, including those conferred by the Constitution upon the executive and legislative branches, the Attorney General shall report orally or in writing semiannually to the Permanent Select Committee on Intelligence of the United States House of Representatives, the Select Committee on Intelligence of the United States Senate, and the chairmen and ranking minority members of the Committees on the Judiciary of the Senate and House of Representatives on all cases where a decision not to prosecute a violation of Federal law pursuant to section 12(a) has been made. (b) In the case of the semiannual reports (whether oral or written) required to be submitted under subsection (a) to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, the submittal dates for such reports shall be as provided in section 507 of the National Security Act of 1947. (c) The Attorney General shall deliver to the appropriate committees of Congress a report concerning the operation and effectiveness of this Act and including suggested amendments to this Act. For the first three years this Act is in effect, there shall be a report each year. After three years, such reports shall be delivered as necessary. ( Pub. L. 96456,  13 Oct. 15, 1980 94 Stat. 2030 Pub. L. 107306, title VIII,  811(b)(3) Nov. 27, 2002 116 Stat. 2423   References in Text Section 507 of the National Security Act of 1947, referred to in subsec. (b), is classified to section 3106 of Title 50 Amendments 2002Subsecs. (b), (c). Pub. L. 107306  14. Functions of Attorney General may be exercised by Deputy Attorney General, the Associate Attorney General, or a designated Assistant Attorney General  The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official. ( Pub. L. 96456,  14 Oct. 15, 1980 94 Stat. 2030 Pub. L. 100690, title VII,  7020(g) Nov. 18, 1988 102 Stat. 4396  Amendments 1988 Pub. L. 100690  15. Effective date  The provisions of this Act shall become effective upon the date of the enactment of this Act, but shall not apply to any prosecution in which an indictment or information was filed before such date. ( Pub. L. 96456,  15 Oct. 15, 1980 94 Stat. 2030   References in Text The date of the enactment of this Act, referred to in text, means Oct. 15, 1980  16. Short title  That this Act may be cited as the Classified Information Procedures Act. ( Pub. L. 96456,  16 Oct. 15, 1980 94 Stat. 2031 FEDERAL RULES OF CRIMINAL PROCEDURE (As amended to December 26, 2023 Historical Note The original Federal Rules of Criminal Procedure were adopted by order of the Supreme Court on Dec. 26, 1944 Jan. 3, 1945 Mar. 21, 1946 The Rules have been amended Dec. 27, 1948 Jan. 1, 1949 Dec. 27, 1948 Oct. 20, 1949 Apr. 12, 1954 July 1, 1954 Apr. 9, 1956 July 8, 1956 Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Mar. 1, 1971 July 1, 1971 Apr. 24, 1972 Oct. 1, 1972 Nov. 20, 1972 July 1, 1975 Pub. L. 93595 Mar. 18, 1974 July 1, 1974 Apr. 22, 1974 Aug. 1, 1975 Dec. 1, 1975 Pub. L. 93361 Pub. L. 9464 Dec. 12, 1975 Pub. L. 94149,  5 89 Stat. 806 Apr. 26, 1976 Aug. 1, 1976 Oct. 1, 1977 Pub. L. 94349 Pub. L. 9578 Apr. 30, 1979 Aug. 1, 1979 Dec. 1, 1980 Pub. L. 9642 Apr. 28, 1982 Aug. 1, 1982 Oct. 12, 1982 Pub. L. 97291,  3 96 Stat. 1249 Apr. 28, 1983 Aug. 1, 1983 Oct. 12, 1984 Pub. L. 98473, title II 98 Stat. 1986 Oct. 30, 1984 Pub. L. 98596,  11(a) 98 Stat. 3138 Apr. 29, 1985 Aug. 1, 1985 Oct. 27, 1986 Pub. L. 99570, title I,  1009(a) 100 Stat. 32078 Nov. 10, 1986 Pub. L. 99646 100 Stat. 3594 Mar. 9, 1987 Aug. 1, 1987 Apr. 25, 1988 Aug. 1, 1988 Nov. 18, 1988 Pub. L. 100690, title VI,  6483 102 Stat. 4382 Apr. 25, 1989 Dec. 1, 1989 May 1, 1990 Dec. 1, 1990 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Sept. 13, 1994 Pub. L. 103322, title XXIII,  230101(b) 108 Stat. 2078 Apr. 27, 1995 Dec. 1, 1995 Apr. 23, 1996 Dec. 1, 1996 Apr. 24, 1996 Pub. L. 104132, title II,  207(a) 110 Stat. 1236 Apr. 11, 1997 Dec. 1, 1997 Apr. 24, 1998 Dec. 1, 1998 Apr. 26, 1999 Dec. 1, 1999 Apr. 17, 2000 Dec. 1, 2000 Oct. 26, 2001 Pub. L. 10756, title II 115 Stat. 278 Apr. 29, 2002 Dec. 1, 2002 Nov. 2, 2002 Pub. L. 107273, div. C, title I,  11019(b) 116 Stat. 1825 Nov. 25, 2002 Pub. L. 107296, title VIII,  895 116 Stat. 2256 Apr. 30, 2003 Pub. L. 10821, title VI,  610(b) 117 Stat. 692 Apr. 26, 2004 Dec. 1, 2004 Pub. L. 108458, title VI,  6501(a) Dec. 17, 2004 118 Stat. 3760 Apr. 25, 2005 Dec. 1, 2005 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 23, 2008 Dec. 1, 2008 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2010 Dec. 1, 2010 Apr. 26, 2011 Dec. 1, 2011 Apr. 23, 2012 Dec. 1, 2012 Apr. 16, 2013 Dec. 1, 2013 Apr. 25, 2014 Dec. 1, 2014 Apr. 28, 2016 Dec. 1, 2016 Pub. L. 114324,  2(c) Dec. 16, 2016 130 Stat. 1948 Apr. 26, 2018 Dec. 1, 2018 Apr. 25, 2019 Dec. 1, 2019 Pub. L. 116182,  2 Oct. 21, 2020 134 Stat. 894 Apr. 11, 2022 Dec. 1, 2022 Pub. L. 117347, title III,  323(a)(1)(A) Jan. 5, 2023 136 Stat. 6206 Apr. 24, 2023 Dec. 1, 2023    TITLE I. APPLICABILITY  Rule  1. Scope; Definitions.  2. Interpretation.  TITLE II. PRELIMINARY PROCEEDINGS  3. The Complaint.  4. Arrest Warrant or Summons on a Complaint.  4.1. Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means.  5. Initial Appearance.  5.1. Preliminary Hearing.  TITLE III. THE GRAND JURY, THE INDICTMENT, AND THE INFORMATION  6. The Grand Jury.  7. The Indictment and the Information.  8. Joinder of Offenses or Defendants.  9. Arrest Warrant or Summons on an Indictment or Information.  TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL  10. Arraignment.  11. Pleas.  12. Pleadings and Pretrial Motions.  12.1. Notice of an Alibi Defense.  12.2. Notice of an Insanity Defense; Mental Examination.  12.3. Notice of a Public-Authority Defense.  12.4. Disclosure Statement.  13. Joint Trial of Separate Cases.  14. Relief from Prejudicial Joinder.  15. Depositions.  16. Discovery and Inspection.  16.1. Pretrial Discovery Conference; Request for Court Action.  17. Subpoena.  17.1. Pretrial Conference.  TITLE V. VENUE  18. Place of Prosecution and Trial.  19. (Reserved).  20. Transfer for Plea and Sentence.  21. Transfer for Trial.  22. (Transferred).  TITLE VI. TRIAL  23. Jury or Nonjury Trial.  24. Trial Jurors.  25. Judges Disability.  26. Taking Testimony.  26.1. Foreign Law Determination.  26.2. Producing a Witnesss Statement.  26.3. Mistrial.  27. Proving an Official Record.  28. Interpreters.  29. Motion for a Judgment of Acquittal.  29.1. Closing Argument.  30. Jury Instructions.  31. Jury Verdict.  TITLE VII. POST-CONVICTION PROCEDURES  32. Sentencing and Judgment.  32.1. Revoking or Modifying Probation or Supervised Release.  32.2. Criminal Forfeiture.  33. New Trial.  34. Arresting Judgment.  35. Correcting or Reducing a Sentence.  36. Clerical Error.  37. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal.  38. Staying a Sentence or a Disability.  39. (Reserved).  TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS  40. Arrest for Failing to Appear in Another District or for Violating Conditions of Release Set in Another District.  41. Search and Seizure.  42. Criminal Contempt.  TITLE IX. GENERAL PROVISIONS  43. Defendants Presence.  44. Right to and Appointment of Counsel.  45. Computing and Extending Time.  46. Release from Custody; Supervising Detention.  47. Motions and Supporting Affadavits.  48. Dismissal.  49. Serving and Filing Papers.  49.1. Privacy Protection For Filings Made with the Court.  50. Prompt Disposition.  51. Preserving Claimed Error.  52. Harmless and Plain Error.  53. Courtroom Photographing and Broadcasting Prohibited.  54. (Transferred).  55. Records.  56. When Court Is Open.  57. District Court Rules.  58. Petty Offenses and Other Misdemeanors.  59. Matters Before a Magistrate Judge.  60. Victims Rights.  61. Title.  62. Criminal Rules Emergency. TITLE I. APPLICABILITY Rule 1. Scope; Definitions (a) Scope. (1)  In General. (2)  State or Local Judicial Officer. (3)  Territorial 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. (5)  Excluded Proceedings. (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.  256258; 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.  631639. (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) Telephone means any technology for transmitting live electronic voice communication. (12) Victim means a crime victim as defined in 18 U.S.C.  3771(e). 1 1 (c) Authority of a Justice or Judge of the United States. When these rules authorize a magistrate judge to act, any other federal judge may also act. (As amended Apr. 24, 1972 Oct. 1, 1972 Apr. 28, 1982 Aug. 1, 1982 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Apr. 23, 2008 Dec. 1, 2008 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Rules1944 1. These rules are prescribed under the authority of two acts of Congress, namely: the Act of June 29, 1940 18 U.S.C. 687 November 21, 1941 18 U.S.C. 689 2. The courts of the United States covered by the rules are enumerated in Rule 54(a). In addition to Federal courts in the continental United States they include district courts in Alaska, Hawaii, Puerto Rico and the Virgin Islands. In the Canal Zone only the rules governing proceedings after verdict, finding or plea of guilty are applicable. 3. While the rules apply to proceedings before commissioners when acting as committing magistrates, they do not govern when a commissioner acts as a trial magistrate for the trial of petty offenses committed on Federal reservations. That procedure is governed by rules adopted by order promulgated by the Supreme Court on January 6, 1941 October 9, 1940 18 U.S.C. 576576d Notes of Advisory Committee on Rules1972 Amendment The rule is amended to make clear that the rules are applicable to courts of the United States and, where the rule so provides, to proceedings before United States magistrates and state or local judicial officers. Primarily these rules are intended to govern proceedings in criminal cases triable in the United States District Court. Special rules have been promulgated, pursuant to the authority set forth in 28 U.S.C.  636(c), for the trial of minor offenses before United States magistrates. (See Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates ( January 27, 1971 However, there is inevitably some overlap between the two sets of rules. The Rules of Criminal Procedure for the United States District Courts deal with preliminary, supplementary, and special proceedings which will often be conducted before United States magistrates. This is true, for example, with regard to rule 3The Complaint; rule 4Arrest Warrant or Summons Upon Complaint; rule 5Initial Appearance Before the Magistrate; and rule 5.1Preliminary Examination. It is also true, for example, of supplementary and special proceedings such as rule 40Commitment to Another District, Removal; rule 41Search and Seizure; and rule 46Release from Custody. Other of these rules, where applicable, also apply to proceedings before United States magistrates. See Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates, rule 1Scope: These rules govern the procedure and practice for the trial of minor offenses (including petty offenses) before United States magistrates under Title 18, U.S.C.  3401, and for appeals in such cases to judges of the district courts. To the extent that pretrial and trial procedure and practice are not specifically covered by these rules, the Federal Rules of Criminal Procedure apply as to minor offenses other than petty offenses. All other proceedings in criminal matters, other than petty offenses, before United States magistrates are governed by the Federal Rules of Criminal Procedure. State and local judicial officers are governed by these rules, but only when the rule specifically so provides. This is the case of rule 3The Complaint; rule 4Arrest Warrant or Summons Upon Complaint; and rule 5Initial Appearance Before the Magistrate. These rules confer authority upon the magistrate, a term which is defined in new rule 54 as follows: Magistrate includes a United States magistrate as defined in 28 U.S.C.  631639, a judge of the United States, another judge or judicial officer specifically empowered by statute in force in any territory or possession, the commonwealth of Puerto Rico, or the District of Columbia, to perform a function to which a particular rule relates, and a state or local judicial officer, authorized by 18 U.S.C.  3041 to perform the functions prescribed in rules 3, 4, and 5. Rule 41 provides that a search warrant may be issued by a judge of a state court of record and thus confers that authority upon appropriate state judicial officers. The scope of rules 1 and 54 is discussed in C. Wright, Federal Practice and Procedure: Criminal  21, 871874 (1969, Supp. 1971), and 8 and 8A J. Moore, Federal Practice chapters 1 and 54 (2d ed. Cipes 1970, Supp. 1971). Notes of Advisory Committee on Rules1982 Amendment The amendment corrects an erroneous cross reference, from Rule 54(c) to Rule 54(a), and replaces the word defined with the more appropriate word provided. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment Rule 1 is entirely revised and expanded to incorporate Rule 54, which deals with the application of the rules. Consistent with the title of the existing rule, the Committee believed that a statement of the scope of the rules should be placed at the beginning to show readers which proceedings are governed by these rules. The Committee also revised the rule to incorporate the definitions found in Rule 54(c) as a new Rule 1(b). Rule 1(a) contains language from Rule 54(b). But language in current Rule 54(b)(2)(4) has been deleted for several reasons: First, Rule 54(b)(2) refers to a venue statute that governs an offense committed on the high seas or somewhere outside the jurisdiction of a particular district; it is unnecessary and has been deleted because once venue has been established, the Rules of Criminal Procedure automatically apply. Second, Rule 54(b)(3) currently deals with peace bonds; that provision is inconsistent with the governing statute and has therefore been deleted. Finally, Rule 54(b)(4) references proceedings conducted before United States Magistrate Judges, a topic now covered in Rule 58. Rule 1(a)(5) consists of material currently located in Rule 54(b)(5), with the exception of the references to the navigation laws and to fishery offenses. Those provisions were considered obsolete. But if those proceedings were to arise, they would be governed by the Rules of Criminal Procedure. Rule 1(b) is composed of material currently located in Rule 54(c), with several exceptions. First, the reference to an Act of Congress has been deleted from the restyled rules; instead the rules use the self-explanatory term federal statute. Second, the language concerning demurrers, pleas in abatement, etc., has been deleted as being anachronistic. Third, the definitions of civil action and district court have been deleted. Fourth, the term attorney for the government has been expanded to include reference to those attorneys who may serve as special or independent counsel under applicable federal statutes. The term attorney for the government contemplates an attorney of record in the case. Fifth, the Committee added a definition for the term court in Rule 1(b)(2). Although that term originally was almost always synonymous with the term district judge, the term might be misleading or unduly narrow because it may not cover the many functions performed by magistrate judges. See generally See Sixth, the term Judge of the United States has been replaced with the term Federal judge. That term includes Article III judges and magistrate judges and, as noted in Rule 1(b)(3)(C), federal judges other than Article III judges who may be authorized by statute to perform a particular act specified in the Rules of Criminal Procedure. The term does not include local judges in the District of Columbia. Seventh, the definition of Law has been deleted as being superfluous and possibly misleading because it suggests that administrative regulations are excluded. Eighth, the current rules include three definitions of magistrate judge. The term used in amended Rule 1(b)(5) is limited to United States magistrate judges. In the current rules the term magistrate judge includes not only United States magistrate judges, but also district court judges, court of appeals judges, Supreme Court justices, and where authorized, state and local officers. The Committee believed that the rules should reflect current practice, i.e., the wider and almost exclusive use of United States magistrate judges, especially in preliminary matters. The definition, however, is not intended to restrict the use of other federal judicial officers to perform those functions. Thus, Rule 1(c) has been added to make it clear that where the rules authorize a magistrate judge to act, any other federal judge or justice may act. Finally, the term organization has been added to the list of definitions. The remainder of the rule has been amended as part of the general restyling of the rules to make them more easily understood. In addition to changes made to improve the clarity, the Committee has changed language to make style and terminology consistent throughout the Criminal Rules. These changes are intended to be stylistic only. Committee Notes on Rules2008 Amendment Subdivision (b)(11) Upon occasion, disputes may arise over the question whether a particular person is a victim. Although the rule makes no special provision for such cases, the courts have the authority to do any necessary fact finding and make any necessary legal rulings. Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2011 Amendment Subdivisions (b)(11) and (12) Changes Made to Proposed Amendment Released for Public Comment  References in Text 18 U.S.C.  3771(e), referred to in subd. (b)(12), was redesignated 18 U.S.C.  3771(e)(2) by Pub. L. 11422, title I,  113(a)(3)(A) May 29, 2015 129 Stat. 240 Rule 2. Interpretation  These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay. (As amended Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Compare Federal Rules of Civil Procedure [28 U.S.C., Appendix], Rule 1 (Scope of Rules), last sentence: They [the Federal Rules of Civil Procedure] shall be construed to secure the just, speedy, and inexpensive determination of every action. Committee Notes on Rules2002 Amendment The language of Rule 2 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic. No substantive change is intended. In particular, Rule 2 has been amended to clarify the purpose of the Rules of Criminal Procedure. The words are intended have been changed to read are to be interpreted. The Committee believed that that was the original intent of the drafters and more accurately reflects the purpose of the rules. TITLE II. PRELIMINARY PROCEEDINGS Rule 3. The Complaint  The complaint is a written statement of the essential facts constituting the offense charged. Except as provided in Rule 4.1, it must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer. (As amended Apr. 24, 1972 Oct. 1, 1972 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Rules1944 The rule generally states existing law and practice, 18 U.S.C. 591 United States v. Simon United States v. Maresca Notes of Advisory Committee on Rules1972 Amendment The amendment deletes the reference to commissioner or other officer empowered to commit persons charged with offenses against the United States and substitute therefor magistrate. The change is editorial in nature to conform the language of the rule to the recently enacted Federal Magistrates Act. The term magistrate is defined in rule 54. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment The language of Rule 3 is amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic and no substantive change is intended, except as described below. The amendment makes one change in practice. Currently, Rule 3 requires the complaint to be sworn before a magistrate judge, which under current Rule 54 could include a state or local judicial officer. Revised Rule 1 no longer includes state and local officers in the definition of magistrate judges for the purposes of these rules. Instead, the definition includes only United States magistrate judges. Rule 3 requires that the complaint be made before a United States magistrate judge or before a state or local officer. The revised rule does, however, make a change to reflect prevailing practice and the outcome desired by the Committeethat the procedure take place before a federal Committee Notes on Rules2011 Amendment Under the amended rule, the complaint and supporting material may be submitted by telephone or reliable electronic means; however, the rule requires that the judicial officer administer the oath or affirmation in person or by telephone. The Committee concluded that the benefits of making it easier to obtain judicial oversight of the arrest decision and the increasing reliability and accessibility to electronic communication warranted amendment of the rule. The amendment makes clear that the submission of a complaint to a judicial officer need not be done in person and may instead be made by telephone or other reliable electronic means. The successful experiences with electronic applications under Rule 41, which permits electronic applications for search warrants, support a comparable process for arrests. The provisions in Rule 41 have been transferred to new Rule 4.1, which governs applications by telephone or other electronic means under Rules 3, 4, 9, and 41. Changes Made to Proposed Amendment Released for Public Comment 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 an individual 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. If an organizational defendant fails to appear in response to a summons, a judge may take any action authorized by United States law. (b) Form. (1)  Warrant. (A) contain the defendants 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. (c) Execution or Service, and Return. (1)  By Whom. (2)  Location. (3)  Manner. (A) A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the original or a duplicate original warrant must show it to the defendant. If the officer does not possess the warrant, the officer must inform the defendant of the warrants existence and of the offense charged and, at the defendants request, must show the original or a duplicate original 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 defendants 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 defendants last known address. (C) A summons is served on an organization in a judicial district of the United States 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. If the agent is one authorized by statute and the statute so requires, a copy must also be mailed to the organization. (D) A summons is served on an organization not within a judicial district of the United States: (i) by delivering a copy, in a manner authorized by the foreign jurisdictions law, to an officer, to a managing or general agent, or to an agent appointed or legally authorized to receive service of process; or (ii) by any other means that gives notice, including one that is: (a) stipulated by the parties; (b) undertaken by a foreign authority in response to a letter rogatory, a letter of request, or a request submitted under an applicable international agreement; or (c) permitted by an applicable international agreement. (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. The officer may do so by reliable electronic means. 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. (d) Warrant by Telephone or Other Reliable Electronic Means. In accordance with Rule 4.1, a magistrate judge may issue a warrant or summons based on information communicated by telephone or other reliable electronic means. (As amended Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(1) July 31, 1975 89 Stat. 370 Mar. 9, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Apr. 26, 2011 Dec. 1, 2011 Apr. 28, 2016 Dec. 1, 2016  Notes of Advisory Committee on Rules1944 Note to Subdivision 18 U.S.C. 591 2. The provision for summons is new, although a summons has been customarily used against corporate defendants, 28 U.S.C. 377 United States v. John Kelso Co Albrecht v. United States Report on Criminal Procedure 3. The provision for the issuance of additional warrants on the same complaint embodies the practice heretofore followed in some districts. It is desirable from a practical standpoint, since when a complaint names several defendants, it may be preferable to issue a separate warrant as to each in order to facilitate service and return, especially if the defendants are apprehended at different times and places. Berge, 42 Mich.L.R. 353, 356. 4. Failure to respond to a summons is not a contempt of court, but is ground for issuing a warrant. Note to Subdivision Note to Subdivision Mitchell v. Dexter Palmer v. Thompson In re Christian non est inventus 28 U.S.C. 503 Note to Subdivision In re Kosopud 2. Service of summons under the rule is substantially the same as in civil actions under Federal Rules of Civil Procedure, Rule 4(d)(1) [28 U.S.C., Appendix]. Note to Subdivision 18 U.S.C. 603 18 U.S.C. 591 infra. Notes of Advisory Committee on Rules1966 Amendment In Giordenello v. United States Jaben v. United States Notes of Advisory Committee on Rules1972 Amendment Throughout the rule the term magistrate is substituted for the term commissioner. Magistrate is defined in rule 54 to include a judge of the United States, a United States magistrate, and those state and local judicial officers specified in 18 U.S.C.  3041. Notes of Advisory Committee on Rules1974 Amendment The amendments are designed to achieve several objectives: (1) to make explicit the fact that the determination of probable cause may be based upon hearsay evidence; (2) to make clear that probable cause is a prerequisite to the issuance of a summons; and (3) to give priority to the issuance of a summons rather than a warrant. Subdivision (a) makes clear that the normal situation is to issue a summons. Subdivision (b) provides for the issuance of an arrest warrant in lieu of or in addition to the issuance of a summons. Subdivision (b)(1) restates the provision of the old rule mandating the issuance of a warrant when a defendant fails to appear in response to a summons. Subdivision (b)(2) provides for the issuance of an arrest warrant rather than a summons whenever a valid reason is shown for the issuance of a warrant. The reason may be apparent from the face of the complaint or may be provided by the federal law enforcement officer or attorney for the government. See comparable provision in rule 9. Subdivision (b)(3) deals with the situation in which conditions change after a summons has issued. It affords the government an opportunity to demonstrate the need for an arrest warrant. This may be done in the district in which the defendant is located if this is the convenient place to do so. Subdivision (c) provides that a warrant or summons may issue on the basis of hearsay evidence. What constitutes probable cause is left to be dealt with on a case-to-case basis, taking account of the unlimited variations in source of information and in the opportunity of the informant to perceive accurately the factual data which he furnishes. See e.g., Giordenello v. United States Aguilar v. Texas United States v. Ventresca Jaben v. United States McCray v. Illinois Spinelli v. United States United States v. Harris Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 4 of the Federal Rules of Criminal Procedure deals with arrest procedures when a criminal complaint has been filed. It provides in pertinent part: If it appears ... that there is probable cause ... a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the request shall The Supreme Courts amendments make a basic change in Rule 4. As proposed to be amended, Rule 4 gives priority to the issuance of a summons instead of an arrest warrant. In order for the magistrate to issue an arrest warrant, the attorney for the government must show a valid reason. B. Committee Action. The Committee agrees with and approves the basic change in Rule 4. The decision to take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the prosecutor). It has been argued that undesirable consequences will result if this change is adoptedincluding an increase in the number of fugitives and the introduction of substantial delays in our system of criminal justice. [See testimony of Assistant Attorney General W. Vincent Rakestraw in Hearings on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 2d Sess., Serial No. 61, at 4143 (1974) [hereinafter cited as Hearing I].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Committee on Criminal Rules has thoroughly analyzed the arguments raised by Mr. Rakestraw and convincingly demonstrated that the undesirable consequences predicted will not necessarily result. See Hearings on Proposed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 20809 (1975) [hereinafter cited Hearings II].] The present rule permits the use of a summons in lieu of a warrant. The major difference between the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trusted to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal judiciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase valid reason was changed to good cause, a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrantless arrests.] The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and required the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the practice of making a record or summary of such an appearance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added a new section that provides that the determination of good cause for the issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so-called exclusionary rule. Notes of Conference Committee, House Report No. 94414; 1975 Amendment Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version provides two methods for serving a summons: (1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendants dwelling and Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment The language of Rule 4 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first non-stylistic change is in Rule 4(a), which has been amended to provide an element of discretion in those situations when the defendant fails to respond to a summons. Under the current rule, the judge must in all cases issue an arrest warrant. The revised rule provides discretion to the judge to issue an arrest warrant if the attorney for the government does not request that an arrest warrant be issued for a failure to appear. Current Rule 4(b), which refers to the fact that hearsay evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1974, apparently to reflect emerging federal case law. See See, e.g., Brinegar v. United States New Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a summons and includes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant require that the defendant be brought without unnecessary delay before a judge. The Committee believed that this was a more appropriate standard than the current requirement that the defendant be brought before the nearest available magistrate judge. This new language accurately reflects the thrust of the original rule, that time is of the essence and that the defendant should be brought with dispatch before a judicial officer in the district. Second, the revised rule states a preference that the defendant be brought before a federal judicial officer. Rule 4(b)(2) has been amended to require that if a summons is issued, the defendant must appear before a magistrate judge. The current rule requires the appearance before a magistrate, which could include a state or local judicial officer. This change is consistent with the preference for requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1). Rule 4(c) (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the traditional rule recognizing the territorial limits for executing warrants. Rule 4(c)(2) includes new language that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L. No. 106523, 114 Stat. 2488 See also Third, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the manner of serving a summons on an organization. The Committee believed that Rule 4 was the more appropriate location for general provisions addressing the mechanics of arrest warrants and summonses. Revised Rule 9 liberally cross-references the basic provisions appearing in Rule 4. Under the amended rule, in all cases in which a summons is being served on an organization, a copy of the summons must be mailed to the organization. Fourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an unexecuted warrant must be returned to the judicial officer or judge who issued it. As amended, Rule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge before whom the defendant will appear under Rule 5. At the governments request, however, an unexecuted warrant must be canceled by a magistrate judge. The change recognizes the possibility that at the time the warrant is returned, the issuing judicial officer may not be available. Committee Notes on Rules2011 Amendment Rule 4 is amended in three respects to make the arrest warrant process more efficient through the use of technology. Subdivision (c) Cf. Second, consistent with the amendment to Rule 41(f), Rule 4(c)(4)(A) permits an officer to make a return of the arrest warrant electronically. Requiring an in-person return can be burdensome on law enforcement, particularly in large districts when the return can require a great deal of time and travel. In contrast, no interest of the accused is affected by allowing what is normally a ministerial act to be done electronically. Subdivision (d) Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2016 Amendment Subdivision (a) Subdivision (c)(2) Subdivision (c)(3)(C) Second, also like Civil Rule 4(h), the amendment recognizes that service outside the United States requires separate consideration, and it restricts Rule 4(c)(3)(C) and its modified mailing requirement to service on organizations within the United States. Service upon organizations outside the United States is governed by new subdivision (c)(3)(D). These two modifications of the mailing requirement remove an unnecessary impediment to the initiation of criminal proceedings against organizations that commit domestic offenses but have no place of business or mailing address within the United States. Given the realities of todays global economy, electronic communication, and federal criminal practice, the mailing requirement should not shield a defendant organization when the Rules core objectivenotice of pending criminal proceedingsis accomplished. Subdivision (c)(3)(D) Although it is presumed that the enumerated means will provide notice, whether actual notice has been provided may be challenged in an individual case. Subdivision (c)(3)(D)(i) Subdivision (c)(3)(D)(ii) Paragraph (a) recognizes that service may be made by a means stipulated by the parties. Paragraph (b) recognizes that service may be made by the diplomatic methods of letters rogatory and letters of request, and the last clause of the paragraph provides for service under international agreements that obligate the parties to provide broad measures of assistance, including the service of judicial documents. These include crime-specific multilateral agreements (e.g., the United Nations Convention Against Corruption (UNCAC), S. Treaty Doc. No. 1096 (2003)), regional agreements (e.g., the Inter-American Convention on Mutual Assistance in Criminal Matters (OAS MLAT), S. Treaty Doc. No. 10525 (1995)), and bilateral agreements. Paragraph (c) recognizes that other means of service that provide notice and are permitted by an applicable international agreement are also acceptable when serving organizations outside the United States. As used in this rule, the phrase applicable international agreement refers to an agreement that has been ratified by the United States and the foreign jurisdiction and is in force. Amendment by Public Law 1975 Pub. L. 9464 Approval and Effective Date of Amendments Proposed April 22, 1974 Pub. L. 9464,  2 July 31, 1975 89 Stat. 370 The amendments proposed by the United States Supreme Court to the Federal Rules of Criminal Procedure [adding rules 12.1, 12.2 and 29.1 and amending rules 4, 9, 11, 12, 15, 16, 17, 20, 32, and 43 of these rules] which are embraced in the order of that Court on April 22, 1974 December 1, 1975 August 1, 1975 December 1, 1975 Rule 4.1. Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means (a) In General. A magistrate judge may consider information communicated by telephone or other reliable electronic means when reviewing a complaint or deciding whether to issue a warrant or summons. (b) Procedures. If a magistrate judge decides to proceed under this rule, the following procedures apply: (1)  Taking Testimony Under Oath (2)  Creating a Record of the Testimony and Exhibits. (A)  Testimony Limited to Attestation (B)  Additional Testimony or Exhibits (i) have the testimony recorded verbatim by an electronic recording device, by a court reporter, or in writing; (ii) have any recording or reporters notes transcribed, have the transcription certified as accurate, and file it; (iii) sign any other written record, certify its accuracy, and file it; and (iv) make sure that the exhibits are filed. (3)  Preparing a Proposed Duplicate Original of a Complaint, Warrant, or Summons (4)  Preparing an Original Complaint, Warrant, or Summons (5)  Modification (A) transmit the modified version to the applicant by reliable electronic means; or (B) file the modified original and direct the applicant to modify the proposed duplicate original accordingly. (6)  Issuance (A) sign the original documents; (B) enter the date and time of issuance on the warrant or summons; and (C) transmit the warrant or summons by reliable electronic means to the applicant or direct the applicant to sign the judges name and enter the date and time on the duplicate original. (c) Suppression Limited. Absent a finding of bad faith, evidence obtained from a warrant issued under this rule is not subject to suppression on the ground that issuing the warrant in this manner was unreasonable under the circumstances. (Added Apr. 26, 2011 Dec. 1, 2011  Committee Notes on Rules2011 New Rule 4.1 brings together in one rule the procedures for using a telephone or other reliable electronic means for reviewing complaints and applying for and issuing warrants and summonses. In drafting Rule 4.1, the Committee recognized that modern technological developments have improved access to judicial officers, thereby reducing the necessity of government action without prior judicial approval. Rule 4.1 prescribes uniform procedures and ensures an accurate record. The procedures that have governed search warrants by telephonic or other means, formerly in Rule 41(d)(3) and (e)(3), have been relocated to this rule, reordered for easier application, and extended to arrest warrants, complaints, and summonses. Successful experience using electronic applications for search warrants under Rule 41, combined with increased access to reliable electronic communication, support the extension of these procedures to arrest warrants, complaints, and summonses. With one exception noted in the next paragraph, the new rule preserves the procedures formerly in Rule 41 without change. By using the term magistrate judge, the rule continues to require, as did former Rule 41(d)(3) and (e)(3), that a federal judge (and not a state judge) handle electronic applications, approvals, and issuances. The rule continues to require that the judge place an applicant under oath over the telephone, and permits the judge to examine the applicant, as Rule 41 had provided. Rule 4.1(b) continues to require that when electronic means are used to issue the warrant, the magistrate judge retain the original warrant. Minor changes in wording and reorganization of the language formerly in Rule 41 were made to aid in application of the rules, with no intended change in meaning. The only substantive change to the procedures formerly in Rule 41(d)(3) and (e)(3) appears in new Rule 4.1(b)(2)(A). Former Rule 41(d)(3)(B)(ii) required the magistrate judge to make a verbatim record of the entire conversation with the applicant. New Rule 4.1(b)(2)(A) provides that when a warrant application and affidavit are sent electronically to the magistrate judge and the telephone conversation between the magistrate judge and affiant is limited to attesting to those written documents, a verbatim record of the entire conversation is no longer required. Rather, the magistrate judge should simply acknowledge in writing the attestation on the affidavit. This may be done, for example, by signing the jurat included on the Administrative Office of U.S. Courts form. Rule 4.1(b)(2)(B) carries forward the requirements formerly in Rule 41 to cases in which the magistrate judge considers testimony or exhibits in addition to the affidavit. In addition, Rule 4.1(b)(6) specifies that in order to issue a warrant or summons the magistrate judge must sign all of the original documents and enter the date and time of issuance on the warrant or summons. This procedure will create and maintain a complete record of the warrant application process. Changes Made to Proposed Amendment Released for Public Comment Subdivisions (b)(2) and (3) were combined into subdivisions (b)(2)(A) and (B) to clarify the procedures applicable when the applicant does no more than attest to the contents of a written affidavit and those applicable when additional testimony or exhibits are presented. The clauses in subparagraph (B) were reordered and further divided into items (i) through (iv). Subsequent subdivisions were renumbered because of the merger of (b)(2) and (3). In subdivision (b)(5), language was added requiring the judge to file the modified original if the judge has directed an applicant to modify a duplicate original. This will ensure that a complete record is preserved. Additionally, the clauses in this subdivision were broken out into subparagraphs (A) and (B). In subdivision (b)(6), introductory language erroneously referring to a judges approval of a complaint was deleted, and the rule was revised to refer only to the steps necessary to issue a warrant or summons, which are the actions taken by the judicial officer. In subdivision (b)(6)(A), the requirement that the judge sign the original was amended to require signing of the original documents. This is broad enough to encompass signing a summons, an arrest or search warrant, and the current practice of the judge signing the jurat on complaint forms. Depending on the nature of the case, it might also include many other kinds of documents, such as the jurat on affidavits, the certifications of written records supplementing the transmitted affidavit, or papers that correct or modify affidavits or complaints. In subdivision (b)(6)(B), the superfluous and anachronistic reference to the face of a document was deleted, and rephrasing clarified that the action is the entry of the date and time of the approval of a warrant or summons. Additionally, subdivision (b)(6)(C) was modified to require that the judge must direct the applicant not only to sign the duplicate original with the judges name, but also to note the date and time. 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. (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. (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. (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. (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. (4)  Procedure for Persons Extradited to the United States. (d) Procedure in a Felony Case. (1)  Advice. (A) the complaint against the defendant, and any affidavit filed with it; (B) the defendants 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; (E) the defendants right not to make a statement, and that any statement made may be used against the defendant; and (F) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendants country of nationality that the defendant has been arrestedbut that even without the defendants request, a treaty or other international agreement may require consular notification. (2)  Consulting with Counsel. (3)  Detention or Release. (4)  Plea. (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)  Reminder of Prosecutorial Obligation. (1)  In general In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law. (2)  Formation of order Each judicial council in which a district court is located shall promulgate a model order for the purpose of paragraph (1) that the court may use as it determines is appropriate. (g) Video Teleconferencing. Video teleconferencing may be used to conduct an appearance under this rule if the defendant consents. (As amended Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Apr. 28, 1982 Aug. 1, 1982 Pub. L. 98473, title II,  209(a) Oct. 12, 1984 98 Stat. 1986 Mar. 9, 1987 Aug. 1, 1987 May 1, 1990 Dec. 1, 1990 Apr. 22, 1993 Dec. 1, 1993 Apr. 27, 1995 Dec. 1, 1995 Apr. 29, 2002 Dec. 1, 2002 Apr. 12, 2006 Dec. 1, 2006 Apr. 23, 2012 Dec. 1, 2012 Apr. 25, 2014 Dec. 1, 2014 Pub. L. 116182,  2 Oct. 21, 2020 134 Stat. 894  Notes of Advisory Committee on Rules1944 Note to Subdivision 5 U.S.C. 300a 18 U.S.C. 3052 16 U.S.C. 10 33 U.S.C. 436 46 U.S.C. 708 18 U.S.C. 2279 Carroll v. Parry Janus v. United States Commonwealth v. Di Stasio State v. Freeman Peloquin v. Hibner 2. The rule also states the prevailing state practice, A.L.I. Code of Criminal Procedure (1931), Commentaries to secs. 35, 36. Note to Subdivisions 18 U.S.C. 591 Wood v. United States Manual for United States Commissioners 2. Pleas before a commissioner are excluded, as a plea of guilty at this stage has no legal status or function except to serve as a waiver of preliminary examination. It has been held inadmissible in evidence at the trial, if the defendant was not represented by counsel when the plea was entered. Wood v. United States Notes of Advisory Committee on Rules1966 Amendment The first change is designed to insure that under the revision made in Rule 4(a) the defendant arrested on a warrant will receive the same information concerning the basis for the issuance of the warrant as would previously have been given him by the complaint itself. The second change obligates the commissioner to inform the defendant of his right to request the assignment of counsel if he is unable to obtain counsel. Cf. the amendment to Rule 44, and the Advisory Committees Note thereon. Notes of Advisory Committee on Rules1972 Amendment There are a number of changes made in rule 5 which are designed to improve the editorial clarity of the rule; to conform the rule to the Federal Magistrates Act; and to deal explicitly in the rule with issues as to which the rule was silent and the law uncertain. The principal editorial change is to deal separately with the initial appearance before the magistrate and the preliminary examination. They are dealt with together in old rule 5. They are separated in order to prevent confusion as to whether they constitute a single or two separate proceedings. Although the preliminary examination can be held at the time of the initial appearance, in practice this ordinarily does not occur. Usually counsel need time to prepare for the preliminary examination and as a consequence a separate date is typically set for the preliminary examination. Because federal magistrates are reasonably available to conduct initial appearances, the rule is drafted on the assumption that the initial appearance is before a federal magistrate. If experience under the act indicates that there must be frequent appearances before state or local judicial officers it may be desirable to draft an additional rule, such as the following, detailing the procedure for an initial appearance before a state or local judicial officer: Initial Appearance Before a State or Local Judicial Officer Several changes are made to conform the language of the rule to the Federal Magistrates Act. (1) The term magistrate, which is defined in new rule 54, is substituted for the term commissioner. As defined, magistrate includes those state and local judicial officers specified in 18 U.S.C.  3041, and thus the initial appearance may be before a state or local judicial officer when a federal magistrate is not reasonably available. This is made explicit in subdivision (a). (2) Subdivision (b) conforms the rule to the procedure prescribed in the Federal Magistrate Act when a defendant appears before a magistrate charged with a minor offense as defined in 18 U.S.C.  3401(f):  misdemeanors punishable under the laws of the United States, the penalty for which does not exceed imprisonment for a period of one year, or a fine of not more than $1,000, or both, except that such term does not include . . . [specified exceptions]. If the minor offense is tried before a United States magistrate, the procedure must be in accordance with the Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates, ( January 27, 1971 (3) Subdivision (d) makes clear that a defendant is not entitled to a preliminary examination if he has been indicted by a grand jury prior to the date set for the preliminary examination or, in appropriate cases, if any information is filed in the district court prior to that date. See C. Wright, Federal Practice and Procedure: Criminal  80, pp. 137140 (1969, Supp. 1971). This is also provided in the Federal Magistrates Act, 18 U.S.C.  3060(e). Rule 5 is also amended to deal with several issues not dealt with in old rule 5: Subdivision (a) is amended to make clear that a complaint, complying with the requirements of rule 4(a), must be filed whenever a person has been arrested without a warrant. This means that the complaint, or an affidavit or affidavits filed with the complaint, must show probable cause. As provided in rule 4(a) the showing of probable cause may be based upon hearsay evidence in whole or in part. Subdivision (c) provides that defendant should be notified of the general circumstances under which he is entitled to pretrial release under the Bail Reform Act of 1966 (18 U.S.C.  31413152). Defendants often do not in fact have counsel at the initial appearance and thus, unless told by the magistrate, may be unaware of their right to pretrial release. See C. Wright, Federal Practice and Procedure: Criminal  78 N. 61 (1969). Subdivision (c) makes clear that a defendant who does not waive his right to trial before a judge of the district court is entitled to a preliminary examination to determine probable cause for any offense except a petty offense. It also, by necessary implication, makes clear that a defendant is not entitled to a preliminary examination if he consents to be tried on the issue of guilt or innocence by the United States magistrate, even though the offense may be one not heretofore triable by the United States commissioner and therefore one as to which the defendant had a right to a preliminary examination. The rationale is that the preliminary examination serves only to justify holding the defendant in custody or on bail during the period of time it takes to bind the defendant over to the district court for trial. See State v. Solomon April 10, 1969 Subdivision (c) also contains time limits within which the preliminary examination must be held. These are taken from 18 U.S.C.  3060. The provisions for the extension of the prescribed time limits are the same as the provisions of 18 U.S.C.  3060 with two exceptions: The new language allows delay consented to by the defendant only if there is a showing of good cause, taking into account the public interest in the prompt disposition of criminal cases. This reflects the view of the Advisory Committee that delay, whether prosecution or defense induced, ought to be avoided whenever possible. The second difference between the new rule and 18 U.S.C.  3060 is that the rule allows the decision to grant a continuance to be made by a United States magistrate as well as by a judge of the United States. This reflects the view of the Advisory Committee that the United States magistrate should have sufficient judicial competence to make decisions such as that contemplated in subdivision (c). Notes of Advisory Committee on Rules1982 Amendment The amendment of subdivision (b) reflects the recent amendment of 18 U.S.C.  3401(a), by the Federal Magistrate Act of 1979, to read: When specially designated to exercise such jurisdiction by the district court or courts he serves, any United States magistrate shall have jurisdiction to try persons accused of, and sentence persons convicted of, misdemeanors committed within that judicial district. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1990 Amendment Rule 5(b) is amended to conform the rule to Rule 58. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Notes of Advisory Committee on Rules1995 Amendment The amendment to Rule 5 is intended to address the interplay between the requirements for a prompt appearance before a magistrate judge and the processing of persons arrested for the offense of unlawfully fleeing to avoid prosecution under 18 U.S.C.  1073, when no federal prosecution is intended. Title 18 U.S.C.  1073 provides in part: Whoever moves or travels in interstate or foreign commerce with intent . . . to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which he flees . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both. Violations of this section may be prosecuted . . . only upon formal approval in writing by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated. In enacting  1073, Congress apparently intended to provide assistance to state criminal justice authorities in an effort to apprehend and prosecute state offenders. It also appears that by requiring permission of high ranking officials, Congress intended that prosecutions be limited in number. In fact, prosecutions under this section have been rare. The purpose of the statute is fulfilled when the person is apprehended and turned over to state or local authorities. In such cases the requirement of Rule 5 that any person arrested under a federal warrant must be brought before a federal magistrate judge becomes a largely meaningless exercise and a needless demand upon federal judicial resources. In addressing this problem, several options are available to federal authorities when no federal prosecution is intended to ensue after the arrest. First, once federal authorities locate a fugitive, they may contact local law enforcement officials who make the arrest based upon the underlying out-of-state warrant. In that instance, Rule 5 is not implicated and the United States Attorney in the district issuing the  1073 complaint and warrant can take action to dismiss both. In a second scenario, the fugitive is arrested by federal authorities who, in compliance with Rule 5, bring the person before a federal magistrate judge. If local law enforcement officers are present, they can take custody, once the United States Attorney informs the magistrate judge that there will be no prosecution under  1073. Depending on the availability of state or local officers, there may be some delay in the Rule 5 proceedings; any delays following release to local officials, however, would not be a function of Rule 5. In a third situation, federal authorities arrest the fugitive but local law enforcement authorities are not present at the Rule 5 appearance. Depending on a variety of practices, the magistrate judge may calendar a removal hearing under Rule 40, or order that the person be held in federal custody pending further action by the local authorities. Under the amendment, officers arresting a fugitive charged only with violating  1073 need not bring the person before a magistrate judge under Rule 5(a) if there is no intent to actually prosecute the person under that charge. Two requirements, however, must be met. First, the arrested fugitive must be transferred without unnecessary delay to the custody of state officials. Second, steps must be taken in the appropriate district to dismiss the complaint alleging a violation of  1073. The rule continues to contemplate that persons arrested by federal officials are entitled to prompt handling of federal charges, if prosecution is intended, and prompt transfer to state custody if federal prosecution is not contemplated. Committee Notes on Rules2002 Amendment The language of Rule 5 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. Rule 5 has been completely revised to more clearly set out the procedures for initial appearances and to recognize that such appearances may be required at various stages of a criminal proceeding, for example, where a defendant has been arrested for violating the terms of probation. Rule 5(a), which governs initial appearances by an arrested defendant before a magistrate judge, includes several changes. The first is a clarifying change; revised Rule 5(a)(1) provides that a person making the arrest must bring the defendant without unnecessary delay before a magistrate judge, instead of the current reference to nearest available magistrate judge. This language parallels changes in Rule 4 and reflects the view that time is of the essence. The Committee intends no change in practice. In using the term, the Committee recognizes that on occasion there may be necessary delay in presenting the defendant, for example, due to weather conditions or other natural causes. A second change is non-stylistic, and reflects the stated preference (as in other provisions throughout the rules) that the defendant be brought before a federal judicial officer. Only if a magistrate judge is not available should the defendant be taken before a state or local officer. The third sentence in current Rule 5(a), which states that a magistrate judge must proceed in accordance with the rule where a defendant is arrested without a warrant or given a summons, has been deleted because it is unnecessary. Rule 5(a)(1)(B) codifies the caselaw reflecting that the right to an initial appearance applies not only when a person is arrested within the United States but also when an arrest occurs outside the United States. See, e.g., United States v. Purvis United States v. Yunis 114 Stat. 2488 Rule 5(a)(2)(A) consists of language currently located in Rule 5 that addresses the procedure to be followed where a defendant has been arrested under a warrant issued on a complaint charging solely a violation of 18 U.S.C.  1073 (unlawful flight to avoid prosecution). Rule 5(a)(2)(B) and 5(a)(2)(C) are new provisions. They are intended to make it clear that when a defendant is arrested for violating probation or supervised release, or for failing to appear in another district, Rules 32.1 or 40 apply. No change in practice is intended. Rule 5(a)(3) is new and fills a perceived gap in the rules. It recognizes that a defendant may be subjected to an initial appearance under this rule if a summons was issued under Rule 4, instead of an arrest warrant. If the defendant is appearing pursuant to a summons in a felony case, Rule 5(d) applies, and if the defendant is appearing in a misdemeanor case, Rule 5(e) applies. Rule 5(b) carries forward the requirement in former Rule 5(a) that if the defendant is arrested without a warrant, a complaint must be promptly filed. Rule 5(c) is a new provision and sets out where an initial appearance is to take place. If the defendant is arrested in the district where the offense was allegedly committed, under Rule 5(c)(1) the defendant must be taken to a magistrate judge in that district. If no magistrate judge is reasonably available, a state or local judicial officer may conduct the initial appearance. On the other hand, if the defendant is arrested in a district other than the district where the offense was allegedly committed, Rule 5(c)(2) governs. In those instances, the defendant must be taken to a magistrate judge within the district of arrest, unless the appearance can take place more promptly in an adjacent district. The Committee recognized that in some cases, the nearest magistrate judge may actually be across a districts lines. The remainder of Rule 5(c)(2) includes material formerly located in Rule 40. Rule 5(d), derived from current Rule 5(c), has been retitled to more clearly reflect the subject of that subdivision and the procedure to be used if the defendant is charged with a felony. Rule 5(d)(4) has been added to make clear that a defendant may only be called upon to enter a plea under the provisions of Rule 10. That language is intended to reflect and reaffirm current practice. The remaining portions of current Rule 5(c) have been moved to Rule 5.1, which deals with preliminary hearings in felony cases. The major substantive change is in new Rule 5(f), which permits video teleconferencing for an appearance under this rule if the defendant consents. This change reflects the growing practice among state courts to use video teleconferencing to conduct initial proceedings. A similar amendment has been made to Rule 10 concerning arraignments. In amending Rules 5, 10, and 43 (which generally requires the defendants presence at all proceedings), the Committee carefully considered the argument that permitting a defendant to appear by video teleconferencing might be considered an erosion of an important element of the judicial process. Much can be lost when video teleconferencing occurs. First, the setting itself may not promote the publics confidence in the integrity and solemnity of a federal criminal proceeding; that is the view of some who have witnessed the use of such proceedings in some state jurisdictions. While it is difficult to quantify the intangible benefits and impact of requiring a defendant to be brought before a federal judicial officer in a federal courtroom, the Committee realizes that something is lost when a defendant is not required to make a personal appearance. A related consideration is that the defendant may be located in a room that bears no resemblance whatsoever to a judicial forum and the equipment may be inadequate for high-quality transmissions. Second, using video teleconferencing can interfere with counsels ability to meet personally with his or her client at what, at least in that jurisdiction, might be an important appearance before a magistrate judge. Third, the defendant may miss an opportunity to meet with family or friends, and others who might be able to assist the defendant, especially in any attempts to obtain bail. Finally, the magistrate judge may miss an opportunity to accurately assess the physical, emotional, and mental condition of a defendanta factor that may weigh on pretrial decisions, such as release from detention. On the other hand, the Committee considered that in some jurisdictions, the court systems face a high volume of criminal proceedings. In other jurisdictions, counsel may not be appointed until after the initial appearance and thus there is no real problem with a defendant being able to consult with counsel before or during that proceeding. The Committee was also persuaded to adopt the amendment because in some jurisdictions delays may occur in travel time from one location to anotherin some cases requiring either the magistrate judge or the participants to travel long distances. In those instances, it is not unusual for a defense counsel to recognize the benefit of conducting a video teleconferenced proceeding, which will eliminate lengthy and sometimes expensive travel or permit the initial appearance to be conducted much sooner. Finally, the Committee was aware that in some jurisdictions, courtrooms now contain high quality technology for conducting such procedures, and that some courts are already using video teleconferencingwith the consent of the parties. The Committee believed that, on balance and in appropriate circumstances, the court and the defendant should have the option of using video teleconferencing, as long as the defendant consents to that procedure. The question of when it would be appropriate for a defendant to consent is not spelled out in the rule. That is left to the defendant and the court in each case. Although the rule does not specify any particular technical requirements regarding the system to be used, if the equipment or technology is deficient, the public may lose confidence in the integrity and dignity of the proceedings. The amendment does not require a court to adopt or use video teleconferencing. In deciding whether to use such procedures, a court may wish to consider establishing clearly articulated standards and procedures. For example, the court would normally want to insure that the location used for televising the video teleconferencing is conducive to the solemnity of a federal criminal proceeding. That might require additional coordination, for example, with the detention facility to insure that the room, furniture, and furnishings reflect the dignity associated with a federal courtroom. Provision should also be made to insure that the judge, or a surrogate, is in a position to carefully assess the defendants condition. And the court should also consider establishing procedures for insuring that counsel and the defendant (and even the defendants immediate family) are provided an ample opportunity to confer in private. Committee Notes on Rules2006 Amendment Subdivisions (c)(3)(C) and (D). Rule 5(c)(3)(D) has been amended to permit the magistrate judge to accept a warrant by reliable electronic means. Currently, the rule requires the government to produce the original warrant, a certified copy of the warrant, or a facsimile copy of either of those documents. This amendment parallels similar changes to Rules 32.1(a)(5)(B)(i) and 41. The reference to a facsimile version of the warrant was removed because the Committee believed that the broader term electronic form includes facsimiles. The amendment reflects a number of significant improvements in technology. First, more courts are now equipped to receive filings by electronic means, and indeed, some courts encourage or require that certain documents be filed by electronic means. Second, the technology has advanced to the state where such filings could be sent from, and received at, locations outside the courthouse. Third, electronic media can now provide improved quality of transmission and security measures. In short, in a particular case, using electronic media to transmit a document might be just as reliable and efficient as using a facsimile. The term electronic is used to provide some flexibility to the rule and make allowance for further technological advances in transmitting data. The rule requires that if electronic means are to be used to transmit a warrant to the magistrate judge, that the means used be reliable. While the rule does not further define that term, the Committee envisions that a court or magistrate judge would make that determination as a local matter. In deciding whether a particular electronic means, or media, would be reliable, the court might consider first, the expected quality and clarity of the transmission. For example, is it possible to read the contents of the warrant in its entirety, as though it were the original or a clean photocopy? Second, the court may consider whether security measures are available to insure that the transmission is not compromised. In this regard, most courts are now equipped to require that certain documents contain a digital signature, or some other similar system for restricting access. Third, the court may consider whether there are reliable means of preserving the document for later use. Changes Made After Publication and Comment. Committee Notes on Rules2012 Amendment Subdivision (c)(4). This rule is applicable even if the defendant arrives first in another district. The earlier stages of the extradition process have already fulfilled some of the functions of the initial appearance. During foreign extradition proceedings, the extradited person, assisted by counsel, is afforded an opportunity to review the charging document, U.S. arrest warrant, and supporting evidence. Rule 5(a)(1)(B) requires the person be taken before a magistrate judge without unnecessary delay. Consistent with this obligation, it is preferable not to delay an extradited persons transportation to hold an initial appearance in the district of arrival, even if the person will be present in that district for some time as a result of connecting flights or logistical difficulties. Interrupting an extradited defendants transportation at this point can impair his or her ability to obtain and consult with trial counsel and to prepare his or her defense in the district where the charges are pending. Changes Made to Proposed Amendment Released for Public Comment. Committee Notes on Rules2014 Amendment Rule 5(d)(1)(F). Providing this advice at the initial appearance is designed, not to relieve law enforcement officers of that responsibility, but to provide additional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of that action. The Committee concluded that the most effective and efficient method of conveying this information is to provide it to every defendant, without attempting to determine the defendants citizenship. At the time of this amendment, many questions remain unresolved by the courts concerning Article 36, including whether it creates individual rights that may be invoked in a judicial proceeding and what, if any, remedy may exist for a violation of Article 36. Sanchez-Llamas v. Oregon Changes Made After Publication and Comment. Amendment by Public Law 2020Subds. (f), (g). Pub. L. 116182 1984Subd. (c). Pub. L. 98473 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 defendants consent and upon a showing of good causetaking into account the public interest in the prompt disposition of criminal casesa 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. (2)  Sanctions for Not Producing a Statement. (Added Apr. 24, 1972 Oct. 1, 1972 Mar. 9, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1972 Rule 5.1 is, for the most part, a clarification of old rule 5(c). Under the new rule, the preliminary examination must be conducted before a federal magistrate as defined in rule 54. Giving state or local judicial officers authority to conduct a preliminary examination does not seem necessary. There are not likely to be situations in which a federal magistrate is not reasonably available to conduct the preliminary examination, which is usually not held until several days after the initial appearance provided for in rule 5. Subdivision (a) makes clear that a finding of probable cause may be based on hearsay evidence in whole or in part. The propriety of relying upon hearsay at the preliminary examination has been a matter of some uncertainty in the federal system. See C. Wright, Federal Practice and Procedure: Criminal  80 (1969, Supp. 1971); 8 J. Moore, Federal Practice  504[4] (2d ed. Cipes 1970, Supp. 1971); Washington v. Clemmer Washington v. Clemmer Ross v. Sirica Howard v. United States A grand jury indictment may properly be based upon hearsay evidence. Costello v. United States April 10, 1969 For the same reason, subdivision (a) also provides that the preliminary examination is not the proper place to raise the issue of illegally obtained evidence. This is current law. In Giordenello v. United States [T]he Commissioner here had no authority to adjudicate the admissibility at petitioners later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules, which provides that a defendant aggrieved by an unlawful search and seizure may * * * move the district court * * * to suppress for use as evidence anything so obtained on the ground that * * * the arrest warrant was defective on any of several grounds. Dicta in Costello v. United States United States v. Blue United States ex rel. Almeida v. Rundle On this score, it is settled law that (1) [an] indictment returned by a legally constituted nonbiased grand jury, * * * is enough to call for a trial of the charge on the merits and satisfies the requirements of the Fifth Amendment., Lawn v. United States Costello v. United States United States v. Blue See also C. Wright, Federal Practice and Procedure: Criminal  80 at 143 n. 5 (1969, Supp. 1971) 8 J. Moore, Federal Practice  6.03[3] (2d ed. Cipes 1970, Supp. 1971). The Manual for United States Commissioners (Administrative Office of United States Courts, 1948) provides at pp. 2425: Motions for this purpose [to suppress illegally obtained evidence] may be made and heard only before a district judge. Commissioners are not empowered to consider or act upon such motions. It has been urged that the rules of evidence at the preliminary examination should be those applicable at the trial because the purpose of the preliminary examination should be, not to review the propriety of the arrest or prior detention, but rather to determine whether there is evidence sufficient to justify subjecting the defendant to the expense and inconvenience of trial. See Weinberg and Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of Section 303 of the Federal Magistrates Act of 1968, 67 Mich. L. Rev. 1361, 13961399 (1969). The rule rejects this view for reasons largely of administrative necessity and the efficient administration of justice. The Congress has decided that a preliminary examination shall not be required when there is a grand jury indictment (18 U.S.C.  3060). Increasing the procedural and evidentiary requirements applicable to the preliminary examination will therefore add to the administrative pressure to avoid the preliminary examination. Allowing objections to evidence on the ground that evidence has been illegally obtained would require two determinations of admissibility, one before the United States magistrate and one in the district court. The objective is to reduce, not increase, the number of preliminary motions. To provide that a probable cause finding may be based upon hearsay does not preclude the magistrate from requiring a showing that admissible evidence will be available at the time of trial. See Comment, Criminal ProcedureGrand JuryValidity of Indictment Based Solely on Hearsay Questioned When Direct Testimony Is Readily Available, 43 N.Y.U. L. Rev. 578 (1968); United States v. Umans United States v. Andrews United States v. Messina United States v. Beltram United States v. Arcuri Subdivision (b) makes it clear that the United States magistrate may not only discharge the defendant but may also dismiss the complaint. Current federal law authorizes the magistrate to discharge the defendant but he must await authorization from the United States Attorney before he can close his records on the case by dismissing the complaint. Making dismissal of the complaint a separate procedure accomplishes no worthwhile objective, and the new rule makes it clear that the magistrate can both discharge the defendant and file the record with the clerk. Subdivision (b) also deals with the legal effect of a discharge of a defendant at a preliminary examination. This issue is not dealt with explicitly in the old rule. Existing federal case law is limited. What cases there are seem to support the right of the government to issue a new complaint and start over. See e.q., Collins v. Loisel Morse v. United States People v. Dillon Tell v. Wolke Tell The state has no appeal from errors of law committed by a magistrate upon preliminary examination and the discharge on a preliminary would operate as an unchallengeable acquittal. * * * The only way an error of law committed on the preliminary examination prejudicial to the state may be challenged or corrected is by a preliminary examination on a second complaint. (21 Wis. 2d at 619620.) Subdivision (c) is based upon old rule 5(c) and upon the Federal Magistrates Act, 18 U.S.C.  3060(f). It provides methods for making available to counsel the record of the preliminary examination. See C. Wright, Federal Practice and Procedure: Criminal  82 (1969, Supp. 1971). The new rule is designed to eliminate delay and expense occasioned by preparation of transcripts where listening to the tape recording would be sufficient. Ordinarily the recording should be made available pursuant to subdivision (c)(1). A written transcript may be provided under subdivision (c)(2) at the discretion of the court, a discretion which must be exercised in accordance with Britt v. North Carolina A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight. In this case, however, petitioner has conceded that he had available an informal alternative which appears to be substantially equivalent to a transcript. Accordingly, we cannot conclude that the court below was in error in rejecting his claim. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules1998 Amendment The addition of subdivision (d) mirrors similar amendments made in 1993 which extended the scope of Rule 26.2 to Rules 32, 32.1, 46 and Rule 8 of the Rules Governing Proceedings under 28 U.S.C.  2255. As indicated in the Committee Notes accompanying those amendments, the primary reason for extending the coverage of Rule 26.2 rested heavily upon the compelling need for accurate information affecting a witness credibility. That need, the Committee believes, extends to a preliminary examination under this rule where both the prosecution and the defense have high interests at stake. A witness statement must be produced only after the witness has personally testified. Changes Made to Rule 5.1 After Publication (GAP Report) Committee Notes on Rules2002 Amendment The language of Rule 5.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. First, the title of the rule has been changed. Although the underlying statute, 18 U.S.C.  3060, uses the phrase preliminary examination preliminary hearing preliminary hearing Rule 5.1(a) is composed of the first sentence of the second paragraph of current Rule 5(c). Rule 5.1(b) addresses the ability of a defendant to elect where a preliminary hearing will be held. That provision is taken from current Rule 40(a). Rule 5.1(c) and (d) include material currently located in Rule 5(c): scheduling and extending the time limits for the hearing. The Committee is aware that in most districts, magistrate judges perform these functions. That point is also reflected in the definition of court in Rule 1(b), which in turn recognizes that magistrate judges may be authorized to act. Rule 5.1(d) contains a significant change in practice. The revised rule includes language that expands the authority of a United States magistrate judge to grant a continuance for a preliminary hearing conducted under the rule. Currently, the rule authorizes a magistrate judge to grant a continuance only in those cases in which the defendant has consented to the continuance. If the defendant does not consent, then the government must present the matter to a district judge, usually on the same day. The proposed amendment conflicts with 18 U.S.C.  3060, which tracks the original language of the rule and permits only district judges to grant continuances when the defendant objects. The Committee believes that this restriction is an anomaly and that it can lead to needless consumption of judicial and other resources. Magistrate judges are routinely required to make probable cause determinations and other difficult decisions regarding the defendants liberty interests, reflecting that the magistrate judges role has developed toward a higher level of responsibility for pre-indictment matters. The Committee believes that the change in the rule will provide greater judicial economy and that it is entirely appropriate to seek this change to the rule through the Rules Enabling Act procedures. See Rule 5.1(e), addressing the issue of probable cause, contains the language currently located in Rule 5.1(a), with the exception of the sentence, The finding of probable cause may be based upon hearsay evidence in whole or in part. That language was included in the original promulgation of the rule in 1972. Similar language was added to Rule 4 in 1974. In the Committee Note on the 1974 amendment, the Advisory Committee explained that the language was included to make it clear that a finding of probable cause may be based upon hearsay, noting that there had been some uncertainty in the federal system about the propriety of relying upon hearsay at the preliminary hearing. See Rule 5.1(f), which deals with the discharge of a defendant, consists of former Rule 5.1(b). Rule 5.1(g) is a revised version of the material in current Rule 5.1(c). Instead of including detailed information in the rule itself concerning records of preliminary hearings, the Committee opted simply to direct the reader to the applicable Judicial Conference regulations governing records. The Committee did not intend to make any substantive changes in the way in which those records are currently made available. Finally, although the rule speaks in terms of initial appearances being conducted before a magistrate judge, Rule 1(c) makes clear that a district judge may perform any function in these rules that a magistrate judge may perform. Committee Notes on Rules2009 Amendment The times set in the former rule at 10 or 20 days have been revised to 14 or 21 days. See the Committee Note to Rule 45(a). TITLE III. THE GRAND JURY, THE INDICTMENT, AND THE INFORMATION Rule 6. The Grand Jury (a) Summoning a Grand Jury. (1)  In General. (2)  Alternate Jurors. (b) Objection to the Grand Jury or to a Grand Juror. (1)  Challenges. (2)  Motion to Dismiss an Indictment. (c) Foreperson and Deputy Foreperson. The court will appoint one juror as the foreperson and another as the deputy foreperson. In the forepersons absence, the deputy foreperson will act as the foreperson. The foreperson may administer oaths and affirmations and will sign all indictments. The forepersonor another juror designated by the forepersonwill 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. (2)  During Deliberations and Voting. (e) Recording and Disclosing the Proceedings. (1)  Recording the Proceedings. (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 matterother than the grand jurys deliberations or any grand jurors votemay be made to: (i) an attorney for the government for use in performing that attorneys duty; (ii) any government personnelincluding those of a state, state subdivision, Indian tribe, or foreign governmentthat an attorney for the government considers necessary to assist in performing that attorneys 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 attorneys 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.  3003), 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 officials 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 persons 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 disclosureat a time, in a manner, and subject to any other conditions that it directsof 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 parteas it may be when the government is the petitionerthe 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. (5)  Closed Hearing. (6)  Sealed Records. (7)  Contempt. (f) Indictment and Return. A grand jury may indict only if at least 12 jurors concur. The grand juryor its foreperson or deputy forepersonmust return the indictment to a magistrate judge in open court. To avoid unnecessary cost or delay, the magistrate judge may take the return by video teleconference from the court where the grand jury sits. 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 jurys 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.  479a1. 1 1 (As amended Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 July 8, 1976 Aug. 1, 1976 Pub. L. 9578,  2(a) July 30, 1977 91 Stat. 319 Apr. 30, 1979 Aug. 1, 1979 Apr. 28, 1983 Aug. 1, 1983 Pub. L. 98473, title II,  215(f) Oct. 12, 1984 98 Stat. 2016 Apr. 29, 1985 Aug. 1, 1985 Mar. 9, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 26, 1999 Dec. 1, 1999 Pub. L. 10756, title II,  203(a) Oct. 26, 2001 115 Stat. 278 Apr. 29, 2002 Dec. 1, 2002 Pub. L. 107296, title VIII,  895 Nov. 25, 2002 116 Stat. 2256 Pub. L. 108458, title VI,  6501(a) Dec. 17, 2004 118 Stat. 3760 Apr. 12, 2006 Dec. 1, 2006 Apr. 26, 2011 Dec. 1, 2011 Apr. 25, 2014 Dec. 1, 2014 Pub. L. 117347, title III,  323(a)(1)(A) Jan. 5, 2023 136 Stat. 6206  Notes of Advisory Committee on Rules1944 Note to Subdivision Morris v. United States United States v. Perlstein 2. The provision that the grand jury shall consist of not less than 16 and not more than 23 members continues existing law, 28 U.S.C. 419 18 U.S.C. 3321 3. The rule does not affect or deal with the method of summoning and selecting grand juries. Existing statutes on the subjects are not superseded. See 28 U.S.C. 411426 Note to Subdivision United States v. Gale Clawson v. United States Agnew v. United States Note to Subdivision Crowley v. United States United States v. Gale, supra. 2. The second sentence of the rule is a restatement of 18 U.S.C. [former] 554(a) (Indictments and presentments; objection on ground of unqualified juror barred where twelve qualified jurors concurred; record of number concurring), and introduces no change in existing law. Note to Subdivision Frisbie v. United States 2. The provision for the appointment of a deputy foreman is new. Its purpose is to facilitate the transaction of business if the foreman is absent. Such a provision is found in the law of at least one State, N.Y. Code Criminal Procedure, sec. 244. Note to Subdivision 5 U.S.C. 310 28 U.S.C. 515(a) Note to Subdivision Schmidt v. United States United States v. American Medical Association Atwell v. United States 2. The rule does not impose any obligation of secrecy on witnesses. The existing practice on this point varies among the districts. The seal of secrecy on witnesses seems an unnecessary hardship and may lead to injustice if a witness is not permitted to make a disclosure to counsel or to an associate. 3. The last sentence authorizing the court to seal indictments continues present practice. Note to Subdivision Note to Subdivision United States v. Johnson Notes of Advisory Committee on Rules1966 Amendment Subdivision (d).The amendment makes it clear that recording devices may be used to take evidence at grand jury sessions. Subdivision (e).The amendment makes it clear that the operator of a recording device and a typist who transcribes recorded testimony are bound to the obligation of secrecy. Subdivision (f).A minor change conforms the language to what doubtless is the practice. The need for a report to the court that no indictment has been found may be present even though the defendant has not been held to answer. If the defendant is in custody or has given bail, some official record should be made of the grand jury action so that the defendant can be released or his bail exonerated. Notes of Advisory Committee on Rules1972 Amendment Subdivision (b)(2) is amended to incorporate by express reference the provisions of the Jury Selection and Service Act of 1968. That act provides in part: The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime [or] the Attorney General of the United States * * * may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title. [28 U.S.C.  1867(c)] Under rule 12(e) the judge shall decide the motion before trial or order it deferred until after verdict. The authority which the judge has to delay his ruling until after verdict gives him an option which can be exercised to prevent the unnecessary delay of a trial in the event that a motion attacking a grand jury is made on the eve of the trial. In addition, rule 12(c) gives the judge authority to fix the time at which pretrial motions must be made. Failure to make a pretrial motion at the appropriate time may constitute a waiver under rule 12(f). Notes of Advisory Committee on Rules1976 Amendment Under the proposed amendment to rule 6(f), an indictment may be returned to a federal magistrate. (Federal magistrate is defined in rule 54(c) as including a United States magistrate as defined in 28 U.S.C.  631639 and a judge of the United States.) This change will foreclose the possibility of noncompliance with the Speedy Trial Act timetable because of the nonavailability of a judge. Upon the effective date of certain provisions of the Speedy Trial Act of 1974, the timely return of indictments will become a matter of critical importance; for the year commencing July 1, 1976 A corresponding change has been made to that part of subdivision (f) which concerns the reporting of a no bill, and to that part of subdivision (e) which concerns keeping an indictment secret. The change in the third sentence of rule 6(f) is made so as to cover all situations in which by virtue of a pending complaint or information the defendant is in custody or released under some form of conditional release. Notes of Advisory Committee on Rules1977 Amendment The proposed definition of attorneys for the government in subdivision (e) is designed to facilitate an increasing need, on the part of government attorneys, to make use of outside expertise in complex litigation. The phrase other government personnel includes, but is not limited to, employees of administrative agencies and government departments. Present subdivision (e) provides for disclosure to the attorneys for the government for use in the performance of their duties. This limitation is designed to further the long established policy that maintains the secrecy of the grand jury in federal courts. United States v. Procter and Gamble Co As defined in rule 54(c),  Attorney for the government means the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a United States Attorney and when applicable to cases arising under the laws of Guam * * *. The limited nature of this definition is pointed out in In re Grand Jury Proceedings The term attorneys for the government is restrictive in its application. * * * If it had been intended that the attorneys for the administrative agencies were to have free access to matters occurring before a grand jury, the rule would have so provided. The proposed amendment reflects the fact that there is often government personnel assisting the Justice Department in grand jury proceedings. In In re Grand Jury Investigation of William H. Pflaumer & Sons, Inc It is absolutely necessary in grand jury investigations involving analysis of books and records, for the government attorneys to rely upon investigative personnel (from the government agencies) for assistance. See also 8 J. Moore, Federal Practice  6.05 at 628 (2d ed. Cipes, 1969): The rule [6(e)] has presented a problem, however, with respect to attorneys and nonattorneys who are assisting in preparation of a case for the grand jury. * * * These assistants often cannot properly perform their work without having access to grand jury minutes. Although case law is limited, the trend seems to be in the direction of allowing disclosure to government personnel who assist attorneys for the government in situations where their expertise is required. This is subject to the qualification that the matters disclosed be used only for the purposes of the grand jury investigation. The court may inquire as to the good faith of the assisting personnel, to ensure that access to material is not merely a subterfuge to gather evidence unattainable by means other than the grand jury. This approach was taken in In re Grand Jury Investigation of William H. Pflaumer & Sons, Inc In re April 1956 Term Grand Jury United States v. Anzelimo Application of Kelly The change at line 27 reflects the fact that under the Bail Reform Act of 1966 some persons will be released without requiring bail. See 18 U.S.C.  3146, 3148. Under the proposed amendment to rule 6(f), an indictment may be returned to a federal magistrate. (Federal magistrate is defined in rule 54(c) as including a United States magistrate as defined in 28 U.S.C.  631639 and a judge of the United States.) This change will foreclose the possibility of noncompliance with the Speedy Trial Act timetable because of the nonavailability of a judge. Upon the effective date of certain provisions of the Speedy Trial Act of 1974, the timely return of indictments will become a matter of critical importance; for the year commencing July 1, 1976 A corresponding change has been made to that part of subdivision (f) which concerns the reporting of a no bill, and to that part of subdivision (e) which concerns keeping an indictment secret. The change in the third sentence of rule 6(f) is made so as to cover all situations in which by virtue of a pending complaint or information the defendant is in custody or released under some form of conditional release. Notes of Committee on the Judiciary, Senate Report No. 95354; 1977 Amendments Proposed by the Supreme Court Rule 6(e) currently provides that disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Rule 54(c) defines attorneys for the government to mean the Attorney General, an authorized assistant to the Attorney General, a United States attorney, and an authorized assistant of the United States attorney, and when applicable to cases arising under the laws of Guam, means the Attorney General of Guam. . . . The Supreme Court proposal would change Rule 6(e) by adding the following new language: For purposes of this subdivision, attorneys for the government includes those enumerated in Rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties. It would also make a series of changes in the rule designed to make its provisions consistent with other provisions in the Rules and the Bail Reform Act of 1966. The Advisory Committee note states that the proposed amendment is intended to facilitate an increasing need, on the part of Government attorneys to make use of outside expertise in complex litigation. The note indicated that: Although case law is limited, the trend seems to be in the direction of allowing disclosure to Government personnel who assist attorneys for the Government in situations where their expertise is required. This is subject to the qualification that the matter disclosed be used only for the purposes of the grand jury investigation. It is past history at this point that the Supreme Court proposal attracted substantial criticism, which seemed to stem more from the lack of precision in defining, and consequent confusion and uncertainty concerning, the intended scope of the proposed change than from a fundamental disagreement with the objective. Attorneys for the Government in the performance of their duties with a grand jury must possess the authority to utilize the services of other government employees. Federal crimes are investigated by the FBI, the IRS, or by Treasury agents and not by government prosecutors or the citizens who sit on grand juries. Federal agents gather and present information relating to criminal behavior to prosecutors who analyze and evaluate it and present it to grand juries. Often the prosecutors need the assistance of the agents in evaluating evidence. Also, if further investigation is required during or after grand jury proceedings, or even during the course of criminal trials, the Federal agents must do it. There is no reason for a barrier of secrecy to exist between the facets of the criminal justice system upon which we all depend to enforce the criminal laws. The parameters of the authority of an attorney for the government to disclose grand jury information in the course of performing his own duties is not defined by Rule 6. However, a commonsense interpretation prevails, permitting Representatives of other government agencies actively assisting United States attorneys in a grand jury investigation . . . access to grand jury material in the performance of their duties. Yet projected against this current practice, and the weight of case law, is the anomalous language of Rule 6(e) itself, which, in its present state of uncertainty, is spawning some judicial decisions highly restrictive of the use of government experts that require the government to show the necessity (to the Court) for each particular persons aid rather than showing merely a general necessity for assistance, expert or otherwise and that make Rule 6(e) orders subject to interlocutory appeal. In this state of uncertainty, the Committee believes it is timely to redraft subdivision (e) of Rule 6 to make it clear. Paragraph (1) as proposed by the Committee states the general rule that a grand jury, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or government personnel to whom disclosure is made under paragraph (2)(A)(ii) shall not disclose matters occurring before the grand jury, except as otherwise provided in these rules. It also expressly provides that a knowing violation of Rule 6 may be punished as a contempt of court. In addition, it carries forward the current provision that no obligation of secrecy may be imposed on any person except in accordance with this Rule. Having stated the general rule of nondisclosure, paragraph (2) sets forth exemptions from nondisclosure. Subparagraph (A) of paragraph (2) provides that disclosure otherwise prohibited, other than the grand jury deliberations and the vote of any grand juror, may be made to an attorney for the government for use in the performance of his duty and to such personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorneys duty to enforce Federal criminal law. In order to facilitate resolution of subsequent claims of improper disclosure, subparagraph (B) further provides that the names of government personnel designated to assist the attorney for the government shall be promptly provided to the district court and such personnel shall not utilize grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorneys duty to enforce Federal criminal law. Although not expressly required by the rule, the Committee contemplates that the names of such personnel will generally be furnished to the court before disclosure is made to them. Subparagraph (C) permits disclosure as directed by a court preliminarily to or in connection with a judicial proceeding or, at the request of the defendant, upon a showing that grounds may exist for dismissing the indictment because of matters occurring before the grand jury. Paragraph (3) carries forward the last sentence of current Rule 6(e) with the technical changes recommended by the Supreme Court. The Rule as redrafted is designed to accommodate the belief on the one hand that Federal prosecutors should be able, without the time-consuming requirement of prior judicial interposition, to make such disclosures of grand jury information to other government personnel as they deem necessary to facilitate the performance of their duties relating to criminal law enforcement. On the other hand, the Rule seeks to allay the concerns of those who fear that such prosecutorial power will lead to misuse of the grand jury to enforce non-criminal Federal laws by (1) providing a clear prohibition, subject to the penalty of contempt and (2) requiring that a court order under paragraph (C) be obtained to authorize such a disclosure. There is, however, no intent to preclude the use of grand jury-developed evidence for civil law enforcement purposes. On the contrary, there is no reason why such use is improper, assuming that the grand jury was utilized for the legitimate purpose of a criminal investigation. Accordingly, the Committee believes and intends that the basis for a courts refusal to issue an order under paragraph (C) to enable the government to disclose grand jury information in a non-criminal proceeding should be no more restrictive than is the case today under prevailing court decisions. It is contemplated that the judicial hearing in connection with an application for a court order by the government under subparagraph (3)(C)(i) should be ex parte Congressional Modification of Proposed 1977 Amendment Pub. L. 9578,  2(a) July 30, 1977 91 Stat. 319 Apr. 26, 1977 Notes of Advisory Committee on Rules1979 Amendment Note to Subdivision United States v. Aloisio United States v. Aloisio United States v. Cramer Schlinsky v. United States United States v. Price United States v. Thoresen United States v. Aloisio United States v. Gramolini The assumption underlying the proposal is that the cost of such recording is justified by the contribution made to the improved administration of criminal justice. See United States v. Gramolini Among the benefits to be derived from a recordation requirement are the following: (1) Ensuring that the defendant may impeach a prosecution witness on the basis of his prior inconsistent statements before the grand jury. As noted in the opinion of Oakes, J., in United States v. Cramer Dennis v. United States (2) Ensuring that the testimony received by the grand jury is trustworthy. In United States v. Cramer (3) Restraining prosecutorial abuses before the grand jury. As noted in United States v. Gramolini (4) Supporting the case made by the prosecution at trial. Oakes, J., observed in United States v. Cramer United States v. DeSisto United States v. Morgan United States v. Carlson Commentators have also supported a recording requirement. 8 Moore, Federal Practice par. 6.02[2][d] (2d ed. 1972) states: Fairness to the defendant would seem to compel a change in the practice, particularly in view of the 1970 amendment to 18 USC  3500 making grand jury testimony of government witnesses available at trial for purposes of impeachment. The requirement of a record may also prove salutary in controlling overreaching or improper examination of witnesses by the prosecutor. Dennis Under proposed subdivision (e)(1), if the failure to record is unintentional, the failure to record would not invalidate subsequent judicial proceedings. Under present law, the failure to compel production of grand jury testimony where there is no record is not reversible error. See Wyatt v. United States The provision that the recording or reporters notes or any transcript prepared therefrom are to remain in the custody or control (as where the notes are in the immediate possession of a contract reporter employed by the Department of Justice) of the attorney for the government is in accord with present practice. It is specifically recognized, however, that the court in a particular case may have reason to order otherwise. It must be emphasized that the proposed changes in rule 6(e) deal only with the recording requirement, and in no way expand the circumstances in which disclosure of the grand jury proceedings is permitted or required. Secrecy of grand jury proceedings is not jeopardized by recordation. The making of a record cannot be equated with disclosure of its contents, and disclosure is controlled by other means. United States v. Price United States v. Howard Beatrice Foods Co. v. United States Likewise, the proposed changes in rule 6(e) are not intended to make any change regarding whether a defendant may challenge a grand jury indictment. The Supreme Court has declined to hold that defendants may challenge indictments on the ground that they are not supported by sufficient or competent evidence. Costello v. United States Lawn v. United States United States v. Blue Note to Subdivision Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision United States v. Socony-Vacuum Oil Co United States v. Garcia United States v. Malatesta Note to Subdivision Douglas Oil Co. v. Petrol Stops Northwest The first sentence of subdivision (e)(3)(D) makes it clear that when disclosure is sought under subdivision (e)(2)(C)(i), the petition is to be filed in the district where the grand jury was convened, whether or not it is the district of the judicial proceeding giving rise to the petition. Courts which have addressed the question have generally taken this view, e.g., Illinois v. Sarbaugh Douglas Oil, those who seek grand jury transcripts have little choice other than to file a request with the court that supervised the grand jury, as it is the only court with control over the transcripts. Quite apart from the practical necessity, the policies underlying Rule 6(e) dictate that the grand jurys supervisory court participate in reviewing such requests, as it is in the best position to determine the continuing need for grand jury secrecy. Ideally, the judge who supervised the grand jury should review the request for disclosure, as he will have firsthand knowledge of the grand jurys activities. But even other judges of the district where the grand jury sat may be able to discover facts affecting the need for secrecy more easily than would judges from elsewhere around the country. The records are in the custody of the District Court, and therefore are readily available for references. Moreover, the personnel of that courtparticularly those of the United States Attorneys Office who worked with the grand juryare more likely to be informed about the grand jury proceedings than those in a district that had no prior experience with the subject of the request. The second sentence requires the petitioner to serve notice of his petition upon several persons who, by the third sentence, are recognized as entitled to appear and be heard on the matter. The notice requirement ensures that all interested parties, if they wish, may make a timely appearance. Absent such notice, these persons, who then might only learn of the order made in response to the motion after it was entered, have had to resort to the cumbersome and inefficient procedure of a motion to vacate the order. In re Special February 1971 Grand Jury v. Conlisk Though some authority is to be found that parties to the judicial proceeding giving rise to the motion are not entitled to intervene, in that the order to produce was not directed to them, United States v. American Oil Co Douglas Oil Illinois v. Sarbaugh seems to contemplate a proceeding of some kind, judicial proceedings are not normally ex parte If the judicial proceeding is a class action, notice to the representative is sufficient. The amendment also recognizes that the attorney for the government in the district where the grand jury convened also has an interest in the matter and should be allowed to be heard. It may sometimes be the case, as in Douglas Oil Douglas Oil The second sentence leaves it to the court to decide whether any other persons should receive notice and be allowed to intervene. This is appropriate, for the necessity for and feasibility of involving others may vary substantially from case to case. In Douglas Oil Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties. Concern as to the future consequences of frank and full testimony is heightened where the witness is an employee of a company under investigation. Notice to such persons, however is by no means inevitably necessary, and in some cases the information sought may have reached the grand jury from such a variety of sources that it is not practicable to involve these sources in the disclosure proceeding. Similarly, while Douglas Oil The notice requirement in the second sentence is inapplicable if the hearing is to be ex parte ex parte ex parte ex parte Note to Subdivision Douglas Oil) Douglas Oil It must be emphasized that transfer is proper only if the proceeding giving rise to the petition is in federal district court in another district. If, for example, the proceeding is located in another district but is at the state level, a situation encompassed within rule 6(e)(3)(C)(i), In re Special February 1971 Grand Jury v. Conlisk Douglas Oil As stated in the first sentence, transfer by the court is appropriate unless it can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper. (As reflected by the whether disclosure is proper language, the amendment makes no effort to define the disclosure standard; that matter is currently governed by Douglas Oil Douglas Oil the judges of the court having custody of the grand jury transcripts will have no first-hand knowledge of the litigation in which the transcripts allegedly are needed, and no practical means by which such knowledge can be obtained. In such a case, a judge in the district of the grand jury cannot weigh in an informed manner the need for disclosure against the need for maintaining grand jury secrecy. The penultimate sentence provides that upon transfer the transferring court shall order transmitted the material sought to be disclosed and also a written evaluation of the need for continuing grand jury secrecy. Because the transferring court is in the best position to assess the interest in continued grand jury secrecy in the particular instance, it is important that the court which will now have to balance that interest against the need for disclosure receive the benefit of the transferring courts assessment. Transmittal of the material sought to be disclosed will not only facilitate timely disclosure if it is thereafter ordered, but will also assist the other court in deciding how great the need for disclosure actually is. For example, with that material at hand the other court will be able to determine if there is any inconsistency between certain grand jury testimony and testimony received in the other judicial proceeding. The rule recognizes, however, that there may be instances in which transfer of everything sought to be disclosed is not feasible. See, e.g., In re 19752 Grand Jury Investigation The last sentence makes it clear that in a case in which the matter is transferred to another court, that court should permit the various interested parties specified in the rule to be heard. Even if those persons were previously heard before the court which ordered the transfer, this will not suffice. The order of transfer did not decide the ultimate issue of whether a particularized need for disclosure outweighs the interest in continued grand jury secrecy, Douglas Oil In re 19752 Grand Jury Investigation Note to Subdivision A recent GAO study established that there is considerable variety in the practice as to whether such hearings are closed or open, and that open hearings often seriously jeopardize grand jury secrecy: For judges to decide these matters, the witness relationship to the case under investigation must be discussed. Accordingly, the identities of witnesses and targets, the nature of expected testimony, and the extent to which the witness is cooperating are often revealed during preindictment proceedings. Because the matters discussed can compromise the purposes of grand jury secrecy, some judges close the preindictment proceedings to the public and the press; others do not. When the proceeding is open, information that may otherwise be kept secret under rule 6(e) becomes available to the public and the press . ... Open preindictment proceedings are a major source of information which can compromise the purposes of grand jury secrecy. In 25 cases we were able to establish links between open proceedings and later newspaper articles containing information about the identities of witnesses and targets and the nature of grand jury investigations. Comptroller General, More Guidance and Supervision Needed over Federal Grand Jury Proceedings 89 ( Oct. 16, 1980 The provisions of rule 6(e)(5) do not violate any constitutional right of the public or media to attend such pretrial hearings. There is no Sixth Amendment right in the public to attend pretrial proceedings, Gannett Co., Inc. v. DePasquale Richmond Newspapers, Inc. v. Virginia Richmond Newspapers Gannett United States v. Criden Richmond Newspapers Subdivision (e)(5) is expressly made subject to any right to an open hearing in contempt proceedings. This will accommodate any First Amendment right which might be deemed applicable in that context because of the proceedings similarities to a criminal trial, cf. United States v. Criden In re Oliver In re Rosahn Levine v. United States Note to Subdivision Oct. 16, 1980 In 262 cases, documents presented at open preindictment proceedings and filed in public files revealed details of grand jury investigations. These documents are, of course, available to anyone who wants them, including targets of investigations. [There are] two documents commonly found in public files which usually reveal the identities of witnesses and targets. The first document is a Department of Justice authorization to a U.S. attorney to apply to the court for a grant of immunity for a witness. The second document is the courts order granting the witness immunity from prosecution and compelling him to testify and produce requested information. * * * Subpoenas are the fundamental documents used during a grand jurys investigation because through subpoenas, grand juries can require witnesses to testify and produce documentary evidence for their consideration. Subpoenas can identify witnesses, potential targets, and the nature of an investigation. Rule 6(e) does not provide specific guidance on whether a grand jurys subpoena should be kept secret. Additionally, case law has not consistently stated whether the subpoenas are protected by rule 6(e). District courts still have different opinions about whether grand jury subpoenas should be kept secret. Out of 40 Federal District Courts we contacted, 36 consider these documents to be secret. However, 4 districts do make them available to the public. Note to Subdivision As noted in United States v. Fein The amendment to subdivision 6(g) permits extension of a regular grand jury only upon a determination that such extension is in the public interest. This permits some flexibility, but reflects the fact that extension of regular grand juries beyond 18 months is to be the exception and not the norm. The intention of the amendment is to make it possible for a grand jury to have sufficient extra time to wind up an investigation when, for example, such extension becomes necessary because of the unusual nature of the case or unforeseen developments. Because terms of court have been abolished, 28 U.S.C.  138, the second sentence of subdivision 6(g) has been deleted. Notes of Advisory Committee on Rules1985 Amendment Note to Subdivision In re Miami Federal Grand Jury No. 799 In re Grand Jury Proceedings In re 1979 Grand Jury Proceedings It is clearly desirable that federal and state authorities cooperate, as they often do, in organized crime and racketeering investigations, in public corruption and major fraud cases, and in various other situations where federal and state criminal jurisdictions overlap. Because of such cooperation, government attorneys in complex grand jury investigations frequently find it necessary to enlist the help of a team of government agents. While the agents are usually federal personnel, it is not uncommon in certain types of investigations that federal prosecutors wish to obtain the assistance of state law enforcement personnel, which could be uniquely beneficial. The amendment permits disclosure to those personnel in the circumstances stated. It must be emphasized that the disclosure permitted is limited. The disclosure under this subdivision is permissible only in connection with the attorney for the governments duty to enforce federal criminal law and only to those personnel deemed necessary . . . to assist in the performance of that duty. Under subdivision (e)(3)(B), the material disclosed may not be used for any other purpose, and the names of persons to whom disclosure is made must be promptly provided to the court. Note to Subdivision all Note to Subdivision Illinois v. Abbott & Associates This inability lawfully to disclose evidence of a state criminal violationevidence legitimately obtained by the grand juryconstitutes an unreasonable barrier to the effective enforcement of our two-tiered system of criminal laws. It would be removed by new subdivision (e)(3)(C)(iv), which would allow a court to permit disclosure to a state or local official for the purpose of enforcing state law when an attorney for the government so requests and makes the requisite showing. The federal court has been given control over any disclosure which is authorized, for subdivision (e)(3)(C) presently states that the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. The Committee is advised that it will be the policy of the Department of Justice under this amendment to seek such disclosure only upon approval of the Assistant Attorney General in charge of the Criminal Division. There is no intention, by virtue of this amendment, to have federal grand juries act as an arm of the state. Notes of Advisory Committee on Rules1987 Amendment New subdivision (a)(2) gives express recognition to a practice now followed in some district courts, namely, that of designating alternate grand jurors at the time the grand jury is selected. (A person so designated does not attend court and is not paid the jury attendance fees and expenses authorized by 28 U.S.C.  1871 unless subsequently impanelled pursuant to Rule 6(g).) Because such designation may be a more efficient procedure than election of additional grand jurors later as need arises under subdivision (g), the amendment makes it clear that it is a permissible step in the grand jury selection process. This amendment is not intended to work any change in subdivision (g). In particular, the fact that one or more alternate jurors either have or have not been previously designated does not limit the district courts discretion under subdivision (g) to decide whether, if a juror is excused temporarily or permanently, another person should replace him to assure the continuity of the grand jury and its ability to obtain a quorum in order to complete its business. The amendments [subdivisions (c) and (f)] are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules1999 Amendment Subdivision 6(d). See also United States v. Dempsey The subdivision has also been restyled and reorganized. Subdivision 6(f). Breese v. United States Id The amendment provides that the indictment must be presented either by the jurors themselves, as currently provided for in the rule, or by the foreperson or the deputy foreperson, acting on behalf of the jurors. In an appropriate case, the court might require all of the jurors to be present if it had inquiries about the indictment. GAP ReportRule 6. Committee Notes on Rules2002 Amendment The language of Rule 6 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first change is in Rule 6(b)(1). The last sentence of current Rule 6(b)(1) provides that Challenges shall be made before the administration of the oath to the jurors and shall be tried by the court. That language has been deleted from the amended rule. The remainder of this subdivision rests on the assumption that formal proceedings have begun against a person, i.e., an indictment has been returned. The Committee believed that although the first sentence reflects current practice of a defendant being able to challenge the composition or qualifications of the grand jurors after the indictment is returned, the second sentence does not comport with modern practice. That is, a defendant will normally not know the composition of the grand jury or identity of the grand jurors before they are administered their oath. Thus, there is no opportunity to challenge them and have the court decide the issue before the oath is given. In Rule 6(d)(1), the term court stenographer has been changed to court reporter. Similar changes have been made in Rule 6(e)(1) and (2). Rule 6(e) continues to spell out the general rule of secrecy of grand-jury proceedings and the exceptions to that general rule. The last sentence in current Rule 6(e)(2), concerning contempt for violating Rule 6, now appears in Rule 6(e)(7). No change in substance is intended. Rule 6(e)(3)(A)(ii) includes a new provision recognizing the sovereignty of Indian Tribes and the possibility that it would be necessary to disclose grand-jury information to appropriate tribal officials in order to enforce federal law. Similar language has been added to Rule 6(e)(3)(D)(iii). Rule 6(e)(3)(A)(iii) is a new provision that recognizes that disclosure may be made to a person under 18 U.S.C.  3322 (authorizing disclosures to an attorney for the government and banking regulators for enforcing civil forfeiture and civil banking laws). This reference was added to avoid the possibility of the amendments to Rule 6 superseding that particular statute. Rule 6(e)(3)(C) consists of language located in current Rule 6(e)(3)(C)(iii). The Committee believed that this provision, which recognizes that prior court approval is not required for disclosure of a grand-jury matter to another grand jury, should be treated as a separate subdivision in revised Rule 6(e)(3). No change in practice is intended. Rule 6(e)(3)(D) is new and reflects changes made to Rule 6 in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. The new provision permits an attorney for the government to disclose grand-jury matters involving foreign intelligence or counterintelligence to other Federal officials, in order to assist those officials in performing their duties. Under Rule 6(e)(3)(D)(i), the federal official receiving the information may only use the information as necessary and may be otherwise limited in making further disclosures. Any disclosures made under this provision must be reported under seal, within a reasonable time, to the court. The term foreign intelligence information is defined in Rule 6(e)(3)(D)(iii). Rule 6(e)(3)(E)(iv) is a new provision that addresses disclosure of grand-jury information to armed forces personnel where the disclosure is for the purpose of enforcing military criminal law under the Uniform Code of Military Justice, 10 U.S.C.  801946. See January 22, 1985 October 9, 1967 In Rule 6(e)(3)(F)(ii), the Committee considered whether to amend the language relating to parties to the judicial proceeding and determined that in the context of the rule it is understood that the parties referred to are the parties in the same judicial proceeding identified in Rule 6(e)(3)(E)(i). The Committee decided to leave in subdivision (e) the provision stating that a knowing violation of Rule 6 may be punished by contempt notwithstanding that, due to its apparent application to the entirety of the Rule, the provision seemingly is misplaced in subdivision (e). Research shows that Congress added the provision in 1977 and that it was crafted solely to deal with violations of the secrecy prohibitions in subdivision (e). See Bank of Nova Scotia v. United States In sum, it appears that the scope of the contempt sanction in Rule 6 is unsettled. Because the provision creates an offense, altering its scope may be beyond the authority bestowed by the Rules Enabling Act, 28 U.S.C.  2071 et seq. See Current Rule 6(g) has been divided into two new subdivisions, Rule 6(g), Discharge, and Rule 6(h), Excuse. The Committee added the phrase in Rule 6(g) except as otherwise provided by statute, to recognize the provisions of 18 U.S.C.  3331 relating to special grand juries. Rule 6(i) is a new provision defining the term Indian Tribe, a term used only in this rule. Committee Notes on Rules2006 Amendment Subdivision (e)(3) and (7). Pub. L. 108458, Title VI,  6501(a) 118 Stat. 3760 Committee Notes on Rules2011 Amendment Subdivision (f) Under the amendment, the grand jury (or the foreperson) would appear in a courtroom in the United States courthouse where the grand jury sits. Utilizing video teleconference, the judge could participate by video from a remote location, convene court, and take the return. Indictments could be transmitted in advance to the judge for review by reliable electronic means. This process accommodates the Speedy Trial Act, 18 U.S.C.  3161(b), and preserves the judges time and safety. Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2014 Amendment Rule 6(e)(3)(D).  References in Text The Uniform Code of Military Justice, referred to in subd. (e)(3)(E)(v), is classified to chapter 47 ( 801 et seq.) of Title 10, Armed Forces. 25 U.S.C.  479a1, referred to in subd. (i), was editorially reclassified as 25 U.S.C. 5131 Codification Another section 895 of Pub. L. 107296 section 484a of Title 6 Amendment by Public Law 2023Subd. (e). Pub. L. 117347,  323(a)(1)(A) Pub. L. 107296,  895 2004Subd. (e)(3)(A)(ii). Pub. L. 108458,  6501(a)(1)(A) Subd. (e)(3)(D). Pub. L. 108458,  6501(a)(1)(B)(i) Subd. (e)(3)(D)(i). Pub. L. 108458,  6501(a)(1)(B)(ii) Subd. (e)(3)(E)(iii). Pub. L. 108458,  6501(a)(1)(C)(ii) Subd. (e)(3)(E)(iv). Pub. L. 108458,  6501(a)(1)(C)(iii) Pub. L. 108458,  6501(a)(1)(C)(i) Subd. (e)(3)(E)(v). Pub. L. 108458,  6501(a)(1)(C)(i) Subd. (e)(7). Pub. L. 108458,  6501(a)(2) 2002Subd. (e). Pub. L. 107296,  895 Apr. 29, 2002 Dec. 1, 2002 Pub. L. 117347,  323(a)(1)(A) Pub. L. 107296 section 2517 of this title Section 895 of Pub. L. 107296  Rule 6(e) of the Federal Rules of Criminal Procedure is amended (1) in paragraph (2), by inserting , or of guidelines jointly issued by the Attorney General and Director of Central Intelligence pursuant to Rule 6, after Rule 6; and (2) in paragraph (3) (A) in subparagraph (A)(ii), by inserting or of a foreign government after (including personnel of a state or subdivision of a state; (B) in subparagraph (C)(i) (i) in subclause (I), by inserting before the semicolon the following: or, upon a request by an attorney for the government, when sought by a foreign court or prosecutor for use in an official criminal investigation; (ii) in subclause (IV) (I) by inserting or foreign after may disclose a violation of State; (II) by inserting or of a foreign government after to an appropriate official of a State or subdivision of a State; and (III) by striking or at the end; (iii) by striking the period at the end of subclause (V) and inserting ; or; and (iv) by adding at the end the following:  (VI) when matters involve a threat of actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, to any appropriate federal, state, local, or foreign government official for the purpose of preventing or responding to such a threat.; and (C) in subparagraph (C)(iii) (i) by striking Federal; (ii) by inserting or clause (i)(VI) after clause (i)(V); and (iii) by adding at the end the following: Any state, local, or foreign official who receives information pursuant to clause (i)(VI) shall use that information only consistent with such guidelines as the Attorney General and Director of Central Intelligence shall jointly issue.. 2001Subd. (e)(3)(C). Pub. L. 10756,  203(a)(1)  Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made (i) when so directed by a court preliminarily to or in connection with a judicial proceeding; (ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury; (iii) when the disclosure is made by an attorney for the government to another federal grand jury; or (iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law. If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. Subd. (e)(3)(D). Pub. L. 10756,  203(a)(2) 1984Subd. (e)(3)(C)(iv). Pub. L. 98473 Nov. 1, 1987 Apr. 29, 1985 Aug. 1, 1985 Effective Date of 1984 Amendment Amendment by Pub. L. 98473 Nov. 1, 1987 section 235(a)(1) of Pub. L. 98473 section 3551 of this title Effective Date of 1977 Amendment Amendment of this rule by order of the United States Supreme Court on Apr. 26, 1977 Pub. L. 9578 Oct. 1, 1977 section 4 of Pub. L. 9578 Pub. L. 9578 section 2074 of Title 28 Effective Date of 1976 Amendment Amendment of subd. (f) by the order of the United States Supreme Court of Apr. 26, 1976 Aug. 1, 1976 section 1 of Pub. L. 94349 July 8, 1976 90 Stat. 822 section 2074 of Title 28 Rule 7. The Indictment and the Information (a) When Used. (1)  Felony. (A) by death; or (B) by imprisonment for more than one year. (2)  Misdemeanor. (b) Waiving Indictment. An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendantin open court and after being advised of the nature of the charge and of the defendants rightswaives prosecution by indictment. (c) Nature and Contents. (1)  In General. section 3282 of title 18 (2)  Citation Error. (d) Surplusage. Upon the defendants 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. (As amended Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Apr. 30, 1979 Aug. 1, 1979 Mar. 9, 1987 Aug. 1, 1987 Apr. 17, 2000 Dec. 1, 2000 Apr. 29, 2002 Dec. 1, 2002 Pub. L. 10821, title VI,  610(b) Apr. 30, 2003 117 Stat. 692 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1944 Note to Subdivision Ex parte Wilson United States v. Moreland 18 U.S.C. 753f 2. Petty offenses and misdemeanors for which no infamous punishment is prescribed may now be prosecuted by information, 18 U.S.C. 541 Duke v. United States 3. For a discussion of the provision for waiver of indictment, see Note to Rule 7(b), infra. 4. Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts. Note to Subdivision The Judicial Conference of Senior Circuit Judges, in September 1941, recommended that existing law or established procedure be so changed, that a defendant may waive indictment and plead guilty to an information filed by a United States attorney in all cases except capital felonies. Report of the Judicial Conference of Senior Circuit Judges Id Attorneys General of the United States have from time to time recommended legislation to permit defendants to waive indictment and to consent to prosecution by information. See Annual Report of the Attorney General of the United States Id Id Id The Federal Juvenile Delinquency Act [now 18 U.S.C. 5031503 18 U.S.C. 922 2. On the constitutionality of this rule, see United States v. Gill Patton v. United States Johnson v. Zerbst Trono v. United States United States v. Murdock Diaz v. United States Note to Subdivision 2. The provision contained in the fifth sentence that it may be alleged in a single count that the means by which the defendant committed the offense are unknown, or that he committed it by one or more specified means, is intended to eliminate the use of multiple counts for the purpose of alleging the commission of the offense by different means or in different ways. Cf. Federal Rules of Civil Procedure, Rule 8(e)(2) [28 U.S.C., Appendix]. 3. The law at present regards citations to statutes or regulations as not a part of the indictment. A conviction may be sustained on the basis of a statute or regulation other than that cited. Williams v. United States United States v. Hutcheson Note to Subdivision Ex parte Bain Note to Subdivision Muncy v. United States Note to Subdivision Notes of Advisory Committee on Rules1966 Amendment The amendment to the first sentence eliminating the requirement of a showing of cause is designed to encourage a more liberal attitude by the courts toward bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases. For an illustration of wise use of this discretion see the opinion by Justice Whittaker written when he was a district judge in United States v. Smith The amendment to the second sentence gives discretion to the court to permit late filing of motions for bills of particulars in meritorious cases. Use of late motions for the purpose of delaying trial should not, of course, be permitted. The courts have not been agreed as to their power to accept late motions in the absence of a local rule or a previous order. See United States v. Miller United States v. Taylor United States v. Sterling United States v. Brown Notes of Advisory Committee on Rules1972 Amendment Subdivision (c)(2) is new. It is intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX,  1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II,  408(a)(2). The Congress viewed the provisions of the Organized Crime Control Act of 1970 as reestablishing a limited common law criminal forfeiture. S. Rep. No. 91617, 91st Cong., 1st Sess. 7980 (1969). The legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970 indicates a congressional purpose to have similar procedures apply to the forfeiture of profits or interests under that act. H. Rep. No. 911444 (part I), 91st Cong., 2d Sess. 8185 (1970). Under the common law, in a criminal forfeiture proceeding the defendant was apparently entitled to notice, trial, and a special jury finding on the factual issues surrounding the declaration of forfeiture which followed his criminal conviction. Subdivision (c)(2) provides for notice. Changes in rules 31 and 32 provide for a special jury finding and for a judgment authorizing the Attorney General to seize the interest or property forfeited. Notes of Advisory Committee on Rules1979 Amendment The amendment to rule 7(c)(2) is intended to clarify its meaning. Subdivision (c)(2) was added in 1972, and, as noted in the Advisory Committee Note thereto, was intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX,  1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II,  408(a)(2). These provisions reestablished a limited common law criminal forfeiture, necessitating the addition of subdivision (c)(2) and corresponding changes in rules 31 and 32, for at common law the defendant in a criminal forfeiture proceeding was entitled to notice, trial, and a special jury finding on the factual issues surrounding the declaration of forfeiture which followed his criminal conviction. Although there is some doubt as to what forfeitures should be characterized as punitive rather than remedial, see Note, 62 Cornell L.Rev. 768 (1977), subdivision (c)(2) is intended to apply to those forfeitures which are criminal in the sense that they result from a special verdict under rule 31(e) and a judgment under rule 32(b)(2), and not to those resulting from a separate in rem proceeding. Because some confusion in this regard has resulted from the present wording of subdivision (c)(2), United States v. Hall Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2000 Amendment The rule is amended to reflect new Rule 32.2, which now governs criminal forfeiture procedures. GAP ReportRule 7. infra Committee Notes on Rules2002 Amendment The language of Rule 7 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic. The Committee has deleted the references to hard labor in the rule. This punishment is not found in current federal statutes. The Committee added an exception for criminal contempt to the requirement in Rule 7(a)(1) that a prosecution for felony must be initiated by indictment. This is consistent with case law, e.g., United States v. Eichhorst See United States v. Williams The title of Rule 7(c)(3) has been amended. The Committee believed that potential confusion could arise with the use of the term harmless error. Rule 52, which deals with the issues of harmless error and plain error, is sufficient to address the topic. Potentially, the topic of harmless error could arise with regard to any of the other rules and there is insufficient need to highlight the term in Rule 7. Rule 7(c)(3), on the other hand, focuses specifically on the effect of an error in the citation of authority in the indictment. That material remains but without any reference to harmless error. Committee Notes on Rules2009 Amendment The time set in the former rule at 10 days has been revised to 14 days. See the Committee Note to Rule 45(a). Subdivision (c) Amendment by Public Law 2003Subd. (c)(1). Pub. L. 10821 section 3282 of title 18 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 chargedwhether felonies or misdemeanors or bothare of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. (b) Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. (As amended Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Note to Subdivision Note to Subdivision Cyclopedia of Federal Procedure Caringella v. United States Committee Notes on Rules2002 Amendment The language of Rule 8 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 9. Arrest Warrant or Summons on an Indictment or Information (a) Issuance. The court must issue a warrantor at the governments request, a summonsfor 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. (2)  Summons. (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. (3)  Initial Appearance. (d) Warrant by Telephone or Other Means. In accordance with Rule 4.1, a magistrate judge may issue an arrest warrant or summons based on information communicated by telephone or other reliable electronic means. (As amended Apr. 24, 1972 Oct. 1, 1972 Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(4) July 31, 1975 89 Stat. 370 Pub. L. 94149,  5 Dec. 12, 1975 89 Stat. 806 Apr. 30, 1979 Aug. 1, 1979 Apr. 28, 1982 Aug. 1, 1982 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Rules1944 1. See Note to Rule 4, supra. 2. The provision of Rule 9(a) that a warrant may be issued on the basis of an information only if the latter is supported by oath is necessitated by the Fourth Amendment to the Constitution of the United States. See Albrecht v. United States 3. The provision of Rule 9(b)(1) that the amount of bail may be fixed by the court and endorsed on the warrant states a practice now prevailing in many districts and is intended to facilitate the giving of bail by the defendant and eliminate delays between the arrest and the giving of bail, which might ensue if bail cannot be fixed until after arrest. Notes of Advisory Committee on Rules1972 Amendment Subdivision (b) is amended to make clear that the person arrested shall be brought before a United States magistrate if the information or indictment charges a minor offense triable by the United States magistrate. Subdivision (c) is amended to reflect the office of United States magistrate. Subdivision (d) is new. It provides for a remand to the United States magistrate of cases in which the person is charged with a minor offense. The magistrate can then proceed in accordance with rule 5 to try the case if the right to trial before a judge of the district court is waived. Notes of Advisory Committee on Rules1974 Amendment Rule 9 is revised to give high priority to the issuance of a summons unless a valid reason is given for the issuance of an arrest warrant. See a comparable provision in rule 4. Under the rule, a summons will issue by the clerk unless the attorney for the government presents a valid reason for the issuance of an arrest warrant. Under the old rule, it has been argued that the court must issue an arrest warrant if one is desired by the attorney for the government. See authorities listed in Frankel, Bench Warrants Upon the Prosecutors Demand: A View From the Bench, 71 Colum.L.Rev. 403, 410 n. 25 (1971). For an expression of the view that this is undesirable policy, see Frankel, supra A summons may issue if there is an information supported by oath. The indictment itself is sufficient to establish the existence of probable cause. See C. Wright, Federal Practice and Procedure: Criminal  151 (1969); 8 J. Moore, Federal Practice  9.02[2] at p. 94 (2d ed.) Cipes (1969); Giordenello v. United States supra supra Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 9 of the Federal Rules of Criminal Procedure is closely related to Rule 4. Rule 9 deals with arrest procedures after an information has been filed or an indictment returned. The present rule gives the prosecutor the authority to decide whether a summons or a warrant shall issue. The Supreme Courts amendments to Rule 9 parallel its amendments to Rule 4. The basic change made in Rule 4 is also made in Rule 9. B. Committee Action. For the reasons set forth above in connection with Rule 4, the Committee endorses and accepts the basic change in Rule 9. The Committee made changes in Rule 9 similar to the changes it made in Rule 4. Notes of Advisory Committee on Rules1979 Amendment Subdivision (a) is amended to make explicit the fact that a warrant may issue upon the basis of an information only if the information or an affidavit filed with the information shows probable cause for the arrest. This has generally been assumed to be the state of the law even though not specifically set out in rule 9; see C. Wright, Federal Practice and Procedure: Criminal  151 (1969); 8 J. Moore, Federal Practice par. 9.02[2] (2d ed. 1976). In Gerstein v. Pugh Although a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment standing alone meets the requirements of the Fourth Amendment. Indeed, we think the Courts previous decisions compel disapproval of [such] procedure. In Albrecht v. United States No change is made in the rule with respect to warrants issuing upon indictments. In Gerstein Ex parte United States The provision to the effect that a summons shall issue by direction of the court has been eliminated because it conflicts with the first sentence of the rule, which states that a warrant shall issue when requested by the attorney for the government, if properly supported. However, an addition has been made providing that if the attorney for the government does not make a request for either a warrant or summons, then the court may in its discretion issue either one. Other stylistic changes ensure greater consistency with comparable provisions in rule 4. Notes of Advisory Committee on Rules1982 Amendment Note to Subdivision Note to Subdivision Note to Subdivision Note to Subdivision Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment The language of Rule 9 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Rule 9 has been changed to reflect its relationship to Rule 4 procedures for obtaining an arrest warrant or summons. Thus, rather than simply repeating material that is already located in Rule 4, the Committee determined that where appropriate, Rule 9 should simply direct the reader to the procedures specified in Rule 4. Rule 9(a) has been amended to permit a judge discretion whether to issue an arrest warrant when a defendant fails to respond to a summons on a complaint. Under the current language of the rule, if the defendant fails to appear, the judge must issue a warrant. Under the amended version, if the defendant fails to appear and the government requests that a warrant be issued, the judge must issue one. In the absence of such a request, the judge has the discretion to do so. This change mirrors language in amended Rule 4(a). A second amendment has been made in Rule 9(b)(1). The rule has been amended to delete language permitting the court to set the amount of bail on the warrant. The Committee believes that this language is inconsistent with the 1984 Bail Reform Act. See United States v. Thomas The language in current Rule 9(c)(1), concerning service of a summons on an organization, has been moved to Rule 4. Committee Notes on Rules2011 Amendment Subdivision (d) Changes Made to Proposed Amendment Released for Public Comment Amendment by Public Law 1975Subd. (a). Pub. L. 9464 Subd. (b)(1). Pub. L. 94149 Subd. (c)(1). Pub. L. 94149 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL Rule 10. Arraignment (a) In General. An arraignment must be conducted in open court and must consist of: (1) ensuring that the defendant has a copy of the indictment or information; (2) reading the indictment or information to the defendant or stating to the defendant the substance of the charge; and then (3) asking the defendant to plead to the indictment or information. (b) Waiving Appearance. A defendant need not be present for the arraignment if: (1) the defendant has been charged by indictment or misdemeanor information; (2) the defendant, in a written waiver signed by both the defendant and defense counsel, has waived appearance and has affirmed that the defendant received a copy of the indictment or information and that the plea is not guilty; and (3) the court accepts the waiver. (c) Video Teleconferencing. Video teleconferencing may be used to arraign a defendant if the defendant consents. (As amended Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 1. The first sentence states the prevailing practice. 2. The requirement that the defendant shall be given a copy of the indictment or information before he is called upon to plead, contained in the second sentence, is new. 3. Failure to comply with arraignment requirements has been held not to be jurisdictional, but a mere technical irregularity not warranting a reversal of a conviction, if not raised before trial, Garland v. State of Washington Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 10 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Read together, Rules 10 and 43 require the defendant to be physically present in court for the arraignment. See, e.g., Valenzuela-Gonzales v. United States In amending Rule 10 and Rule 43, the Committee was concerned that permitting a defendant to be absent from the arraignment could be viewed as an erosion of an important element of the judicial process. First, it may be important for a defendant to see and experience first-hand the formal impact of the reading of the charge. Second, it may be necessary for the court to personally see and speak with the defendant at the arraignment, especially when there is a real question whether the defendant actually understands the gravity of the proceedings. And third, there may be difficulties in providing the defendant with effective and confidential assistance of counsel if counsel, but not the defendant, appears at the arraignment. The Committee nonetheless believed that in appropriate circumstances the court, and the defendant, should have the option of conducting the arraignment in the defendants absence. The question of when it would be appropriate for a defendant to waive an appearance is not spelled out in the rule. That is left to the defendant and the court in each case. A critical element to the amendment is that no matter how convenient or cost effective a defendants absence might be, the defendants right to be present in court stands unless he or she waives that right in writing. Under the amendment, both the defendant and the defendants attorney must sign the waiver. Further, the amendment requires that the waiver specifically state that the defendant has received a copy of the charging instrument. If the trial court has reason to believe that in a particular case the defendant should not be permitted to waive the right, the court may reject the waiver and require that the defendant actually appear in court. That might be particularly appropriate when the court wishes to discuss substantive or procedural matters in conjunction with the arraignment and the court believes that the defendants presence is important in resolving those matters. It might also be appropriate to reject a requested waiver where an attorney for the government presents reasons for requiring the defendant to appear personally. The amendment does not permit waiver of an appearance when the defendant is charged with a felony information. In that instance, the defendant is required by Rule 7(b) to be present in court to waive the indictment. Nor does the amendment permit a waiver of appearance when the defendant is standing mute ( see see see see It is important to note that the amendment does not permit the defendant to waive the arraignment itself, which may be a triggering mechanism for other rules. Rule 10(c) addresses the second substantive change in the rule. That provision permits the court to conduct arraignments through video teleconferencing, if the defendant waives the right to be arraigned in court. Although the practice is now used in state courts and in some federal courts, Rules 10 and 43 have generally prevented federal courts from using that method for arraignments in criminal cases. See, e.g., Valenzuela-Gonzales v. United States, supra In amending Rules 5, 10, and 43 (which generally requires the defendants presence at all proceedings), the Committee carefully considered the argument that permitting a defendant to appear by video teleconferencing might be considered an erosion of an important element of the judicial process. Much can be lost when video teleconferencing occurs. First, the setting itself may not promote the publics confidence in the integrity and solemnity of a federal criminal proceeding; that is the view of some who have witnessed the use of such proceedings in some state jurisdictions. While it is difficult to quantify the intangible benefits and impact of requiring a defendant to be brought before a federal judicial officer in a federal courtroom, the Committee realizes that something is lost when a defendant is not required to make a personal appearance. A related consideration is that the defendant may be located in a room that bears no resemblance whatsoever to a judicial forum and the equipment may be inadequate for high-quality transmissions. Second, using video teleconferencing can interfere with counsels ability to meet personally with his or her client at what, at least in that jurisdiction, might be an important appearance before a magistrate judge. Third, the defendant may miss an opportunity to meet with family or friends, and others who might be able to assist the defendant, especially in any attempts to obtain bail. Finally, the magistrate judge may miss an opportunity to accurately assess the physical, emotional, and mental condition of a defendanta factor that may weigh on pretrial decisions, such as release from detention. On the other hand, the Committee considered that in some jurisdictions, the courts face a high volume of criminal proceedings. The Committee was also persuaded to adopt the amendment because in some jurisdictions delays may occur in travel time from one location to anotherin some cases requiring either the magistrate judge or the participants to travel long distances. In those instances, it is not unusual for a defense counsel to recognize the benefit of conducting a video teleconferenced proceeding, which will eliminate lengthy and sometimes expensive travel or permit the arraignment to be conducted much sooner. Finally, the Committee was aware that in some jurisdictions, courtrooms now contain high quality technology for conducting such procedures, and that some courts are already using video teleconferencingwith the consent of the parties. The Committee believed that, on balance and in appropriate circumstances, the court and the defendant should have the option of using video teleconferencing for arraignments, as long as the defendant consents to that procedure. The question of when it would be appropriate for a defendant to consent is not spelled out in the rule. That is left to the defendant and the court in each case. Although the rule does not specify any particular technical requirements regarding the system to be used, if the equipment or technology is deficient, the public may lose confidence in the integrity and dignity of the proceedings. The amendment does not require a court to adopt or use video teleconferencing. In deciding whether to use such procedures, a court may wish to consider establishing clearly articulated standards and procedures. For example, the court would normally want to insure that the location used for televising the video teleconferencing is conducive to the solemnity of a federal criminal proceeding. That might require additional coordination, for example, with the detention facility to insure that the room, furniture, and furnishings reflect the dignity associated with a federal courtroom. Provision should also be made to insure that the judge, or a surrogate, is in a position to carefully assess the condition of the defendant. And the court should also consider establishing procedures for insuring that counsel and the defendant (and even the defendants immediate family) are provided an ample opportunity to confer in private. Although the rule requires the defendant to waive a personal appearance for an arraignment, the rule does not require that the waiver for video teleconferencing be in writing. Nor does it require that the defendant waive that appearance in person, in open court. It would normally be sufficient for the defendant to waive an appearance while participating through a video teleconference. The amendment leaves to the courts the decision first, whether to permit video arraignments, and second, the procedures to be used. The Committee was satisfied that the technology has progressed to the point that video teleconferencing can address the concerns raised in the past about the ability of the court and the defendant to see each other and for the defendant and counsel to be in contact with each other, either at the same location or by a secure remote connection. Rule 11. Pleas (a) Entering a Plea. (1)  In General. (2)  Conditional Plea. (3)  Nolo Contendere Plea. (4)  Failure to Enter a Plea. (b) Considering and Accepting a Guilty or Nolo Contendere Plea. (1)  Advising and Questioning the Defendant (A) the governments 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 counseland if necessary have the court appoint counselat 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 defendants 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 courts authority to order restitution; (L) the courts obligation to impose a special assessment; (M) in determining a sentence, the courts 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); (N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; and (O) that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future. (2)  Ensuring That a Plea Is Voluntary. (3)  Determining the Factual Basis for a Plea. (c) Plea Agreement Procedure. (1)  In General. (A) not bring, or will move to dismiss, other charges; (B) recommend, or agree not to oppose the defendants 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. (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. (5)  Rejecting a Plea Agreement. (A) inform the parties that the court rejects the plea agreement; (B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and (C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated. (d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere: (1) before the court accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but before it imposes sentence if: (A) the court rejects a plea agreement under Rule 11(c)(5); or (B) the defendant can show a fair and just reason for requesting the withdrawal. (e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack. (f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410. (g) Recording the Proceedings. The proceedings during which the defendant enters a plea must be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant required under Rule 11(b) and (c). (h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights. (As amended Feb. 28, 1966 July 1, 1966 Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(5) July 31, 1975 89 Stat. 371 Apr. 30, 1979 Aug. 1, 1979 Dec. 1, 1980 Apr. 28, 1982 Aug. 1, 1982 Apr. 28, 1983 Aug. 1, 1983 Apr. 29, 1985 Aug. 1, 1985 Mar. 9, 1987 Aug. 1, 1987 Pub. L. 100690, title VII,  7076 Nov. 18, 1988 102 Stat. 4406 Apr. 25, 1989 Dec. 1, 1989 Apr. 26, 1999 Dec. 1, 1999 Apr. 29, 2002 Dec. 1, 2002 Apr. 30, 2007 Dec. 1, 2007 Apr. 16, 2013 Dec. 1, 2013  Notes of Advisory Committee on Rules1944 1. This rule is substantially a restatement of existing law and practice, 18 U.S.C. [former] 564 (Standing mute); Fogus v. United States 2. The plea of nolo contendere Hudson v. United States United States v. Norris 18 U.S.C. 724 Notes of Advisory Committee on Rules1966 Amendment The great majority of all defendants against whom indictments or informations are filed in the federal courts plead guilty. Only a comparatively small number go to trial. See United States Attorneys Statistical Report, Fiscal Year 1964, p. 1. The fairness and adequacy of the procedures on acceptance of pleas of guilty are of vital importance in according equal justice to all in the federal courts. Three changes are made in the second sentence. The first change makes it clear that before accepting either a plea of guilty or nolo contendere the court must determine that the plea is made voluntarily with understanding of the nature of the charge. The second change expressly requires the court to address the defendant personally in the course of determining that the plea is made voluntarily and with understanding of the nature of the charge. The reported cases reflect some confusion over this matter. Compare United States v. Diggs Domenica v. United States Gundlach v. United States Julian v. United States Meeks v. United States Nunley v. United States United States v. Von der Heide The third change in the second sentence adds the words and the consequences of his plea to state what clearly is the law. See, e.g., Von Moltke v. Gillies Kercheval v. United States Munich v. United States Pilkington v. United States Smith v. United States Marvel v. United States A new sentence is added at the end of the rule to impose a duty on the court in cases where the defendant pleads guilty to satisfy itself that there is a factual basis for the plea before entering judgment. The court should satisfy itself, by inquiry of the defendant or the attorney for the government, or by examining the presentence report, or otherwise, that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty. Such inquiry should, e.g., protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge. For a similar requirement see Mich. Stat. Ann.  28.1058 (1954); Mich. Sup. Ct. Rule 35A; In re Valle People v. Barrows People v. Bumpus People v. Coates Stinson v. United States For a variety of reasons it is desirable in some cases to permit entry of judgment upon a plea of nolo contendere without inquiry into the factual basis for the plea. The new third sentence is not, therefore, made applicable to pleas of nolo contendere. It is not intended by this omission to reflect any view upon the effect of a plea of nolo contendere in relation to a plea of guilty. That problem has been dealt with by the courts. See e.g., Lott v. United States Notes of Advisory Committee on Rules1974 Amendment The amendments to rule 11 are designed to achieve two principal objectives: (1) Subdivision (c) prescribes the advice which the court must give to insure that the defendant who pleads guilty has made an informed plea. (2) Subdivision (e) provides a plea agreement procedure designed to give recognition to the propriety of plea discussions; to bring the existence of a plea agreement out into the open in court; and to provide methods for court acceptance or rejection of a plea agreement. Other less basic changes are also made. The changes are discussed in the order in which they appear in the rule. Subdivision (b) retains the requirement that the defendant obtain the consent of the court in order to plead nolo contendere. It adds that the court shall, in deciding whether to accept the plea, consider the views of the prosecution and of the defense and also the larger public interest in the administration of criminal justice. Although the plea of nolo contendere has long existed in the federal courts, Hudson v. United States A plea of nolo contendere is, for purposes of punishment, the same as the plea of guilty. See discussion of the history of the nolo plea in North Carolina v. Alford The factors considered relevant by particular courts in determining whether to permit the plea of nolo contendere vary. Compare United States v. Bagliore United States v. Jones A defendant who desires to plead nolo contendere will commonly want to avoid pleading guilty because the plea of guilty can be introduced as an admission in subsequent civil litigation. The prosecution may oppose the plea of nolo contendere because it wants a definite resolution of the defendants guilty or innocence either for correctional purposes or for reasons of subsequent litigation. ABA Standards Relating to Pleas of Guilty  1.1(b) Commentary at 1618 (Approved Draft, 1968). Under subdivision (b) of the new rule the balancing of the interests is left to the trial judge, who is mandated to take into account the larger public interest in the effective administration of justice. Subdivision (c) prescribes the advice which the court must give to the defendant as a prerequisite to the acceptance of a plea of guilty. The former rule required that the court determine that the plea was made with understanding of the nature of the charge and the consequences of the plea. The amendment identifies more specifically what must be explained to the defendant and also codifies, in the rule, the requirements of Boykin v. Alabama Subdivision (c) retains the requirement that the court address the defendant personally. See McCarthy v. United States Subdivision (c)(1) retains the current requirement that the court determine that the defendant understands the nature of the charge. This is a common requirement. See ABA Standards Relating to Pleas of Guilty  1.4(a) (Approved Draft, 1968); Illinois Supreme Court Rule 402(a)(1) (1970), Ill.Rev.Stat. 1973, ch. 110A,  402(a)(1). The method by which the defendants understanding of the nature of the charge is determined may vary from case to case, depending on the complexity of the circumstances and the particular defendant. In some cases, a judge may do this by reading the indictment and by explaining the elements of the offense to the defendants. Thompson, The Judges Responsibility on a Plea of Guilty 62 W.Va.L.Rev. 213, 220 (1960); Resolution of Judges of U.S. District Court for D.C., June 24, 1959 Former rule 11 required the court to inform the defendant of the consequences of the plea. Subdivision (c)(2) changes this and requires instead that the court inform the defendant of and determine that he understands the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law for the offense to which the plea is offered. The objective is to insure that a defendant knows what minimum sentence the judge must impose and what maximum sentence the judge may impose. This information is usually readily ascertainable from the face of the statute defining the crime, and thus it is feasible for the judge to know specifically what to tell the defendant. Giving this advice tells a defendant the shortest mandatory sentence and also the longest possible sentence for the offense to which he is pleading guilty. It has been suggested that it is desirable to inform a defendant of additional consequences which might follow from his plea of guilty. Durant v. United States Trujillo v. United States Dorrough v. United States Under the rule the judge is not required to inform a defendant about these matters, though a judge is free to do so if he feels a consequence of a plea of guilty in a particular case is likely to be of real significance to the defendant. Currently, certain consequences of a plea of guilty, such as parole eligibility, may be so complicated that it is not feasible to expect a judge to clearly advise the defendant. For example, the judge may impose a sentence under 18 U.S.C.  4202 making the defendant eligible for parole when he has served one third of the judicially imposed maximum; or, under 18 U.S.C.  4208(a)(1), making parole eligibility after a specified period of time less than one third of the maximum; or, under 18 U.S.C.  4208(a)(2), leaving eligibility to the discretion of the parole board. At the time the judge is required to advise the defendant of the consequences of his plea, the judge will usually not have seen the presentence report and thus will have no basis for giving a defendant any very realistic advice as to when he might be eligible for parole. Similar complications exist with regard to other, particularly collateral, consequences of a plea of guilty in a given case. Subdivisions (c)(3) and (4) specify the constitutional rights that the defendant waives by a plea of guilty or nolo contendere. These subdivisions are designed to satisfy the requirements of understanding waiver set forth in Boykin v. Alabama Subdivision (c)(4) assumes that a defendants right to have his guilt proved beyond a reasonable doubt and the right to confront his accusers are best explained by indicating that the right to trial is waived. Specifying that there will be no future trial of any kind makes this fact clear to those defendants who, though knowing they have waived trial by jury, are under the mistaken impression that some kind of trial will follow. Illinois has recently adopted similar language. Illinois Supreme Court Rule 402(a)(4) (1970), Ill.Rev.Stat. 1973, ch. 110A,  402(a)(4). In explaining to a defendant that he waives his right to trial, the judge may want to explain some of the aspects of trial such as the right to confront witnesses, to subpoena witnesses, to testify in his own behalf, or, if he chooses, not to testify. What is required, in this respect, to conform to Boykin Subdivision (d) retains the requirement that the court determine that a plea of guilty or nolo contendere is voluntary before accepting it. It adds the requirement that the court also inquire whether the defendants willingness to plead guilty or nolo contendere results from prior plea discussions between the attorney for the government and the defendant or his attorney. See Santobello v. New York The new rule specifies that the court personally address the defendant in determining the voluntariness of the plea. By personally interrogating the defendant, not only will the judge be better able to ascertain the pleas voluntariness, but he will also develop a more complete record to support his determination in a subsequent post-conviction attack. * * * Both of these goals are undermined in proportion to the degree the district judge resorts to assumptions not based upon recorded responses to his inquiries. McCarthy v. United States Subdivision (e) provides a plea agreement procedure. In doing so it gives recognition to the propriety of plea discussions and plea agreements provided that they are disclosed in open court and subject to acceptance or rejection by the trial judge. Although reliable statistical information is limited, one recent estimate indicated that guilty pleas account for the disposition of as many as 95% of all criminal cases. ABA Standards Relating to Pleas of Guilty, pp. 12 (Approved Draft, 1968). A substantial number of these are the result of plea discussions. The Presidents Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 9 (1967); D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 3 (1966); L. Weinreb, Criminal Process 437 (1969); Note, Guilty Plea Bargaining: Compromises by Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964). There is increasing acknowledgement of both the inevitability and the propriety of plea agreements. See, e.g., ABA Standards Relating to Pleas of Guilty  3.1 (Approved Draft, 1968); Illinois Supreme Court Rule 402 (1970), Ill.Rev.Stat. 1973, ch. 110A,  402. In Brady v. United States Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary. In Santobello v. New York The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called plea bargaining, is an essential component of the administration of justice. Properly administered, it is to be encouraged. Administratively, the criminal justice system has come to depend upon pleas of guilty and, hence, upon plea discussions. See, e.g., Presidents Commission on Law Enforcement and Administration of Justice, Task Force Report. The Courts 9 (1967); Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964). But expediency is not the basis for recognizing the propriety of a plea agreement practice. Properly implemented, a plea agreement procedure is consistent with both effective and just administration of the criminal law. Santobello v. New York People v. West Where the defendant by his plea aids in insuring prompt and certain application of correctional measures, the proper ends of the criminal justice system are furthered because swift and certain punishment serves the ends of both general deterrence and the rehabilitation of the individual defendant. Cf. Note, The Influence of the Defendants Plea on Judicial Determination of Sentence, 66 Yale L.J. 204, 211 (1956). Where the defendant has acknowledged his guilt and shown a willingness to assume responsibility for his conduct, it has been thought proper to recognize this in sentencing. See also ALI, Model Penal Code  7.01 (P.O.D. 1962); NPPA Guides for Sentencing (1957). Granting a charge reduction in return for a plea of guilty may give the sentencing judge needed discretion, particularly where the facts of a case do not warrant the harsh consequences of a long mandatory sentence or collateral consequences which are unduly severe. A plea of guilty avoids the necessity of a public trial and may protect the innocent victim of a crime against the trauma of direct and cross-examination. Finally, a plea agreement may also contribute to the successful prosecution of other more serious offenders. See D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial, chs. 2 and 3 (1966); Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 881 (1964). Where plea discussions and agreements are viewed as proper, it is generally agreed that it is preferable that the fact of the plea agreement be disclosed in open court and its propriety be reviewed by the trial judge. We have previously recognized plea bargaining as an ineradicable fact. Failure to recognize it tends not to destroy it but to drive it underground. We reiterate what we have said before: that when plea bargaining occurs it ought to be spread on the record [The Bench Book prepared by the Federal Judicial Center for use by United States District Judges now suggests that the defendant be asked by the court if he believes there is any understanding or if any predictions have been made to him concerning the sentence he will receive. Bench Book for United States District Judges, Federal Judicial Center (1969) at 1.05.3.] and publicly disclosed. United States v. Williams Raines v. United States In the past, plea discussions and agreements have occurred in an informal and largely invisible manner. Enker, Perspectives on Plea Bargaining, in Presidents Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 108, 115 (1967). There has often been a ritual of denial that any promises have been made, a ritual in which judges, prosecutors, and defense counsel have participated. ABA Standards Relating to Pleas of Guilty  3.1, Commentary at 6069 (Approved Draft 1968); Task Force Report: The Courts 9. Consequently, there has been a lack of effective judicial review of the propriety of the agreements, thus increasing the risk of real or apparent unfairness. See ABA Standards Relating to Pleas of Guilty  3.1, Commentary at 60 et seq.; Task Force Report: The Courts 913. The procedure described in subdivision (e) is designed to prevent abuse of plea discussions and agreements by providing appropriate and adequate safeguards. Subdivision (e)(1) specifies that the attorney for the government and the attorney for the defendant or the defendant when acting pro se may participate in plea discussions. The inclusion of the defendant when acting pro se is intended to reflect the fact that there are situations in which a defendant insists upon representing himself. It may be desirable that an attorney for the government not enter plea discussions with a defendant personally. If necessary, counsel can be appointed for purposes of plea discussions. (Subdivision (d) makes it mandatory that the court inquire of the defendant whether his plea is the result of plea discussions between him and the attorney for the government. This is intended to enable the court to reject an agreement reached by an unrepresented defendant unless the court is satisfied that acceptance of the agreement adequately protects the rights of the defendant and the interests of justice.) This is substantially the position of the ABA Standards Relating to Pleas of Guilty  3.1(a), Commentary at 6566 (Approved Draft, 1968). Apparently, it is the practice of most prosecuting attorneys to enter plea discussions only with defendants counsel. Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 904 (1964). Discussions without benefit of counsel increase the likelihood that such discussions may be unfair. Some courts have indicated that plea discussions in the absence of defendants attorney may be constitutionally prohibited. See Anderson v. North Carolina Shape v. Sigler Subdivision (e)(1) is intended to make clear that there are four possible concessions that may be made in a plea agreement. First, the charge may be reduced to a lesser or related offense. Second, the attorney for the government may promise to move for dismissal of other charges. Third, the attorney for the government may agree to recommend or not oppose the imposition of a particular sentence. Fourth, the attorneys for the government and the defense may agree that a given sentence is an appropriate disposition of the case. This is made explicit in subdivision (e)(2) where reference is made to an agreement made in the expectation that a specific sentence will be imposed. See Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 898 (1964). Subdivision (e)(1) prohibits the court from participating in plea discussions. This is the position of the ABA Standards Relating to Pleas of Guilty  3.3(a) (Approved Draft, 1968). It has been stated that it is common practice for a judge to participate in plea discussions. See D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 3252, 78104 (1966); Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 891, 905 (1964). There are valid reasons for a judge to avoid involvement in plea discussions. It might lead the defendant to believe that he would not receive a fair trial, were there a trial before the same judge. The risk of not going along with the disposition apparently desired by the judge might induce the defendant to plead guilty, even if innocent. Such involvement makes it difficult for a judge to objectively assess the voluntariness of the plea. See ABA Standards Relating to Pleas of Guilty  3.3(a), Commentary at 7274 (Approved Draft, 1968); Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 891892 (1964); Comment, Official Inducements to Plead Guilty: Suggested Morals for a Marketplace, 32 U.Chi.L.Rev. 167, 180183 (1964); Informal Opinion No. 779 ABA Professional Ethics Committee (A judge should not be a party to advance arrangements for the determination of sentence, whether as a result of a guilty plea or a finding of guilt based on proof.), 51 A.B.A.J. 444 (1965). As has been recently pointed out: The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, as once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. United States ex rel. Elksnis v. Gilligan On the other hand, one commentator has taken the position that the judge may be involved in discussions either after the agreement is reached or to help elicit facts and an agreement. Enker, Perspectives on Plea Bargaining, in Presidents Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 108, 117118 (1967). The amendment makes clear that the judge should not participate in plea discussions leading to a plea agreement. It is contemplated that the judge may participate in such discussions as may occur when the plea agreement is disclosed in open court. This is the position of the recently adopted Illinois Supreme Court Rule 402(d)(1) (1970), Ill.Rev.Stat. 1973, ch. 110A,  402(d)(1). As to what may constitute participation, contrast People v. Earegood Kruse v. State Subdivision (e)(2) provides that the judge shall require the disclosure of any plea agreement in open court. In People v. West [T]he basis of the bargain should be disclosed to the court and incorporated in the record. * * * Without limiting that court to those we set forth, we note four possible methods of incorporation: (1) the bargain could be stated orally and recorded by the court reporter, whose notes then must be preserved or transcribed; (2) the bargain could be set forth by the clerk in the minutes of the court; (3) the parties could file a written stipulation stating the terms of the bargain; (4) finally, counsel or the court itself may find it useful to prepare and utilize forms for the recordation of plea bargains. 91 Cal.Rptr. 393, 394, 477 P.2d at 417, 418. The District of Columbia Court of General Sessions is using a Sentence-Recommendation Agreement form. Upon notice of the plea agreement, the court is given the option to accept or reject the agreement or defer its decision until receipt of the presentence report. The judge may, and often should, defer his decision until he examines the presentence report. This is made possible by rule 32 which allows a judge, with the defendants consent, to inspect a presentence report to determine whether a plea agreement should be accepted. For a discussion of the use of conditional plea acceptance, see ABA Standards Relating to Pleas of Guilty  3.3(b), Commentary at 7476, and Supplement, Proposed Revisions  3.3(b) at 23 (Approved Draft, 1968); Illinois Supreme Court Rule 402(d)(2) (1970), Ill.Rev.Stat. 1973, ch. 110A,  402(d)(2). The plea agreement procedure does not attempt to define criteria for the acceptance or rejection of a plea agreement. Such a decision is left to the discretion of the individual trial judge. Subdivision (e)(3) makes is mandatory, if the court decides to accept the plea agreement, that it inform the defendant that it will embody in the judgment and sentence the disposition provided in the plea agreement, or one more favorable to the defendant. This serves the purpose of informing the defendant immediately that the agreement will be implemented. Subdivision (e)(4) requires the court, if it rejects the plea agreement, to inform the defendant of this fact and to advise the defendant personally, in open court, that the court is not bound by the plea agreement. The defendant must be afforded an opportunity to withdraw his plea and must be advised that if he persists in his guilty plea or plea of nolo contendere, the disposition of the case may be less favorable to him than that contemplated by the plea agreement. That the defendant should have the opportunity to withdraw his plea if the court rejects the plea agreement is the position taken in ABA Standards Relating to Pleas of Guilty, Supplement, Proposed Revisions  2.1(a)(ii)(5) (Approved Draft, 1968). Such a rule has been adopted in Illinois. Illinois Supreme Court Rule 402(d)(2) (1970), Ill.Rev.Stat. 1973, ch. 110A,  402(d)(2). If the court rejects the plea agreement and affords the defendant the opportunity to withdraw the plea, the court is not precluded from accepting a guilty plea from the same defendant at a later time, when such plea conforms to the requirements of rule 11. Subdivision (e)(5) makes it mandatory that, except for good cause shown, the court be notified of the existence of a plea agreement at the arraignment or at another time prior to trial fixed by the court. Having a plea entered at this stage provides a reasonable time for the defendant to consult with counsel and for counsel to complete any plea discussions with the attorney for the government. ABA Standards Relating to Pleas of Guilty  1.3 (Approved Draft, 1968). The objective of the provision is to make clear that the court has authority to require a plea agreement to be disclosed sufficiently in advance of trial so as not to interfere with the efficient scheduling of criminal cases. Subdivision (e)(6) is taken from rule 410, Rules of Evidence for United States Courts and Magistrates (Nov. 1971). See Advisory Committee Note thereto. See also the ABA Standards Relating to Pleas of Guilty  2.2 (Approved Draft, 1968); Illinois Supreme Court Rule 402(f) (1970), Ill.Rev.Stat. 1973, ch. 110A,  402(f). Subdivision (f) retains the requirement of old rule 11 that the court should not enter judgment upon a plea of guilty without making such an inquiry as will satisfy it that there is a factual basis for the plea. The draft does not specify that any particular type of inquiry be made. See Santobello v. New York North Carolina v. Alford Subdivision (g) requires that a verbatim record be kept of the proceedings. If there is a plea of guilty or nolo contendere, the record must include, without limitation, the courts advice to the defendant, the inquiry into the voluntariness of the plea and the plea agreement, and the inquiry into the accuracy of the plea. Such a record is important in the event of a postconviction attack. ABA Standards Relating to Pleas of Guilty  1.7 (Approved Draft, 1968). A similar requirement was adopted in Illinois: Illinois Supreme Court Rule 402(e) (1970), Ill.Rev.Stat. 1973, ch. 110A,  402(e). Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 11 of the Federal Rules of Criminal Procedure deals with pleas. The Supreme Court has proposed to amend this rule extensively. Rule 11 provides that a defendant may plead guilty, not guilty, or nolo contendere. The Supreme Courts amendments to Rule 11(b) provide that a nolo contendere plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. The Supreme Court amendments to Rule 11(c) spell out the advise that the court must give to the defendant before accepting the defendants plea of guilty or nolo contendere. The Supreme Court amendments to Rule 11(d) set forth the steps that the court must take to insure that a guilty or nolo contendere plea has been voluntarily made. The Supreme Court amendments to Rule 11(e) establish a plea agreement procedure. This procedure permits the parties to discuss disposing of a case without a trial and sets forth the type of agreements that the parties can reach concerning the disposition of the case. The procedure is not mandatory; a court is free not to permit the parties to present plea agreements to it. The Supreme Court amendments to Rule 11(f) require that the court, before entering judgment upon a plea of guilty, satisfy itself that there is a factual basis for the plea. The Supreme Court amendments to Rule 11(g) require that a verbatim record be kept of the proceedings at which the defendant enters a plea. B. Committee Action. The proposed amendments to Rule 11, particularly those relating to the plea negotiating procedure, have generated much comment and criticism. No observer is entirely happy that our criminal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact that the Federal Rules of Criminal Procedure should contend with. The Committee accepts the basic structure and provisions of Rule 11(e). Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdiction. No court is compelled to permit any plea negotiations at all. Proposed Rule 11(e) regulates plea negotiations and agreements if, and to the extent that, the court permits such negotiations and agreements. [Proposed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge William H. Webster in Hearings II, at 196. See also the exchange of correspondence between Judge Webster and United States District Judge Frank A. Kaufman in Hearings II, at 28990.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutors reducing the charge to a less serious offense. Second, the defendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defendant can plead guilty or nolo contendere in return for the prosecutors recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2) and (e)(4) to permit a plea agreement to be disclosed to the court, or rejected by it, in camera. There must be a showing of good cause before the court can conduct such proceedings in camera. The language does not address itself to whether the showing of good cause may be made in open court or in camera. That issue is left for the courts to resolve on a case-by-case basis. These changes in subdivisions (e)(2) and (e)(4) will permit a fair trial when there is substantial media interest in a case and the court is rejecting a plea agreement. The Committee added an exception to subdivision (e)(6). That subdivision provides: Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. The Committees exception permits the use of such evidence in a perjury or false statement prosecution where the plea, offer, or related statement was made by the defendant on the record, under oath and in the presence of counsel. The Committee recognizes that even this limited exception may discourage defendants from being completely candid and open during plea negotiations and may even result in discouraging the reaching of plea agreements. However, the Committee believes hat, on balance, it is more important to protect the integrity of the judicial process from willful deceit and untruthfulness. [The Committee does not intend its language to be construed as mandating or encouraging the swearing-in of the defendant during proceedings in connection with the disclosure and acceptance or rejection of a plea agreement.] The Committee recast the language of Rule 11(c), which deals with the advice given to a defendant before the court can accept his plea of guilty or nolo contendere. The Committee acted in part because it believed that the warnings given to the defendant ought to include those that Boykin v. Alabama Notes of Conference Committee, House Report No. 94414; 1975 Amendment Note to subdivision (c). Rule 11(c) enumerates certain things that a judge must tell a defendant before the judge can accept that defendants plea of guilty or nolo contendere. The House version expands upon the list originally proposed by the Supreme Court. The Senate version adopts the Supreme Courts proposal. The Conference adopts the House provision. Note to subdivision (e)(1). Rule 11(e)(1) outlines some general considerations concerning the plea agreement procedure. The Senate version makes nonsubstantive change in the House version. The Conference adopts the Senate provision. Note to subdivision (e)(6). Rule 11(e)(6) deals with the use of statements made in connection with plea agreements. The House version permits a limited use of pleas of guilty, later withdrawn, or nolo contendere, offers of such pleas, and statements made in connection with such pleas or offers. Such evidence can be used in a perjury or false statement prosecution if the plea, offer, or related statement was made under oath, on the record, and in the presence of counsel. The Senate version permits evidence of voluntary and reliable statements made in court on the record to be used for the purpose of impeaching the credibility of the declarant or in a perjury or false statement prosecution. The Conference adopts the House version with changes. The Conference agrees that neither a plea nor the offer of a plea ought to be admissible for any purpose. The Conference-adopted provision, therefore, like the Senate provision, permits only the use of statements made in connection with a plea of guilty, later withdrawn, or a plea of nolo contendere, or in connection with an offer of a guilty or nolo contendere plea. Notes of Advisory Committee on Rules1979 Amendment Note to Subdivision United States v. Sarubbi United States v. Hull Rule 11(e)(1) specifies three types of plea agreements, namely, those in which the attorney for the government might (A) move for dismissal of other charges; or (B) make a recommendation, or agree not to oppose the defendants request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or (C) agree that a specific sentence is the appropriate disposition of the case. A (B) type of plea agreement is clearly of a different order than the other two, for an agreement to recommend or not to oppose is discharged when the prosecutor performs as he agreed to do. By comparison, critical to a type (A) or (C) agreement is that the defendant receive the contemplated charge dismissal or agreed-to sentence. Consequently, there must ultimately be an acceptance or rejection by the court of a type (A) or (C) agreement so that it may be determined whether the defendant shall receive the bargained-for concessions or shall instead be afforded an opportunity to withdraw his plea. But this is not so as to a type (B) agreement; there is no disposition provided for in such a plea agreement so as to make the acceptance provisions of subdivision (e)(3) applicable, nor is there a need for rejection with opportunity for withdrawal under subdivision (e)(4) in light of the fact that the defendant knew the nonbinding character of the recommendation or request. United States v. Henderson United States v. Savage Because a type (B) agreement is distinguishable from the others in that it involves only a recommendation or request not binding upon the court, it is important that the defendant be aware that this is the nature of the agreement into which he has entered. The procedure contemplated by the last sentence of amended subdivision (e)(2) will establish for the record that there is such awareness. This provision conforms to ABA Standards Relating to Pleas of Guilty  1.5 (Approved Draft, 1968), which provides that the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. Sometimes a plea agreement will be partially but not entirely of the (B) type, as where a defendant, charged with counts 1, 2 and 3, enters into an agreement with the attorney for the government wherein it is agreed that if defendant pleads guilty to count 1, the prosecutor will recommend a certain sentence as to that count and will move for dismissal of counts 2 and 3. In such a case, the court must take particular care to ensure that the defendant understands which components of the agreement involve only a (B) type recommendation and which do not. In the above illustration, that part of the agreement which contemplates the dismissal of counts 2 and 3 is an (A) type agreement, and thus under rule 11(e) the court must either accept the agreement to dismiss these counts or else reject it and allow the defendant to withdraw his plea. If rejected, the defendant must be allowed to withdraw the plea on count 1 even if the type (B) promise to recommend a certain sentence on that count is kept, for a multi-faceted plea agreement is nonetheless a single agreement. On the other hand, if counts 2 and 3 are dismissed and the sentence recommendation is made, then the defendant is not entitled to withdraw his plea even if the sentence recommendation is not accepted by the court, for the defendant received all he was entitled to under the various components of the plea agreement. Note to Subdivision United States v. Herman Fed.R.Ev. 410, as originally adopted by Pub. L. 93595 Pub. L. 9464 Pub. L. 94149 While this history shows that the purpose of Fed.R.Ev. 410 and Fed.R.Crim.P. 11(e)(6) is to permit the unrestrained candor which produces effective plea discussions between the attorney for the government and the attorney for the defendant or the defendant when acting pro se, given visibility and sanction in rule 11(e), a literal reading of the language of these two rules could reasonably lead to the conclusion that a broader rule of inadmissibility obtains. That is, because statements are generally inadmissible if made in connection with, and relevant to an offer to plead guilty, it might be thought that an otherwise voluntary admission to law enforcement officials is rendered inadmissible merely because it was made in the hope of obtaining leniency by a plea. Some decisions interpreting rule 11(e)(6) point in this direction. See United States v. Herman United States v. Brooks The amendment makes inadmissible statements made in the course of any proceedings under this rule regarding either a plea of guilty later withdrawn or a plea of nolo contendere, and also statements made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. It is not limited to statements by the defendant himself, and thus would cover statements by defense counsel regarding defendants incriminating admissions to him. It thus fully protects the plea discussion process authorized by rule 11 without attempting to deal with confrontations between suspects and law enforcement agents, which involve problems of quite different dimensions. See, e.g., ALI Model Code of Pre-Arraignment Procedure, art. 140 and  150.2(8) (Proposed Official Draft, 1975) (latter section requires exclusion if a law enforcement officer induces any person to make a statement by promising leniency). This change, it must be emphasized, does not compel the conclusion that statements made to law enforcement agents, especially when the agents purport to have authority to bargain, are inevitably admissible. Rather, the point is that such cases are not covered by the per se rule of 11(e)(6) and thus must be resolved by that body of law dealing with police interrogations. If there has been a plea of guilty later withdrawn or a plea of nolo contendere, subdivision (e)(6)(C) makes inadmissible statements made in the course of any proceedings under this rule regarding such pleas. This includes, for example, admissions by the defendant when he makes his plea in court pursuant to rule 11 and also admissions made to provide the factual basis pursuant to subdivision (f). However, subdivision (e)(6)(C) is not limited to statements made in court. If the court were to defer its decision on a plea agreement pending examination of the presentence report, as authorized by subdivision (e)(2), statements made to the probation officer in connection with the preparation of that report would come within this provision. This amendment is fully consistent with all recent and major law reform efforts on this subject. ALI Model Code of Pre-Arraignment Procedure  350.7 (Proposed Official Draft, 1975), and ABA Standards Relating to Pleas of Guilty  3.4 (Approved Draft, 1968) both provide: Unless the defendant subsequently enters a plea of guilty or nolo contendere which is not withdrawn, the fact that the defendant or his counsel and the prosecuting attorney engaged in plea discussions or made a plea agreement should not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings. The Commentary to the latter states: The above standard is limited to discussions and agreements with the prosecuting attorney. Sometimes defendants will indicate to the police their willingness to bargain, and in such instances these statements are sometimes admitted in court against the defendant. State v. Christian Similarly, Unif.R.Crim.P. 441(d) (Approved Draft, 1974), provides that except under limited circumstances no discussion between the parties or statement by the defendant or his lawyer under this Rule, i.e., the rule providing the parties may meet to discuss the possibility of pretrial diversion * * * or of a plea agreement, are admissible. The amendment is likewise consistent with the typical state provision on this subject; see, e.g., Ill.S.Ct. Rule 402(f). The language of the amendment identifies with more precision than the present language the necessary relationship between the statements and the plea or discussion. See the dispute between the majority and concurring opinions in United States v. Herman United States v. Brooks The last sentence of Rule 11(e)(6) is amended to provide a second exception to the general rule of nonadmissibility of the described statements. Under the amendment, such a statement is also admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it. This change is necessary so that, when evidence of statements made in the course of or as a consequence of a certain plea or plea discussions are introduced under circumstances not prohibited by this rule (e.g., not against the person who made the plea), other statements relating to the same plea or plea discussions may also be admitted when relevant to the matter at issue. For example, if a defendant upon a motion to dismiss a prosecution on some ground were able to admit certain statements made in aborted plea discussions in his favor, then other relevant statements made in the same plea discussions should be admissible against the defendant in the interest of determining the truth of the matter at issue. The language of the amendment follows closely that in Fed.R.Evid. 106, as the considerations involved are very similar. The phrase in any civil or criminal proceeding has been moved from its present position, following the word against, for purposes of clarity. An ambiguity presently exists because the word against may be read as referring either to the kind of proceeding in which the evidence is offered or the purpose for which it is offered. The change makes it clear that the latter construction is correct. No change is intended with respect to provisions making evidence rules inapplicable in certain situations. See, e.g., Fed.R.Evid. 104(a) and 1101(d). Unlike ABA Standards Relating to Pleas of Guilty  3.4 (Approved Draft, 1968), and ALI Model Code of Pre-Arraignment Procedure  350.7 (Proposed Official Draft, 1975), rule 11(e)(6) does not also provide that the described evidence is inadmissible in favor of the defendant. This is not intended to suggest, however, that such evidence will inevitably be admissible in the defendants favor. Specifically, no disapproval is intended of such decisions as United States v. Verdoorn Notes of Advisory Committee on Rules1982 Amendment Note to Subdivision Moore v. United States United States v. Eaton Richardson v. United States United States v. Del Prete United States v. Watson United States v. Crusco United States v. Yazbeck United States v. Wolak United States v. Timmreck The purpose of the amendment is to draw more specific attention to the fact that advice concerning special parole terms is a necessary part of Rule 11 procedure. As noted in Moore v. United States Special parole is a significant penalty. * * * Unlike ordinary parole, which does not involve supervision beyond the original prison term set by the court and the violation of which cannot lead to confinement beyond that sentence, special parole increases the possible period of confinement. It entails the possibility that a defendant may have to serve his original sentence plus a substantial additional period, without credit for time spent on parole. Explanation of special parole in open court is therefore essential to comply with the Rules mandate that the defendant be informed of the maximum possible penalty provided by law. As the aforecited cases indicate, in the absence of specification of the requirement in the rule it has sometimes happened that such advice has been inadvertently omitted from Rule 11 warnings. The amendment does not attempt to enumerate all of the characteristics of the special parole term which the judge ought to bring to the defendants attention. Some flexibility in this respect must be preserved although it is well to note that the unique characteristics of this kind of parole are such that they may not be readily perceived by laymen. Moore v. United States inform the defendant and determine that he understands the following: (1) that a special parole term will be added to any prison sentence he receives; (2) the minimum length of the special parole term that must be imposed and the absence of a statutory maximum; (3) that special parole is entirely different fromand in addition toordinary parole; and (4) that if the special parole is violated, the defendant can be returned to prison for the remainder of his sentence and the full length of his special parole term. The amendment should not be read as meaning that a failure to comply with this particular requirement will inevitably entitle the defendant to relief. See United States v. Timmreck that many aspects of traditional parole need not be communicated to the defendant by the trial judge under the umbrella of Rule 11. For example, a defendant need not be advised of all conceivable consequences such as when he may be considered for parole or that, if he violates his parole, he will again be imprisoned. Bunker v. Wise Note to Subdivision As noted by Judge Doyle in United States v. Sinagub Taken literally, this wording of subsection (4) of 11(c) suggests that before eliciting any plea at an arraignment, the court is required to insure that a defendant understands that if he or she pleads guilty or nolo contendere, the defendant will be waiving the right to trial. Under subsection (3) of 11(c), however, there is no requirement that at this pre-plea stage, the court must insure that the defendant understands that he or she enjoys the right to a trial and, at trial, the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself. It would be incongruous to require that at the pre-plea stage the court insure that the defendant understands that if he enters a plea of guilty or nolo contendere he will be waiving a right, the existence and nature of which need not be explained until after such a plea has been entered. I conclude that the insertion of the words that if he pleads guilty or nolo contendere, as they appear in subsection (4) of 11(c), was an accident of draftsmanship which occurred in the course of Congressional rewriting of 11(c) as it has been approved by the Supreme Court. Those words are to be construed consistently with the words Before accepting a plea of guilty or nolo contendere, as they appear in the opening language of 11(c), and consistently with the omission of the words that if he pleads from subsections (1), (2), and (3) of 11(c). That is, as they appear in subsection (4) of 11(c), the words, that if he pleads guilty or nolo contendere should be construed to mean that if his plea of guilty or nolo contendere is accepted by the court. Although this is a very logical interpretation of the present language, the amendment will avoid the necessity to engage in such analysis in order to determine the true meaning of subdivision (c)(4). Note to Subdivision United States v. Artis March 12, 1979 United States v. Boone United States v. Michaelson United States v. Aldridge When questioning of the kind described in subdivision (c)(5) is not contemplated by the judge who is receiving the plea, no purpose is served by giving the (c)(5) warnings, which in such circumstances can only confuse the defendant and detract from the force of the other warnings required by Rule 11. As correctly noted in United States v. Sinagub subsection (5) of section (c) of Rule 11 is qualitatively distinct from the other sections of the Rule. It does not go to whether the plea is knowingly or voluntarily made, nor to whether the plea should be accepted and judgment entered. Rather, it does go to the possible consequences of an event which may or may not occur during the course of the arraignment hearing itself, namely, the administration of an oath to the defendant. Whether this event is to occur is wholly within the control of the presiding judge. If the event is not to occur, it is pointless to inform the defendant of its consequences. If a presiding judge intends that an oath not be administered to a defendant during an arraignment hearing, but alters that intention at some point, only then would the need arise to inform the defendant of the possible consequences of the administration of the oath. The amendment to subdivision (c)(5) is intended to make it clear that this is the case. The amendment limits the circumstances in which the warnings must be given, but does not change the fact, as noted in Sinagub Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision United States v. MacDonald DiBella v. United States Abney v. United States Tollett v. Henderson Lott v. United States As a consequence, a defendant who has lost one or more pretrial motions will often go through an entire trial simply to preserve the pretrial issues for later appellate review. This results in a waste of prosecutorial and judicial resources, and causes delay in the trial of other cases, contrary to the objectives underlying the Speedy Trial Act of 1974, 18 U.S.C.  3161 et seq. These unfortunate consequences may be avoided by the conditional plea device expressly authorized by new subdivision (a)(2). The development of procedures to avoid the necessity for trials which are undertaken for the sole purpose of preserving pretrial objections has been consistently favored by the commentators. See ABA Standards Relating to the Administration of Criminal Justice, standard 211.3(c) (2d ed. 1978); Model Code of Pre-Arraignment Procedure  SS 290.1(4)(b) (1975); Uniform Rules of Criminal Procedure, rule 444(d) (Approved Draft, 1974); 1 C. Wright, Federal Practice and Procedure  Criminal  175 (1969); 3 W. LaFave, Search and Seizure  11.1 (1978). The Supreme Court has characterized the New York practice, whereby appeals from suppression motions may be appealed notwithstanding a guilty plea, as a commendable effort to relieve the problem of congested trial calendars in a manner that does not diminish the opportunity for the assertion of rights guaranteed by the Constitution. Lefkowitz v. Newsome Jaben v. United States In the absence of specific authorization by statute or rule for a conditional plea, the circuits have divided on the permissibility of the practice. Two circuits have actually approved the entry of conditional pleas, United States v. Burke United States v. Moskow United States v. Clark United States v. Dorsey United States v. Brown United States v. Sepe United States v. Cox United States v. Benson United States v. Nooner United States v. Matthews United States v. Warwar The conditional plea procedure provided for in subdivision (a)(2) will, as previously noted, serve to conserve prosecutorial and judicial resources and advance speedy trial objectives. It will also produce much needed uniformity in the federal system on this matter; see United States v. Clark United States v. Nooner The obvious advantages of the conditional plea procedure authorized by subdivision (a)(2) are not outweighed by any significant or compelling disadvantages. As noted in Comment, supra, at 375: Four major arguments have been raised by courts disapproving of conditioned pleas. The objections are that the procedure encourages a flood of appellate litigation, militates against achieving finality in the criminal process, reduces effectiveness of appellate review due to the lack of a full trial record, and forces decision on constitutional questions that could otherwise be avoided by invoking the harmless error doctrine. But, as concluded therein, those arguments do not withstand close analysis. Ibid. As for the first of those arguments, experience in states which have permitted appeals of suppression motions notwithstanding a subsequent plea of guilty is most relevant, as conditional pleas are likely to be most common when the objective is to appeal that kind of pretrial ruling. That experience has shown that the number of appeals has not increased substantially. See Comment, 9 Hous.L.Rev. 305, 31519 (1971). The minimal added burden at the appellate level is certainly a small price to pay for avoiding otherwise unnecessary trials. As for the objection that conditional pleas conflict with the governments interest in achieving finality, it is likewise without force. While it is true that the conditional plea does not have the complete finality of the traditional plea of guilty or nolo contendere because the essence of the agreement is that the legal guilt of the defendant exists only if the prosecutions case survives on appeal, the plea continues to serve a partial state interest in finality, however, by establishing admission of the defendants factual guilt. The defendant stands guilty and the proceedings come to an end if the reserved issue is ultimately decided in the governments favor. Comment, 26 U.C.L.A. L.Rev. 360, 378 (1978). The claim that the lack of a full trial record precludes effective appellate review may on occasion be relevant. Cf. United States v. MacDonald With respect to the objection that conditional pleas circumvent application of the harmless error doctrine, it must be acknowledged that [a]bsent a full trial record, containing all the governments evidence against the defendant, invocation of the harmless error rule is arguably impossible. Comment, supra, at 380. But, the harmless error standard with respect to constitutional objections is sufficiently high, see Chapman v. California To the extent that these or related objections would otherwise have some substance, they are overcome by the provision in Rule 11(a)(2) that the defendant may enter a conditional plea only with the approval of the court and the consent of the government. (In this respect, the rule adopts the practice now found in the Second Circuit.) The requirement of approval by the court is most appropriate, as it ensures, for example, that the defendant is not allowed to take an appeal on a matter which can only be fully developed by proceeding to trial; cf. United States v. MacDonald United States v. Moskow Unlike the state statutes cited earlier, Rule 11(a)(2) is not limited to instances in which the pretrial ruling the defendant wishes to appeal was in response to defendants motion to suppress evidence. Though it may be true that the conditional plea device will be most commonly employed as to such rulings, the objectives of the rule are well served by extending it to other pretrial rulings as well. See, e.g., ABA Standards, supra (declaring the New York provision should be enlarged to include other pretrial defenses); Uniform Rules of Criminal Procedure, rule 444(d) (Approved Draft, 1974) (any pretrial motion which, if granted, would be dispositive of the case). The requirement that the conditional plea be made by the defendant reserving in writing the right to appeal from the adverse determination of any specified pretrial motion, though extending beyond the Second Circuit practice, will ensure careful attention to any conditional plea. It will document that a particular plea was in fact conditional, and will identify precisely what pretrial issues have been preserved for appellate review. By requiring this added step, it will be possible to avoid entry of a conditional plea without the considered acquiescence of the government (see United States v. Burke United States v. Nooner It must be emphasized that the only The Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty. Menna v. New York Blackledge v. Perry Menna-Blackledge Note to Subdivision Dec. 1, 1975 This being so, it became more apparent than ever that Rule 11 should not be given such a crabbed interpretation that ceremony was exalted over substance. As stated in United States v. Scarf United States v. Saft the Rule does note say that compliance can be achieved only by reading the specified items in haec verba what how Two important points logically flow from these sound observations. One concerns the matter of construing Rule 11: it is not to be read as requiring a litany or other ritual which can be carried out only by word-for-word adherence to a set script. The other, specifically addressed in new subdivision (h), is that even when it may be concluded Rule 11 has not been complied with in all respects, it does not inevitably follow that the defendants plea of guilty or nolo contendere is invalid and subject to being overturned by any remedial device then available to the defendant. Notwithstanding the declaration in Rule 52(a) that [a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded, there has existed for some years considerable disagreement concerning the applicability of the harmless error doctrine to Rule 11 violations. In large part, this is attributable to uncertainty as to the continued vitality and the reach of McCarthy v. United States McCarthy that prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the Rules procedural safeguards, which are designed to facilitate a more accurate determination of the voluntariness of his plea. Our holding [is] that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew * * *. McCarthy United States v. Boone United States v. Journet United States v. Peters Dec. 22, 1978 United States v. Coronado But this conflict has not been limited to cases involving nothing more than a direct appeal following defendants plea. For example, another type of case is that in which the defendant has based a post-sentence motion to withdraw his plea on a Rule 11 violation. Rule 32(d) says that such a motion may be granted to correct manifest injustice, and some courts have relied upon this latter provision in holding that post-sentence plea withdrawal need not be permitted merely because Rule 11 was not fully complied with and that instead the district court should hold an evidentiary hearing to determine whether manifest injustice will result if the conviction based on the guilty plea is permitted to stand. United States v. Scarf McCarthy United States v. Cantor Disagreement has also existed in the context of collateral attack upon pleas pursuant to 28 U.S.C.  2255. On the one hand, it has been concluded that [n]ot every violation of Rule 11 requires that the plea be set aside in a  2255 proceeding, and that a guilty plea will be set aside on collateral attack only where to not do so would result in a miscarriage of justice, or where there exists exceptional circumstances justifying such relief. Evers v. United States McCarthy Timmreck v. United States United States v. Timmreck Hill v. United States is equally applicable to a formal violation of Rule 11.* * * Indeed, if anything, this case may be a stronger one for foreclosing collateral relief than the Hill Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea. This interest in finality is strongest in the collateral attack context the Court was dealing with in Timmreck Hill Timmreck Hill Though the McCarthy McCarthy truly McCarthy no assume McCarthy McCarthy United States v. Barker Brady v. United States Secondly, while McCarthy United States v. Timmreck Although all of the aforementioned considerations support the policy expressed in new subdivision (h), the Advisory Committee does wish to emphasize two important cautionary notes. The first is that subdivision (h) should not not McCarthy not United States v. Crook Indeed, it is fair to say that the kinds of Rule 11 violations which might be found to constitute harmless error upon direct appeal are fairly limited, as in such instances the matter must be resolved solely on the basis of the Rule 11 transcript and the other portions (e.g., sentencing hearing) of the limited record made in such cases. United States v. Coronado United States v. Coronado United States v. Peters United States v. Sinagub The second cautionary note is that subdivision (h) should not McCarthy will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking. Subdivision (h) makes no change It must also be emphasized that a harmless error provision has been added to Rule 11 because some courts have read McCarthy not Notes of Advisory Committee on Rules1985 Amendment Note to Subdivision 96 Stat. 1248 Because this new legislation contemplates that the amount of the restitution to be ordered will be ascertained later in the sentencing process, this amendment to Rule 11(c)(1) merely requires that the defendant be told of the courts power to order restitution. The exact amount or upper limit cannot and need not be stated at the time of the plea. Failure of a court to advise a defendant of the possibility of a restitution order would constitute harmless error under subdivision (h) if no restitution were thereafter ordered. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1989 Amendment The amendment mandates that the district court inform a defendant that the court is required to consider any applicable guidelines but may depart from them under some circumstances. This requirement assures that the existence of guidelines will be known to a defendant before a plea of guilty or nolo contendere is accepted. Since it will be impracticable, if not impossible, to know which guidelines will be relevant prior to the formulation of a presentence report and resolution of disputed facts, the amendment does not require the court to specify which guidelines will be important or which grounds for departure might prove to be significant. The advice that the court is required to give cannot guarantee that a defendant who pleads guilty will not later claim a lack of understanding as to the importance of guidelines at the time of the plea. No advice is likely to serve as a complete protection against post-plea claims of ignorance or confusion. By giving the advice, the court places the defendant and defense counsel on notice of the importance that guidelines may play in sentencing and of the possibility of a departure from those guidelines. A defendant represented by competent counsel will be in a position to enter an intelligent plea. The amended rule does not limit the district courts discretion to engage in a more extended colloquy with the defendant in order to impart additional information about sentencing guidelines or to inquire into the defendants knowledge concerning guidelines. The amended rule sets forth only the minimum advice that must be provided to the defendant by the court. Committee Notes on Rules1999 Amendment Subdivision (a). Subdivision (c)(6). Subdivision (e). First, both subdivisions (e)(1)(B) and (e)(1)(C) have been amended to recognize that a plea agreement may specifically address not only what amounts to an appropriate sentence, but also a sentencing guideline, a sentencing factor, or a policy statement accompanying a sentencing guideline or factor. Under an (e)(1)(B) agreement, the government, as before, simply agrees to make a recommendation to the court, or agrees not to oppose a defense request concerning a particular sentence or consideration of a sentencing guideline, factor, or policy statement. The amendment makes it clear that this type of agreement is not binding on the court. Second, under an (e)(1)(C) agreement, the government and defense have actually agreed on what amounts to an appropriate sentence or have agreed to one of the specified components. The amendment also makes it clear that this agreement is binding on the court once the court accepts it. As is the situation under the current Rule, the court retains absolute discretion whether to accept a plea agreement. GAP ReportRule 11. Committee Notes on Rules2002 Amendment The language of Rule 11 has been amended and reorganized as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Amended Rule 11(b)(1) requires the court to apprise the defendant of his or her rights before accepting a plea of guilty or nolo contendere. The Committee determined to expand upon the incomplete listing in the current rule of the elements of the maximum possible penalty and any mandatory minimum penalty to include advice as to the maximum or minimum term of imprisonment, forfeiture, fine, and special assessment, in addition to the two types of maximum and minimum penalties presently enumerated: restitution and supervised release. The outmoded reference to a term of special parole has been eliminated. Amended Rule 11(b)(2), formerly Rule 11(d), covers the issue of determining that the plea is voluntary, and not the result of force, threats, or promises (other than those in a plea agreement). The reference to an inquiry in current Rule 11(d) whether the plea has resulted from plea discussions with the government has been deleted. That reference, which was often a source of confusion to defendants who were clearly pleading guilty as part of a plea agreement with the government, was considered unnecessary. Rule 11(c)(1)(A) includes a change, which recognizes a common type of plea agreementthat the government will not bring other charges. The Committee considered whether to address the practice in some courts of using judges to facilitate plea agreements. The current rule states that the court shall not participate in any discussions between the parties concerning such plea agreement. Some courts apparently believe that that language acts as a limitation only upon the judge taking the defendants plea and thus permits other judges to serve as facilitators for reaching a plea agreement between the government and the defendant. See, e.g., United States v. Torres Amended Rules 11(c)(3) to (5) address the topics of consideration, acceptance, and rejection of a plea agreement. The amendments are not intended to make any change in practice. The topics are discussed separately because in the past there has been some question about the possible interplay between the courts consideration of the guilty plea in conjunction with a plea agreement and sentencing and the ability of the defendant to withdraw a plea. See United States v. Hyde See United States v. Hyde, supra Amended Rule 11(e) is a new provision, taken from current Rule 32(e), that addresses the finality of a guilty or nolo contendere plea after the court imposes sentence. The provision makes it clear that it is not possible for a defendant to withdraw a plea after sentence is imposed. The reference to a motion under 28 U.S.C.  2255 has been changed to the broader term collateral attack to recognize that in some instances a court may grant collateral relief under provisions other than  2255. See United States v. Jeffers Currently, Rule 11(e)(5) requires that unless good cause is shown, the parties are to give pretrial notice to the court that a plea agreement exists. That provision has been deleted. First, the Committee believed that although the provision was originally drafted to assist judges, under current practice few counsel would risk the consequences in the ordinary case of not informing the court that an agreement exists. Secondly, the Committee was concerned that there might be rare cases where the parties might agree that informing the court of the existence of an agreement might endanger a defendant or compromise an ongoing investigation in a related case. In the end, the Committee believed that, on balance, it would be preferable to remove the provision and reduce the risk of pretrial disclosure. Finally, revised Rule 11(f), which addresses the issue of admissibility or inadmissibility of pleas and statements made during the plea inquiry, cross references Federal Rule of Evidence 410. Committee Notes on Rules2007 Amendment Subdivision (b)(1)(M) United States v. Booker Booker Id Changes Made to Proposed Amendment Released for Public Comment Booker Committee Notes on Rules2013 Amendment Subdivision (b)(1)(O) For a defendant who is not a citizen of the United States, a criminal conviction may lead to removal, exclusion, and the inability to become a citizen. In Padilla v. Kentucky The amendment mandates a generic warning, not specific advice concerning the defendants individual situation. Judges in many districts already include a warning about immigration consequences in the plea colloquy, and the amendment adopts this practice as good policy. The Committee concluded that the most effective and efficient method of conveying this information is to provide it to every defendant, without attempting to determine the defendants citizenship. Changes Made After Publication and Comment  References in Text The Federal Rules of Evidence, referred to in subd. (f), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Amendment by Public Law 1988Subd. (c)(1). Pub. L. 100690 1975 Pub. L. 9464 Effective Date of 1979 Amendment Amendment of subd. (e)(6) of this rule by order of the United States Supreme Court of Apr. 30, 1979 Dec. 1, 1980 section 1(1) of Pub. L. 9642 July 31, 1979 93 Stat. 326 section 2074 of Title 28 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 Aug. 1, 1975 section 2 of Pub. L. 9464 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. (2)  Motions That May Be Made at Any Time. (3)  Motions That Must Be Made Before Trial. (A) a defect in instituting the prosecution, including: (i) improper venue; (ii) preindictment delay; (iii) a violation of the constitutional right to a speedy trial; (iv) selective or vindictive prosecution; and (v) an error in the grand-jury proceeding or preliminary hearing; (B) a defect in the indictment or information, including: (i) joining two or more offenses in the same count (duplicity); (ii) charging the same offense in more than one count (multiplicity); (iii) lack of specificity; (iv) improper joinder; and (v) failure to state an offense; (C) suppression of evidence; (D) severance of charges or defendants under Rule 14; and (E) discovery under Rule 16. (4)  Notice of the Governments Intent to Use Evidence. (A)  At the Governments Discretion. (B)  At the Defendants Request. (c) Deadline for a Pretrial Motion; Consequences of Not Making a Timely Motion. (1)  Setting the Deadline. (2)  Extending or Resetting the Deadline. (3)  Consequences of Not Making a Timely Motion Under Rule 12(b)(3). (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 partys right to appeal. When factual issues are involved in deciding a motion, the court must state its essential findings on the record. (e)  [Reserved] (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) Defendants 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. (As amended Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(11) July 31, 1975 89 Stat. 372 Apr. 28, 1983 Aug. 1, 1983 Mar. 9, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2014 Dec. 1, 2014  Notes of Advisory Committee on Rules1944 Note to Subdivision 2. A similar change was introduced by the Federal Rules of Civil Procedure (Rule 7(a)) which has proven successful. It is also proposed by the A.L.I. Code of Criminal Procedure (Sec. 209). Note to Subdivision In the first of these groups are included all defenses and objections that are based on defects in the institution of the prosecution or in the indictment and information, other than lack of jurisdiction or failure to charge an offense. All such defenses and objections must be included in a single motion. (Cf. Rule 12(g) of Federal Rules of Civil Procedure [28 U.S.C., Appendix].) Among the defenses and objections in this group are the following: Illegal selection or organization of the grand jury, disqualification of individual grand jurors, presence of unauthorized persons in the grand jury room, other irregularities in grand jury proceedings, defects in indictment or information other than lack of jurisdiction or failure to state an offense, etc. The provision that these defenses and objections are waived if not raised by motion substantially continues existing law, as they are waived at present unless raised before trial by plea in abatement, demurrer, motion to quash, etc. In the other group of objections and defenses, which the defendant at his option may raise by motion before trial, are included all defenses and objections which are capable of determination without a trial of the general issue. They include such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, lack of jurisdiction, failure of indictment or information to state an offense, etc. Such matters have been heretofore raised by demurrers, special pleas in bar and motions to quash. Note to Subdivision 18 U.S.C. 556a Note to Subdivision Note to Subdivision respondeat ouster. 2. The last sentence of the rule that Nothing in this rule shall be deemed to affect the provisions of any act of Congress relating to periods of limitations is intended to preserve the provisions of statutes which permit a reindictment if the original indictment is found defective or is dismissed for other irregularities and the statute of limitations has run in the meantime, 18 U.S.C. 587 Id Id Id Notes of Advisory Committee on Rules1974 Amendment Subdivision (a) remains as it was in the old rule. It speaks only of defenses and objections that prior to the rules could have been raised by a plea, demurrer, or motion to quash (C. Wright, Federal Practice and Procedure: Criminal  191 at p. 397 (1969)), and this might be interpreted as limiting the scope of the rule. However, some courts have assumed that old rule 12 does apply to pretrial motions generally, and the amendments to subsequent subdivisions of the rule should make clear that the rule is applicable to pretrial motion practice generally. (See e.g., rule 12(b)(3), (4), (5) and rule 41(e).) Subdivision (b) is changed to provide for some additional motions and requests which must be made prior to trial. Subdivisions (b)(1) and (2) are restatements of the old rule. Subdivision (b)(3) makes clear that objections to evidence on the ground that it was illegally obtained must be raised prior to trial. This is the current rule with regard to evidence obtained as a result of an illegal search. See rule 41(e); C. Wright, Federal Practice and Procedure: Criminal  673 (1969, Supp. 1971). It is also the practice with regard to other forms of illegality such as the use of unconstitutional means to obtain a confession. See C. Wright, Federal Practice and Procedure: Criminal  673 at p. 108 (1969). It seems apparent that the same principle should apply whatever the claimed basis for the application of the exclusionary rule of evidence may be. This is consistent with the courts statement in Jones v. United States This provision of Rule 41(e), requiring the motion to suppress to be made before trial, is a crystallization of decisions of this Court requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt. (Emphasis added.) Subdivision (b)(4) provides for a pretrial request for discovery by either the defendant or the government to the extent to which such discovery is authorized by rule 16. Subdivision (b)(5) provides for a pretrial request for a severance as authorized in rule 14. Subdivision (c) provides that a time for the making of motions shall be fixed at the time of the arraignment or as soon thereafter as practicable by court rule or direction of a judge. The rule leaves to the individual judge whether the motions may be oral or written. This and other amendments to rule 12 are designed to make possible and to encourage the making of motions prior to trial, whenever possible, and in a single hearing rather than in a series of hearings. This is the recommendation of the American Bar Associations Committee on Standards Relating to Discovery and Procedure Before Trial (Approved Draft, 1970); see especially  5.2 and 5.3. It also is the procedure followed in those jurisdictions which have used the so-called omnibus hearing originated by Judge James Carter in the Southern District of California. See 4 Defender Newsletter 44 (1967); Miller, The Omnibus HearingAn Experiment in Federal Criminal Discovery, 5 San Diego L.Rev. 293 (1968); American Bar Association, Standards Relating to Discovery and Procedure Before Trial, Appendices B, C, and D (Approved Draft, 1970). The omnibus hearing is also being used, on an experimental basis, in several other district courts. Although the Advisory Committee is of the view that it would be premature to write the omnibus hearing procedure into the rules, it is of the view that the single pretrial hearing should be made possible and its use encouraged by the rules. There is a similar trend in state practice. See, e.g., State ex rel. Goodchild v. Burke State ex rel. Rasmussen v. Tahash The rule provides that the motion date be set at the arraignment or as soon thereafter as practicable. This is the practice in some federal courts including those using the omnibus hearing. (In order to obtain the advantage of the omnibus hearing, counsel routinely plead not guilty at the initial arraignment on the information or indictment and then may indicate a desire to change the plea to guilty following the omnibus hearing. This practice builds a more adequate record in guilty plea cases.) The rule further provides that the date may be set before the arraignment if local rules of court so provide. Subdivision (d) provides a mechanism for insuring that a defendant knows of the governments intention to use evidence to which the defendant may want to object. On some occasions the resolution of the admissibility issue prior to trial may be advantageous to the government. In these situations the attorney for the government can make effective defendants obligation to make his motion to suppress prior to trial by giving defendant notice of the governments intention to use certain evidence. For example, in United States v. Desist, 384 F.2d 889, 897 (2d Cir. 1967), the court said: Early in the pre-trial proceedings, the Government commendably informed both the court and defense counsel that an electronic listening device had been used in investigating the case, and suggested a hearing be held as to its legality. See also the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.  2518(9): The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. In cases in which defendant wishes to know what types of evidence the government intends to use so that he can make his motion to suppress prior to trial, he can request the government to give notice of its intention to use specified evidence which the defendant is entitled to discover under rule 16. Although the defendant is already entitled to discovery of such evidence prior to trial under rule 16, rule 12 makes it possible for him to avoid the necessity of moving to suppress evidence which the government does not intend to use. No sanction is provided for the governments failure to comply with the courts order because the committee believes that attorneys for the government will in fact comply and that judges have ways of insuring compliance. An automatic exclusion of such evidence, particularly where the failure to give notice was not deliberate, seems to create too heavy a burden upon the exclusionary rule of evidence, especially when defendant has opportunity for broad discovery under rule 16. Compare ABA Project on Standards for Criminal Justice, Standards Relating to Electronic Surveillance (Approved Draft, 1971) at p. 116: A failure to comply with the duty of giving notice could lead to the suppression of evidence. Nevertheless, the standards make it explicit that the rule is intended to be a matter of procedure which need not under appropriate circumstances automatically dictate that evidence otherwise admissible be suppressed. Pretrial notice by the prosecution of its intention to use evidence which may be subject to a motion to suppress is increasingly being encouraged in state practice. See, e.g., State ex rel. Goodchild v. Burke In the interest of better administration of criminal justice we suggest that wherever practicable the prosecutor should within a reasonable time before trial notify the defense as to whether any alleged confession or admission will be offered in evidence at the trial. We also suggest, in cases where such notice is given by the prosecution, that the defense, if it intends to attack the confession or admission as involuntary, notify the prosecutor of a desire by the defense for a special determination on such issue. See also State ex rel. Rasmussen v. Tahash At the time of arraignment when a defendant pleads not guilty, or as soon as possible thereafter, the state will advise the court as to whether its case against the defendant will include evidence obtained as the result of a search and seizure; evidence discovered because of a confession or statements in the nature of a confession obtained from the defendant; or confessions or statements in the nature of confessions. Upon being so informed, the court will formally advise the attorney for the defendant (or the defendant himself if he refuses legal counsel) that he may, if he chooses, move the court to suppress the evidence so secured or the confession so obtained if his contention is that such evidence was secured or confession obtained in violation of defendants constitutional rights. * * * The procedure which we have outlined deals only with evidence obtained as the result of a search and seizure and evidence consisting of or produced by confession on the part of the defendant. However, the steps which have been suggested as a method of dealing with evidence of this type will indicate to counsel and to the trial courts that the pretrial consideration of other evidentiary problems, the resolution of which is needed to assure the integrity of the trial when conducted, will be most useful and that this court encourages the use of such procedures whenever practical. Subdivision (e) provides that the court shall rule on a pretrial motion before trial unless the court orders that it be decided upon at the trial of the general issue or after verdict. This is the old rule. The reference to issues which must be tried by the jury is dropped as unnecessary, without any intention of changing current law or practice. The old rule begs the question of when a jury decision is required at the trial, providing only that a jury is necessary if required by the Constitution or an act of Congress. It will be observed that subdivision (e) confers general authority to defer the determination of any pretrial motion until after verdict. However, in the case of a motion to suppress evidence the power should be exercised in the light of the possibility that if the motion is ultimately granted a retrial of the defendant may not be permissible. Subdivision (f) provides that a failure to raise the objections or make the requests specified in subdivision (b) constitutes a waiver thereof, but the court is allowed to grant relief from the waiver if adequate cause is shown. See C. Wright, Federal Practice and Procedure: Criminal  192 (1969), where it is pointed out that the old rule is unclear as to whether the waiver results only from a failure to raise the issue prior to trial or from the failure to do so at the time fixed by the judge for a hearing. The amendment makes clear that the defendant and, where appropriate, the government have an obligation to raise the issue at the motion date set by the judge pursuant to subdivision (c). Subdivision (g) requires that a verbatim record be made of pretrial motion proceedings and requires the judge to make a record of his findings of fact and conclusions of law. This is desirable if pretrial rulings are to be subject to post-conviction review on the record. The judge may find and rule orally from the bench, so long as a verbatim record is taken. There is no necessity of a separate written memorandum containing the judges findings and conclusions. Subdivision (h) is essentially old rule 12(b)(5) except for the deletion of the provision that defendant may plead if the motion is determined adversely to him or, if he has already entered a plea, that that plea stands. This language seems unnecessary particularly in light of the experience in some district courts where a pro forma plea of not guilty is entered at the arraignment, pretrial motions are later made, and depending upon the outcome the defendant may then change his plea to guilty or persist in his plea of not guilty. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 12 of the Federal Rules of Criminal Procedure deals with pretrial motions and pleadings. The Supreme Court proposed several amendments to it. The more significant of these are set out below. Subdivision (b) as proposed to be amended provides that the pretrial motions may be oral or written, at the courts discretion. It also provides that certain types of motions must be made before trial. Subdivision (d) as proposed to be amended provides that the government, either on its own or in response to a request by the defendant, must notify the defendant of its intention to use certain evidence in order to give the defendant an opportunity before trial to move to suppress that evidence. Subdivision (e) as proposed to be amended permits the court to defer ruling on a pretrial motion until the trial of the general issue or until after verdict. Subdivision (f) as proposed to be amended provides that the failure before trial to file motions or requests or to raise defenses which must be filed or raised prior to trial, results in a waiver. However, it also provides that the court, for cause shown, may grant relief from the waiver. Subdivision (g) as proposed to be amended requires that a verbatim record be made of the pretrial motion proceedings and that the judge make a record of his findings of fact and conclusions of law. B. Committee Action. The Committee modified subdivision (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a partys right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its appeal rights under statutes like section 3731 of title 18 The Committee also modified subdivision (h), which deals with what happens when the court grants a pretrial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committees change provides that when such a motion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automatically be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is probable cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision United States v. Raddatz Raddatz Raddatz United States v. Spagnuolo United States v. Sebastian United States v. Montos United States v. Sebastian United States v. Covello This change will enhance the accuracy of the factual determinations made in the context of pretrial suppression hearings. As noted in United States v. Sebastian most persuasively that the case for pre-trial disclosure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to admissibility of challenged evidence will often determine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsels impeachment efforts at perhaps the most crucial point in the case. * * * [A] government witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Act material. The latter statement is certainly correct, for not infrequently a police officer who must testify on a motion to suppress as to the circumstances of an arrest or search will not be called at trial because he has no information necessary to the determination of defendants guilt. See, e.g., United States v. Spagnuolo United States v. Montos Moreover, it is not correct to assume that somehow the problem can be solved by leaving the suppression issue open in some fashion for resolution once the trial is under way, at which time the prior statements will be produced. In United States v. Spagnuolo United States v. Montos The second sentence of subdivision (i) provides that a law enforcement officer is to be deemed a witness called by the government. This means that when such a federal, state or local officer has testified at a suppression hearing, the defendant will be entitled to any statement of the officer in the possession of the government and relating to the subject matter concerning which the witness has testified, without regard to whether the officer was in fact called by the government or the defendant. There is considerable variation in local practice as to whether the arresting or searching officer is considered the witness of the defendant or of the government, but the need for the prior statement exists in either instance. The second sentence of subdivision (i) also provides that upon a claim of privilege the court is to excise the privileged matter before turning over the statement. The situation most likely to arise is that in which the prior statement of the testifying officer identifies an informant who supplied some or all of the probable cause information to the police. Under McCray v. Illinois Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The amendment to subdivision (i) is one of a series of contemporaneous amendments to Rules 26.2, 32(f), 32.1, 46, and Rule 8 of the Rules Governing  2255 Hearings, which extended Rule 26.2, Production of Witness Statements, to other proceedings or hearings conducted under the Rules of Criminal Procedure. Rule 26.2(c) now explicitly states that the trial court may excise privileged matter from the requested witness statements. That change rendered similar language in Rule 12(i) redundant. Committee Notes on Rules2002 Amendment The language of Rule 12 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The last sentence of current Rule 12(a), referring to the elimination of all other pleas, and demurrers and motions to quash has been deleted as unnecessary. Rule 12(b) is modified to more clearly indicate that Rule 47 governs any pretrial motions filed under Rule 12, including form and content. The new provision also more clearly delineates those motions that must may Rule 12(b)(4) is composed of what is currently Rule 12(d). The Committee believed that that provision, which addresses the governments requirement to disclose discoverable information for the purpose of facilitating timely defense objections and motions, was more appropriately associated with the pretrial motions specified in Rule 12(b)(3). Rule 12(c) includes a non-stylistic change. The reference to the local rule exception has been deleted to make it clear that judges should be encouraged to set deadlines for motions. The Committee believed that doing so promotes more efficient case management, especially when there is a heavy docket of pending cases. Although the rule permits some discretion in setting a date for motion hearings, the Committee believed that doing so at an early point in the proceedings would also promote judicial economy. Moving the language in current Rule 12(d) caused the relettering of the subdivisions following Rule 12(c). Although amended Rule 12(e) is a revised version of current Rule 12(f), the Committee intends to make no change in the current law regarding waivers of motions or defenses. Committee Notes on Rules2014 Amendment Rule 12(b)(1). Rule 12(b)(2). Rule 12(b)(3). The introductory language includes two important limitations. The basis for the motion must be one that is then reasonably available and the motion must be one that the court can determine without trial on the merits. The types of claims subject to Rule 12(b)(3) generally will be available before trial and they canand shouldbe resolved then. The Committee recognized, however, that in some cases, a party may not have access to the information needed to raise particular claims that fall within the general categories subject to Rule 12(b)(3) prior to trial. The then reasonably available language is intended to ensure that a claim a party could not have raised on time is not subject to the limitation on review imposed by Rule 12(c)(3). Additionally, only those issues that can be determined without a trial on the merits need be raised by motion before trial. Just as in (b)(1), the more modern phrase trial on the merits is substituted for the more archaic phrase trial of the general issue. No change in meaning is intended. The rules command that motions alleging a defect in instituting the prosecution and errors in the indictment or information must be made before trial is unchanged. The amendment adds a nonexclusive list of commonly raised claims under each category to help ensure that such claims are not overlooked. The Rule is not intended to and does not affect or supersede statutory provisions that establish the time to make specific motions, such as motions under the Jury Selection and Service Act, 18 U.S.C.  1867(a) [28 U.S.C.  1867(a)]. Rule 12(b)(3)(B) has also been amended to remove language that allowed the court at any time while the case is pending to hear a claim that the indictment or information fails . . . to state an offense. This specific charging error was previously considered fatal whenever raised and was excluded from the general requirement that charging deficiencies be raised prior to trial. The Supreme Court abandoned any jurisdictional justification for the exception in United States v. Cotton Ex parte Bain Rule 12(c). As amended, subdivision (c) contains three paragraphs. Paragraph (c)(1) retains the existing provisions for establishing the time when pretrial motions must be made, and adds a sentence stating that unless the court sets a deadline, the deadline for pretrial motions is the start of trial, so that motions may be ruled upon before jeopardy attaches. Subdivision (e) of the present rule contains the language or by any extension the court provides, which anticipates that a district court has broad discretion to extend, reset, or decline to extend or reset, the deadline for pretrial motions. New paragraph (c)(2) recognizes this discretion explicitly and relocates the Rules mention of it to a more logical placeafter the provision concerning setting the deadline and before the provision concerning the consequences of not meeting the deadline. No change in meaning is intended. New paragraph (c)(3) governs the review of untimely claims, previously addressed in Rule 12(e). Rule 12(e) provided that a party waives a defense not raised within the time set under Rule 12(c). Although the term waiver in the context of a criminal case ordinarily refers to the intentional relinquishment of a known right, Rule 12(e) has never required any determination that a party who failed to make a timely motion intended to relinquish a defense, objection, or request that was not raised in a timely fashion. Accordingly, to avoid possible confusion the Committee decided not to employ the term waiver in new paragraph (c)(3). New paragraph 12(c)(3) retains the existing standard for untimely claims. The party seeking relief must show good cause for failure to raise a claim by the deadline, a flexible standard that requires consideration of all interests in the particular case. Rule 12(e). Changes Made After Publication and Comment. Amendment by Public Law 1975 Pub. L. 9464 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 Rule 12.1. Notice of an Alibi Defense (a) Governments Request for Notice and Defendants Response. (1)  Governments Request. (2)  Defendants Response. (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. (i) the name of each witnessand the address and telephone number of each witness other than a victimthat 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 defendants alibi defense. (B)  Victims Address and Telephone Number. (i) order the government to provide the information in writing to the defendant or the defendants attorney; or (ii) fashion a reasonable procedure that allows preparation of the defense and also protects the victims interests. (2)  Time to Disclose. (c) Continuing Duty to Disclose. (1)  In General. (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. (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 defendants alibi. This rule does not limit the defendants 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. (Added Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(13) July 31, 1975 89 Stat. 372 Apr. 29, 1985 Aug. 1, 1985 Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002 Apr. 23, 2008 Dec. 1, 2008 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1974 Rule 12.1 is new. See rule 87 of the United States District Court Rules for the District of Columbia for a somewhat comparable provision. The Advisory Committee has dealt with the issue of notice of alibi on several occasions over the course of the past three decades. In the Preliminary Draft of the Federal Rules of Criminal Procedure, 1943, and the Second Preliminary Draft, 1944, an alibi-notice rule was proposed. But the Advisory Committee was closely divided upon whether there should be a rule at all and, if there were to be a rule, what the form of the rule should be. Orfield, The Preliminary Draft of the Federal Rules of Criminal Procedure, 22 Texas L.Rev. 37, 5758 (1943). The principal disagreement was whether the prosecutor or the defendant should initiate the process. The Second Preliminary Draft published in 1944 required the defendant to initiate the process by a motion to require the government to state with greater particularity the time and place it would rely on. Upon receipt of this information, defendant was required to give his notice of alibi. This formulation was vehemently objected to by five members of the committee (out of a total of eighteen) and two alternative rule proposals were submitted to the Supreme Court. Both formulationsone requiring the prosecutor to initiate the process, the other requiring the defendant to initiate the processwere rejected by the Court. See Epstein, Advance Notice of Alibi, 55 J.Crim.L., C. & P.S. 29, 30 (1964), in which the view is expressed that the unresolved split over the rule probably caused the court to reject an alibi-notice rule. Rule 12.1 embodies an intermediate position. The initial burden is upon the defendant to raise the defense of alibi, but he need not specify the details of his alibi defense until the government specifies the time, place, and date of alleged offense. Each party must, at the appropriate time, disclose the names and addresses of witnesses. In 1962 the Advisory Committee drafted an alibi-notice rule and included it in the Preliminary Draft of December 1962, rule 12A at pp. 56. This time the Advisory Committee withdrew the rule without submitting it to the Standing Committee on Rules of Practice and Procedure. Wright, Proposed Changes in Federal Civil, Criminal, and Appellate Procedure, 35 F.R.D. 317, 326 (1964). Criticism of the December 1962 alibi-notice rule centered on constitutional questions and questions of general fairness to the defendant. See Everett, Discovery in Criminal CasesIn Search of a Standard, 1964 Duke L.J. 477, 497499. Doubts about the constitutionality of a notice-of-alibi rule were to some extent resolved by Williams v. Florida (1) The court said that it was not holding that a notice-of-alibi requirement was valid under conditions where a defendant does not enjoy reciprocal discovery against the State. 399 U.S. at 82 n. 11, 90 S.Ct. 1893. Under the revision of rule 16, the defendant is entitled to substantially enlarged discovery in federal cases, and it would seem appropriate to conclude that the rules will comply with the reciprocal discovery qualification of the Williams Wardius v. Oregon (2) The court said that it did not consider the question of the validity of the threatened sanction, had petitioner chosen not to comply with the notice-of-alibi rule. 399 U.S. at 83 n. 14, 90 S.Ct. 1893. This issue remains unresolved. [See Wardius v. Oregon supra supra The Supreme Court of Illinois recently upheld an Illinois statute which requires a defendant to give notice of his alibi witnesses although the prosecution is not required to disclose its alibi rebuttal witnesses. People v. Holiday The requirement of notice of alibi seems to be an increasingly common requirement of state criminal procedure. State statutes and court rules are cited in 399 U.S. at 82 n. 11, 90 S.Ct. 1893. See also Epstein, supra. Rule 12.1 will serve a useful purpose even though rule 16 now requires disclosure of the names and addresses of government and defense witnesses. There are cases in which the identity of defense witnesses may be known, but it may come as a surprise to the government that they intend to testify as to an alibi and there may be no advance notice of the details of the claimed alibi. The result often is an unnecessary interruption and delay in the trial to enable the government to conduct an appropriate investigation. The objective of rule 12.1 is to prevent this by providing a mechanism which will enable the parties to have specific information in advance of trial to prepare to meet the issue of alibi during the trial. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 12.1 is a new rule that deals with the defense of alibi. It provides that a defendant must notify the government of his intention to rely upon the defense of alibi. Upon receipt of such notice, the government must advise the defendant of the specific time, date, and place at which the offense is alleged to have been committed. The defendant must then inform the government of the specific place at which he claims to have been when the offense is alleged to have been committed, and of the names and addresses of the witnesses on whom he intends to rely to establish his alibi. The government must then inform the defendant of the names and addresses of the witnesses on whom it will rely to establish the defendants presence at the scene of the crime. If either party fails to comply with the provisions of the rule, the court may exclude the testimony of any witness whose identity is not disclosed. The rule does not attempt to limit the right of the defendant to testify in his own behalf. B. Committee Action. The Committee disagrees with the defendant-triggered procedures of the rule proposed by the Supreme Court. The major purpose of a notice-of-alibi rule is to prevent unfair surprise to the prosecution. The Committee, therefore, believes that it should be up to the prosecution to trigger the alibi defense discovery procedures. If the prosecution is worried about being surprised by an alibi defense, it can trigger the alibi defense discovery procedures. If the government fails to trigger the procedures and if the defendant raises an alibi defense at trial, then the government cannot claim surprise and get a continuance of the trial. The Committee has adopted a notice-of-alibi rule similar to the one now used in the District of Columbia. [See Rule 25(b) of the Rules of the United States District Court for the District of Columbia. See also Rule 161 of the Rules of Criminal Procedure for the Superior Court of the District of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the defendant of the time, place, and date of the alleged offense, then the defendant has 10 days in which to notify the prosecutor of his intention to rely upon an alibi defense, specify where he claims to have been at the time of the alleged offense, and provide a list of his alibi witnesses. The prosecutor, within 10 days but no later than 10 days before trial, must then provide the defendant with a list of witnesses who will place the defendant at the scene of the alleged crime and those witnesses who will be used to rebut the defendants alibi witnesses. The Committees rule does not operate only to the benefit of the prosecution. In fact, its rule will provide the defendant with more information than the rule proposed by the Supreme Court. The rule proposed by the Supreme Court permits the defendant to obtain a list of only those witnesses who will place him at the scene of the crime. The defendant, however, would get the names of these witnesses anyway as part of his discovery under Rule 16(a)(1)(E). The Committee rule not only requires the prosecution to provide the names of witnesses who place the defendant at the scene of the crime, but it also requires the prosecution to turn over the names of those witnesses who will be called in rebuttal to the defendants alibi witnesses. This is information that the defendant is not otherwise entitled to discover. Notes of Advisory Committee on Rules1985 Amendment Note to Subdivision Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 12.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rules 12.1(d) and 12.1(e) have been switched in the amended rule to improve the organization of the rule. Finally, the amended rule includes a new requirement that in providing the names and addresses of alibi and any rebuttal witnesses, the parties must also provide the phone numbers of those witnesses. See Rule 12.1(a)(2), Rule 12.1(b)(1), and Rule 12.1(c). The Committee believed that requiring such information would facilitate locating and interviewing those witnesses. Committee Notes on Rules2008 Amendment Subdivisions (b) and (c) See In the case of victims who will testify concerning an alibi claim, the same procedures and standards apply to both the prosecutors initial disclosure and the prosecutors continuing duty to disclose under subdivision (c). Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2009 Amendment The times set in the former rule at 10 days have been revised to 14 days. See the Committee Note to Rule 45(a). Amendment by Public Law 1975 Pub. L. 9464 Effective Date of Rule; Effective Date of 1975 Amendments This rule, and the amendments of this rule made by section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 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 mustwithin the time provided for filing a pretrial motion or at any later time the court setsnotify 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 governments 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 governments motion, order the defendant to be examined under procedures ordered by the court. (2)  Disclosing Results and Reports of Capital Sentencing Examination. (3)  Disclosing Results and Reports of the Defendants Expert Examination. (4)  Inadmissibility of a Defendants Statements. (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. (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. (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. (Added Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(14) July 31, 1975 89 Stat. 373 Apr. 28, 1983 Aug. 1, 1983 Pub. L. 98473, title II,  404 Oct. 12, 1984 98 Stat. 2067 Pub. L. 98596,  11(a) Oct. 30, 1984 98 Stat. 3138 Apr. 29, 1985 Aug. 1, 1985 Pub. L. 99646,  24 Nov. 10, 1986 100 Stat. 3597 Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005  Notes of Advisory Committee on Rules1974 Rule 12.2 is designed to require a defendant to give notice prior to trial of his intention (1) to rely upon the defense of insanity or (2) to introduce expert testimony of mental disease or defect on the theory that such mental condition is inconsistent with the mental state required for the offense charged. This rule does not deal with the issue of mental competency to stand trial. The objective is to give the government time to prepare to meet the issue, which will usually require reliance upon expert testimony. Failure to give advance notice commonly results in the necessity for a continuance in the middle of a trial, thus unnecessarily delaying the administration of justice. A requirement that the defendant give notice of his intention to rely upon the defense of insanity was proposed by the Advisory Committee in the Second Preliminary Draft of Proposed Amendments (March 1964), rule 12.1, p. 7. The objective of the 1964 proposal was explained in a brief Advisory Committee Note: Under existing procedure although insanity is a defense, once it is raised the burden to prove sanity beyond a reasonable doubt rests with the government. Davis v. United States Lynch v. Overholser The Standing Committee on Rules of Practice and Procedure decided not to recommend the proposed Notice of Insanity rule to the Supreme Court. Reasons were not given. Requiring advance notice of the defense of insanity is commonly recommended as a desirable procedure. The Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. 1, p. 254 (1970), state in part: It is recommended that procedural reform provide for advance notice that evidence of mental disease or defect will be relied upon in defense. ... Requiring advance notice is proposed also by the American Law Institutes Model Penal Code,  4.03 (P.O.D. 1962). The commentary in Tentative Draft No. 4 at 193194 (1955) indicates that, as of that time, six states required pretrial notice and an additional eight states required that the defense of insanity be specially pleaded. For recent state statutes see N.Y. CPL  250.10 (McKinneys Consol. Laws, c. 11A, 1971) enacted in 1970 which provides that no evidence by a defendant of a mental disease negativing criminal responsibility shall be allowed unless defendant has served notice on the prosecutor of his intention to rely upon such defense. See also New Jersey Penal Code (Final Report of the New Jersey Criminal Law Revision Commission, Oct. 1971)  2c: 43; New Jersey Court Rule 3:12; State v. Whitlow Subdivision (a) deals with notice of the defense of insanity. In this context the term insanity has a well-understood meaning. See, e.g., Tydings, A Federal Verdict of Not Guilty by Reason of Insanity and a Subsequent Commitment Procedure, 27 Md.L.Rev. 131 (1967). Precisely how the defense of insanity is phrased does, however, differ somewhat from circuit to circuit. See Study Draft of a New Federal Criminal Code,  503 Comment at 37 (USGPO 1970). For a more extensive discussion of present law, see Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. 1, pp. 229247 (USGPO 1970). The National Commission recommends the adoption of a single test patterned after the proposal of the American Law Institutes Model Penal Code. The proposed definition provides in part: In any prosecution for an offense lack of criminal responsibility by reason of mental disease or defect is a defense. [Study Draft of a New Federal Criminal Code  503 at 3637.] Should the proposal of the National Commission be adopted by the Congress, the language of subdivision (a) probably ought to be changed to read defense of lack of criminal responsibility by reason of mental disease or defect rather than defense of insanity. Subdivision (b) is intended to deal with the issue of expert testimony bearing upon the issue of whether the defendant had the mental state required for the offense charged. There is some disagreement as to whether it is proper to introduce evidence of mental disease or defect bearing not upon the defense of insanity, but rather upon the existence of the mental state required by the offense charged. The American Law Institutes Model Penal Code takes the position that such evidence is admissible [ 4.02(1) (P.O.D. 1962)]. See also People v. Gorshen The federal cases reach conflicting conclusions. See Rhodes v. United States The proper way would have been to ask the witness to describe the defendants mental condition and symptoms, his pathological beliefs and motivations, if he was thus afflicted, and to explain how these influenced or could have influenced his behavior, particularly his mental capacity knowingly to make the false statement charged, or knowingly to forge the signatures * * *. Compare Fisher v. United States Subdivision (b) does not attempt to decide when expert testimony is admissible on the issue of the requisite mental state. It provides only that the defendant must give pretrial notice when he intends to introduce such evidence. The purpose is to prevent the need for a continuance when such evidence is offered without prior notice. The problem of unnecessary delay has arisen in jurisdictions which do not require prior notice of an intention to use expert testimony on the issue of mental state. Referring to this, the California Special Commission on Insanity and Criminal Offenders, First Report 30 (1962) said: The abuses of the present system are great. Under a plea of not guilty without any notice to the people that the defense of insanity will be relied upon, defendant has been able to raise the defense upon the trial of the issue as to whether he committed the offense charged. As an example of the delay occasioned by the failure to heretofore require a pretrial notice by the defendant, see United States v. Albright Subdivision (c) gives the court the authority to order the defendant to submit to a psychiatric examination by a psychiatrist designated by the court. A similar provision is found in ALI, Model Penal Code  4.05(1) (P.O.D. 1962). This is a common provision of state law, the constitutionality of which has been sustained. Authorities are collected in ALI, Model Penal Code, pp. 195196 Tent. Draft No. 4, (1955). For a recent proposal, see the New Jersey Penal Code  2c: 45 (Final Report of the New Jersey Criminal Law Revision Commission, Oct. 1971) authorizing appointment of at least one qualified psychiatrist to examine and report upon the mental condition of the defendant. Any issue of self-incrimination which might arise can be dealt with by the court as, for example, by a bifurcated trial which deals separately with the issues of guilt and of mental responsibility. For statutory authority to appoint a psychiatrist with respect to competency to stand trial, see 18 U.S.C.  4244. Subdivision (d) confers authority on the court to exclude expert testimony in behalf of a defendant who has failed to give notice under subdivision (b) or who refuses to be examined by a court-appointed psychiatrist under subdivision (c). See State v. Whitlow Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 12.2 is a new rule that deals with defense based upon mental condition. It provides that: (1) The defendant must notify the prosecution in writing of his intention to rely upon the defense of insanity. If the defendant fails to comply, insanity may not be raised as a defense. (2) If the defendant intends to introduce expert testimony relating to mental disease or defect on the issue whether he had the requisite mental state, he must notify the prosecution in writing. (3) The court, on motion of the prosecution, may order the defendant to submit to a psychiatric examination by a court-appointed psychiatrist. (4) If the defendant fails to undergo the court-ordered psychiatric examination, the court may exclude any expert witness the defendant offers on the issue of his mental state. B. Committee Action. The Committee agrees with the proposed rule but has added language concerning the use of statements made to a psychiatrist during the course of a psychiatric examination provided for by Rule 12.2. The language provides: No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused before the judge who or jury which determines the guilt of the accused, prior to the determination of guilt. The purpose of this rule is to secure the defendants fifth amendment right against self-incrimination. See State v. Raskin The Committee notes that the rule does not attempt to resolve the issue whether the court can constitutionally compel a defendant to undergo a psychiatric examination when the defendant is unwilling to undergo one. The provisions of subdivision (c) are qualified by the phrase, In an appropriate case. If the court cannot constitutionally compel an unwilling defendant to undergo a psychiatric examination, then the provisions of subdivision (c) are inapplicable in every instance where the defendant is unwilling to undergo a court-ordered psychiatric examination. The Committee, by its approval of subdivision (c), intends to take no stand whatever on the constitutional question. Conference Committee Notes, House Report No. 94414; 1975 Amendment Rule 12.2(c) deals with court-ordered psychiatric examinations. The House version provides that no statement made by a defendant during a court-ordered psychiatric examination could be admitted in evidence against the defendant before the trier of fact that determines the issue of guilt prior to the determination of guilt. The Senate version deletes this provision. The Conference adopts a modified House provision and restores to the bill the language of H.R. 6799 as it was originally introduced. The Conference adopted language provides that no statement made by the defendant during a psychiatric examination provided for by the rule shall be admitted against him on the issue of guilt in any criminal proceeding. The Conference believes that the provision in H.R. 6799 as originally introduced in the House adequately protects the defendants fifth amendment right against self-incrimination. The rule does not preclude use of statements made by a defendant during a court-ordered psychiatric examination. The statements may be relevant to the issue of defendants sanity and admissible on that issue. However, a limiting instruction would not satisfy the rule if a statement is so prejudicial that a limiting instruction would be ineffective. Cf. practice under 18 U.S.C. 4244 Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision United States v. Hill United States v. Webb United States v. Perl United States v. Olson United States v. Staggs What these cases illustrate is that expert testimony about defendants mental condition may be tendered in a wide variety of circumstances well beyond the situation clearly within rule 12.2(b), i.e., where a psychiatrist testifies for the defendant regarding his diminished capacity. In all of these situations and others like them, there is good reason to make applicable the notice provisions of rule 12.2(b). This is because in all circumstances in which the defendant plans to offer expert testimony concerning his mental condition at the time of the crime charged, advance disclosure to the government will serve to permit adequate pretrial preparation, to prevent surprise at trial, and to avoid the necessity of delays during trial. 2 A.B.A. Standards for Criminal Justice United States v. Hill Note to Subdivision The last sentence of subdivision (c) has been amended to more accurately reflect the Fifth Amendment considerations at play in this context. See Estelle v. Smith Estelle Note to Subdivision Note to Subdivision Williams v. Florida Dissenting Statement of Justice OConnor to 1983 Amendment With one minor reservation, I join the Court in its adoption of the proposed amendments. They represent the product of considerable effort by the Advisory Committee, and they will institute desirable reforms. My sole disagreement with the Courts action today lies in its failure to recommend correction of an apparent error in the drafting of Proposed Rule 12.2(e). As proposed, Rule 12.2(e) reads: Evidence of an intention as to which notice was given under subdivision (a) or (b), later withdrawn, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention. Identical language formerly appeared in Fed. Rules Crim. Proc. 11(e)(6) and Fed. Rules Evid. 410, each of which stated that [Certain material] is not admissible in any civil or criminal proceeding against the defendant. Those rules were amended, Supreme Court Order April 30, 1979 July 31, 1979 93 Stat. 326 [Certain material] is not, in any civil or criminal proceeding, admissible against the defendant. As the Advisory Committee explained, this minor change was necessary to eliminate an ambiguity. Before the amendment, the word against could be read as referring either to the kind of proceeding in which the evidence was offered or to the purpose for which it was offered. Thus, for instance, if a person was a witness in a suit but not a party, it was unclear whether the evidence could be used to impeach him. In such a case, the use proceeding The same ambiguity inheres in the proposed version of Rule 12.2(e). We should recommend that it be eliminated now. To that extent, I respectfully dissent. Notes of Advisory Committee on Rules1985 Amendment Note to Subdivision Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 12.2 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The substantive changes to Rule 12.2 are designed to address five issues. First, the amendment clarifies that a court may order a mental examination for a defendant who has indicated an intention to raise a defense of mental condition bearing on the issue of guilt. Second, the defendant is required to give notice of an intent to present expert evidence of the defendants mental condition during a capital sentencing proceeding. Third, the amendment addresses the ability of the trial court to order a mental examination for a defendant who has given notice of an intent to present evidence of mental condition during capital sentencing proceedings and when the results of that examination may be disclosed. Fourth, the amendment addresses the timing of disclosure of the results and reports of the defendants expert examination. Finally, the amendment extends the sanctions for failure to comply with the rules requirements to the punishment phase of a capital case. Under current Rule 12.2(b), a defendant who intends to offer expert testimony on the issue of his or her mental condition on the question of guilt must provide a pretrial notice of that intent. The amendment extends that notice requirement to a defendant who intends to offer expert evidence, testimonial or otherwise, on his or her mental condition during a capital sentencing proceeding. As several courts have recognized, the better practice is to require pretrial notice of that intent so that any mental examinations can be conducted without unnecessarily delaying capital sentencing proceedings. See, e.g., United States v. Beckford United States v. Haworth Revised Rule 12.2(c)(1) addresses and clarifies the authority of the court to order mental examinations for a defendantto determine competency of a defendant to stand trial under 18 U.S.C.  4241; to determine the defendants sanity at the time of the alleged offense under 18 U.S.C.  4242; or in those cases where the defendant intends to present expert testimony on his or her mental condition. Rule 12.2(c)(1)(A) reflects the traditional authority of the court to order competency examinations. With regard to examinations to determine insanity at the time of the offense, current Rule 12.2(c) implies that the trial court may requires Revised Rule 12.2(c)(1)(B) also addresses those cases where the defendant is not relying on an insanity defense, but intends to offer expert testimony on the issue of mental condition. While the authority of a trial court to order a mental examination of a defendant who has registered an intent to raise the insanity defense seems clear, the authority under the rule to order an examination of a defendant who intends only to present expert testimony on his or her mental condition on the issue of guilt is not as clear. Some courts have concluded that a court may order such an examination. See, e.g., United States v. Stackpole United States v. Buchbinder United States v. Halbert United States v. Davis The amendment clarifies that the authority of a court to order a mental examination under Rule 12.2(c)(1)(B) extends to those cases when the defendant has provided notice, under Rule 12.2(b), of an intent to present expert testimony on the defendants mental condition, either on the merits or at capital sentencing. See, e.g., United States v. Hall cert. denied The amendment to Rule 12.2(c)(1) is not intended to affect any statutory or inherent authority a court may have to order other mental examinations. The amendment leaves to the court the determination of what procedures should be used for a court-ordered examination on the defendants mental condition (apart from insanity). As currently provided in the rule, if the examination is being ordered in connection with the defendants stated intent to present an insanity defense, the procedures are dictated by 18 U.S.C.  4242. On the other hand, if the examination is being ordered in conjunction with a stated intent to present expert testimony on the defendants mental condition (not amounting to a defense of insanity) either at the guilt or sentencing phases, no specific statutory counterpart is available. Accordingly, the court is given the discretion to specify the procedures to be used. In so doing, the court may certainly be informed by other provisions, which address hearings on a defendants mental condition. See, e.g. Additional changes address the question when the results of an examination ordered under Rule 12.2(b)(2) may, or must, be disclosed. The Supreme Court has recognized that use of a defendants statements during a court-ordered examination may compromise the defendants right against self-incrimination. See Estelle v. Smith See, e.g., Powell v. Texas Buchanan v. Kentucky Presnell v. Zant Williams v. Lynaugh United States v. Madrid The proposed change in Rule 12.2(c)(2) adopts the procedure used by some courts to seal or otherwise insulate the results of the examination until it is clear that the defendant will introduce expert evidence about his or her mental condition at a capital sentencing hearing; i.e., after a verdict of guilty on one or more capital crimes, and a reaffirmation by the defendant of an intent to introduce expert mental-condition evidence in the sentencing phase. See, e.g., United States v. Beckford See, e.g., United States v. Hall, supra Except as provided in Rule 12.2(c)(3), the rule does not address the time for disclosing results and reports of any expert examination conducted by the defendant. New Rule 12.2(c)(3) provides that upon disclosure under subdivision (c)(2) of the results and reports of the governments examination, disclosure of the results and reports of the defendants expert examination is mandatory, if the defendant intends to introduce expert evidence relating to the examination. Rule 12.2(c), as previously written, restricted admissibility of the defendants statements during the course of an examination conducted under the rule to an issue respecting mental condition on which the defendant has introduced testimonyexpert or otherwise. As amended, Rule 12.2(c)(4) provides that the admissibility of such evidence in a capital sentencing proceeding is triggered only by the defendants introduction of expert evidence. The Committee believed that, in this context, it was appropriate to limit the governments ability to use the results of its expert mental examination to instances in which the defendant has first introduced expert evidence on the issue. Rule 12.2(d) has been amended to extend sanctions for failure to comply with the rule to the penalty phase of a capital case. The selection of an appropriate remedy for the failure of a defendant to provide notice or submit to an examination under subdivisions (b) and (c) is entrusted to the discretion of the court. While subdivision (d) recognizes that the court may exclude the evidence of the defendants own expert in such a situation, the court should also consider the effectiveness of less severe sanctions, the impact of preclusion on the evidence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful. Taylor v. Illinois Fendler v. Goldsmith Committee Notes on Rules2005 Amendment The amendment to Rule 12.2(d) fills a gap created in the 2002 amendments to the rule. The substantively amended rule that took effect December 1, 2002 Rule 12.2(d)(1) is a slightly restructured version of current Rule 12.2(d). Rule 12.2(d)(2) is new and permits the court to exclude any expert evidence for failure to comply with the disclosure requirement in Rule 12.2(c)(3). The sanction is intended to relate only to the evidence related to the matters addressed in the report, which the defense failed to disclose. Unlike the broader sanction for the two violations listed in Rule 12.2(d)(1)which can substantially affect the entire hearingthe Committee believed that it would be overbroad to expressly authorize exclusion of any expert evidence, even evidence unrelated to the results and reports that were not disclosed, as required in Rule 12.2(c)(3). The rule assumes that the sanction of exclusion will result only where there has been a complete failure to disclose the report. If the report is disclosed, albeit in an untimely fashion, other relief may be appropriate, for example, granting a continuance to the government to review the report. Changes Made After Publication and Comment Amendment by Public Law 1986Subd. (c). Pub. L. 99646 1984Subd. (a). Pub. L. 98473,  404(a) Subd. (b). Pub. L. 98473,  404(b) section 11(b) of Pub. L. 98596 Subd. (c). Pub. L. 98596,  11(a)(1) 18 U.S.C. 4242 Pub. L. 98473,  404(c) 18 U.S.C. 4242 section 11(a)(1) of Pub. L. 98596 Subd. (d). Pub. L. 98596,  11(a)(2) Pub. L. 98473,  404(d) section 11(b) of Pub. L. 98596 1975 Pub. L. 9464 Effective Date of 1984 Amendment Pub. L. 98596,  11(c) Oct. 30, 1984 98 Stat. 3138 The amendments and repeals made by subsections (a) and (b) of this section [amending this rule] shall apply on and after the enactment of the joint resolution entitled Joint resolution making continuing appropriations for the fiscal year 1985, and for other purposes, H.J. Res. 648, Ninety-eighth Congress [ Pub. L. 98473 Oct. 12, 1984 Effective Date of Rule; Effective Date of 1975 Amendments This rule, and the amendments of this rule made by section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 Rule 12.3. Notice of a Public-Authority Defense (a) Notice of the Defense and Disclosure of Witnesses. (1)  Notice in General. (2)  Contents of Notice. (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. (4)  Disclosing Witnesses. (A)  Governments Request. (B)  Defendants Response. (C)  Governments Reply. (D)  Victims Address and Telephone Number. (i) order the government to provide the information in writing to the defendant or the defendants attorney; or (ii) fashion a reasonable procedure that allows for preparing the defense and also protects the victims interests. (5)  Additional Time. (b) Continuing Duty to Disclose. (1)  In General. (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. (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 defendants right to testify. (d) Protective Procedures Unaffected. This rule does not limit the courts 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. (Added Pub. L. 100690, title VI,  6483 Nov. 18, 1988 102 Stat. 4382 Apr. 29, 2002 Dec. 1, 2002 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2010 Dec. 1, 2010  Committee Notes on Rules2002 Amendment The language of Rule 12.3 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Substantive changes have been made in Rule 12.3(a)(4) and 12.3(b). As in Rule 12.1, the Committee decided to include in the restyled rule the requirement that the parties provide the telephone numbers of any witnesses disclosed under the rule. Committee Notes on Rules2009 Amendment The times set in the former rule at 7, 10, or 20 days have been revised to 14 or 21 days. See the Committee Note to Rule 45(a). Committee Notes on Rules2010 Amendment Subdivisions (a) and (b). See In the case of victims who will testify concerning a public-authority claim, the same procedures and standards apply to both the prosecutors initial disclosure and the prosecutors continuing duty to disclose under subdivision (b). Changes Made to Proposed Amendment Released for Public Comment. Rule 12.4. Disclosure Statement (a) Who Must File. (1)  Nongovernmental Corporate Party. (2)  Organizational Victim. (b) Time to File; Later Filing. A party must: (1) file the Rule 12.4(a) statement within 28 days after the defendants initial appearance; and (2) promptly file a later statement if any required information changes. (Added Apr. 29, 2002 Dec. 1, 2002 Apr. 26, 2018 Dec. 1, 2018  Committee Notes on Rules2002 Rule 12.4 is a new rule modeled after Federal Rule of Appellate Procedure 26.1 and parallels similar provisions being proposed in new Federal Rule of Civil Procedure 7.1. The purpose of the rule is to assist judges in determining whether they must recuse themselves because of a financial interest in the subject matter in controversy. Code of Judicial Conduct, Canon 3C(1)(c)(1972). It does not, however, deal with other circumstances that might lead to disqualification for other reasons. Under Rule 12.4(a)(1), any nongovernmental corporate party must file a statement that indicates whether it has any parent corporation that owns 10% or more of its stock or indicates that there is no such corporation. Although the term nongovernmental corporate party will almost always involve organizational defendants, it might also cover any third party that asserts an interest in property to be forfeited under new Rule 32.2. Rule 12.4(a)(2) requires an attorney for the government to file a statement that lists any organizational victims of the alleged criminal activity; the purpose of this disclosure is to alert the court to the fact that a possible ground for disqualification might exist. Further, if the organizational victim is a corporation, the statement must include the same information required of any nongovernmental corporate party. The rule requires an attorney for the government to use due diligence in obtaining that information from a corporate organizational victim, recognizing that the timing requirements of Rule 12.4(b) might make it difficult to obtain the necessary information by the time the initial appearance is conducted. Although the disclosures required by Rule 12.4 may seem limited, they are calculated to reach the majority of circumstances that are likely to call for disqualification on the basis of information that a judge may not know or recollect. Framing a rule that calls for more detailed disclosure is problematic and will inevitably require more information than is necessary for purposes of automatic recusal. Unnecessary disclosure of volumes of information may create the risk that a judge will overlook the one bit of information that might require disqualification, and may also create the risk that courts will experience unnecessary disqualifications rather than attempt to unravel a potentially difficult question. The same concerns about overbreadth are potentially present in any local rules that might address this topic. Rule 12.4 does not address the promulgation of any local rules that might address the same issue, or supplement the requirements of the rule. The rule does not cover disclosure of all financial information that could be relevant to a judges decision whether to recuse himself or herself from a case. The Committee believes that with the various disclosure practices in the federal courts and with the development of technology, more comprehensive disclosure may be desirable and feasible. Rule 12.4(b)(1) indicates that the time for filing the disclosure statement is at the point when the defendant enters an initial appearance under Rule 5. Although there may be other instances where an earlier appearance of a party in a civil proceeding would raise concerns about whether the presiding judicial officer should be notified of a possible grounds for recusal, the Committee believed that in criminal cases, the most likely time for that to occur is at the initial appearance and that it was important to set a uniform triggering event for disclosures under this rule. Finally, Rule 12.4(b)(2) requires the parties to file supplemental statements with the court if there are any changes in the information required in the statement. Committee Notes on Rules2018 Amendment Subdivision (a). Subdivision (b). Because a filing made after the 28-day period may disclose organizational victims in cases in which none were previously known or disclosed, the caption and text have been revised to refer to a later, rather than a supplemental, filing. The text was also revised to be more concise and to parallel Civil Rule 7.1(b)(2). Rule 13. Joint Trial of Separate Cases  The court may order that separate cases be tried together as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment or information. (As amended Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule is substantially a restatement of existing law, 18 U.S.C. [former] 557 (Indictments and presentments; joinder of charges); Logan v. United States Showalter v. United States Hostetter v. United States Capone v. United States Committee Notes on Rules2002 Amendment The language of Rule 13 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. 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) Defendants Statements. Before ruling on a defendants motion to sever, the court may order an attorney for the government to deliver to the court for in camera inspection any defendants statement that the government intends to use as evidence. (As amended Feb. 28, 1966 July 1, 1966 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule is a restatement of existing law under which severance and other similar relief is entirely in the discretion of the court, 18 U.S.C. [former] 557 (Indictments and presentments; joinder of charges); Pointer v. United States Pierce v. United States United States v. Ball Stilson v. United States Notes of Advisory Committee on Rules1966 Amendment A defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice. While the question whether to grant a severance is generally left within the discretion of the trial court, recent Fifth Circuit cases have found sufficient prejudice involved to make denial of a motion for severance reversible error. See Schaffer v. United States Barton v. United States Belvin v. United States The purpose of the amendment is to provide a procedure whereby the issue of possible prejudice can be resolved on the motion for severance. The judge may direct the disclosure of the confessions or statements of the defendants to him for in camera inspection as an aid to determining whether the possible prejudice justifies ordering separate trials. Cf. note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 551, 565 (1965). Committee Notes on Rules2002 Amendment The language of Rule 14 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The reference to a defendants confession in the last sentence of the current rule has been deleted. The Committee believed that the reference to the defendants statements in the amended rule would fairly embrace any confessions or admissions by a defendant. Rule 15. Depositions (a) When Taken. (1)  In General. (2)  Detained Material Witness. (b) Notice. (1)  In General. (2)  To the Custodial Officer. (c) Defendants Presence. (1)  Defendant in Custody. (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 defendants exclusion. (2)  Defendant Not in Custody. (3)  Taking Depositions Outside the United States Without the Defendants Presence. (A) the witnesss testimony could provide substantial proof of a material fact in a felony prosecution; (B) there is a substantial likelihood that the witnesss attendance at trial cannot be obtained; (C) the witnesss presence for a deposition in the United States cannot be obtained; (D) the defendant cannot be present because: (i) the country where the witness is located will not permit the defendant to attend the deposition; (ii) for an in-custody defendant, secure transportation and continuing custody cannot be assured at the witnesss location; or (iii) for an out-of-custody defendant, no reasonable conditions will assure an appearance at the deposition or at trial or sentencing; and (E) the defendant can meaningfully participate in the deposition through reasonable means. (d) Expenses. If the deposition was requested by the government, the court mayor if the defendant is unable to bear the deposition expenses, the court mustorder the government to pay: (1) any reasonable travel and subsistence expenses of the defendant and the defendants 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 defendants 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 defendants attorney, for use at the deposition, any statement of the deponent in the governments possession to which the defendant would be entitled at trial. (f) Admissibility and Use as Evidence. An order authorizing a deposition to be taken under this rule does not determine its admissibility. 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 courts consent. (As amended Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(15) July 31, 1975 89 Stat. 373 Pub. L. 98473, title II,  209(b) Oct. 12, 1984 98 Stat. 1986 Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002 Apr. 23, 2012 Dec. 1, 2012  Notes of Advisory Committee on Rules1944 Note to Subdivision dedimus potestatem in perpetuam rei memoriam Clymer v. United States Wong Yim v. United States United States v. Cameron United States v. Hofmann Luxemberg v. United States 2. Unlike the practice in civil cases in which depositions may be taken as a matter of right by notice without permission of the court (Rules 26(a) and 30, Federal Rules of Civil Procedure [28 U.S.C., Appendix]), this rule permits depositions to be taken only by order of the court, made in the exercise of discretion and on notice to all parties. It was contemplated that in criminal cases depositions would be used only in exceptional situations, as has been the practice heretofore. 3. This rule introduces a new feature in authorizing the taking of the deposition of a witness committed for failure to give bail (see Rule 46(b)). This matter is, however, left to the discretion of the court. The purpose of the rule is to afford a method of relief for such a witness, if the court finds it proper to extend it. Note to Subdivision Note to Subdivision Note to Subdivision Note to Subdivision supra. Note to Subdivision infra). Note to Subdivision Note to Subdivision supra. Notes of Advisory Committee on Rules1974 Amendment Rule 15 authorizes the taking of depositions by the government. Under former rule 15 only a defendant was authorized to take a deposition. The revision is similar to Title VI of the Organized Crime Control Act of 1970. The principal difference is that Title VI (18 U.S.C.  3503) limits the authority of the government to take depositions to cases in which the Attorney General certifies that the proceeding is against a person who is believed to have participated in an organized criminal activity. This limitation is not contained in rule 15. Dealing with the issue of government depositions so soon after the enactment of 18 U.S.C.  3503 is not inconsistent with the congressional purpose. On the floor of the House, Congressman Poff, a principal spokesman for the proposal, said that the House version was not designed to limit the Judicial Conference of the United States in the exercise of its rulemaking authority . . . from addressing itself to other problems in this area or from adopting a broader approach. 116 Cong.Rec. 35293 (1970). The recently enacted Title VI of the Organized Crime Control Act of 1970 (18 U.S.C.  3503) is based upon earlier efforts of the Advisory Committee on Criminal Rules which has over the past twenty-five years submitted several proposals authorizing government depositions. The earlier drafts of the Federal Rules of Criminal Procedure proposed that the government be allowed to take depositions. Orfield, The Federal Rules of Criminal Procedure, 33 Calif.L.Rev. 543, 559 (1945). The Fifth Draft of what became rule 15 (then rule 20) dated June 1942, was submitted to the Supreme Court for comment. The court had a number of unfavorable comments about allowing government depositions. These comments were not published. The only reference to the fact that the court made comments is in 2 Orfield, Criminal Procedure under the Federal Rules  15:1 (1966); and Orfield, Depositions in Federal Criminal Procedure, 9 S.C.L.Q. 376, 380381 (1957). The Advisory Committee, in the 1940s, continued to recommend the adoption of a provision authorizing government depositions. The final draft submitted to the Supreme Court contained a section providing: The following additional requirements shall apply if the deposition is taken at the instance of the government or of a witness. The officer having custody of a defendant shall be notified of the time and place set for examination, and shall produce him at the examination and keep him in the presence of the witness during the examination. A defendant not in custody shall be given notice and shall have the right to be present at the examination. The government shall pay in advance to the defendants attorney and a defendant not in custody expenses of travel and subsistence for attendance at the examination. See 2 Orfield, Criminal Procedure under the Federal Rules  15:3, pp. 447448 (1966); Orfield, Depositions in Federal Criminal Procedure, 9 S.C.L.Q. 376, 383 (1957). The Supreme Court rejected this section in this entirety, thus eliminating the provision for depositions by the government. These changes were made without comment. The proposal to allow government depositions was renewed in the amendments to the Federal Rules of Criminal Procedure in the early 1960s. The Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure for the United States District Courts (December 1962) proposed to amend rule 15 by eliminating the words of a defendant from the first sentence of subdivision (a) and adding a subdivision (g) which was practically identical to the subdivision rejected by the Supreme Court in the original draft of the rules. The Second Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure for the United States District Courts (March 1964) continued to propose allowing governments depositions. Subdivision (g) was substantially modified, however. The following additional requirements shall apply if the deposition is taken at the instance of the government or a witness. Both the defendant and his attorney shall be given reasonable advance notice of the time and place set for the examination. The officer having custody of a defendant shall be notified of the time and place set for the examination, and shall produce him at the examination and keep him in the presence of the witness during the examination. A defendant not in custody shall have the right to be present at the examination but his failure to appear after notice and tender of expenses shall constitute a waiver of that right. The government shall pay to the defendants attorney and to a defendant not in custody expenses of travel and subsistence for attendance at the examination. The government shall make available to the defendant for his examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the government and which the government would be required to make available to the defendant if the witness were testifying at the trial. The proposal to authorize government depositions was rejected by the Standing Committee on Rules of Practice and Procedure, C. Wright, Federal Practice and Procedure  241 at 477 (1969). 4 Barron, Federal Practice and Procedure (Supp. 1967). The Report of the Judicial Conference, submitted to the Supreme Court for approval late in 1965, contained no proposal for an amendment to rule 15. See 39 F.R.D. 69, 168211 (1966). When the Organized Crime Control Act of 1970 was originally introduced in the Senate (S. 30) it contained a government deposition provision which was similar to the 1964 proposal of the Criminal Rules Advisory Committee, except that the original bill (S. 30) failed to provide standards to control the use of depositions at the trial. For an explanation and defense of the original proposal see McClellan, The Organized Crime Act (S. 30) or Its Critics: Which Threatens Civil Liberties?, 46 Notre Dame Lawyer 55, 100108 (1970). This omission was remedied, prior to passage, with the addition of what is now 18 U.S.C.  3503(f) which prescribes the circumstances in which a deposition can be used. The standards are the same as those in former rule 15(e) with the addition of language allowing the use of the deposition when the witness refuses in the trial or hearing to testify concerning the subject of the deposition or the part offered. Before the Organized Crime Control Act of 1970 was enacted an additional amendment was added providing that the right of the government to take a deposition is limited to cases in which the Attorney General certifies that the defendant is believed to have participated in an organized criminal activity [18 U.S.C.  3503(a)]. The argument in favor of the amendment was that the whole purpose of the act was to deal with organized crime and therefore its provisions, including that providing for government depositions, should be limited to organized crime type cases. There is another aspect of Advisory Committee history which is relevant. In January 1970, the Advisory Committee circulated proposed changes in rule 16, one of which gives the government, when it has disclosed the identity of its witnesses, the right to take a deposition and use it in the event the witness has become unavailable without the fault of the government or if the witness has changed his testimony. [See Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts, rule 16(a)(1)(vi) (January 1970).] This provision is now incorporated within rule 16(a)(1)(v). Because neither the court nor the standing committee gave reasons for rejecting the government deposition proposal, it is not possible to know why they were not approved. To the extent that the rejection was based upon doubts as to the constitutionality of such a proposal, those doubts now seem resolved by California v. Green On the merits, the proposal to allow the government to take depositions is consistent with the revision of rule 16 and with section 804(b)(1) of the Rules of Evidence for the United States Courts and Magistrates (November 1971) which provides that the following is not excluded by the hearsay rule if the declarant is unavailable: (1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross, or redirect examination, with motive and interest similar to those of the party against whom now offered. Subdivision (a) is revised to provide that the government as well as the defendant is entitled to take a deposition. The phrase whenever due to special circumstances of the case it is in the interest of justice, is intended to make clear that the decision by the court as to whether to order the taking of a deposition shall be made in the context of the circumstances of the particular case. The principal objective is the preservation of evidence for use at trial. It is not to provide a method of pretrial discovery nor primarily for the purpose of obtaining a basis for later cross-examination of an adverse witness. Discovery is a matter dealt with in rule 16. An obviously important factor is whether a deposition will expedite, rather than delay, the administration of criminal justice. Also important is the presence or absence of factors which determine the use of a deposition at the trial, such as the agreement of the parties to use of the deposition; the possible unavailability of the witness; or the possibility that coercion may be used upon the witness to induce him to change his testimony or not to testify. See rule 16(a)(1)(v). Subdivision (a) also makes explicit that only the testimony of a prospective witness of a party can be taken. This means the partys own witness and does not authorize a discovery deposition of an adverse witness. The language for use at trial is intended to give further emphasis to the importance of the criteria for use specified in subdivision (e). In subdivision (b) reference is made to the defendant in custody. If he is in state custody, a writ of habeas corpus ad testificandum (to produce the prisoner for purposes of testimony) may be required to accomplish his presence. In subdivision (d) the language except as otherwise provided in these rules is meant to make clear that the subpoena provisions of rule 17 control rather than the provisions of the civil rules. The use of the phrase and manner in subdivision (d)(2) is intended to emphasize that the authorization is not to conduct an adverse examination of an opposing witness. In subdivision (e) the phrase as substantive evidence is added to make clear that the deposition can be used as evidence in chief as well as for purposes of impeachment. Subdivision (e) also makes clear that the deposition can be used as affirmative evidence whenever the witness is available but gives testimony inconsistent with that given in the deposition. A California statute which contained a similar provision was held constitutional in California v. Green Subdivision (f) is intended to insure that a record of objections and the grounds for the objections is made at the time the deposition is taken when the witness is available so that the witness can be examined further, if necessary, on the point of the objection so that there will be an adequate record for the courts later ruling upon the objection. Subdivision (g) uses the unavailability definition of the Rules of Evidence for the United States Courts and Magistrates, 804(a) (Nov. 1971). Subdivision (h) is intended to make clear that the court always has authority to order the taking of a deposition, or to allow the use of a deposition, where there is an agreement of the parties to the taking or to the use. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 15 of the Federal Rules of Criminal Procedure provides for the taking of depositions. The present rule permits only the defendant to move that a deposition of a prospective witness be taken. The court may grant the motion if it appears that (a) the prospective witness will be unable to attend or be prevented from attending the trial, (b) the prospective witness testimony is material, and (c) the prospective witness testimony is necessary to prevent a failure of justice. The Supreme Court promulgated several amendments to Rule 15. The more significant amendments are described below. Subdivision (a) as proposed to be amended permits either party to move the court for the taking of a deposition of a witness. However, a party may only move to take the deposition of one of its own witnesses, not one of the adversary partys witnesses. Subdivision (c) as proposed to be amended provides that whenever a deposition is taken at the instance of the government or of an indigent defendant, the expenses of the taking of the deposition must be paid by the government. Subdivision (e) as proposed to be amended provides that part or all of the deposition may be used at trial as substantive evidence if the witness is unavailable or if the witness gives testimony inconsistent with his deposition. Subdivision (b)[(g)] as proposed to be amended defines unavailable. Unavailable as a witness includes situations in which the deponent: (1) is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his deposition; or (2) persists in refusing to testify concerning the subject matter of his deposition despite an order of the judge to do so; or (3) testifies to a lack of memory of the subject matter of his deposition; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of his deposition has been unable to procure his attendance by process or other reasonable means. A deponent is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his deposition for the purpose of preventing the witness from attending or testifying. B. Committee Action. The Committee narrowed the definition of unavailability in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was unavailable if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encourage the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be removed from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed rule did not explicitly provide for payment of the cost of transcribing, and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness gives testimony at the trial or hearing inconsistent with his deposition. Since subdivision (e) refers to the rules of evidence, the Committee understands that the Federal Rules of Evidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivision (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee believes that Rule 15 will not encourage trials by deposition. A deposition may be taken only in exceptional circumstances when it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved. * * * A deposition, once it is taken, is not automatically admissible at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503 Conference Committee Notes, House Report No. 94414; 1975 Amendment Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposition to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Courts proposal defines five circumstances in which the witness will be considered unavailable. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate version of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 15 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. In Rule 15(a), the list of materials to be produced has been amended to include the expansive term data to reflect the fact that in an increasingly technological culture, the information may exist in a format not already covered by the more conventional list, such as a book or document. The last portion of current Rule 15(b), dealing with the defendants presence at a deposition, has been moved to amended Rule 15(c). Revised Rule 15(d) addresses the payment of expenses incurred by the defendant and the defendants attorney. Under the current rule, if the government requests the deposition, or if the defendant requests the deposition and is unable to pay for it, the court may must must Rule 15(f) is intended to more clearly reflect that the admissibility of any deposition taken under the rule is governed not by the rule itself, but instead by the Federal Rules of Evidence. Committee Notes on Rules2012 Amendment Subdivisions (c)(3) and (f). While a party invokes Rule 15 in order to preserve testimony for trial, the rule does not determine whether the resulting deposition will be admissible, in whole or in part. Subdivision (f) provides that in the case of all depositions, questions of admissibility of the evidence obtained are left to the courts to resolve on a case by case basis. Under Rule 15(f), the courts make this determination applying the Federal Rules of Evidence, which state that relevant evidence is admissible except as otherwise provided by the Constitution, statutes, the Rules of Evidence, and other rules prescribed by the Supreme Court. Fed.R.Evid. 402. Rule 15(c) as amended imposes significant procedural limitations on taking certain depositions in criminal cases. The amended rule authorizes a deposition outside a defendants physical presence only in very limited circumstances after the trial court makes case-specific findings. Amended Rule 15(c)(3) delineates these circumstances and the specific findings a trial court must make before permitting parties to depose a witness outside the defendants presence. The party requesting the deposition shoulders the burden of proofby a preponderance of the evidenceon the elements that must be shown. The amended rule recognizes the important witness confrontation principles and vital law enforcement and other public interests that are involved. This amendment does not supersede the relevant provisions of 18 U.S.C.  3509, authorizing depositions outside the defendants physical presence in certain cases involving child victims and witnesses, or any other provision of law. Changes Made to Proposed Amendment Released for Public Comment. In order to restrict foreign depositions outside of the defendants presence to situations where the deposition serves an important public interest, the limiting phrase in a felony prosecution was added to subdivision (c)(3)(A). The text of subdivision (f) and the Committee Note were revised to state more clearly the limited purpose and effect of the amendment, which is providing assistance in pretrial discovery. Compliance with the procedural requirements for the taking of the foreign testimony does not predetermine admissibility at trial, which is determined on a case-by-case basis, applying the Federal Rules of Evidence and the Constitution. Other changes were also made in the Committee Note. In conformity with the style conventions governing the rules, citations to cases were deleted, and other changes were made to improve clarity.  References in Text The Federal Rules of Evidence, referred to in subd. (f), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Amendment by Public Law 1984Subd. (a). Pub. L. 98473 section 3144 of title 18 1975 Pub. L. 9464 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 Rule 16. Discovery and Inspection (a) Governments Disclosure. (1)  Information Subject to Disclosure. (A)  Defendants Oral Statement (B)  Defendants Written or Recorded Statement (i) any relevant written or recorded statement by the defendant if:  statement is within the governments possession, custody, or control; and  the attorney for the government knowsor through due diligence could knowthat 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 defendants recorded testimony before a grand jury relating to the charged offense. (C)  Organizational Defendant (i) was legally able to bind the defendant regarding the subject of the statement because of that persons position as the defendants 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 persons position as the defendants director, officer, employee, or agent. (D)  Defendants Prior Record (E)  Documents and Objects (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 (i) the item is within the governments possession, custody, or control; (ii) the attorney for the government knowsor through due diligence could knowthat 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. (i) Duty to Disclose. At the defendants request, the government must disclose to the defendant, in writing, the information required by (iii) for any testimony that the government intends to use at trial under Federal Rule 1 1 1 (ii) Time to Disclose. The court, by order or local rule, must set a time for the government to make its disclosures. The time must be sufficiently before trial to provide a fair opportunity for the defendant to meet the governments evidence. (iii) Contents of the Disclosure. The disclosure for each expert witness must contain:  a complete statement of all opinions that the government will elicit from the witness in its case-in-chief, or during its rebuttal to counter testimony that the defendant has timely disclosed under (b)(1)(C);  the bases and reasons for them;  the witnesss qualifications, including a list of all publications authored in the previous 10 years; and  a list of all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition. (iv) Information Previously Disclosed. If the government previously provided a report under (F) that contained information required by (iii), that information may be referred to, rather than repeated, in the expert-witness disclosure. (v) Signing the Disclosure. The witness must approve and sign the disclosure, unless the government:  states in the disclosure why it could not obtain the witnesss signature through reasonable efforts; or  has previously provided under (F) a report, signed by the witness, that contains all the opinions and the bases and reasons for them required by (iii). (vi) Supplementing and Correcting a Disclosure. The government must supplement or correct its disclosures in accordance with (c). (2)  Information Not Subject to Disclosure (3)  Grand Jury Transcripts (b) Defendants Disclosure. (1)  Information Subject to Disclosure. (A)  Documents and Objects (i) the item is within the defendants possession, custody, or control; and (ii) the defendant intends to use the item in the defendants case-in-chief at trial. (B)  Reports of Examinations and Tests (i) the item is within the defendants possession, custody, or control; and (ii) the defendant intends to use the item in the defendants case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witnesss testimony. (C)  Expert Witnesses. (i) Duty to Disclose. At the governments request, the defendant must disclose to the government, in writing, the information required by (iii) for any testimony that the defendant intends to use under Federal Rule of Evidence 702, 703, or 705 during the defendants case-in-chief at trial, if:  the defendant requests disclosure under (a)(1)(G) and the government complies; or  the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendants mental condition. (ii) Time to Disclose. The court, by order or local rule, must set a time for the defendant to make the defendants disclosures. The time must be sufficiently before trial to provide a fair opportunity for the government to meet the defendants evidence. (iii) Contents of the Disclosure. The disclosure for each expert witness must contain:  a complete statement of all opinions that the defendant will elicit from the witness in the defendants case-in-chief;  the bases and reasons for them;  the witnesss qualifications, including a list of all publications authored in the previous 10 years; and  a list of all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition. (iv) Information Previously Disclosed. If the defendant previously provided a report under (B) that contained information required by (iii), that information may be referred to, rather than repeated, in the expert-witness disclosure. (v) Signing the Disclosure. The witness must approve and sign the disclosure, unless the defendant:  states in the disclosure why the defendant could not obtain the witnesss signature through reasonable efforts; or  has previously provided under (B) a report, signed by the witness, that contains all the opinions and the bases and reasons for them required by (iii). (vi) Supplementing and Correcting a Disclosure. The defendant must supplement or correct the defendants disclosures in accordance with (c). (2)  Information Not Subject to Disclosure (A) reports, memoranda, or other documents made by the defendant, or the defendants attorney or agent, during the cases investigation or defense; or (B) a statement made to the defendant, or the defendants 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 (2)  Failure to Comply (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances. (As amended Feb. 28, 1966 July 1, 1966 Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(20) July 31, 1975 89 Stat. 374 Pub. L. 94149,  5 Dec. 12, 1975 89 Stat. 806 Apr. 28, 1983 Aug. 1, 1983 Mar. 9, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Apr. 11, 1997 Dec. 1, 1997 Apr. 29, 2002 Dec. 1, 2002 Pub. L. 107273, div. C, title I,  11019(b) Nov. 2, 2002 117 Stat. 1825 Apr. 16, 2013 Dec. 1, 2013 Apr. 11, 2022 Dec. 1, 2022 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1944 Whether under existing law discovery may be permitted in criminal cases is doubtful, United States v. Rosenfeld United States v. B. Goedde and Co Notes of Advisory Committee on Rules1966 Amendment The extent to which pretrial discovery should be permitted in criminal cases is a complex and controversial issue. The problems have been explored in detail in recent legal literature, most of which has been in favor of increasing the range of permissible discovery. See, e.g. Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth, 1963 Wash.U.L.Q. 279; Everett, Discovery in Criminal CasesIn Search of a Standard, 1964 Duke L.J. 477; Fletcher, Pretrial Discovery in State Criminal Cases, 12 Stan.L.Rev. 293 (1960); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 11721198 (1960); Krantz, Pretrial Discovery in Criminal Cases: A Necessity for Fair and Impartial Justice, 42 Neb.L.Rev. 127 (1962); Louisell, Criminal Discovery: Dilemma Real or Apparent, 49 Calif.L.Rev. 56 (1961); Louisell, The Theory of Criminal Discovery and the Practice of Criminal Law, 14 Vand.L.Rev. 921 (1961); Moran, Federal Criminal Rules Changes: Aid or Illusion for the Indigent Defendant? 51 A.B.A.J. 64 (1965); Symposium, Discovery in Federal Criminal Cases, 33 F.R.D. 47128 (1963); Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228 (1964); Developments in the LawDiscovery, 74 Harv.L.Rev. 940, 10511063. Full judicial exploration of the conflicting policy considerations will be found in State v. Tune State v. Johnson State v. Murphy State v. Moffa Subdivision (a).The court is authorized to order the attorney for the government to permit the defendant to inspect and copy or photograph three different types of material: (1) Relevant written or recorded statements or confessions made by the defendant, or copies thereof. The defendant is not required to designate because he may not always be aware that his statements or confessions are being recorded. The governments obligation is limited to production of such statements as are within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government. Discovery of statements and confessions is in line with what the Supreme Court has described as the better practice ( Cicenia v. LaGay State v. McGee Cash v. Superior Court State v. Bickham People v. Johnson State v. Johnson People v. Stokes People v. Cartier State v. Minor (2) Relevant results or reports of physical or mental examinations, and of scientific tests or experiments (including fingerprint and handwriting comparisons) made in connection with the particular case, or copies thereof. Again the defendant is not required to designate but the governments obligation is limited to production of items within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government. With respect to results or reports of scientific tests or experiments the range of materials which must be produced by the government is further limited to those made in connection with the particular case. Cf. Fla.Stats.  909.18; State v. Superior Court People v. Cooper People v. Stokes (3) Relevant recorded testimony of a defendant before a grand jury. The policy which favors pretrial disclosure to a defendant of his statements to government agents also supports, pretrial disclosure of his testimony before a grand jury. Courts, however, have tended to require a showing of special circumstances before ordering such disclosure. See, e.g., United States v. Johnson Subdivision (b).This subdivision authorizes the court to order the attorney for the government to permit the defendant to inspect the copy or photograph all other books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government. Because of the necessarily broad and general terms in which the items to be discovered are described, several limitations are imposed: (1) While specific designation is not required of the defendant, the burden is placed on him to make a showing of materiality to the preparation of his defense and that his request is reasonable. The requirement of reasonableness will permit the court to define and limit the scope of the governments obligation to search its files while meeting the legitimate needs of the defendant. The court is also authorized to limit discovery to portions of items sought. (2) Reports, memoranda, and other internal government documents made by government agents in connection with the investigation or prosecution of the case are exempt from discovery. Cf. Palermo v. United States Ogden v. United States (3) Except as provided for reports of examinations and tests in subdivision (a)(2), statements made by government witnesses or prospective government witnesses to agents of the government are also exempt from discovery except as provided by 18 U.S.C.  3500. Subdivision (c).This subdivision permits the court to condition a discovery order under subdivision (a)(2) and subdivision (b) by requiring the defendant to permit the government to discover similar items which the defendant intends to produce at the trial and which are within his possession, custody or control under restrictions similar to those placed in subdivision (b) upon discovery by the defendant. While the government normally has resources adequate to secure the information necessary for trial, there are some situations in which mutual disclosure would appear necessary to prevent the defendant from obtaining an unfair advantage. For example, in cases where both prosecution and defense have employed experts to make psychiatric examinations, it seems as important for the government to study the opinions of the experts to be called by the defendant in order to prepare for trial as it does for the defendant to study those of the governments witnesses. Or in cases (such as antitrust cases) in which the defendant is well represented and well financed, mutual disclosure so far as consistent with the privilege against self-incrimination would seem as appropriate as in civil cases. State cases have indicated that a requirement that the defendant disclose in advance of trial materials which he intends to use on his own behalf at the trial is not a violation of the privilege against self-incrimination. See Jones v. Superior Court People v. Lopez Subdivision (d).This subdivision is substantially the same as the last sentence of the existing rule. Subdivision (e).This subdivision gives the court authority to deny, restrict or defer discovery upon a sufficient showing. Control of the abuses of discovery is necessary if it is to be expanded in the fashion proposed in subdivisions (a) and (b). Among the considerations to be taken into account by the court will be the safety of witnesses and others, a particular danger of perjury or witness intimidation, the protection of information vital to the national security, and the protection of business enterprises from economic reprisals. For an example of a use of a protective order in state practice, see People v. Lopez In some cases it would defeat the purpose of the protective order if the government were required to make its showing in open court. The problem arises in its most extreme form where matters of national security are involved. Hence a procedure is set out where upon motion by the government the court may permit the government to make its showing, in whole or in part, in a written statement to be inspected by the court in camera. If the court grants relief based on such showing, the governments statement is to be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant, Cf. 18 U.S.C.  3500. Subdivision (f).This subdivision is designed to encourage promptness in making discovery motions and to give the court sufficient control to prevent unnecessary delay and court time consequent upon a multiplication of discovery motions. Normally one motion should encompass all relief sought and a subsequent motion permitted only upon a showing of cause. Where pretrial hearings are used pursuant to Rule 17.1, discovery issues may be resolved at such hearings. Subdivision (g).The first sentence establishes a continuing obligation on a party subject to a discovery order with respect to material discovered after initial compliance. The duty provided is to notify the other party, his attorney or the court of the existence of the material. A motion can then be made by the other party for additional discovery and, where the existence of the material is disclosed shortly before or during the trial, for any necessary continuance. The second sentence gives wide discretion to the court in dealing with the failure of either party to comply with a discovery order. Such discretion will permit the court to consider the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances. Notes of Advisory Committee on Rules1974 Amendment Rule 16 is revised to give greater discovery to both the prosecution and the defense. Subdivision (a) deals with disclosure of evidence by the government. Subdivision (b) deals with disclosure of evidence by the defendant. The majority of the Advisory Committee is of the view that the twoprosecution and defense discoveryare related and that the giving of a broader right of discovery to the defense is dependent upon giving also a broader right of discovery to the prosecution. The draft provides for a right of prosecution discovery independent of any prior request for discovery by the defendant. The Advisory Committee is of the view that this is the most desirable approach to prosecution discovery. See American Bar Association, Standards Relating to Discovery and Procedure Before Trial, pp. 7, 4346 (Approved Draft, 1970). The language of the rule is recast from the court may order or the court shall order to the government shall permit or the defendant shall permit. This is to make clear that discovery should be accomplished by the parties themselves, without the necessity of a court order unless there is dispute as to whether the matter is discoverable or a request for a protective order under subdivision (d)(1). The court, however, has the inherent right to enter an order under this rule. The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judges discretion to order broader discovery in appropriate cases. For example, subdivision (a)(3) is not intended to deny a judges discretion to order disclosure of grand jury minutes where circumstances make it appropriate to do so. Subdivision (a)(1)(A) amends the old rule to provide, upon request of the defendant, the government shall permit discovery if the conditions specified in subdivision (a)(1)(A) exist. Some courts have construed the current language as giving the court discretion as to whether to grant discovery of defendants statements. See United States v. Kaminsky United States v. Diliberto United States v. Louis Carreau United States v. Louis Carreau United States v. Wallace United States v. Wood United States v. Leighton United States v. Longarzo Loux v. United States United States v. Aadal United States v. Federmann United States v. Projansky The amendment making disclosure mandatory under the circumstances prescribed in subdivision (a)(1)(A) resolves such ambiguity as may currently exist, in the direction of more liberal discovery. See C. Wright, Federal Practice and Procedure: Criminal  253 (1969, Supp. 1971), Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo.L.J. 1276 (1966); Fla.Stat.Ann.  925.05 (Supp. 19711972); N.J.Crim.Prac.Rule 3511(a) (1967). This is done in the view that broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence. This is the ground upon which the American Bar Association Standards Relating to Discovery and Procedure Before Trial (Approved Draft, 1970) has unanimously recommended broader discovery. The United States Supreme Court has said that the pretrial disclosure of a defendants statements may be the better practice.  Cicenia v. La Gay Leland v. Oregon State v. Johnson The requirement that the statement be disclosed prior to trial, rather than waiting until the trial, also contributes to efficiency of administration. It is during the pretrial stage that the defendant usually decides whether to plead guilty. See United States v. Projansky The American Bar Association Standards mandate the prosecutor to make the required disclosure even though not requested to do so by the defendant. The proposed draft requires the defendant to request discovery, although obviously the attorney for the government may disclose without waiting for a request, and there are situations in which due process will require the prosecution, on its own, to disclose evidence helpful to the defense. Brady v. Maryland Giles v. Maryland The requirement in subdivision (a)(1)(A) is that the government produce statements without further discussion of what statement includes. There has been some recent controversy over what statements are subject to discovery under the current rule. See Discovery in Criminal Cases, 44 F.R.D. 481 (1968); C. Wright, Federal Practice and Procedure: Criminal  253, pp. 505506 (1969, Supp. 1971). The kinds of statements which have been held to be within the rule include substantially verbatim and contemporaneous statements, United States v. Elife United States v. Armantrout United States v. Scharf United States v. Morrison United States v. Black United States v. Iovinelli The Jencks Act, 18 U.S.C.  3500, defines statements of government witnesses discoverable for purposes of cross-examination as: (1) a written statement signed or otherwise approved by a witness, (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the government and recorded contemporaneously with the making of such oral statement. 18 U.S.C.  3500(e). The language of the Jencks Act has most often led to a restrictive definition of statements, confining statements to the defendants own words. See Hanks v. United States Augenblick v. United States The American Bar Associations Standards Relating to Discovery and Procedure Before Trial (Approved Draft, 1970) do not attempt to define statements because of a disagreement among members of the committee as to what the definition should be. The majority rejected the restrictive definition of statements contained in the Jencks Act, 18 U.S.C.  3500(e), in the view that the defendant ought to be able to see his statement in whatever form it may have been preserved in fairness to the defendant and to discourage the practice, where it exists, of destroying original notes, after transforming them into secondary transcriptions, in order to avoid cross-examination based upon the original notes. See Campbell v. United States Subdivision (a)(1)(A) also provides for mandatory disclosure of a summary of any oral statement made by defendant to a government agent which the attorney for the government intends to use in evidence. The reasons for permitting the defendant to discover his own statements seem obviously to apply to the substance of any oral statement which the government intends to use in evidence at the trial. See American Bar Association Standards Relating to Discovery and Procedure Before Trial  2.1(a)(ii) (Approved Draft, 1970). Certainly disclosure will facilitate the raising of objections to admissibility prior to trial. There have been several conflicting decisions under the current rules as to whether the government must disclose the substance of oral statements of the defendant which it has in its possession. Cf. United States v. Baker United States v. Curry United States v. Morrison United States v. Reid United States v. Armantrout United States v. Elife United States v. Curry Loux v. United States United States v. Baker Subdivision (a)(1)(A) also provides for mandatory disclosure of any recorded testimony which defendant gives before a grand jury if the testimony relates to the offense charged. The present rule is discretionary and is applicable only to those of defendants statements which are relevant. The traditional rationale behind grand jury secrecyprotection of witnessesdoes not apply when the accused seeks discovery of his own testimony. Cf. Dennis v. United States Allen v. United States United States v. Gleason United States v. Longarzo United States v. United Concrete Pipe Corp In a situation involving a corporate defendant, statements made by present and former officers and employees relating to their employment have been held discoverable as statements of the defendant. United States v. Hughes Subdivision (a)(1)(B) allows discovery of the defendants prior criminal record. A defendant may be uncertain of the precise nature of his prior record and it seems therefore in the interest of efficient and fair administration to make it possible to resolve prior to trial any disputes as to the correctness of the relevant criminal record of the defendant. Subdivision (a)(1)(C) gives a right of discovery of certain tangible objects under the specified circumstances. Courts have construed the old rule as making disclosure discretionary with the judge. Cf. United States v. Kaminsky Gevinson v. United States United States v. Tanner Disclosure of documents and tangible objects which are material to the preparation of the defense may be required under the rule of Brady v. Maryland Brady Limiting the rule to situations in which the defendant can show that the evidence is material seems unwise. It may be difficult for a defendant to make this showing if he does not know what the evidence is. For this reason subdivision (a)(1)(C) also contains language to compel disclosure if the government intends to use the property as evidence at the trial or if the property was obtained from or belongs to the defendant. See ABA Standards Relating to Discovery and Procedure Before Trial  2.1(a)(v) and Commentary pp. 6869 (Approved Draft, 1970). This is probably the result under old rule 16 since the fact that the government intends to use the physical evidence at the trial is probably sufficient proof of materiality. C. Wright, Federal Practice and Procedure: Criminal  254 especially n. 70 at p. 513 (1969, Supp. 1971). But it seems desirable to make this explicit in the rule itself. Requiring disclosure of documents and tangible objects which were obtained from or belong to the defendant probably is also making explicit in the rule what would otherwise be the interpretation of materiality. See C. Wright, Federal Practice and Procedure: Criminal  254 at p. 510 especially n. 58 (1969, Supp. 1971). Subdivision (a)(1)(C) is also amended to add the word photographs to the objects previously listed. See ABA Standards Relating to Discovery and Procedure Before Trial  2.1(a)(v) (Approved Draft, 1970). Subdivision (a)(1)(D) makes disclosure of the reports of examinations and tests mandatory. This is the recommendation of the ABA Standards Relating to Discovery and Procedure Before Trial  2.1(a)(iv) and Commentary pp. 6668 (Approved Draft, 1970). The obligation of disclosure applies only to scientific tests or experiments made in connection with the particular case. So limited, mandatory disclosure seems justified because: (1) it is difficult to test expert testimony at trial without advance notice and preparation; (2) it is not likely that such evidence will be distorted or misused if disclosed prior to trial; and (3) to the extent that a test may be favorable to the defense, its disclosure is mandated under the rule of Brady v. Maryland Subdivision (a)(1)(E) is new. It provides for discovery of the names of witnesses to be called by the government and of the prior criminal record of these witnesses. Many states have statutes or rules which require that the accused be notified prior to trial of the witnesses to be called against him. See, e.g., Alaska R.Crim.Proc. 7(c); Ariz.R.Crim.Proc. 153, 17 A.R.S. (1956); Ark.Stat.Ann.  431001 (1947); Cal.Pen.Code  995n (West 1957); Colo.Rev.Stat.Ann.  3936, 3942 (1963); Fla.Stat.Ann.  906.29 (1944); Idaho Code Ann.  191404 (1948); Ill.Rev.Stat. ch. 38,  1149 (1970); Ind.Ann.Stat.  9903 (1856), IC 1971, 351163; Iowa Code Ann.  772.3 (1950); Kan.Stat.Ann.  62931 (1964); Ky.R.Crim. Proc. 6.08 (1962); Mich.Stat.Ann.  28.980, M.C.L.A.  767.40 (Supp.1971); Minn.Stat.Ann.  628.08 (1947); Mo.Ann.Stat.  545.070 (1953); Mont.Rev. Codes Ann.  951503 (Supp. 1969); Neb.Rev.Stat.  291602 (1964); Nev.Rev.Stat.  173.045 (1967); Okl.Stat. tet. 22,  384 (1951); Ore.Rev.Stat.  132.580 (1969); Tenn. Code Ann.  401708 (1955); Utah Code Ann.  77203 (1953). For examples of the ways in which these requirements are implemented, see State v. Mitchell State v. Parr Phillips v. State Witnesses prior statements must be made available to defense counsel after the witness testifies on direct examination for possible impeachment purposes during trial: 18 U.S.C.  3500. The American Bar Associations Standards Relating to Discovery and Procedure Before Trial  2.1(a)(i) (Approved Draft, 1970) require disclosure of both the names and the statements of prosecution witnesses. Subdivision (a)(1)(E) requires only disclosure, prior to trial, of names, addresses, and prior criminal record. It does not require disclosure of the witnesses statements although the rule does not preclude the parties from agreeing to disclose statements prior to trial. This is done, for example, in courts using the so-called omnibus hearing. Disclosure of the prior criminal record of witnesses places the defense in the same position as the government, which normally has knowledge of the defendants record and the record of anticipated defense witnesses. In addition, the defendant often lacks means of procuring this information on his own. See American Bar Association Standards Relating to Discovery and Procedure Before Trial  2.1(a)(vi) (Approved Draft, 1970). A principal argument against disclosure of the identity of witnesses prior to trial has been the danger to the witness, his being subjected either to physical harm or to threats designed to make the witness unavailable or to influence him to change his testimony. Discovery in Criminal cases, 44 F.R.D. 481, 499500 (1968); Ratnoff, The New Criminal Deposition Statute in OhioHelp or Hindrance to Justice?, 19 Case Western Reserve L.Rev. 279, 284 (1968). See, e.g., United States v. Estep Ninety percent of the convictions had in the trial court for sale and dissemination of narcotic drugs are linked to the work and the evidence obtained by an informer. If that informer is not to have his life protected there wont be many informers hereafter. See also the dissenting opinion of Mr. Justice Clark in Roviaro v. United States Bergen Drug Co. v. Parke, Davis & Company House of Materials, Inc. v. Simplicity Pattern Co Subdivision (a)(2) is substantially unchanged. It limits the discovery otherwise allowed by providing that the government need not disclose reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case or statements made by government witnesses or prospective government witnesses. The only proposed change is that the reports, memoranda, or other internal government documents made by the attorney for the government are included to make clear that the work product of the government attorney is protected. See C. Wright, Federal Practice and Procedure: Criminal  254 n. 92 (1969, Supp. 1971); United States v. Rothman Hickman v. Taylor Brady v. Maryland Subdivision (a)(3) is included to make clear that recorded proceedings of a grand jury are explicitly dealt with in rule 6 and subdivision (a)(1)(A) of rule 16 and thus are not covered by other provisions such as subdivision (a)(1)(C) which deals generally with discovery of documents in the possession, custody, or control of the government. Subdivision (a)(4) is designed to insure that the government will not be penalized if it makes a full disclosure of all potential witnesses and then decides not to call one or more of the witnesses listed. This is not, however, intended to abrogate the defendants right to comment generally upon the governments failure to call witnesses in an appropriate case. Subdivision (b) deals with the governments right to discovery of defense evidence or, put in other terms, with the extent to which a defendant is required to disclose its evidence to the prosecution prior to trial. Subdivision (b) replaces old subdivision (c). Subdivision (b) enlarges the right of government discovery in several ways: (1) it gives the government the right to discovery of lists of defense witnesses as well as physical evidence and the results of examinations and tests; (2) it requires disclosure if the defendant has the evidence under his control and intends to use it at trial in his case in chief, without the additional burden, required by the old rule, of having to show, in behalf of the government, that the evidence is material and the request reasonable; and (3) it gives the government the right to discovery without conditioning that right upon the existence of a prior request for discovery by the defendant. Although the government normally has resources adequate to secure much of the evidence for trial, there are situations in which pretrial disclosure of evidence to the government is in the interest of effective and fair criminal justice administration. For example, the experimental omnibus hearing procedure (see discussion in Advisory Committee Note to rule 12) is based upon an assumption that the defendant, as well as the government, will be willing to disclose evidence prior to trial. Having reached the conclusion that it is desirable to require broader disclosure by the defendant under certain circumstances, the Advisory Committee has taken the view that it is preferable to give the right of discovery to the government independently of a prior request for discovery by the defendant. This is the recommendation of the American Bar Association Standards Relating to Discovery and Procedure Before Trial, Commentary, pp. 4346 (Approved Draft, 1970). It is sometimes asserted that making the governments right to discovery conditional will minimize the risk that government discovery will be viewed as an infringement of the defendants constitutional rights. See discussion in C. Wright, Federal Practice and Procedure: Criminal  256 (1969, Supp.1971); Moore, Criminal Discovery, 19 Hastings L.J. 865 (1968); Wilder, Prosecution Discovery and the Privilege Against Self-Incrimination, 6 Am.Cr.L.Q. 3 (1967). There are assertions that prosecution discovery, even if conditioned upon the defendants being granted discovery, is a violation of the privilege. See statements of Mr. Justice Black and Mr. Justice Douglas, 39 F.R.D. 69, 272, 277278 19 (1966); C. Wright, Federal Practice and Procedure: Criminal  256 (1969, Supp. 1971). Several states require defense disclosure of an intended defense of alibi and, in some cases, a list of witnesses in support of an alibi defense, without making the requirement conditional upon prior discovery being given to the defense. E.g., Ariz.R.Crim.P. 162(B), 17 A.R.S. (1956); Ind.Ann.Stat.  91631 to 91633 (1956), IC 1971, 35511 to 35513; Mich.Comp. Laws Ann.  768.20, 768.21 (1968); N.Y. CPL  250.20 (McKinneys Consol.Laws, c. 11A, 1971); and Ohio Rev.Code Ann.  2945.58 (1954). State courts have refused to hold these statutes violative of the privilege against self-incrimination. See State v. Thayer People v. Rakiec Some state courts have held that a defendant may be required to disclose, in advance of trial, evidence which he intends to use on his own behalf at trial without violating the privilege against self-incrimination. See Jones v. Superior Court of Nevada County People v. Lopez On balance the Advisory Committee is of the view that an independent right of discovery for both the defendant and the government is likely to contribute to both effective and fair administration. See Louisell, Criminal Discovery and Self-Incrimination: Roger Traynor Confronts the Dilemma, 53 Calif.L.Rev. 89 (1965), for an analysis of the difficulty of weighing the value of broad discovery against the value which inheres in not requiring the defendant to disclose anything which might work to his disadvantage. Subdivision (b)(1)(A) provides that the defendant shall disclose any documents and tangible objects which he has in his possession, custody, or control and which he intends to introduce in evidence in his case in chief. Subdivision (b)(1)(B) provides that the defendant shall disclose the results of physical or mental examinations and scientific tests or experiments if (a) they were made in connection with a particular case; (b) the defendant has them under his control; and (c) he intends to offer them in evidence in his case in chief or which were prepared by a defense witness and the results or reports relate to the witnesss testimony. In cases where both prosecution and defense have employed experts to conduct tests such as psychiatric examinations, it seems as important for the government to be able to study the results reached by defense experts which are to be called by the defendant as it does for the defendant to study those of government experts. See Schultz, Criminal Discovery by the Prosecution: Frontier Developments and Some Proposals for the Future, 22 N.Y.U.Intra.L.Rev. 268 (1967); American Bar Association, Standards Relating to Discovery and Procedure Before Trial  3.2 (Supp., Approved Draft, 1970). Subdivision (b)(1)(C) provides for discovery of a list of witnesses the defendant intends to call in his case in chief. State cases have indicated that disclosure of a list of defense witnesses does not violate the defendants privilege against self-incrimination. See Jones v. Superior Court of Nevada County People v. Lopez Subdivision (b)(2) is unchanged, appearing as the last sentence of subdivision (c) of old rule 16. Subdivision (b)(3) provides that the defendants failure to introduce evidence or call witnesses shall not be admissible in evidence against him. In states which require pretrial disclosure of witnesses identity, the prosecution is not allowed to comment upon the defendants failure to call a listed witness. See OConnor v. State People v. Mancini State v. Cocco Subdivision (c) is a restatement of part of old rule 16(g). Subdivision (d)(1) deals with the protective order. Although the rule does not attempt to indicate when a protective order should be entered, it is obvious that one would be appropriate where there is reason to believe that a witness would be subject to physical or economic harm if his identity is revealed. See Will v. United States Alderman v. United States Alderman Alderman v. United States Subdivision (d)(2) is a restatement of part of old rule 16(g) and (d). Old subdivision (f) of rule 16 dealing with time of motions is dropped because rule 12(c) provides the judge with authority to set the time for the making of pretrial motions including requests for discovery. Rule 12 also prescribes the consequences which follow from a failure to make a pretrial motion at the time fixed by the court. See rule 12(f). Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 16 of the Federal Rules of Criminal Procedure regulates discovery by the defendant of evidence in possession of the prosecution, and discovery by the prosecution of evidence in possession of the defendant. The present rule permits the defendant to move the court to discover certain material. The prosecutors discovery is limited and is reciprocalthat is, if the defendant is granted discovery of certain items, then the prosecution may move for discovery of similar items under the defendants control. As proposed to be amended, the rule provides that the parties themselves will accomplish discoveryno motion need be filed and no court order is necessary. The court will intervene only to resolve a dispute as to whether something is discoverable or to issue a protective order. The proposed rule enlarges the scope of the defendants discovery to include a copy of his prior criminal record and a list of the names and addresses, plus record of prior felony convictions, of all witnesses the prosecution intends to call during its case-in-chief. It also permits the defendant to discover the substance of any oral statement of his which the prosecution intends to offer at trial, if the statement was given in response to interrogation by any person known by defendant to be a government agent. Proposed subdivision (a)(2) provides that Rule 16 does not authorize the defendant to discover reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case. ... The proposed rule also enlarges the scope of the governments discovery of materials in the custody of the defendant. The government is entitled to a list of the names and addresses of the witnesses the defendant intends to call during his case-in-chief. Proposed subdivision (b)(2) protects the defendant from having to disclose reports, memoranda, or other internal defense documents . . . made in connection with the investigation or defense of the case. ... Subdivision (d)(1) of the proposed rule permits the court to deny, restrict, or defer discovery by either party, or to make such other order as is appropriate. Upon request, a party may make a showing that such an order is necessary. This showing shall be made to the judge alone if the party so requests. If the court enters an order after such a showing, it must seal the record of the showing and preserve it in the event there is an appeal. B. Committee Action. The Committee agrees that the parties should, to the maximum possible extent, accomplish discovery themselves. The court should become involved only when it is necessary to resolve a dispute or to issue an order pursuant to subdivision (d). Perhaps the most controversial amendments to this rule were those dealing with witness lists. Under present law, the government must turn over a witness list only Section 3432 of title 18 The proposed rule was sharply criticized by both prosecutors and defenders. The prosecutors feared that pretrial disclosure of prosecution witnesses would result in harm to witnesses. The defenders argued that a defendant cannot constitutionally be compelled to disclose his witnesses. The Committee believes that it is desirable to promote greater pretrial discovery. As stated in the Advisory Committee Note, broader discovery by both the defense and the prosecution will contribute to the fair and efficient administration of criminal justice by aiding in informed plea negotiations, by minimizing the undesirable effect of surprise at trial, and by otherwise contributing to an accurate determination of the issue of guilt or innocence. ... The Committee, therefore, endorses the principle that witness lists are discoverable. However, the Committee has attempted to strike a balance between the narrow provisions of existing law and the broad provisions of the proposed rule. The Committee rule makes the procedures defendant-triggered. If the defendant asks for and receives a list of prosecution witnesses, then the prosecution may request a list of defense witnesses. The witness lists need not be turned over until 3 days before trial. The court can modify the terms of discovery upon a sufficient showing. Thus, the court can require disclosure of the witness lists earlier than 3 days before trial, or can permit a party not to disclose the identity of a witness before trial. The Committee provision promotes broader discovery and its attendant valuesinformed disposition of cases without trial, minimizing the undesirable effect of surprise, and helping insure that the issue of guilt or innocence is accurately determined. At the same time, it avoids the problems suggested by both the prosecutors and the defenders. The major argument advanced by prosecutors is the risk of danger to their witnesses if their identities are disclosed prior to trial. The Committee recognizes that there may be a risk but believes that the risk is not as great as some fear that it is. Numerous states require the prosecutor to provide the defendant with a list of prosecution witnesses prior to trial. [These States include Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oklahoma, Oregon, Tennessee, and Utah. See Advisory Committee Note, House Document 93292, at 60.] The evidence before the Committee indicates that these states have not experienced unusual problems of witness intimidation. [See the comments of the Standing Committee on Criminal Law and Procedure of the State Bar of California in Hearings II, at 302.] Some federal jurisdictions have adopted an omnibus pretrial discovery procedure that calls upon the prosecutor to give the defendant its witness lists. One such jurisdiction is the Southern District of California. The evidence before the Committee indicates that there has been no unusual problems with witness intimidation in that district. Charles Sevilla, Chief Trial Attorney for the Federal Defenders of San Diego, Inc., which operates in the Southern District of California, testified as follows: The Government in one of its statements to this committee indicated that providing the defense with witness lists will cause coerced witness perjury. This does not happen. We receive Government witness lists as a matter of course in the Southern District, and its a rare occasion when there is any overture by a defense witness or by a defendant to a Government witness. It simply doesnt happen except on the rarest of occasion. When the Government has that fear it can resort to the protective order. [Hearings II, at 42.] Mr. Sevillas observations are corroborated by the views of the U.S. Attorney for the Southern District of California: Concerning the modifications to Rule 16, we have followed these procedures informally in this district for a number of years. We were one of the districts selected for the pilot projects of the Omnibus Hearing in 1967 or 1968. We have found that the courts in our district will not require us to disclose names of proposed witnesses when in our judgment to do so would not be advisable. Otherwise we routinely provide defense counsel with full discovery, including names and addresses of witnesses. We have not had any untoward results by following this program, having in mind that the courts will, and have, excused us from discovery where the circumstances warrant. [Hearings I, at 109.] Much of the prosecutorial criticism of requiring the prosecution to give a list of its witnesses to the defendant reflects an unwillingness to trust judges to exercise sound judgment in the public interest. Prosecutors have stated that they frequently will open their files to defendants in order to induce pleas. [See testimony of Richard L. Thornburgh, United States Attorney for the Western District of Pennsylvania, in Hearings I, at 150.] Prosecutors are willing to determine on their own when they can do this without jeopardizing the safety of witnesses. There is no reason why a judicial officer cannot exercise the same discretion in the public interest. The Committee is convinced that in the usual case there is no serious risk of danger to prosecution witnesses from pretrial disclosure of their identities. In exceptional instances, there may be a risk of danger. The Committee rule, however, is capable of dealing with those exceptional instances while still providing for disclosure of witnesses in the usual case. The Committee recognizes the force of the constitutional arguments advanced by defenders. Requiring a defendant, upon request, to give to the prosecution material which may be incriminating, certainly raises very serious constitutional problems. The Committee deals with these problems by having the defendant trigger the discovery procedures. Since the defendant has no constitutional right to discover any of the prosecutions evidence (unless it is exculpatory within the meaning of Brady v. Maryland The Committee also changed subdivisions (a)(2) and (b)(2), which set forth work product exceptions to the general discovery requirements. The subsections proposed by the Supreme Court are cast in terms of the type of document involved (e. g., report), rather than in terms of the content (e. g., legal theory). The Committee recast these provisions by adopting language from Rule 26(b)(3) of the Federal Rules of Civil Procedure. The Committee notes that subdivision (a)(1)(C) permits the defendant to discover certain items that were obtained from or belong to the defendant. The Committee believes that, as indicated in the Advisory Committee Note [House Document 93292, at 59], items that were obtained from or belong to the defendant are items that are material to the preparation of his defense. The Committee added language to subdivision (a)(1)(B) to conform it to provisions in subdivision (a)(1)(A). The rule as changed by the Committee requires the prosecutor to give the defendant such copy of the defendants prior criminal record as is within the prosecutors possession, custody, or control, the existence of which is known, or by the exercise of due diligence may become known to the prosecutor. The Committee also made a similar conforming change in subdivision (a)(1)(E), dealing with the criminal records of government witnesses. The prosecutor can ordinarily discharge his obligation under these two subdivisions, (a)(1)(B) and (E), by obtaining a copy of the F.B.I. rap sheet. The Committee made an additional change in subdivision (a)(1)(E). The proposed rule required the prosecutor to provide the defendant with a record of the felony convictions of government witnesses. The major purpose for letting the defendant discover information about the record of government witnesses, is to provide him with information concerning the credibility of those witnesses. Rule 609(a) of the Federal Rules of Evidence permits a party to attack the credibility of a witness with convictions other than just felony convictions. The Committee, therefore, changed subdivision (a)(1)(E) to require the prosecutor to turn over a record of all criminal convictions, not just felony convictions. The Committee changed subdivision (d)(1), which deals with protective orders. Proposed (d)(1) required the court to conduct an ex parte proceeding whenever a party so requested. The Committee changed the mandatory language to permissive language. A Court may, not must, conduct an ex parte proceeding if a party so requests. Thus, if a party requests a protective or modifying order and asks to make its showing ex parte, the court has two separate determinations to make. First, it must determine whether an ex parte proceeding is appropriate, bearing in mind that ex parte proceedings are disfavored and not to be encouraged. [An ex parte proceeding would seem to be appropriate if any adversary proceeding would defeat the purpose of the protective or modifying order. For example, the identity of a witness would be disclosed and the purpose of the protective order is to conceal that witness identity.] Second, it must determine whether a protective or modifying order shall issue. Conference Committee Notes, House Report No. 94414; 1975 Amendment Rule 16 deals with pretrial discovery by the defendant and the government. The House and Senate versions of the bill differ on Rule 16 in several respects. A. Reciprocal vs. Independent Discovery for the Government.The House version of the bill provides that the governments discovery is reciprocal. If the defendant requires and receives certain items from the government, then the government is entitled to get similar items from the defendant. The Senate version of the bill gives the government an independent right to discover material in the possession of the defendant. The Conference adopts the House provisions. B. Rule 16(a)(1)(A).The House version permits an organization to discover relevant recorded grand jury testimony of any witness who was, at the time of the acts charged or of the grand jury proceedings, so situated as an officer or employee as to have been able legally to bind it in respect to the activities involved in the charges. The Senate version limits discovery of this material to testimony of a witness who was, at the time of the grand jury proceeding, so situated as an officer or employee as to have been legally to bind the defendant in respect to the activities involved in the charges. The Conferees share a concern that during investigations, ex-employees and ex-officers of potential corporate defendants are a critical source of information regarding activities of their former corporate employers. It is not unusual that, at the time of their testimony or interview, these persons may have interests which are substantially adverse to or divergent from the putative corporate defendant. It is also not unusual that such individuals, though no longer sharing a community of interest with the corporation, may nevertheless be subject to pressure from their former employers. Such pressure may derive from the fact that the ex-employees or ex-officers have remained in the same industry or related industry, are employed by competitors, suppliers, or customers of their former employers, or have pension or other deferred compensation arrangements with former employers. The Conferees also recognize that considerations of fairness require that a defendant corporation or other legal entity be entitled to the grand jury testimony of a former officer or employee if that person was personally involved in the conduct constituting the offense and was able legally to bind the defendant in respect to the conduct in which he was involved. The Conferees decided that, on balance, a defendant organization should not be entitled to the relevant grand jury testimony of a former officer or employee in every instance. However, a defendant organization should be entitled to it if the former officer or employee was personally involved in the alleged conduct constituting the offense and was so situated as to have been able legally to bind the defendant in respect to the alleged conduct. The Conferees note that, even in those situations where the rule provides for disclosure of the testimony, the Government may, upon a sufficient showing, obtain a protective or modifying order pursuant to Rule 16(d)(1). The Conference adopts a provision that permits a defendant organization to discover relevant grant jury testimony of a witness who (1) was, at the time of his testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to that alleged conduct in which he was involved. C. Rules 16(a)(1)(E) and (b)(1)(C) (witness lists).The House version of the bill provides that each party, the government and the defendant, may discover the names and addresses of the other partys witnesses 3 days before trial. The Senate version of the bill eliminates these provisions, thereby making the names and addresses of a partys witnesses nondiscoverable. The Senate version also makes a conforming change in Rule 16(d)(1). The Conference adopts the Senate version. A majority of the Conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial. Discouragement of witnesses and improper contact directed at influencing their testimony, were deemed paramount concerns in the formulation of this policy. D. Rules 16(a)(2) and (b)(2).Rules 16(a)(2) and (b)(2) define certain types of materials (work product) not to be discoverable. The House version defines work product to be the mental impressions, conclusions, opinions, or legal theories of the attorney for the government or other government agents. This is parallel to the definition in the Federal Rules of Civil Procedure. The Senate version returns to the Supreme Courts language and defines work product to be reports, memoranda, or other internal government documents. This is the language of the present rule. The Conference adopts the Senate provision. The Conferees note that a party may not avoid a legitimate discovery request merely because something is labelled report, memorandum, or internal document. For example if a document qualifies as a statement of the defendant within the meaning of the Rule 16(a)(1)(A), then the labelling of that document as report, memorandum, or internal government document will not shield that statement from discovery. Likewise, if the results of an experiment qualify as the results of a scientific test within the meaning of Rule 16(b)(1)(B), then the results of that experiment are not shielded from discovery even if they are labelled report, memorandum, or internal defense document. Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment The amendment to Rule 16(a)(1)(A) expands slightly government disclosure to the defense of statements made by the defendant. The rule now requires the prosecution, upon request, to disclose any written record which contains reference to a relevant oral statement by the defendant which was in response to interrogation, without regard to whether the prosecution intends to use the statement at trial. The change recognizes that the defendant has some proprietary interest in statements made during interrogation regardless of the prosecutions intent to make any use of the statements. The written record need not be a transcription or summary of the defendants statement but must only be some written reference which would provide some means for the prosecution and defense to identify the statement. Otherwise, the prosecution would have the difficult task of locating and disclosing the myriad oral statements made by a defendant, even if it had no intention of using the statements at trial. In a lengthy and complicated investigation with multiple interrogations by different government agents, that task could become unduly burdensome. The existing requirement to disclose oral statements which the prosecution intends to introduce at trial has also been changed slightly. Under the amendment, the prosecution must also disclose any relevant oral statement which it intends to use at trial, without regard to whether it intends to introduce the statement. Thus, an oral statement by the defendant which would only be used for impeachment purposes would be covered by the rule. The introductory language to the rule has been modified to clarify that without regard to whether the defendants statement is oral or written, it must at a minimum be disclosed. Although the rule does not specify the means for disclosing the defendants statements, if they are in written or recorded form, the defendant is entitled to inspect, copy, or photograph them. Notes of Advisory Committee on Rules1993 Amendment New subdivisions (a)(1)(E) and (b)(1)(C) expand federal criminal discovery by requiring disclosure of the intent to rely on expert opinion testimony, what the testimony will consist of, and the bases of the testimony. The amendment is intended to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the experts testimony through focused cross-examination. See Adjudication by Ambush: Federal Prosecutors Use of Nonscientific Experts in a System of Limited Criminal Discovery N. C. L. Rev Like other provisions in Rule 16, subdivision (a)(1)(E) requires the government to disclose information regarding its expert witnesses if the defendant first requests the information. Once the requested information is provided, the government is entitled, under (b)(1)(C) to reciprocal discovery of the same information from the defendant. The disclosure is in the form of a written summary and only applies to expert witnesses that each side intends to call. Although no specific timing requirements are included, it is expected that the parties will make their requests and disclosures in a timely fashion. With increased use of both scientific and nonscientific expert testimony, one of counsels most basic discovery needs is to learn that an expert is expected to testify. See Criminal Discovery, Scientific Evidence, and DNA Vand. L. Rev Symposium on Science and the Rules of Legal Procedure Second, the requesting party is entitled to a summary of the expected testimony. This provision is intended to permit more complete pretrial preparation by the requesting party. For example, this should inform the requesting party whether the expert will be providing only background information on a particular issue or whether the witness will actually offer an opinion. In some instances, a generic description of the likely witness and that witnesss qualifications may be sufficient, e.g., where a DEA laboratory chemist will testify, but it is not clear which particular chemist will be available. Third, and perhaps most important, the requesting party is to be provided with a summary of the bases of the experts opinion. Rule 16(a)(1)(D) covers disclosure and access to any results or reports of mental or physical examinations and scientific testing. But the fact that no formal written reports have been made does not necessarily mean that an expert will not testify at trial. At least one federal court has concluded that that provision did not otherwise require the government to disclose the identify of its expert witnesses where no reports had been prepared. See, e.g., United States v. Johnson cert. denied The amendments are not intended to create unreasonable procedural hurdles. As with other discovery requests under Rule 16, subdivision (d) is available to either side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). Notes of Advisory Committee on Rules1994 Amendment The amendment is intended to clarify that the discovery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States See also United States v. Hughes vacated as moot The amendment defines defendant in a broad, nonexclusive fashion. See also see, e.g Notes of Advisory Committee on Rules1997 Amendment Subdivision (a)(1)(E) infra. Subdivision (b)(1)(C) supra. Committee Notes on Rules2002 Amendment The language of Rule 16 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rule 16(a)(1)(A) is now located in Rule 16(a)(1)(A), (B), and (C). Current Rule 16(a)(1)(B), (C), (D), and (E) have been relettered. Amended Rule 16(b)(1)(B) includes a change that may be substantive in nature. Rule 16(a)(1)(E) and 16(a)(1)(F) require production of specified information if the government intends to use the information in its case-in-chief at trial. The Committee believed that the language in revised Rule 16(b)(1)(B), which deals with a defendants disclosure of information to the government, should track the similar language in revised Rule 16(a)(1). In Rule 16(b)(1)(B)(ii), the Committee changed the current provision which reads: the defendant intends to introduce use supra In amended Rule 16(d)(1), the last phrase in the current subdivisionwhich refers to a possible appeal of the courts discovery orderhas been deleted. In the Committees view, no substantive change results from that deletion. The language is unnecessary because the court, regardless of whether there is an appeal, will have maintained the record. Finally, current Rule 16(e), which addresses the topic of notice of alibi witnesses, has been deleted as being unnecessarily duplicative of Rule 12.1. Committee Notes on Rules2013 Amendment Subdivision (a) Prior to restyling in 2002, Rule 16(a)(1)(C) required the government to allow the defendant to inspect and copy books, papers, [and] documents material to his defense. Rule 16(a)(2), however, stated that except as provided by certain enumerated subparagraphsnot including Rule 16(a)(1)(C)Rule 16(a) did not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government. Reading these two provisions together, the Supreme Court concluded that a defendant may examine documents material to his defense, but, under Rule 16(a)(2), he may not examine Government work product. United States v. Armstrong With one exception not relevant here, the 2002 restyling of Rule 16 was intended to work no substantive change. Nevertheless, because restyled Rule 16(a)(2) eliminated the enumerated subparagraphs of its successor and contained no express exception for the materials previously covered by Rule 16(a)(1)(C) (redesignated as subparagraph (a)(1)(E)), some courts have been urged to construe the restyled rule as eliminating protection for government work product. Courts have uniformly declined to construe the restyling changes to Rule 16(a)(2) to effect a substantive alteration in the scope of protection previously afforded to government work product by that rule. Correctly recognizing that restyling was intended to effect no substantive change, courts have invoked the doctrine of the scriveners error to excuse confusion caused by the elimination of the enumerated subparagraphs from the restyled rules. See, e.g. United States v. Rudolph United States v. Fort Rudolph By restoring the enumerated subparagraphs, the amendment makes it clear that a defendants pretrial access to books, papers, and documents under Rule 16(a)(1)(E) remains subject to the limitations imposed by Rule 16(a)(2). Changes Made After Publication and Comment Committee Notes on Rules2022 Amendment The amendment addresses two shortcomings of the prior provisions on expert witness disclosure: the lack of adequate specificity regarding what information must be disclosed, and the lack of an enforceable deadline for disclosure. The amendment clarifies the scope and timing of the parties obligations to disclose expert testimony they intend to present at trial. It is intended to facilitate trial preparation, allowing the parties a fair opportunity to prepare to cross-examine expert witnesses and secure opposing expert testimony if needed. Like the existing provisions, amended subsections (a)(1)(G) (governments disclosure) and (b)(1)(C) (defendants disclosure) generally mirror one another. The amendment to (b)(1)(C) includes the limiting phrasenow found in (a)(1)(G) and carried forward in the amendmentrestricting the disclosure obligation to testimony the defendant will use in the defendants case-in-chief. Because the history of Rule 16 revealed no reason for the omission of this phrase from (b)(1)(C), this phrase was added to make (a) and (b) parallel as well as reciprocal. No change from current practice in this respect is intended. The amendment to (a)(1)(G) also clarifies that the governments disclosure obligation includes not only the testimony it intends to use in its case-in-chief, but also testimony it intends to use to rebut testimony timely disclosed by the defense under (b)(1)(C). To ensure enforceable deadlines that the prior provisions lacked, items (a)(1)(G)(ii) and (b)(1)(C)(ii) provide that the court, by order or local rule, must set a time for the government to make its disclosures of expert testimony to the defendant, and for the defense to make its disclosures of expert testimony to the government. These disclosure times, the amendment mandates, must be sufficiently before trial to provide a fair opportunity for each party to meet the other sides expert evidence. Sometimes a party may need to secure its own expert to respond to expert testimony disclosed by the other party. Deadlines should accommodate the time that may take, including the time an appointed attorney may need to secure funding to hire an expert witness, or the time the government would need to find a witness to rebut an expert disclosed by the defense. Deadlines for disclosure must also be sensitive to the requirements of the Speedy Trial Act. Because caseloads vary from district to district, the amendment does not itself set a specific time for the disclosures by the government and the defense for every case. Instead, it allows courts to tailor disclosure deadlines to local conditions or specific cases by providing that the time for disclosure must be set either by local rule or court order. Items (a)(1)(G)(ii) and (b)(1)(C)(ii) require the court to set a time for disclosure in each case if that time is not already set by local rule or other order, but leave to the courts discretion when it is most appropriate to announce those deadlines. The court also retains discretion under Rule 16(d) consistent with the provisions of the Speedy Trial Act to alter deadlines to ensure adequate trial preparation. In setting times for expert disclosures in individual cases, the court should consider the recommendations of the parties, who are required to confer and try to agree on a timetable for pretrial disclosures under Rule 16.1. To ensure that parties receive adequate information about the content of the witnesss testimony and potential impeachment, items (a)(1)(G)(i) and (iii)and the parallel provisions in (b)(1)(C)(i) and (iii)delete the phrase written summary and substitute specific requirements that the parties provide a complete statement of the witnesss opinions, the bases and reasons for those opinions, the witnesss qualifications, and a list of other cases in which the witness has testified in the past 4 years. Although the language of some of these provisions is drawn from Civil Rule 26, the amendment is not intended to replicate all aspects of practice under the civil rule in criminal cases, which differ in many significant ways from civil cases. The amendment requires a complete statement of all opinions the expert will provide, but does not require a verbatim recitation of the testimony the expert will give at trial. On occasion, an expert witness will have testified in a large number of cases, and developing the list of prior testimony may be unduly burdensome. Likewise, on occasion, with respect to an expert witness whose identity is not critical to the opposing partys ability to prepare for trial, the party who wishes to call the expert may be able to provide a complete statement of the experts opinions, bases and reasons for them, but may not be able to provide the witnesss identity until a date closer to trial. In such circumstances, the party who wishes to call the expert may seek an order modifying discovery under Rule 16(d). Items (a)(1)(G)(iv) and (b)(1)(C)(iv) also recognize that, in some situations, information that a party must disclose about opinions and the bases and reasons for those opinions may have been provided previously in a report (including accompanying documents) of an examination or test under subparagraph (a)(1)(F) or (b)(1)(B). Information previously provided need not be repeated in the expert disclosure, if the expert disclosure clearly identifies the information and the prior report in which it was provided. Items (a)(1)(G)(v) and (b)(1)(C)(v) of the amended rule require that the expert witness approve and sign the disclosure. However, the amended provisions also recognize two exceptions to this requirement. First, the rule recognizes the possibility that a party may not be able to obtain a witnesss approval and signature despite reasonable efforts to do so. This may occur, for example, when the party has not retained or specially employed the witness to present testimony, such as when a party calls a treating physician to testify. In that situation, the party is responsible for providing the required information, but may be unable to procure a witnesss approval and signature following a request. An unsigned disclosure is acceptable so long as the party states why it was unable to procure the experts signature following reasonable efforts. Second, the expert need not sign the disclosure if a complete statement of all of the opinions as well as the bases and reasons for those opinions, were already set forth in a report, signed by the witness, previously provided under subparagraph (a)(1)(F)for government disclosuresor (b)(1)(B)for defendants disclosures. In that situation, the prior signed report and accompanying documents, combined with the attorneys representation of the experts qualifications, publications, and prior testimony, provide the information and signature needed to prepare to meet the testimony. Items (a)(1)(G)(vi) and (b)(1)(C)(vi) require the parties to supplement or correct each disclosure to the other party in accordance with Rule 16(c). This provision is intended to ensure that, if there is any modification of a partys expert testimony or change in the identity of an expert after the initial disclosure, the other party will receive prompt notice of that modification or correction. Committee Notes on Rules2023 Amendment The amendment corrects the cross reference in Rule 16(b)(1)(C)(v), which refers to expert reports previously provided by the defense under Rule 16(b)(1)(B).  References in Text The Federal Rules of Evidence, referred to in subds. (a)(1)(G) and (b)(1)(C), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Codification Federal Rule of Evidence 702, 703, or 705, referred to in two places in subd. (a)(1)(G)(i), appeared in the amendment by House Document 117109 with Rules, with the final s lined through instead of deleted. The final s has been omitted here to reflect the intent of the amendment. See Committee Notes on Rules2022 Amendment set out above. Amendment by Public Law 2002Subd. (a)(1)(G). Pub. L. 107273,  11019(b)(1) Subd. (b)(1)(C). Pub. L. 107273,  11019(b)(2) 1975Subd. (a)(1). Pub. L. 9464 Subd. (a)(4). Pub. L. 94149 Subd. (b)(1). Pub. L. 9464 Subd. (b)(3). Pub. L. 94149 Subd. (c). Pub. L. 9464 Subd. (d)(1). Pub. L. 9464 Effective Date of 2002 Amendment Pub. L. 107273, div. C, title I,  11019(c) Nov. 2, 2002 116 Stat. 1826 The amendments made by subsection (b) [amending this rule] shall take effect on December 1, 2002 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 Rule 16.1. Pretrial Discovery Conference; Request for Court Action (a)  Discovery Conference No later than 14 days after the arraignment, the attorney for the government and the defendants attorney must confer and try to agree on a timetable and procedures for pretrial disclosure under Rule 16. (b)  Request for Court Action After the discovery conference, one or both parties may ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial. (Added Apr. 25, 2019 Dec. 1, 2019  Committee Notes on Rules2019 This new rule requires the attorney for the government and counsel for the defendant to confer early in the process, no later than 14 days after arraignment, about the timetable and procedures for pretrial disclosure. The new requirement is particularly important in cases involving electronically stored information (ESI) or other voluminous or complex discovery. For practical reasons, the rule does not require attorneys for the government to confer with defendants who are not represented by counsel. However, neither does the rule limit existing judicial discretion to manage discovery in cases involving pro se defendants, and courts must ensure such defendants have full access to discovery. The rule states a general procedure that the parties can adapt to the circumstances. Simple cases may require only a brief informal conversation to settle the timing and procedures for discovery. Agreement may take more effort as case complexity and technological challenges increase. Moreover, the rule does not (1) modify statutory safeguards provided in security and privacy laws such as the Jencks Act or the Classified Information Procedures Act, (2) displace local rules or standing orders that supplement and are consistent with its requirements, or (3) limit the authority of the district court to determine the timetable and procedures for disclosure. Because technology changes rapidly, the rule does not attempt to state specific requirements for the manner or timing of disclosure in cases involving ESI. However, counsel should be familiar with best practices. For example, the Department of Justice, the Administrative Office of the U.S. Courts, and the Joint Working Group on Electronic Technology in the Criminal Justice System (JETWG) have published Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases (2012). Subsection (b) allows one or more parties to request that the court determine or modify the timing, manner, or other aspects of the disclosure to facilitate trial preparation. This rule focuses exclusively on the process, manner and timing of pretrial disclosures, and does not address modification of the trial date. The Speedy Trial Act, 18 U.S.C.  31613174, governs whether extended time for discovery may be excluded from the time within which trial must commence. Rule 17. Subpoena (a) Content. A subpoena must state the courts 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 subpoenasigned and sealedto the party requesting it, and that party must fill in the blanks before the subpoena is served. (b) Defendant Unable to Pay. Upon a defendants 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 witnesss fees and the necessity of the witnesss 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. (2)  Quashing or Modifying the Subpoena. (3)  Subpoena for Personal or Confidential Information About a Victim. (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 days 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. (2)  In a Foreign Country. (f) Issuing a Deposition Subpoena. (1)  Issuance. (2)  Place. (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. (As amended Dec. 27, 1948 Oct. 20, 1949 Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(29) July 31, 1975 89 Stat. 375 Apr. 30, 1979 Dec. 1, 1980 Mar. 9, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Apr. 23, 2008 Dec. 1, 2008  Notes of Advisory Committee on Rules1944 Note to Subdivision Note to Subdivision Note to Subdivision Note to Subdivision Note to Subdivision Note to Subdivision Blackmer v. United States Note to Subdivision Note to Subdivision Notes of Advisory Committee on Rules1948 Amendment The amendment is to substitute proper reference to Title 28 in place of the repealed act. Notes of Advisory Committee on Rules1966 Amendment Subdivision (b).Criticism has been directed at the requirement that an indigent defendant disclose in advance the theory of his defense in order to obtain the issuance of a subpoena at government expense while the government and defendants able to pay may have subpoenas issued in blank without any disclosure. See Report of the Attorney Generals Committee on Poverty and the Administration of Criminal Justice (1963) p. 27. The Attorney Generals Committee also urged that the standard of financial inability to pay be substituted for that of indigency. Id. at 4041. In one case it was held that the affidavit filed by an indigent defendant under this subdivision could be used by the government at his trial for purposes of impeachment. Smith v. United States Greenwell v. United States The amendment makes several changes. The references to a judge are deleted since applications should be made to the court. An ex parte application followed by a satisfactory showing is substituted for the requirement of a request or motion supported by affidavit. The court is required to order the issuance of a subpoena upon finding that the defendant is unable to pay the witness fees and that the presence of the witness is necessary to an adequate defense. Subdivision (d).The subdivision is revised to bring it into conformity with 28 U.S.C.  1825. Notes of Advisory Committee on Rules1972 Amendment Subdivisions (a) and (g) are amended to reflect the existence of the United States magistrate, a phrase defined in rule 54. Notes of Advisory Committee on Rules1974 Amendment Subdivision (f)(2) is amended to provide that the court has discretion over the place at which the deposition is to be taken. Similar authority is conferred by Civil Rule 45(d)(2). See C. Wright, Federal Practice and Procedure: Criminal  278 (1969). Ordinarily the deposition should be taken at the place most convenient for the witness but, under certain circumstances, the parties may prefer to arrange for the presence of the witness at a place more convenient to counsel. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 17 of the Federal Rules of Criminal Procedure deals with subpoenas. Subdivision (f)(2) as proposed by the Supreme Court provides: The witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court. B. Committee Action. The Committee added language to the proposed amendment that directs the court to consider the convenience of the witness and the parties when compelling a witness to attend where a deposition will be taken. Notes of Advisory Committee on Rules1979 Amendment Note to Subdivision Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment The language of Rule 17 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. A potential substantive change has been made in Rule 17(c)(1); the word data has been added to the list of matters that may be subpoenaed. The Committee believed that inserting that term will reflect the fact that in an increasingly technological culture, the information may exist in a format not already covered by the more conventional list, such as a book or document. Rule 17(g) has been amended to recognize the contempt powers of a court (other than a magistrate judge) and a magistrate judge. Committee Notes on Rules2008 Amendment Subdivision (c)(3) The amendment provides a mechanism for notifying the victim, and makes it clear that a victim may move to quash or modify the subpoena under Rule 17(c)(2)or object by other means such as a letteron the grounds that it is unreasonable or oppressive. The rule recognizes, however, that there may be exceptional circumstances in which this procedure may not be appropriate. Such exceptional circumstances would include, evidence that might be lost or destroyed if the subpoena were delayed or a situation where the defense would be unfairly prejudiced by premature disclosure of a sensitive defense strategy. The Committee leaves to the judgment of the court a determination as to whether the judge will permit the question whether such exceptional circumstances exist to be decided ex parte and authorize service of the third-party subpoena without notice to anyone. The amendment applies only to subpoenas served after a complaint, indictment, or information has been filed. It has no application to grand jury subpoenas. When the grand jury seeks the production of personal or confidential information, grand jury secrecy affords substantial protection for the victims privacy and dignity interests. Changes Made to Proposed Amendment Released for Public Comment Amendment by Public Law 1975Subd. (f)(2). Pub. L. 9464 Effective Date of 1979 Amendment Amendment of this rule by addition of subd. (h) by order of the United States Supreme Court of Apr. 30, 1979 Dec. 1, 1980 section 1(1) of Pub. L. 9642 July 31, 1979 93 Stat. 326 section 2074 of Title 28 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 Supersedure Provision of subd. (d) of this rule that witness shall be tendered the fee for 1 days attendance and mileage allowed by law as superseded by section 1825 of Title 28 Rule 17.1. Pretrial Conference  On its own, or on a partys 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 defendants attorney unless it is in writing and is signed by the defendant and the defendants attorney. (Added Feb. 28, 1966 July 1, 1966 Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1966 This new rule establishes a basis for pretrial conferences with counsel for the parties in criminal cases within the discretion of the court. Pretrial conferences are now being utilized to some extent even in the absence of a rule. See, generally, Brewster, Criminal Pre-TrialsUseful Techniques, 29 F.R.D. 442 (1962); Estes, Pre-Trial Conferences in Criminal Cases, 23 F.R.D. 560 (1959); Kaufman, Pre-Trial in Criminal Cases, 23 F.R.D. 551 (1959); Kaufman, Pre-Trial in Criminal Cases, 42 J.Am.Jud.Soc. 150 (1959); Kaufman, The Appalachian Trial: Further Observations on Pre-Trial in Criminal Cases, 44 J.Am.Jud.Soc. 53 (1960); West, Criminal Pre-TrialsUseful Techniques, 29 F.R.D. 436 (1962); Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 399403, 468470 (1960). Cf. Mo.Sup.Ct. Rule 25.09; Rules Governing the N.J. Courts,  3:53. The rule is cast in broad language so as to accommodate all types of pretrial conferences. As the third sentence suggests, in some cases it may be desirable or necessary to have the defendant present. See Committee on Pretrial Procedure of the Judicial Conference of the United States, Recommended Procedures in Criminal Pretrials, 37 F.R.D. 95 (1965). Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes2002 Amendment The language of Rule 17.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rule 17.1 prohibits the court from holding a pretrial conference where the defendant is not represented by counsel. It is unclear whether this would bar such a conference when the defendant invokes the constitutional right to self-representation. See Faretta v. California TITLE V. VENUE Rule 18. Place of Prosecution and Trial  Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice. (As amended Feb. 28, 1966 July 1, 1966 Apr. 30, 1979 Aug. 1, 1979 Apr. 29, 2002 Dec. 1, 2002 Apr. 23, 2008 Dec. 1, 2008  Notes of Advisory Committee on Rules1944 1. The Constitution of the United States, Article III. Section 2, Paragraph 3, provides: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Amendment VI provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law * * * 28 U.S.C. former  114 (now  1393, 1441) provides: All prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district. The word prosecutions, as used in this statute, does not include the finding and return of an indictment. The prevailing practice of impaneling a grand jury for the entire district at a session in some division and of distributing the indictments among the divisions in which the offenses were committed is deemed proper and legal, Salinger v. Loisel 2. Within the framework of the foregoing constitutional provisions and the provisions of the general statute, 28 U.S.C. 114 supra Armour Packing Co. v. United States United States v. Johnson U.S.C., Title 8: Section 138 [see 1326, 1328, 1329] (Importation of aliens for immoral purposes; attempt to reenter after deportation; penalty) U.S.C., Title 15: Section 78aa (Regulation of Securities Exchanges; jurisdiction of offenses and suits) Section 79y (Control of Public Utility Holding Companies; jurisdiction of offenses and suits) Section 80a43 (Investment Companies; jurisdiction of offenses and suits) Section 80b14 (Investment Advisers; jurisdiction of offenses and suits) Section 298 (Falsely Stamped Gold or Silver, etc., violations of law; penalty; jurisdiction of prosecutions) Section 715i (Interstate Transportation of Petroleum Products; restraining violations; civil and criminal proceedings; jurisdiction of District Courts; review) Section 717u (Natural Gas Act; jurisdiction of offenses; enforcement of liabilities and duties) U.S.C., Title 18: Section 39 [now 5, 3241] (Enforcement of neutrality; United States defined; jurisdiction of offenses; prior offenses; partial invalidity of provisions) Section 336 [now 1302] (Lottery, or gift enterprise circulars not mailable; place of trial) Section 338a [now 876, 3239] (Mailing threatening communications) Section 338b [now 877, 3239] (Same; mailing in foreign country for delivery in the United States) Section 345 [now 1717] (Using or attempting to use mails for transmission of matter declared nonmailable by title; jurisdiction of offense) Section 396e [now 1762] (Transportation or importation of convict-made goods with intent to use in violation of local law; jurisdiction of violations) Section 401 [now 2421] (White slave traffic; jurisdiction of prosecutions) Section 408 [now 10, 2311 to 2313] (Motor vehicles; transportation, etc., of stolen vehicles) Section 408d [now 875, 3239] (Threatening communications in interstate commerce) Section 408e [now 1073] (Moving in interstate or foreign commerce to avoid prosecution for felony or giving testimony) Section 409 [now 659, 660, 2117] (Larceny, etc., of goods in interstate or foreign commerce; penalty) Section 412 [now 660] (Embezzlement, etc., by officers of carrier; jurisdiction; double jeopardy) Section 418 [now 3237] (National Stolen Property Act; jurisdiction) Section 419d [now 3237] (Transportation of stolen cattle in interstate or foreign commerce; jurisdiction of offense) Section 420d [now 1951] (Interference with trade and commerce by violence, threats, etc., jurisdiction of offenses) Section 494 [now 1654] (Arming vessel to cruise against citizen; trials) Section 553 [now 3236] (Place of committal of murder or manslaughter determined) U.S.C., Title 21: Section 17 (Introduction into, or sale in, State or Territory or District of Columbia of dairy or food products falsely labeled or branded; penalty; jurisdiction of prosecutions) Section 118 (Prevention of introduction and spread of contagion; duty of district attorneys) U.S.C., Title 28: Section 101 [now 18 U.S.C. 3235 Section 102 [now 18 U.S.C. 3238 Section 103 [now 18 U.S.C. 3237 Section 121 [now 18 U.S.C. 3240 U.S.C., Title 47: Section 33 (Submarine Cables; jurisdiction and venue of actions and offenses) Section 505 (Special Provisions Relating to Radio; venue of trials) U.S.C., Title 49: Section 41 [now 11902, 11903, 11915, 11916] (Legislation Supplementary to Interstate Commerce Act; liability of corporation carriers and agents; offenses and penalties(1) Liability of corporation common carriers; offenses; penalties; Jurisdiction) Section 623 [repealed] (Civil Aeronautics Act; venue and prosecution of offenses) Notes of Advisory Committee on Rules1966 Amendment The amendment eliminates the requirement that the prosecution shall be in a division in which the offense was committed and vests discretion in the court to fix the place of trial at any place within the district with due regard to the convenience of the defendant and his witnesses. The Sixth Amendment provides that the defendant shall have the right to a trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. * * * There is no constitutional right to trial within a division. See United States v. Anderson Barrett v. United States Lafoon v. United States Carrillo v. Squier McNealey v. Johnston Platt v. Minnesota Mining and Manufacturing Co The former requirement for venue within the division operated in an irrational fashion. Divisions have been created in only half of the districts, and the differentiation between those districts with and those without divisions often bears no relationship to comparative size or population. In many districts a single judge is required to sit in several divisions and only brief and infrequent terms may be held in particular divisions. As a consequence under the original rule there was often undue delay in the disposition of criminal casesdelay which was particularly serious with respect to defendants who had been unable to secure release on bail pending the holding of the next term of court. If the court is satisfied that there exists in the place fixed for trial prejudice against the defendant so great as to render the trial unfair, the court may, of course, fix another place of trial within the district (if there be such) where such prejudice does not exist. Cf. Rule 21 dealing with transfers between districts. Notes of Advisory Committee on Rules1979 Amendment This amendment is intended to eliminate an inconsistency between rule 18, which in its present form has been interpreted not to allow trial in a division other than that in which the offense was committed except as dictated by the convenience of the defendant and witnesses, Dupoint v. United States In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term trial calendar at a place within the judicial district so as to assure a speedy trial. 18 U.S.C.  3161(a). This provision is intended to permit the trial of a case at any place within the judicial district. This language was included in anticipation of problems which might occur in districts with statutory divisions, where it could be difficult to set trial outside the division. H.R.Rep. No. 931508, 93d Cong., 2d Sess. 29 (1974). The change does not offend the venue or vicinage provisions of the Constitution. Article III,  2, clause 3 places venue (the geographical location of the trial) in the State where the said Crimes shall have been committed, while the Sixth Amendment defines the vicinage (the geographical location of the jurors) as the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. The latter provision makes no reference to a division within a judicial district. United States v. James United States v. Fernandez Zicarelli v. Gray Nor is the change inconsistent with the Declaration of Policy in the Jury Selection and Service Act of 1968, which reads: It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. 28 U.S.C.  1861. This language does not mean that the Act requires the trial court to convene not only in the district but also in the division wherein the offense occurred, as: There is no hint in the statutory history that the Jury Selection Act was intended to do more than provide improved judicial machinery so that grand and petit jurors would be selected at random by the use of objective qualification criteria to ensure a representative cross section of the district or division in which the grand or petit jury sits. United States v. Cates The amendment to rule 18 does not eliminate either of the existing considerations which bear upon fixing the place of trial within a district, but simply adds yet another consideration in the interest of ensuring compliance with the requirements of the Speedy Trial Act of 1974. The amendment does not authorize the fixing of the place of trial for yet other reasons. Cf. United States v. Fernandez Committee Notes on Rules2002 Amendment The language of Rule 18 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2008 Amendment The rule requires the court to consider the convenience of victimsas well as the defendant and witnessesin setting the place for trial within the district. The Committee recognizes that the court has substantial discretion to balance any competing interests. Changes Made to Proposed Amendment Released for Public Comment 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 courts 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) Clerks Duties. After receiving the defendants 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 defendants 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) 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 juveniles rightsincluding the right to be returned to the district where the offense allegedly occurredand the consequences of waiving those rights; (D) the juvenile, after receiving the courts 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)  Clerks Duties. (As amended Feb. 28, 1966 July 1, 1966 Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(30) July 31, 1975 89 Stat. 375 Apr. 28, 1982 Aug. 1, 1982 Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule introduces a new procedure in the interest of defendants who intend to plead guilty and are arrested in a district other than that in which the prosecution has been instituted. This rule would accord to a defendant in such a situation an opportunity to secure a disposition of the case in the district where the arrest takes place, thereby relieving him of whatever hardship may be involved in a removal to the place where the prosecution is pending. In order to prevent possible interference with the administration of justice, however, the consent of the United States attorneys involved is required. Notes of Advisory Committee on Rules1966 Amendment Rule 20 has proved to be most useful. In some districts, however, literal compliance with the procedures spelled out by the rule has resulted in unnecessary delay in the disposition of cases. This delay has been particularly troublesome where the defendant has been arrested prior to the filing of an indictment or information against him. See e.g., the procedure described in Donovan v. United States Subdivision (a).This subdivision is intended to apply to the situation in which an indictment or information is pending at the time at which the defendant indicates his desire to have the transfer made. Two amendments are made to the present language of the rule. In the first sentence the words or held and or is held are added to make it clear that a person already in state or federal custody within a district may request a transfer of federal charges pending against him in another district. See 4 Barron, Federal Practice and Procedure 146 (1951). The words after receiving a copy of the indictment or information are deleted. The defendant should be permitted, if he wishes, to initiate transfer proceedings under the Rule without waiting for a copy of the indictment or information to be obtained. The defendant is protected against prejudice by the fact that under subdivision (c) he can, in effect, rescind his action by pleading not guilty after the transfer has been completed. Subdivision (b).This subdivision is intended to apply to the situation in which no indictment or information is pending but the defendant has been arrested on a warrant issued upon a complaint in another district. Under the procedure set out he may initiate the transfer proceedings without waiting for the filing of an indictment or information in the district where the complaint is pending. Also it is made clear that the defendant may validate an information previously filed by waiving indictment in open court when he is brought before the court to plead. See United States v. East Potter v. United States Subdivision (c).The last two sentences of the original rule are included here. The last sentence is amended to forbid use against the defendant of his statement that he wishes to plead guilty or nolo contendere whether or not he was represented by counsel when it was made. Since under the amended rule the defendant may make his statement prior to receiving a copy of the indictment or information, it would be unfair to permit use of that statement against him. Subdivision (d).Under 18 U.S.C.  5033 a juvenile who has committed an act in violation of the law of the United States in one district and is apprehended in another must be returned to the district having cognizance of the alleged violation before he can consent to being proceeded against as a juvenile delinquent. This subdivision will permit a juvenile after he has been advised by counsel and with the approval of the court and the United States attorney to consent to be proceeded against in the district in which he is arrested or held. Consent is required only of the United States attorney in the district of the arrest in order to permit expeditious handling of juvenile cases. If it is necessary to recognize special interests of particular districts where offenses are committede.g., the District of Columbia with its separate Juvenile Court (District of Columbia Code  111551(a))the Attorney General may do so through his Administrative control over United States Attorneys. Subdivision (e).This subdivision is added to make it clear that a defendant who appears in one district in response to a summons issued in the district where the offense was committed may initiate transfer proceedings under the rule. Notes of Advisory Committee on Rules1974 Amendment Rule 20 is amended to provide that a person present in a district other than the district in which he is charged with a criminal offense may, subject to the other provisions of rule 20, plead guilty in the district in which he is present. See rule 6(b), Rules of Procedure for the Trial of Minor Offenses Before Magistrates. Under the former rule, practice was to have the district in which the offense occurred issue a bench warrant authorizing the arrest of the defendant in the district in which he was located. This is a procedural complication which serves no interest of either the government or the defense and therefore can properly be dispensed with. Making the fact that a defendant is present in the district an adequate basis for allowing him to plead guilty there makes it unnecessary to retain subdivision (e) which makes appearance in response to a summons equivalent to an arrest. Dropping (e) will eliminate some minor ambiguity created by that subdivision. See C. Wright, Federal Practice and Procedure: Criminal  322 n. 26, p. 612 (1969, Supp. 1971). There are practical advantages which will follow from the change. In practice a person may turn himself in in a district other than that in which the prosecution is pending. It may be more convenient to have him plead in the district in which he is present rather than having him or the government incur the expense of his return to the district in which the charge is pending. The danger of forum shopping can be controlled by the requirement that both United States Attorneys agree to the handling of the case under provisions of this rule. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 20 of the Federal Rules of Criminal Procedure deals with transferring a defendant from one district to another for the purpose of pleading and being sentenced. It deals with the situation where a defendant is located in one district (A) and is charged with a crime in another district (B). Under the present rule, if such a defendant desires to waive trial and plead guilty or nolo contendere, a judge in district B would issue a bench warrant for the defendant, authorizing his arrest in district A and his transport to district B for the purpose of pleading and being sentenced. The Supreme Court amendments permit the defendant in the above example to plead guilty or nolo contendere in district A, if the United States Attorneys for districts A and B consent. B. Committee Action. The Committee has added a conforming amendment to subdivision (d), which establishes procedures for dealing with defendants who are juveniles. Notes of Advisory Committee on Rules1982 Amendment This amendment to subdivision (b) is intended to expedite transfer proceedings under Rule 20. At present, considerable delaysometimes as long as three or four weeksoccurs in subdivision (b) cases, that is, where no indictment or information is pending. This time is spent on the transmittal of defendants statement to the district where the complaint is pending, the filing of an information or return of an indictment there, and the transmittal of papers in the case from that district to the district where the defendant is present. Under the amendment, the defendant, by also waiving venue, would make it possible for charges to be filed in the district of his arrest or presence. This would advance the interests of both the prosecution and defendant in a timely entry of a plea of guilty. No change has been made in the requirement that the transfer occur with the consent of both United States attorneys. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 20 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. New Rule 20(d)(2) applies to juvenile cases and has been added to parallel a similar provision in new Rule 20(b). The new provision provides that after the court has determined that the provisions in Rule 20(d)(1) have been completed and the transfer is approved, the file (or certified copy) must be transmitted from the original court to the transferee court. Amendment by Public Law 1975Subd. (d). Pub. L. 9464 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 Rule 21. Transfer for Trial (a) For Prejudice. Upon the defendants motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there. (b) For Convenience. Upon the defendants 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. (As amended Feb. 28, 1966 July 1, 1966 Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002 Apr. 28, 2010 Dec. 1, 2010  Notes of Advisory Committee on Rules1944 Note to Subdivisions 2. The rule provides for two kinds of motions that may be made by the defendant for a change of venue. The first is a motion on the ground that so great a prejudice exists against the defendant that he cannot obtain a fair and impartial trial in the district or division where the case is pending. Express provisions to a similar effect are found in many State statutes. See, e.g., Ala. Code (1940), Title 15, sec. 267; Cal.Pen.Code (Deering, 1941), sec. 1033; Conn.Gen.Stat. (1930), sec. 6445; Mass.Gen.Laws (1932) c. 277, sec. 51 (in capital cases); N.Y. Code of Criminal Procedure, sec. 344. The second is a motion for a change of venue in cases involving an offense alleged to have been committed in more than one district or division. In such cases the court, on defendants motion, will be authorized to transfer the case to another district or division in which the commission of the offense is charged, if the court is satisfied that it is in the interest of justice to do so. The effect of this provision would be to modify the existing practice under which in such cases the Government has the final choice of the jurisdiction where the prosecution should be conducted. The matter will now be left in the discretion of the court. 3. The rule provides for a change of venue only on defendants motion and does not extend the same right to the prosecution, since the defendant has a constitutional right to a trial in the district where the offense was committed. Constitution of the United States, Article III, Sec. 2, Par. 3; Amendment VI. By making a motion for a change of venue, however, the defendant waives this constitutional right. 4. This rule is in addition to and does not supersede existing statutes enabling a party to secure a change of judge on the ground of personal bias or prejudice, 28 U.S.C. 25 18 U.S.C. 338a(d) Id Note to Subdivision 28 U.S.C. 114 supra. Notes of Advisory Committee on Rules1966 Amendment Subdivision (a).All references to divisions are eliminated in accordance with the amendment to Rule 18 eliminating division venue. The defendant is given the right to a transfer only when he can show that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in the district. Transfers within the district to avoid prejudice will be within the power of the judge to fix the place of trial as provided in the amendments to Rule 18. It is also made clear that on a motion to transfer under this subdivision the court may select the district to which the transfer may be made. Cf. United States v. Parr Parr v. United States Subdivision (b).The original rule limited change of venue for reasons other than prejudice in the district to those cases where venue existed in more than one district. Upon occasion, however, convenience of the parties and witnesses and the interest of justice would best be served by trial in a district in which no part of the offense was committed. See, e.g., Travis v. United States Platt v. Minnesota Min. & Mfg. Co 76 U.S.C. 240 United States v. Choate Subdivision (c).The reference to division is eliminated in accordance with the amendment to Rule 18. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 21 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Amended Rule 21(d) consists of what was formerly Rule 22. The Committee believed that the substance of Rule 22, which addressed the issue of the timing of motions to transfer, was more appropriate for inclusion in Rule 21. Committee Notes on Rules2010 Amendment Subdivision (b). Changes Made to Proposed Amendment Released for Public Comment. Rule 22. [Transferred]  Committee Notes on Rules2002 Amendment Rule 22 has been abrogated. The substance of the rule is now located in Rule 21(d). TITLE VI. TRIAL Rule 23. Jury or Nonjury Trial (a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves. (b) Jury Size. (1)  In General. (2)  Stipulation for a Smaller Jury. (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. (c) Nonjury Trial. In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion. (As amended Feb. 28, 1966 July 1, 1966 Pub. L. 9578,  2(b) July 30, 1977 91 Stat. 320 Apr. 28, 1983 Aug. 1, 1983 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Note to Subdivision District of Columbia v. Clawans Schick v. United States 2. The provision for a waiver of jury trial by the defendant embodies existing practice, the constitutionality of which has been upheld, Patton v. United States Adams v. United States ex rel. McCann Note to Subdivision Patton v. United States Note to Subdivision State v. Frost Notes of Advisory Committee on Rules1966 Amendment This amendment adds to the rule a provision added to Civil Rule 52(a) in 1946. Notes of Advisory Committee on Rules1977 Amendment The amendment to subdivision (b) makes it clear that the parties, with the approval of the court, may enter into an agreement to have the case decided by less than twelve jurors if one or more jurors are unable or disqualified to continue. For many years the Eastern District of Virginia has used a form entitled, Waiver of Alternate Jurors. In a substantial percentage of cases the form is signed by the defendant, his attorney, and the Assistant United States Attorney in advance of trial, generally on the morning of trial. It is handled automatically by the courtroom deputy clerk who, after completion, exhibits it to the judge. This practice would seem to be authorized by existing rule 23(b), but there has been some doubt as to whether the pretrial stipulation is effective unless again agreed to by a defendant at the time a juror or jurors have to be excused. See 8 J. Moore, Federal Practice  23.04 (2d. ed. Cipes, 1969); C. Wright, Federal Practice and Procedure: Criminal  373 (1969). The proposed amendment is intended to make clear that the pretrial stipulation is an effective waiver, which need not be renewed at the time the incapacity or disqualification of the juror becomes known. In view of the fact that a defendant can make an effective pretrial waiver of trial by jury or by a jury of twelve, it would seem to follow that he can also effectively waive trial by a jury of twelve in situations where a juror or jurors cannot continue to serve. As has been the practice under rule 23(b), a stipulation addressed to the possibility that some jurors may later be excused need not be open-ended. That is, the stipulation may be conditioned upon the jury not being reduced below a certain size. See, e.g., Williams v. United States Rogers v. United States Subdivision (c) is changed to make clear the deadline for making a request for findings of fact and to provide that findings may be oral. The oral findings, of course, become a part of the record, as findings of fact are essential to proper appellate review on a conviction resulting from a nonjury trial. United States v. Livingston The meaning of current subdivision (c) has been in some doubt because there is no time specified within which a defendant must make a request that the court find the facts specially. See, e.g., United States v. Rivera This situation might have raised the interesting and apparently undecided question of when a request for findings under Fed. R. Crim. P. 23(c) is too late, since Riveras request was not made until the day after sentence was imposed. See generally Benchwick v. United States United States v. Morris Notes of Committee on the Judiciary, Senate Report No. 95354; 1977 Amendments Proposed by the Supreme Court Subsection (b) of section 2 of the bill simply approves the Supreme Court proposed changes in subdivisions (b) and (c) of rule 23 for the reasons given by the Advisory Committee on Rules of Practice and Procedure to the Judicial Conference. Congressional Approval of Proposed 1977 Amendments Pub. L. 9578,  2(b) July 30, 1977 91 Stat. 320 The amendments proposed by the Supreme Court [in its order of Apr. 26, 1977 Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision United States v. Meinster United States v. Phillips United States v. Barone It is the judgment of the Committee that when a juror is lost during deliberations, especially in circumstances like those in Barone Meinster United States v. Taylor Williams v. Florida the fact that the jury at common law was composed of precisely 12 is an historical accident, unnecessary to effect the purposes of the jury system and wholly without significance except to mystics. * * * To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. * * * Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment which would forever dictate the precise number which can constitute a jury. Williams Apodoca v. Oregon The Meinster That being the case, it is certainly understandable that the trial judge in Meinster Barone United States v. Taylor In rejecting the substitution-of-juror alternative, the Committees judgment is in accord with that of most commentators and many courts. There have been proposals that the rule should be amended to permit an alternate to be substituted if a regular juror becomes unable to perform his duties after the case has been submitted to the jury. An early draft of the original Criminal Rules had contained such a provision, but it was withdrawn when the Supreme Court itself indicated to the Advisory Committee on Criminal Rules doubts as to the desirability and constitutionality of such a procedure. These doubts are as forceful now as they were a quarter century ago. To permit substitution of an alternate after deliberations have begun would require either that the alternate participate though he has missed part of the jury discussion, or that he sit in with the jury in every case on the chance he might be needed. Either course is subject to practical difficulty and to strong constitutional objection. Wright, Federal Practice and Procedure Federal Practice ABA Standards for Criminal Justice United States v. Lamb People v. Ryan People v. Collins Johnson v. State The central difficulty with substitution, whether viewed only as a practical problem or a question of constitutional dimensions (procedural due process under the Fifth Amendment or jury trial under the Sixth Amendment), is that there does not appear to be any way to nullify the impact of what has occurred without the participation of the new juror. Even were it required that the jury review with the new juror their prior deliberations or that the jury upon substitution start deliberations anew, it still seems likely that the continuing jurors would be influenced by the earlier deliberations and that the new juror would be somewhat intimidated by the others by virtue of being a newcomer to the deliberations. As for the possibility of sending in the alternates at the very beginning with instructions to listen but not to participate until substituted, this scheme is likewise attended by practical difficulties and offends the cardinal principle that the deliberations of the jury shall remain private and secret in every case. United States v. Virginia Erection Corp The amendment provides that if a juror is excused after the jury has retired to consider its verdict, it is within the discretion of the court whether to declare a mistrial or to permit deliberations to continue with 11 jurors. If the trial has been brief and not much would be lost by retrial, the court might well conclude that the unusual step of allowing a jury verdict by less than 12 jurors absent stipulation should not be taken. On the other hand, if the trial has been protracted the court is much more likely to opt for continuing with the remaining 11 jurors. Committee Notes on Rules2002 Amendment The language of Rule 23 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. In current Rule 23(b), the term just cause has been replaced with the more familiar term good cause, that appears in other rules. No change in substance is intended. Effective Date of 1977 Amendment Amendment of this rule by order of the United States Supreme Court on Apr. 26, 1976 Pub. L. 9578 Oct. 1, 1977 section 4 of Pub. L. 9578 Pub. L. 9578 section 2074 of Title 28 Rule 24. Trial Jurors (a) Examination. (1)  In General. (2)  Court Examination. (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. (2)  Other Felony Case. (3)  Misdemeanor Case. (c) Alternate Jurors. (1)  In General. (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. (4)  Peremptory Challenges. (A)  One or Two Alternates. (B)  Three or Four Alternates. (C)  Five or Six Alternates. (As amended Feb. 28, 1966 July 1, 1966 Mar. 9, 1987 Aug. 1, 1987 Apr. 26, 1999 Dec. 1, 1999 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Note to Subdivision Note to Subdivision 28 U.S.C. 424 Note to Subdivision Notes of Advisory Committee on Rules1966 Amendment Experience has demonstrated that four alternate jurors may not be enough for some lengthy criminal trials. See e.g., United States v. Bentvena The words or are found to be are added to the second sentence to make clear that an alternate juror may be called in the situation where it is first discovered during the trial that a juror was unable or disqualified to perform his duties at the time he was sworn. See United States v. Goldberg Congressional Disapproval of Proposed 1977 Amendment Pub. L. 9578,  2(c) July 30, 1977 91 Stat. 320 Oct. 1, 1977 The amendment proposed by the Supreme Court [in its order of Apr. 26, 1977 Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules1999 Amendment As currently written, Rule 24(c) explicitly requires the court to discharge all of the alternate jurorswho have not been selected to replace other jurorswhen the jury retires to deliberate. That requirement is grounded on the concern that after the case has been submitted to the jury, its deliberations must be private and inviolate. United States v. Houlihan United States v. Virginia Election Corp Rule 23(b) provides that in some circumstances a verdict may be returned by eleven jurors. In addition, there may be cases where it is better to retain the alternates when the jury retires, insulate them from the deliberation process, and have them available should one or more vacancies occur in the jury. That might be especially appropriate in a long, costly, and complicated case. To that end the Committee believed that the court should have the discretion to decide whether to retain or discharge the alternates at the time the jury retires to deliberate and to use Rule 23(b) to proceed with eleven jurors or to substitute a juror or jurors with alternate jurors who have not been discharged. In order to protect the sanctity of the deliberative process, the rule requires the court to take appropriate steps to insulate the alternate jurors. That may be done, for example, by separating the alternates from the deliberating jurors and instructing the alternate jurors not to discuss the case with any other person until they replace a regular juror. See, e.g., United States v. Olano United States v. Houlihan Finally, subsection (c) has been reorganized and restyled. GAP ReportRule 24(c). Committee Notes on Rules2002 Amendment The language of Rule 24 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. In restyling Rule 24(a), the Committee deleted the language that authorized the defendant to conduct voir dire of prospective jurors. The Committee believed that the current language was potentially ambiguous and could lead one incorrectly to conclude that a defendant, represented by counsel, could personally conduct voir dire or additional voir dire. The Committee believed that the intent of the current provision was to permit a defendant to participate personally in voir dire only if the defendant was acting pro se. Amended Rule 24(a) refers only to attorneys for the parties, i.e., the defense counsel and the attorney for the government, with the understanding that if the defendant is not represented by counsel, the court may still, in its discretion, permit the defendant to participate in voir dire. In summary, the Committee intends no change in practice. Finally, the rule authorizes the court in multi-defendant cases to grant additional peremptory challenges to the defendants. If the court does so, the prosecution may request additional challenges in a multi-defendant case, not to exceed the total number available to the defendants jointly. The court, however, is not required to equalize the number of challenges where additional challenges are granted to the defendant. Rule 25. Judges 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. (2)  Granting a New Trial. (A) a judge other than the one who presided at the trial cannot perform the post-trial duties; or (B) a new trial is necessary for some other reason. (As amended Feb. 28, 1966 July 1, 1966 Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule is similar to Rule 63 of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. See also, 28 U.S.C. [former] 776 (Bill of exceptions; authentication; signing of by judge). Notes of Advisory Committee on Rules1966 Amendment In September, 1963, the Judicial Conference of the United States approved a recommendation of its Committee on Court Administration that provision be made for substitution of a judge who becomes disabled during trial. The problem has become serious because of the increase in the number of long criminal trials. See 1963 Annual Report of the Director of the Administrative Office of the United States Courts, p. 114, reporting a 25% increase in criminal trials lasting more than one week in fiscal year 1963 over 1962. Subdivision (a).The amendment casts the rule into two subdivisions and in subdivision (a) provides for substitution of a judge during a jury trial upon his certification that he has familiarized himself with the record of the trial. For similar provisions see Alaska Rules of Crim. Proc., Rule 25; California Penal Code,  1053. Subdivision (b).The words from the district are deleted to permit the local judge to act in those situations where a judge who has been assigned from within the district to try the case is, at the time for sentence, etc., back at his regular place of holding court which may be several hundred miles from the place of trial. It is not intended, of course, that substitutions shall be made where the judge who tried the case is available within a reasonable distance from the place of trial. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 25 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 25(b)(2) addresses the possibility of a new trial when a judge determines that no other judge could perform post-trial duties or when the judge determines that there is some other reason for doing so. The current rule indicates that those reasons must be appropriate. The Committee, however, believed that a better term would be necessary, because that term includes notions of manifest necessity. No change in meaning or practice is intended. 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.  20722077. (As amended Nov. 20, 1972 July 1, 1975 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 1. This rule contemplates the development of a uniform body of rules of evidence to be applicable in trials of criminal cases in the Federal courts. It is based on Funk v. United States Wolfle v. United States 2. This rule differs from the corresponding rule for civil cases (Federal Rules of Civil Procedure, Rule 43(a) [28 U.S.C., Appendix]), in that this rule contemplates a uniform body of rules of evidence to govern in criminal trials in the Federal courts, while the rule for civil cases prescribes partial conformity to State law and, therefore, results in a divergence as between various districts. Since in civil actions in which Federal jurisdiction is based on diversity of citizenship, the State substantive law governs the rights of the parties, uniformity of rules of evidence among different districts does not appear necessary. On the other hand, since all Federal crimes are statutory and all criminal prosecutions in the Federal courts are based on acts of Congress, uniform rules of evidence appear desirable if not essential in criminal cases, as otherwise the same facts under differing rules of evidence may lead to a conviction in one district and to an acquittal in another. 3. This rule expressly continues existing statutes governing the admissibility of evidence and the competency and privileges of witnesses. Among such statutes are the following: U.S.C., Title 8: Section 138 [see 1326, 1328, 1329] (Importation of aliens for immoral purposes; attempt to re-enter after deportation; penalty) U.S.C., Title 28: Section 632 [now 18 U.S.C. 3481 Section 633 [former] (Competency of witnesses governed by State laws; husband or wife of defendant in prosecution for bigamy) Section 634 [former] (Testimony of witnesses before Congress) Section 638 [now 1731] (Comparison of handwriting to determine genuineness) Section 695 [now 1732] (Admissibility) Section 695a [now 18 U.S.C. 3491 U.S.C., Title 46: Section 193 (Bills of lading to be issued; contents) Notes of Advisory Committee on Rules1972 Amendment The first sentence is retained, with appropriate narrowing of the title, since its subject is not covered in the Rules of Evidence. The second sentence is deleted because the Rules of Evidence govern admissibility of evidence, competency of witnesses, and privilege. The language is broadened, however, to take account of the Rules of Evidence and any other rules adopted by the Supreme Court. Committee Notes on Rules2002 Amendment The language of Rule 26 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Rule 26 is amended, by deleting the word orally, to accommodate witnesses who are not able to present oral testimony in open court and may need, for example, a sign language interpreter. The change conforms the rule, in that respect, to Federal Rule of Civil Procedure 43. Effective Date of Amendment Proposed November 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972 January 2, 1975 section 3 of Pub. L. 93595 Jan. 2, 1975 88 Stat. 1959 section 2074 of Title 28 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 sourceincluding testimonywithout regard to the Federal Rules of Evidence. (Added Feb. 28, 1966 July 1, 1966 Nov. 20, 1972 July 1, 1975 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1966 The original Federal Rules of Criminal Procedure did not contain a provision explicitly regulating the determination of foreign law. The resolution of issues of foreign law, when relevant in federal criminal proceedings, falls within the general compass of Rule 26 which provides for application of the [evidentiary] principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. See Green, Preliminary Report on the Advisability and Feasibility of Developing Uniform Rules of Evidence for the United States District Courts 67, 1718 (1962). Although traditional commonlaw methods for determining foreign-country law have proved inadequate, the courts have not developed more appropriate practices on the basis of this flexible rule. Cf. Green, op. cit. supra at 2628. On the inadequacy of common-law procedures for determining foreign law, see, e.g., Nussbaum, Proving the Law of Foreign Countries, 3 Am.J.Comp.L. 60 (1954). Problems of foreign law that must be resolved in accordance with the Federal Rules of Criminal Procedure are most likely to arise in places such as Washington, D.C., the Canal Zone, Guam, and the Virgin Islands, where the federal courts have general criminal jurisdiction. However, issues of foreign law may also arise in criminal proceedings commenced in other federal districts. For example, in an extradition proceeding, reasonable ground to believe that the person sought to be extradited is charged with, or was convicted of, a crime under the laws of the demanding state must generally be shown. See Factor v. Laubenheimer Fernandez v. Phillips Application of Chase Manhattan Bank American Banana Co. v. United Fruit Co Rule 26.1 is substantially the same as Civil Rule 44.1. A full explanation of the merits and practicability of the rule appear in the Advisory Committees Note to Civil Rule 44.1. It is necessary here to add only one comment to the explanations there made. The second sentence of the rule frees the court from the restraints of the ordinary rules of evidence in determining foreign law. This freedom, made necessary by the peculiar nature of the issue of foreign law, should not constitute an unconstitutional deprivation of the defendants rights to confrontation of witnesses. The issue is essentially one of law rather than of fact. Furthermore, the cases have held that the Sixth Amendment does not serve as a rigid barrier against the development of reasonable and necessary exceptions to the hearsay rule. See Kay v. United States Matthews v. United States United States v. Leathers Painter v. Texas Douglas v. Alabama Notes of Advisory Committee on Rules1972 Amendment Since the purpose is to free the judge, in determining foreign law, from restrictive evidentiary rules, the reference is made to the Rules of Evidence generally. Committee Notes on Rules2002 Amendment The language of Rule 26.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.  References in Text The Federal Rules of Evidence, referred to in text, are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Effective Date of Amendment Proposed November 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972 January 2, 1975 section 3 of Pub. L. 93595 Jan. 2, 1975 88 Stat. 1959 section 2074 of Title 28 Rule 26.2. Producing a Witnesss 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 defendants 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 witnesss testimony. (b) Producing the Entire Statement. If the entire statement relates to the subject matter of the witnesss 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 witnesss 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 witnesss 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 witnesss 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 witnesss oral statement that is contained in any recording or any transcription of a recording; or (3) the witnesss 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. (Added Apr. 30, 1979 Dec. 1, 1980 Mar. 9, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1979 S. 1437, 95th Cong., 1st Sess. (1977), would place in the criminal rules the substance of what is now 18 U.S.C.  3500 (the Jencks Act). Underlying this and certain other additions to the rules contemplated by S. 1437 is the notion that provisions which are purely procedural in nature should appear in the Federal Rules of Criminal Procedure rather than in Title 18. See Reform of the Federal Criminal Laws, Part VI: Hearings on S. 1, S. 716, and S. 1400, Subcomm. on Criminal Laws and Procedures, Senate Judiciary Comm., 93rd Cong., 1st Sess. (statement of Judge Albert B. Maris, at page 5503). Rule 26.2 is identical to the S.1437 rule except as indicated by the marked additions and deletions. As those changes show, rule 26.2 provides for production of the statements of defense witnesses at trial in essentially the same manner as is now provided for with respect to the statements of government witnesses. Thus, the proposed rule reflects these two judgments: (i) that the subject matterproduction of the statements of witnessesis more appropriately dealt with in the criminal rules; and (ii) that in light of United States v. Nobles In Nobles The rule, consistent with the reasoning in Nobles United States v. Pulvirenti Nobles People v. Sanders State v. Montague People v. Damon The rule, with minor exceptions, makes the procedure identical for both prosecution and defense witnesses, including the provision directing the court, whenever a claim is made that disclosure would be improper because the statement contains irrelevant matter, to examine the statements in camera and excise such matter as should not be disclosed. This provision acts as a safeguard against abuse and will enable a defendant who believes that a demand is being improperly made to secure a swift and just resolution of the issue. The treatment as to defense witnesses of necessity differs slightly from the treatment as to prosecution witnesses in terms of the sanction for a refusal to comply with the courts disclosure order. Under the Jencks Act and the rule proposed in S. 1437, if the prosecution refuses to abide by the courts order, the court is required to strike the witnesss testimony unless in its discretion it determines that the more serious sanction of a mistrial in favor of the accused is warranted. Under this rule, if a defendant refuses to comply with the courts disclosure order, the courts only alternative is to enter an order striking or precluding the testimony of the witness, as was done in Nobles. Under subdivision (a) of the rule, the motion for production may be made by a party who did not call the witness. Thus, it also requires disclosure of statements in the possession of either party when the witness is called neither by the prosecution nor the defense but by the court pursuant to the Federal Rules of Evidence. Present law does not deal with this situation, which consistency requires be treated in an identical manner as the disclosure of statements of witnesses called by a party to the case. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment New subdivision (g) recognizes other contemporaneous amendments in the Rules of Criminal Procedure which extend the application of Rule 26.2 to other proceedings. Those changes are thus consistent with the extension of Rule 26.2 in 1983 to suppression hearings conducted under Rule 12. See In extending Rule 26.2 to suppression hearings in 1983, the Committee offered several reasons. First, production of witness statements enhances the ability of the court to assess the witnesses credibility and thus assists the court in making accurate factual determinations at suppression hearings. Second, because witnesses testifying at a suppression hearing may not necessarily testify at the trial itself, waiting until after a witness testifies at trial before requiring production of that witnesss statement would be futile. Third, the Committee believed that it would be feasible to leave the suppression issue open until trial, where Rule 26.2 would then be applicable. Finally, one of the central reasons for requiring production of statements at suppression hearings was the recognition that by its nature, the results of a suppression hearing have a profound and ultimate impact on the issues presented at trial. The reasons given in 1983 for extending Rule 26.2 to a suppression hearing are equally compelling with regard to other adversary type hearings which ultimately depend on accurate and reliable information. That is, there is a continuing need for information affecting the credibility of witnesses who present testimony. And that need exists without regard to whether the witness is presenting testimony at a pretrial hearing, at a trial, or at a post-trial proceeding. As noted in the 1983 Advisory Committee Note to Rule 12(i), the courts have generally declined to extend the Jencks Act, 18 U.S.C.  3500, beyond the confines of actual trial testimony. That result will be obviated by the addition of Rule 26.2(g) and amendments to the Rules noted in that new subdivision. Although amendments to Rules 32, 32.1, 46, and Rule 8 of the Rules Governing Proceedings under 28 U.S.C.  2255 specifically address the requirement of producing a witnesss statement, Rule 26.2 has become known as the central rule requiring production of statements. Thus, the references in the Rule itself will assist the bench and bar in locating other Rules which include similar provisions. The amendment to Rule 26.2 and the other designated Rules is not intended to require production of a witnesss statement before the witness actually testifies. Minor conforming amendments have been made to subsection (d) to reflect that Rule 26.2 will be applicable to proceedings other than the trial itself. And language has been added to subsection (c) to recognize explicitly that privileged matter may be excised from the witnesss prior statement. Committee Notes on Rules1998 Amendment The amendment to subdivision (g) mirrors similar amendments made in 1993 to this rule and to other Rules of Criminal Procedure which extended the application of Rule 26.2 to other proceedings, both pretrial and post-trial. This amendment extends the requirement of producing a witness statement to preliminary examinations conducted under Rule 5.1. Subdivision (g)(1) has been amended to reflect changes to Rule 32. Changes Made to Rule 26.2 After Publication (GAP Report) Committee Notes on Rules2002 Amendment The language of Rule 26.2 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rule 26.2(c) states that if the court withholds a portion of a statement, over the defendants objection, the attorney for the government must preserve the statement. The Committee believed that the better rule would be for the court to simply seal the entire statement as a part of the record, in the event that there is an appeal. Also, the terminology in Rule 26.2(c) has been changed. The rule now speaks in terms of a redacted statement instead of an excised statement. No change in practice is intended. Finally, the list of proceedings in Rule 26.2(g) has been placed in rule-number order.  References in Text The Rules Governing Proceedings under 28 U.S.C.  2255, referred to in subd. (g)(5), are set out under section 2255 of Title 28 Effective Date of Rule This rule added by order of the United States Supreme Court of Apr. 30, 1979 Dec. 1, 1980 section 1(1) of Pub. L. 9642 July 31, 1979 93 Stat. 326 section 2074 of Title 28 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. (Added Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1993 Rule 26.3 is a new rule designed to reduce the possibility of an erroneously ordered mistrial which could produce adverse and irretrievable consequences. The Rule is not designed to change the substantive law governing mistrials. Instead it is directed at providing both sides an opportunity to place on the record their views about the proposed mistrial order. In particular, the court must give each side an opportunity to state whether it objects or consents to the order. Several cases have held that retrial of a defendant was barred by the Double Jeopardy Clause of the Constitution because the trial court had abused its discretion in declaring a mistrial. See United States v. Dixon United States v. Bates The Committee regards the Rule as a balanced and modest procedural device that could benefit both the prosecution and the defense. While the Dixon Bates Committee Notes on Rules2002 Amendment The language of Rule 26.3 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 27. Proving an Official Record  A party may prove an official record, an entry in such a record, or the lack of a record or entry in the same manner as in a civil action. (As amended Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule incorporates by reference Rule 44 of the Federal Rules of Civil Procedure, 28 U.S.C., Appendix, which provided a simple and uniform method of proving public records and entry or lack of entry therein. The rule does not supersede statutes regulating modes of proof in respect to specific official records. In such cases parties have the option of following the general rule or the pertinent statute. Among the many statutes are: U.S.C., Title 28: Section 661 [now 1733] (Copies of department or corporation records and papers; admissibility; seal) Section 662 [now 1733] (Same; in office of General Counsel of the Treasury) Section 663 [now 1733] (Instruments and papers of Comptroller of Currency; admissibility) Section 664 [now 1733] (Organization certificates of national banks; admissibility) Section 665 [now 1733] (Transcripts from books of Treasury in suits against delinquents; admissibility) Section 666 [now 1733] (Same; certificate by Secretary or Assistant Secretary) Section 668 [now 18 U.S.C. 3497 Section 669 [former] (Copies of returns in returns office admissible) Section 670 [now 1743] (Admissibility of copies of statements of demands by Post Office Department) Section 671 [now 1733] (Admissibility of copies of post office records and statement of accounts) Section 672 [see 1733] (Admissibility of copies of records in General Land Office) Section 673 [now 1744] (Admissibility of copies of records, and so forth, of Patent Office) Section 674 [now 1745] (Copies of foreign letters patent as prima facie evidence) Section 675 [former] (Copies of specifications and drawings of patents admissible) Section 676 [now 1736] (Extracts from Journals of Congress admissible when injunction of secrecy removed) Section 677 [now 1740] (Copies of records in offices of United States consuls admissible) Section 678 [former] (Books and papers in certain district courts) Section 679 [former] (Records in clerks offices, western district of North Carolina) Section 680 [former] (Records in clerks offices of former district of California) Section 681 [now 1734] (Original records lost or destroyed; certified copy admissible) Section 682 [now 1734] (Same; when certified copy not obtainable) Section 685 [now 1735] (Same; certified copy of official papers) Section 687 [now 1738] (Authentication of legislative acts; proof of judicial proceedings of State) Section 688 [now 1739] (Proofs of records in offices not pertaining to courts) Section 689 [now 1742] (Copies of foreign records relating to land titles) Section 695a695h [now 18 U.S.C. 3491349 22 U.S.C. 1204 U.S.C., Title 1: Section 30 [now 112] (Statutes at Large; contents; admissibility in evidence) Section 30a [now 113] (Little and Browns edition of laws and treaties competent evidence of Acts of Congress) Section 54 [now 204] (Codes and Supplements as establishing prima facie the Laws of United States and District of Columbia, citation of Codes and Supplements) Section 55 [now 209] (Copies of Supplements to Code of Laws of United States and of District of Columbia Code and Supplements; conclusive evidence of original) U.S.C., Title 5: Section 490 [see 28 U.S.C. 1733 U.S.C., Title 8: Section 717(b) [see 1435, 1482] (Former citizens of United States excepted from certain requirements; citizenship lost by spouses alienage or loss of United States citizenship, or by entering armed forces of foreign state or acquiring its nationality) Section 727(g) [see 1443] (Administration of naturalization laws; rules and regulations; instruction in citizenship; forms; oaths; depositions; documents in evidence; photographic studio) U.S.C., Title 15: Section 127 [see 1057(e)] (Trade-marks; copies of records as evidence) U.S.C., Title 20: Section 52 (Smithsonian Institution; evidence of title to site and buildings) U.S.C., Title 25: Section 6 (Bureau of Indian Affairs; seal; authenticated and certified documents; evidence) U.S.C., Title 31: Section 46 [see 704] (Laws governing General Accounting Office; copies of books, records, etc., thereof as evidence) U.S.C., Title 38: Section 11g [see 302] (Seal of Veterans Administration; authentication of copies of records) U.S.C., Title 43: Section 57 (Authenticated copies or extracts from records as evidence) Section 58 (Transcripts from records of Louisiana) Section 59 (Official papers in office of surveyor general in California; papers; copies) Section 83 (Transcripts of records as evidence) U.S.C., Title 44: Section 300h [now 2112] (National Archives; seal; reproduction of archives; fee; admissibility in evidence of reproductions) Section 307 [now 1507] (Filing document as constructive notice; publication in Register as presumption of validity; judicial notice; citation) U.S.C., Title 47: Section 412 (Documents filed with Federal Communications Commission as public records; prima facie evidence; confidential records) U.S.C., Title 49: Section 16 [now 10303] (Orders of Commission and enforcement thereof; forfeitures(13) copies of schedules, tariffs, contracts, etc., kept as public records; evidence) Committee Notes on Rules2002 Amendment The language of Rule 27 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 28. Interpreters  The court may select, appoint, and set the reasonable compensation for an interpreter, including an interpreter for the victim. The compensation must be paid from funds provided by law or by the government, as the court may direct. (As amended Feb. 28, 1966 July 1, 1966 Nov. 20, 1972 July 1, 1975 Apr. 29, 2002 Dec. 1, 2002 Pub. L. 114324,  2(c) Dec. 16, 2016 130 Stat. 1948  Notes of Advisory Committee on Rules1944 The power of the court to call its own witnesses, though rarely invoked, is recognized in the Federal courts, Young v. United States Litsinger v. United States Hand Book of the National Conference of Commissioners on Uniform State Laws Evidence Report on Criminal Procedure Notes of Advisory Committee on Rules1966 Amendment Subdivision (a).The original rule is made a separate subdivision. The amendment permits the court to inform the witness of his duties in writing since it often constitutes an unnecessary inconvenience and expense to require the witness to appear in court for such purpose. Subdivision (b).This new subdivision authorizes the court to appoint and provide for the compensation of interpreters. General language is used to give discretion to the court to appoint interpreters in all appropriate situations. Interpreters may be needed to interpret the testimony of non-English speaking witnesses or to assist non-English speaking defendants in understanding the proceedings or in communicating with assigned counsel. Interpreters may also be needed where a witness or a defendant is deaf. Notes of Advisory Committee on Rules1972 Amendment Subdivision (a). This subdivision is stricken, since the subject of court-appointed expert witnesses is covered in Evidence Rule 706 in detail. Subdivision (b). The provisions of subdivision (b) are retained. Although Evidence Rule 703 specifies the qualifications of interpreters and the form of oath to be administered to them, it does not cover their appointment or compensation. Committee Notes on Rules2002 Amendment The language of Rule 28 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Amendment by Public Law 2016 Pub. L. 114324 Effective Date of Amendment Proposed November 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972 January 2, 1975 section 3 of Pub. L. 93595 Jan. 2, 1975 88 Stat. 1959 section 2074 of Title 28 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 defendants 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 governments 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. (2)  Ruling on the Motion. (3)  No Prior Motion Required. (d) Conditional Ruling on a Motion for a New Trial. (1)  Motion for a New Trial. (2)  Finality. (3)  Appeal. (A)  Grant of a Motion for a New Trial (B)  Denial of a Motion for a New Trial (As amended Feb. 28, 1966 July 1, 1966 Pub. L. 99646,  54(a) Nov. 10, 1986 100 Stat. 3607 Apr. 29, 1994 Dec. 1, 1994 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1944 Note to Subdivision 2. The second sentence is patterned on New York Code of Criminal Procedure, sec. 410. 3. The purpose of the third sentence is to remove the doubt existing in a few jurisdictions on the question whether the defendant is deemed to have rested his case if he moves for a directed verdict at the close of the prosecutions case. The purpose of the rule is expressly to preserve the right of the defendant to offer evidence in his own behalf, if such motion is denied. This is a restatement of the prevailing practice, and is also in accord with the practice prescribed for civil cases by Rule 50(a) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. Note to Subdivision Ex parte United States United States v. Stone Notes of Advisory Committee on Rules1966 Amendment Subdivision (a).A minor change has been made in the caption. Subdivision (b).The last three sentences are deleted with the matters formerly covered by them transferred to the new subdivision (c). Subdivision (c).The new subdivision makes several changes in the former procedure. A motion for judgment of acquittal may be made after discharge of the jury whether or not a motion was made before submission to the jury. No legitimate interest of the government is intended to be prejudiced by permitting the court to direct an acquittal on a post-verdict motion. The constitutional requirement of a jury trial in criminal cases is primarily a right accorded to the defendant. Cf. Adams v. United States, ex rel. McCann Singer v. United States The time in which the motion may be made has been changed to 7 days in accordance with the amendment to Rule 45(a) which by excluding Saturday from the days to be counted when the period of time is less than 7 days would make 7 days the normal time for a motion required to be made in 5 days. Also the court is authorized to extend the time as is provided for motions for new trial (Rule 33) and in arrest of judgment (Rule 34). References in the original rule to the motion for a new trial as an alternate to the motion for judgment of acquittal and to the power of the court to order a new trial have been eliminated. Motions for new trial are adequately covered in Rule 33. Also the original wording is subject to the interpretation that a motion for judgment of acquittal gives the court power to order a new trial even though the defendant does not wish a new trial and has not asked for one. Notes of Advisory Committee on Rules1994 Amendment The amendment permits the reservation of a motion for a judgment of acquittal made at the close of the governments case in the the same manner as the rule now permits for motions made at the close of all of the evidence. Although the rule as written did not permit the court to reserve such motions made at the end of the governments case, trial courts on occasion have nonetheless reserved ruling. See, e.g., United States v. Bruno cert. denied United States v. Reifsteck The amendment also permits the trial court to balance the defendants interest in an immediate resolution of the motion against the interest of the government in proceeding to a verdict thereby preserving its right to appeal in the event a verdict of guilty is returned but is then set aside by the granting of a judgment of acquittal. Under the double jeopardy clause the government may appeal the granting of a motion for judgment of acquittal only if there would be no necessity for another trial, i.e., only where the jury has returned a verdict of guilty. United States v. Martin Linen Supply Co In addressing the issue of preserving the governments right to appeal and at the same time recognizing double jeopardy concerns, the Supreme Court observed: We should point out that it is entirely possible for a trial court to reconcile the public interest in the Governments right to appeal from an erroneous conclusion of law with the defendants interest in avoiding a second prosecution. In United States v. Wilson United States v. Ceccolini United States v. Scott Scott. Reserving a ruling on a motion made at the end of the governments case does pose problems, however, where the defense decides to present evidence and run the risk that such evidence will support the governments case. To address that problem, the amendment provides that the trial court is to consider only the evidence submitted at the time of the motion in making its ruling, whenever made. And in reviewing a trial courts ruling, the appellate court would be similarly limited. Committee Notes on Rules2002 Amendment The language of Rule 29 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. In Rule 29(a), the first sentence abolishing directed verdicts has been deleted because it is unnecessary. The rule continues to recognize that a judge may sua sponte enter a judgment of acquittal. Rule 29(c)(1) addresses the issue of the timing of a motion for judgment of acquittal. The amended rule now includes language that the motion must be made within 7 days after a guilty verdict or after the judge discharges the jury, whichever occurs later. That change reflects the fact that in a capital case or in a case involving criminal forfeiture, for example, the jury may not be discharged until it has completed its sentencing duties. The court may still set another time for the defendant to make or renew the motion, if it does so within the 7-day period. Committee Notes on Rules2005 Amendment Rule 29(c) has been amended to remove the requirement that the court must act within seven days after a guilty verdict or after the court discharges the jury, if it sets another time for filing a motion for a judgment of acquittal. This amendment parallels similar changes to Rules 33 and 34. Further, a conforming amendment has been made to Rule 45(b)(2). Currently, Rule 29(c) requires the defendant to move for a judgment of acquittal within seven days of the guilty verdict, or after the court discharges the jury, whichever occurs later, or some other time set by the court in an order issued within that same seven-day period. Similar provisions exist in Rules 33 and 34. Courts have held that the seven-day rule is jurisdictional. Thus, if a defendant files a request for an extension of time to file a motion for a judgment of acquittal within the seven-day period, the court must rule on that motion or request within the same seven-day period. If for some reason the court does not rule on the request within the seven days, it loses jurisdiction to act on the underlying substantive motion. See, e.g., United States v. Smith United States v. Marquez Assuming that the current rule was intended to promote finality, there is nothing to prevent the court from granting a significant extension of time, so long as it does so within the seven-day period. Thus, the Committee believed that the rule should be amended to be consistent with all of the other timing requirements in the rules, which do not force the court to act on a motion to extend the time for filing within a particular period of time or lose jurisdiction to do so. Accordingly, the amendment deletes the language regarding the courts acting within seven days to set the time for filing. Read in conjunction with the conforming amendment to Rule 45(b), the defendant is still required to file a timely motion for a judgment of acquittal under Rule 29 within the seven-day period specified. The defendant may, under Rule 45, seek an extension of time to file the underlying motion as long as the defendant does so within the seven-day period. But the court itself is not required to act on that motion within any particular time. Further, under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion within the specified time, the court may nonetheless consider that untimely motion if the court determines that the failure to file it on time was the result of excusable neglect. Changes Made After Publication and Comment Committee Notes on Rules2009 Amendment Former Rules 29, 33, and 34 adopted 7-day periods for their respective motions. This period has been expanded to 14 days. Experience has proved that in many cases it is not possible to prepare a satisfactory motion in 7 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. This led to frequent requests for continuances, and the filing of bare bones motions that required later supplementation. The 14-day periodincluding intermediate Saturdays, Sundays, and legal holidays as provided by Rule 45(a)sets a more realistic time for the filing of these motions. Amendment by Public Law 1986Subd. (d). Pub. L. 99646 Effective Date of 1986 Amendment Pub. L. 99646,  54(b) Nov. 10, 1986 100 Stat. 3607 The amendments made by this section [amending this rule] shall take effect 30 days after the date of the enactment of this Act [ Nov. 10, 1986 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. (Added Apr. 22, 1974 Dec. 1, 1975 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1974 This rule is designed to control the order of closing argument. It reflects the Advisory Committees view that it is desirable to have a uniform federal practice. The rule is drafted in the view that fair and effective administration of justice is best served if the defendant knows the arguments actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court, Rule 29.1 is a new rule that was added to regulate closing arguments. It prescribes that the government shall make its closing argument and then the defendant shall make his. After the defendant has argued, the government is entitled to reply in rebuttal. B. Committee Action. The Committee endorses and adopts this proposed rule in its entirety. The Committee believes that as the Advisory Committee Note has stated, fair and effective administration of justice is best served if the defendant knows the arguments actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply. Rule 29.1 does not specifically address itself to what happens if the prosecution waives its initial closing argument. The Committee is of the view that the prosecutor, when he waives his initial closing argument, also waives his rebuttal. [See the remarks of Senior United States Circuit Judge J. Edward Lumbard in Hearings II, at 207.] Committee Notes on Rules2002 Amendment The language of Rule 29.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Effective Date This rule effective Dec. 1, 1975 section 2 of Pub. L. 9464 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 jurys hearing and, on request, out of the jurys presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b). (As amended Feb. 28, 1966 July 1, 1966 Mar. 9, 1987 Aug. 1, 1987 Apr. 25, 1988 Aug. 1, 1988 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule corresponds to Rule 51 of the Federal Rules of Civil Procedure [28 U.S.C., Appendix], the second sentence alone being new. It seemed appropriate that on a point such as instructions to juries there should be no difference in procedure between civil and criminal cases. Notes of Advisory Committee on Rules1966 Amendment The amendment requires the court, on request of any party, to require the jury to withdraw in order to permit full argument of objections to instructions. Notes of Advisory Committee on Rules1987 Amendment In its current form, Rule 30 requires that the court instruct the jury after the arguments of counsel. In some districts, usually where the state practice is otherwise, the parties prefer to stipulate to instruction before closing arguments. The purpose of the amendment is to give the court discretion to instruct the jury before or after closing arguments, or at both times. The amendment will permit courts to continue instructing the jury after arguments as Rule 30 had previously required. It will also permit courts to instruct before arguments in order to give the parties an opportunity to argue to the jury in light of the exact language used by the court. See generally Raymond, Merits and Demerits of the Missouri System in Instructing Juries Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 30 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Rule 30(a) reflects a change in the timing of requests for instructions. As currently written, the trial court may not direct the parties to file such requests before trial without violating Rules 30 and 57. While the amendment falls short of requiring all requests to be made before trial in all cases, the amendment permits a court to do so in a particular case or as a matter of local practice under local rules promulgated under Rule 57. The rule does not preclude the practice of permitting the parties to supplement their requested instructions during the trial. Rule 30(d) clarifies what, if anything, counsel must do to preserve a claim of error regarding an instruction or failure to instruct. The rule retains the requirement of a contemporaneous and specific objection (before the jury retires to deliberate). As the Supreme Court recognized in Jones v. United States 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. (2)  Multiple Counts. (3)  Mistrial and Retrial. (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 partys request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury. (As amended Apr. 24, 1972 Oct. 1, 1972 Apr. 24, 1998 Dec. 1, 1998 Apr. 17, 2000 Dec. 1, 2000 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Note to Subdivision 18 U.S.C. 408a Note to Subdivision Note to Subdivision Note to Subdivision Mackett v. United States Bruce v. Chestnut Farms Chevy Chase Dairy Notes of Advisory Committee on Rules1972 Amendment Subdivision (e) is new. It is intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX,  1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II,  408(a)(2). The assumption of the draft is that the amount of the interest or property subject to criminal forfeiture is an element of the offense to be alleged and proved. See Advisory Committee Note to rule 7(c)(2). Although special verdict provisions are rare in criminal cases, they are not unknown. See United States v. Spock Committee Notes on Rules1998 Amendment The right of a party to have the jury polled is an undoubted right. Humphries v. District of Columbia Id. Currently, Rule 31(d) is silent on the precise method of polling the jury. Thus, a court in its discretion may conduct the poll collectively or individually. As one court has noted, although the prevailing view is that the method used is a matter within the discretion of the trial court, United States v. Miller Id Miller, Id Audette v. Isaksen Fishing Corp The Committee is persuaded by the authorities and practice that there are advantages of conducting an individual poll of the jurors. Thus, the rule requires that the jurors be polled individually when a polling is requested, or when polling is directed sua sponte by the court. The amendment, however, leaves to the court the discretion as to whether to conduct a separate poll for each defendant, each count of the indictment or complaint, or on other issues. Changes Made to Rule 31 After Publication (GAP Report) Committee Notes on Rules2000 Amendment The rule is amended to reflect the creation of new Rule 32.2, which now governs criminal forfeiture procedures. GAP ReportRule 31. Committee Notes on Rules2002 Amendment The language of Rule 31 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 31(b) has been amended to clarify that a jury may return partial verdicts, either as to multiple defendants or multiple counts, or both. See, e.g., United States v. Cunningham TITLE VII. POST-CONVICTION PROCEDURES Rule 32. Sentencing and Judgment (a)  [Reserved.] (b) Time of Sentencing. (1)  In General. (2)  Changing Time Limits. (c) Presentence Investigation. (1)  Required Investigation. (A)  In General (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. (2)  Interviewing the Defendant. (d) Presentence Report. (1)  Applying the Advisory Sentencing Guidelines (A) identify all applicable guidelines and policy statements of the Sentencing Commission; (B) calculate the defendants 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 (A) the defendants history and characteristics, including: (i) any prior criminal record; (ii) the defendants financial condition; and (iii) any circumstances affecting the defendants 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) a statement of whether the government seeks forfeiture under Rule 32.2 and any other law; and (G) any other information that the court requires, including information relevant to the factors under 18 U.S.C.  3553(a). (3)  Exclusions. (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. (2)  Minimum Required Notice. (3)  Sentence Recommendation. (f) Objecting to the Report. (1)  Time to Object. (2)  Serving Objections. (3)  Action on Objections. (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 officers 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 partys 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. (A) must verify that the defendant and the defendants 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 ofor summarize in cameraany 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 officers 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. (3)  Court Determinations. (A) may accept any undisputed portion of the presentence report as a finding of fact; (B) mustfor any disputed portion of the presentence report or other controverted matterrule 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 courts 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. (i) provide the defendants attorney an opportunity to speak on the defendants 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 defendants attorney. (B)  By a Victim. (C)  In Camera Proceedings (j) Defendants Right to Appeal. (1)  Advice of a Right to Appeal. (A)  Appealing a Conviction (B)  Appealing a Sentence (C)  Appeal Costs (2) Clerks Filing of Notice. (k) Judgment. (1)  In General. (2)  Criminal Forfeiture. (As amended Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(31) July 31, 1975 89 Stat. 376 Apr. 30, 1979 Aug. 1, 1979 Dec. 1, 1980 Pub. L. 97291,  3 Oct. 12, 1982 96 Stat. 1249 Apr. 28, 1983 Aug. 1, 1983 Pub. L. 98473, title II,  215(a) Oct. 12, 1984 98 Stat. 2014 Pub. L. 99646,  25(a) Nov. 10, 1986 100 Stat. 3597 Mar. 9, 1987 Aug. 1, 1987 Apr. 25, 1989 Dec. 1, 1989 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Pub. L. 103322, title XXIII,  230101(b) Sept. 13, 1994 108 Stat. 2078 Apr. 23, 1996 Dec. 1, 1996 Pub. L. 104132, title II,  207(a) Apr. 24, 1996 110 Stat. 1236 Apr. 17, 2000 Dec. 1, 2000 Apr. 29, 2002 Dec. 1, 2002 Apr. 30, 2007 Dec. 1, 2007 Apr. 23, 2008 Dec. 1, 2008 Mar. 26, 2009 Dec. 1, 2009 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Rules1944 Note to Subdivision Note to Subdivision Note to Subdivision Note to Subdivision Note to Subdivision 18 U.S.C. 724 et seq et seq Notes of Advisory Committee on Rules1966 Amendment Subdivision (a)(1).The amendment writes into the rule the holding of the Supreme Court that the court before imposing sentence must afford an opportunity to the defendant personally to speak in his own behalf. See Green v. United States Hill v. United States Subdivision (a)(2).This amendment is a substantial revision and a relocation of the provision originally found in Rule 37(a)(2): When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. The court is required to advise the defendant of his right to appeal in all cases which have gone to trial after plea of not guilty because situations arise in which a defendant represented by counsel at the trial is not adequately advised by such counsel of his right to appeal. Trial counsel may not regard his responsibility as extending beyond the time of imposition of sentence. The defendant may be removed from the courtroom immediately upon sentence and held in custody under circumstances which make it difficult for counsel to advise him. See, e.g., Hodges v. United States Subdivision (c)(2).It is not a denial of due process of law for a court in sentencing to rely on a report of a presentence investigation without disclosing such report to the defendant or giving him an opportunity to rebut it. Williams v. New York Williams v. Oklahoma In a few jurisdictions the defendant is given a right of access to the presentence report. In England and California a copy of the report is given to the defendant in every case. English Criminal Justice Act of 1948, 11 & 12 Geo. 6, c. 58,  43; Cal.Pen.C.  1203. In Alabama the defendant has a right to inspect the report. Ala. Code, Title 42,  23. In Ohio and Virginia the probation officer reports in open court and the defendant is given the right to examine him on his report. Ohio Rev. Code,  2947.06; Va. Code,  53278.1. The Minnesota Criminal Code of 1963,  609.115(4), provides that any presentence report shall be open for inspection by the prosecuting attorney and the defendants attorney prior to sentence and on the request of either of them a summary hearing in chambers shall be held on any matter brought in issue, but confidential sources of information shall not be disclosed unless the court otherwise directs. Cf. Model Penal Code  7.07(5) (P.O.D. 1962): Before imposing sentence, the Court shall advise the defendant or his counsel of the factual contents and the conclusions of any presentence investigation or psychiatric examination and afford fair opportunity, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed. Practice in the federal courts is mixed, with a substantial minority of judges permitting disclosure while most deny it. See the recent survey prepared for the Judicial Conference of the District of Columbia by the Junior Bar Section of the Bar Association of the District of Columbia, reported in Conference Papers on Discovery in Federal Criminal Cases, 33 F.R.D. 101, 125127 (1963). See also Gronewold, Presentence Investigation Practices in the Federal Probation System, Fed.Prob. Sept. 1958, pp. 27, 31. For divergent judicial opinions see Smith v. United States United States v. Durham Substantial objections to compelling disclosure in every case have been advanced by federal judges, including many who in practice often disclose all or parts of presentence reports. See Judicial Conference Committee on the Administration of the Probation System, Judicial Opinion on Proposed Change in Rule 32(c) of the Federal Rules of Criminal ProcedureA Survey (1964). Hence, the amendment goes no further than to make it clear that courts may disclose all or part of the presentence report to the defendant or to his counsel. It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences. For a description of such a practice in one district, see Thomsen, Confidentiality of the Presentence Report: A Middle Position, 28 Fed.Prob., March 1964, p. 8. It is also provided that any material disclosed to the defendant or his counsel shall be disclosed to the attorney for the government. Such disclosure will permit the government to participate in the resolution of any factual questions raised by the defendant. Subdivision (f).This new subdivision writes into the rule the procedure which the cases have derived from the provision in 18 U.S.C.  3653 that a person arrested for violation of probation shall be taken before the court and that thereupon the court may revoke the probation. See Escoe v. Zerbst Brown v. United States Notes of Advisory Committee on Rules1972 Amendment Subdivision (b)(2) is new. It is intended to provide procedural implementation of the recently enacted criminal forfeiture provisions of the Organized Crime Control Act of 1970, Title IX,  1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II,  408(a)(2). 18 U.S.C.  1963(c) provides for property seizure and disposition. In part it states: (c) Upon conviction of a person under this section, the court shall authorize the Attorney General to seize all property or other interest declared forfeited under this section upon such terms and conditions as the court shall deem proper. Although not specifically provided for in the Comprehensive Drug Abuse Prevention and Control Act of 1970, the provision of Title II,  408(a)(2) forfeiting profits or interest will need to be implemented procedurally, and therefore new rule 32(b)(2) will be applicable also to that legislation. For a brief discussion of the procedural implications of a criminal forfeiture, see Advisory Committee Note to rule 7(c)(2). Notes of Advisory Committee on Rules1974 Amendment Subdivision (a)(1) is amended by deleting the reference to commitment or release pending sentencing. This issue is dealt with explicitly in the proposed revision of rule 46(c). Subdivision (a)(2) is amended to make clear that there is no duty on the court to advise the defendant of the right to appeal after sentence is imposed following a plea of guilty or nolo contendere. To require the court to advise the defendant of a right to appeal after a plea of guilty, accepted pursuant to the increasingly stringent requirements of rule 11, is likely to be confusing to the defendant. See American Bar Association Standards Relating to Criminal Appeals  2.1(b) (Approved Draft, 1970), limiting the courts duty to advice to contested cases. The Advisory Committee is of the opinion that such advice, following a sentence imposed after a plea of guilty, will merely tend to build false hopes and encourage frivolous appeals, with the attendant expense to the defendant or the taxpayers. Former rule 32(a)(2) imposes a duty only upon conviction after trial on a plea of not guilty. The few federal cases dealing with the question have interpreted rule 32(a)(2) to say that the court has no duty to advise defendant of his right to appeal after conviction following a guilty plea. Burton v. United States Alaway v. United States Crow v. United States Prior to the 1966 amendment of rule 32, the courts duty was even more limited. At that time [rule 37(a)(2)] the courts duty to advise was limited to those situations in which sentence was imposed after trial upon a not guilty plea of a defendant not represented by counsel. 8A J. Moore, Federal Practice  32.01[3] (2d ed. Cipes 1969); C. Wright, Federal Practice and Procedure: Criminal  528 (1969); 5 L. Orfield, Criminal Procedure Under the Federal Rules  32:11 (1967). With respect to appeals in forma pauperis, see appellate rule 24. Subdivision (c)(1) makes clear that a presentence report is required except when the court otherwise directs for reasons stated of record. The requirement of reasons on the record for not having a presentence report is intended to make clear that such a report ought to be routinely required except in cases where there is a reason for not doing so. The presentence report is of great value for correctional purposes and will serve as a valuable aid in reviewing sentences to the extent that sentence review may be authorized by future rule change. For an analysis of the current rule as it relates to the situation in which a presentence investigation is required, see C. Wright, Federal Practice and Procedure: Criminal  522 (1969); 8A J. Moore, Federal Practice  32.03[1] (2d ed. Cipes 1969). Subdivision (c)(1) is also changed to permit the judge, after obtaining defendants consent, to see the presentence report in order to decide whether to accept a plea agreement, and also to expedite the imposition of sentence in a case in which the defendant has indicated that he may plead guilty or nolo contendere. Former subdivision (c)(1) provides that The report shall not be submitted to the court * * * unless the defendant has pleaded guilty * * *. This precludes a judge from seeing a presentence report prior to the acceptance of the plea of guilty. L. Orfield, Criminal Procedure Under the Federal Rules  32:35 (1967); 8A J. Moore, Federal Practice  32.03[2], p. 3222 (2d ed. Cipes 1969); C. Wright, Federal Practice and Procedure: Criminal  523, p. 392 (1969); Gregg v. United States Because many plea agreements will deal with the sentence to be imposed, it will be important, under rule 11, for the judge to have access to sentencing information as a basis for deciding whether the plea agreement is an appropriate one. It has been suggested that the problem be dealt with by allowing the judge to indicate approval of the plea agreement subject to the condition that the information in the presentence report is consistent with what he has been told about the case by counsel. See American Bar Association, Standards Relating to Pleas of Guilty  3.3 (Approved Draft, 1963); Presidents Commission on Law Enforcement and Administration of Justice. The Challenge of Crime in a Free Society 136 (1967). Allowing the judge to see the presentence report prior to his decision as to whether to accept the plea agreement is, in the view of the Advisory Committee, preferable to a conditional acceptance of the plea. See Enker, Perspectives on Plea Bargaining, Appendix A of Presidents Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts at 117 (1967). It enables the judge to have all of the information available to him at the time he is called upon to decide whether or not to accept the plea of guilty and thus avoids the necessity of a subsequent appearance whenever the information is such that the judge decides to reject the plea agreement. There is presently authority to have a presentence report prepared Gregg v. United States The history of the rule confirms this interpretation. The first Preliminary Draft of the rule would have required the consent of the defendant or his attorney to commence the investigation before the determination of guilt. Advisory Committee on Rules of Criminal Procedure, Fed.Rules Crim.Proc., Preliminary Draft 130, 133 (1943). The Second Preliminary Draft omitted this requirement and imposed no limitation on the time when the report could be made and submitted to the court. Advisory Committee on Rules of Criminal Procedure, Fed.Rules Crim.Proc. Second Preliminary Draft 126128 (1944). The third and final draft, which was adopted as Rule 32, was evidently a compromise between those who opposed any time limitation, and those who preferred that the entire investigation be conducted after determination of guilt. See 5 L. Orfield, Criminal Procedure Under the Federal Rules  32.2 (1967). Where the judge rejects the plea agreement after seeing the presentence report, he should be free to recuse himself from later presiding over the trial of the case. This is left to the discretion of the judge. There are instances involving prior convictions where a judge may have seen a presentence report, yet can properly try a case on a plea of not guilty. Webster v. United States Gregg v. United States Subdivision (c)(3)(A) requires disclosure of presentence information to the defense, exclusive of any recommendation of sentence. The court is required to disclose the report to defendant or his counsel unless the court is of the opinion that disclosure would seriously interfere with rehabilitation, compromise confidentiality, or create risk of harm to the defendant or others. Any recommendation as to sentence should not be disclosed as it may impair the effectiveness of the probation officer if the defendant is under supervision on probation or parole. The issue of disclosure of presentence information to the defense has been the subject of recommendations from the Advisory Committee in 1944, 1962, 1964, and 1966. The history is dealt with in considerable detail in C. Wright, Federal Practice and Procedure: Criminal  524 (1969), and 8A J. Moore, Federal Practice  32.03[4] (2d ed. Cipes 1969). In recent years, three prestigious organizations have recommended that the report be disclosed to the defense. See American Bar Association, Standards Relating to Sentencing Alternatives and Procedures  4.4 (Approved Draft, 1968); American Law Institute Model Penal Code  7.07(5) (P.O.D. 1962); National Council on Crime and Delinquency, Model Sentencing Act  4 (1963). This is also the recommendation of the Presidents Commission on Law Enforcement and Administration of Justice. The Challenge of Crime in a Free Society (1967) at p. 145. In the absence of compelling reasons for nondisclosure of special information, the defendant and his counsel should be permitted to examine the entire presentence report. The arguments for and against disclosure are well known and are effectively set forth in American Bar Association Standards Relating to Sentencing Alternatives and Procedures,  4.4 Commentary at pp. 214225 (Approved Draft, 1968). See also Lehrich, The Use and Disclosure of Presentence Reports in the United States, 47 F.R.D. 225 (1969). A careful account of existing practices in Detroit, Michigan and Milwaukee, Wisconsin is found in R. Dawson, Sentencing (1969). Most members of the federal judiciary have, in the past, opposed compulsory disclosure. See the view of District Judge Edwin M. Stanley, American Bar Association Standards Relating to Sentencing Alternatives and Procedures. Appendix A. (Appendix A also contains the results of a survey of all federal judges showing that the clear majority opposed disclosure.) The Advisory Committee is of the view that accuracy of sentencing information is important not only to the defendant but also to effective correctional treatment of a convicted offender. The best way of insuring accuracy is disclosure with an opportunity for the defendant and counsel to point out to the court information thought by the defense to be inaccurate, incomplete, or otherwise misleading. Experience in jurisdictions which require disclosure does not lend support to the argument that disclosure will result in less complete presentence reports or the argument that sentencing procedures will become unnecessarily protracted. It is not intended that the probation officer would be subjected to any rigorous examination by defense counsel, or that he will even be sworn to testify. The proceedings may be very informal in nature unless the court orders a full hearing. Subdivision (c)(3)(B) provides for situations in which the sentencing judge believes that disclosure should not be made under the criteria set forth in subdivision (c)(3)(A). He may disclose only a summary of that factual information to be relied on in determining sentence. This is similar to the proposal of the American Bar Association Standards Relating to Sentencing Alternatives and Procedures  4.4(b) and Commentary at pp. 216224. Subdivision (c)(3)(D) provides for the return of disclosed presentence reports to insure that they do not become available to unauthorized persons. See National Council on Crime and Delinquency, Model Sentencing Act  4 (1963): Such reports shall be part of the record but shall be sealed and opened only on order of the court. Subdivision (c)(3)(E) makes clear that diagnostic studies under 18 U.S.C.  4208(b), 5010(c), or 5034 are covered by this rule and also that 18 U.S.C.  4252 is included within the disclosure provisions of subdivision (c). Section 4252 provides for the presentence examination of an eligible offender who is believed to be an addict to determine whether he is an addict and is likely to be rehabilitated through treatment. Both the Organized Crime Control Act of 1970 [ 3775(b)] and the Comprehensive Drug Abuse Prevention and Control Act of 1970 [ 409(b)] have special provisions for presentence investigation in the implementation of the dangerous special offender provision. It is however, unnecessary to incorporate them by reference in rule 32 because each contains a specific provision requiring disclosure of the presentence report. The judge does have authority to withhold some information in extraordinary cases provided notice is given the parties and the courts reasons for withholding information are made part of the record. Subdivision (e) is amended to clarify the meaning. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court Rule 32 of the Federal Rules of Criminal Procedure deals with sentencing matters. Proposed subdivision (a)(2) provides that the court is not dutybound to advise the defendant of a right to appeal when the sentence is imposed following a plea of guilty or nolo contendere. Proposed subdivision (e) provides that the probation service must make a presentence investigation and report unless the court orders otherwise for reasons stated on the record. The presentence report will not be submitted to the court until after the defendant pleads nolo contendere or guilty, or is found guilty, unless the defendant consents in writing. Upon the defendants request, the court must permit the defendant to read the presentence report, except for the recommendation as to sentence. However, the court may decline to let the defendant read the report if it contains (a) diagnostic opinion that might seriously disrupt a rehabilitation program, (b) sources of information obtained upon a promise of confidentiality, or (c) any other information that, if disclosed, might result in harm to the defendant or other persons. The court must give the defendant an opportunity to comment upon the presentence report. If the court decides that the defendant should not see the report, then it must provide the defendant, orally or in writing, a summary of the factual information in the report upon which it is relying in determining sentence. No party may keep the report or make copies of it. B. Committee Action. The Committee added language to subdivision (a)(1) to provide that the attorney for the government may speak to the court at the time of sentencing. The language does not require that the attorney for the government speak but permits him to do so if he wishes. The Committee recast the language of subdivision (c)(1), which defines when presentence reports must be obtained. The Committees provision makes it more difficult to dispense with a presentence report. It requires that a presentence report be made unless (a) the defendant waives it, or (b) the court finds that the record contains sufficient information to enable the meaningful exercise of sentencing discretion and explains this finding on the record. The Committee believes that presentence reports are important aids to sentencing and should not be dispensed with easily. The Committee added language to subdivision (c)(3)(A) that permits a defendant to offer testimony or information to rebut alleged factual inaccuracies in the presentence report. Since the presentence report is to be used by the court in imposing sentence and since the consequence of any significant inaccuracy can be very serious to the defendant, the Committee believes that it is essential that the presentence report be completely accurate in every material respect. The Committees addition to subdivision (c)(3)(A) will help insure the accuracy of the presentence report. The Committee added language to subdivision (c)(3)(D) that gives the court the discretion to permit either the prosecutor or the defense counsel to retain a copy of the presentence report. There may be situations when it would be appropriate for either or both of the parties to retain the presentence report. The Committee believes that the rule should give the court the discretion in such situations to permit the parties to retain their copies. Notes of Advisory Committee on Rules1979 Amendment Note to Subdivision Note to Subdivision Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision both and without request Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts The defendants interest in an accurate and reliable presentence report does not cease with the imposition of sentence. Rather, these interests are implicated at later stages in the correctional process by the continued use of the presentence report as a basic source of information in the handling of the defendant. If the defendant is incarcerated, the presentence report accompanies him to the correctional institution and provides background information for the Bureau of Prisons classification summary, which, in turn, determines the defendants classification within the facility, his ability to obtain furloughs, and the choice of treatment programs. The presentence report also plays a crucial role during parole determination. Section 4207 of the Parole Commission and Reorganization Act directs the parole hearing examiner to consider, if available, the presentence report as well as other records concerning the prisoner. In addition to its general use as background at the parole hearing, the presentence report serves as the primary source of information for calculating the inmates parole guideline score. Though it is thus important that the defendant be aware now Note to Subdivision These findings make it clear that rule 32 in its present form is failing to fulfill its purpose. Unless disclosure is made sufficiently in advance of sentencing to permit the assertion and resolution of claims of inaccuracy prior to the sentencing hearing, the submission of additional information by the defendant when appropriate, and informed comment on the presentence report, the purpose of promoting accuracy by permitting the defendant to contest erroneous information is defeated. Similarly, if the report is not made available to the defendant and his counsel in a timely fashion, and if disclosure is only made on request, their opportunity to review the report may be inadequate. Finally, the failure to disclose the report to the defendant, or to require counsel to review the report with the defendant, significantly reduces the likelihood that false statements will be discovered, as much of the content of the presentence report will ordinarily be outside the knowledge of counsel. The additional change to subdivision (c)(3)(C) is intended to make it clear that the governments right to disclosure does not depend upon whether the defendant elects to exercise his right to disclosure. Note to Subdivision As noted above, the Bureau of Prisons and the Parole Commission make substantial use of the presentence investigation report. Under current practice, this can result in reliance upon assertions of fact in the report in the making of critical determinations relating to custody or parole. For example, it is possible that the Bureau or Commission, in the course of reaching a decision on such matters as institution assignment, eligibility for programs, or computation of salient factors, will place great reliance upon factual assertions in the report which are in fact untrue and which remained unchallenged at the time of the sentencing because defendant or his counsel deemed the error unimportant in the sentencing context (e.g., where the sentence was expected to conform to an earlier plea agreement, or where the judge said he would disregard certain controverted matter in setting the sentence). The first sentence of new subdivision (c)(3)(D) is intended to ensure that a record is made as to exactly what resolution occurred as to controverted matter. The second sentence is intended to ensure that this record comes to the attention of the Bureau or Commission when these agencies utilize the presentence investigation report. In current practice, less than one-fourth of the district courts (twenty of ninety-two) communicate to the correctional agencies the defendants challenges to information in the presentence report and the resolution of these challenges. Fennell & Hall, supra, at 1680. New subdivision (c)(3)(D) does not impose an onerous burden. It does not even require the preparation of a transcript. As is now the practice in some courts, these findings and determinations can be simply entered onto a form which is then appended to the report. Note to Subdivision The issue of access to the presentence report at the institution was discussed by the Advisory Committee, but no action was taken on that matter because it was believed to be beyond the scope of the rule-making power. Rule 32 in its present form does not speak to this issue, and thus the Bureau of Prisons and the Parole Commission are free to make provision for disclosure to inmates and their counsel. Note to Subdivision United States v. Watson United States v. Michaelson Bruce v. United States By replacing the manifest injustice standard with a requirement that, in cases to which it applied, the defendant must (unless taking a direct appeal) proceed under 28 U.S.C.  2255, the amendment avoids language which has been a cause of unnecessary confusion. Under the amendment, a defendant who proceeds too late to come under the more generous fair and just reason standard must seek relief under  2255, meaning the applicable standard is that stated in Hill v. United States Some authority is to be found to the effect that the rule 32(d) manifest injustice standard is indistinguishable from the  2255 standard. In United States v. Hamilton United States v. Dabdoub-Diaz United States v. Watson Meyer v. United States United States v. Kent Dabdoub-Diaz, Meyer Kent Watson United States v. Peters Dec. 22, 1978 Indeed, it may more generally be said that the results in  2255 and 32(d) guilty plea cases have been for the most part the same. Relief has often been granted or recognized as available via either of these routes for essentially the same reasons: that there exists a complete constitutional bar to conviction on the offense charged, Brooks v. United States United States v. Bluso United States v. Masthers Kienlen v. United States Walters v. Harris United States v. Hawthorne United States v. Timmreck United States v. Saft United States v. White Masciola v. United States Wojtowicz v. United States United States v. Bartoli The one clear instance in which a Rule 32(d) attack might prevail when a  2255 challenge would not is present in those circuits which have reached the questionable result that post-sentence relief under 32(d) is available not merely upon a showing of a manifest injustice but also for any deviation from literal compliance with Rule 11. United States v. Cantor The change in Rule 32(d), therefore, is at best a minor one in terms of how post-sentence motions to withdraw pleas will be decided. It avoids the confusion which now obtains as to whether a  2255 petition must be assumed to also be a 32(d) motion and, if so, whether this bears significantly upon how the matter should be decided. See, e.g., United States v. Watson The Hidden Right to Direct Appeal From a Federal Conviction United States v. Timmreck The first sentence of the amended rule incorporates the fair and just standard which the federal courts, relying upon dictum in Kercheval v. United States United States v. Strauss United States v. Bradin United States v. Barker United States v. Michaelson United States v. Barker Although the terms fair and just lack any pretense of scientific exactness, United States v. Barker United States v. Joslin United States v. Needles A swift change of heart is itself strong indication that the plea was entered in haste and confusion * * *. By contrast, if the defendant has long delayed his withdrawal motion, and has had the full benefit of competent counsel at all times, the reasons given to support withdrawal must have considerably more force. United States v. Barker If the defendant establishes such a reason, it is then appropriate to consider whether the government would be prejudiced by withdrawal of the plea. Substantial prejudice may be present for a variety of reasons. See United States v. Jerry United States v. Vasquez-Velasco United States v. Lombardozzi Farnsworth v. Sanford There is currently some disparity in the manner in which presentence motions to withdraw a guilty plea are dealt with. Some courts proceed as if any desire to withdraw the plea before sentence is fair and just so long as the government fails to establish that it would be prejudiced by the withdrawal. Illustrative is United States v. Savage United States v. Saft Saft Savage. The Savage United States v. Strauss Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendants whim. In fact, however, a guilty plea is no such trifle, but a grave and solemn act, which is accepted only with care and discernment. United States v. Barker Brady v. United States The facts of the Savage Savage Savage The first sentence of subdivision (d) provides that the motion, to be judged under the more liberal fair and just reason test, must have been made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C.  4205(c). The latter of these has been added to the rule to make it clear that the lesser standard also governs prior to the second stage of sentencing when the judge, pursuant to that statute, has committed the defendant to the custody of the Attorney General for study pending final disposition. Several circuits have left this issue open, e.g., United States v. McCoy Callaway v. United States United States v. Barker United States v. Thomas Inclusion of the  4205(c) situation under the presentence standard is appropriate. As explained in Barker: Two reasons of policy have been advanced to explain the near-presumption which Rule 32(d) erects against post-sentence withdrawal motions. The first is that post-sentence withdrawal subverts the stability of final judgments. * * * The second reason is that the post-sentence withdrawal motion often constitutes a veiled attack on the judges sentencing decision; to grant such motions in lenient fashion might undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentence process. * * * Concern for the stability of final judgments has little application to withdrawal motions filed between tentative and final sentencing under Section 4208(b) [now 4205(c)]. The point at which a defendants judgment of conviction becomes final for purposes of appealwhether at tentative or at final sentencingis wholly within the defendants discretion. * * * Concern for the integrity of the sentencing process is, however, another matter. The major point, in our view, is that tentative sentencing under Section 4208(b) [now 4205(c)] leaves the defendant ignorant of his final sentence. He will therefore be unlikely to use a withdrawal motion as an oblique attack on the judges sentencing policy. The relative leniency of the fair and just standard is consequently not out of place. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1989 Amendment The amendment to subdivision (a)(1) is intended to clarify that the court is expected to proceed without unnecessary delay, and that it may be necessary to delay sentencing when an applicable sentencing factor cannot be resolved at the time set for sentencing. Often, the factor will relate to a defendants agreement to cooperate with the government. But, other factors may be capable of resolution if the court delays sentencing while additional information is generated. As currently written, the rule might imply that a delay requested by one party or suggested by the court sua sponte In amending subdivision (c)(1), the Committee conformed the rule to the current practice in some courts: i.e., to permit the defendant and the prosecutor to see a presentence report prior to a plea of guilty if the court, with the written consent of the defendant, receives the report at that time. The amendment permits, but does not require, disclosure of the report with the written consent of the defendant. The amendment to change the reasonable time language in subdivision (c)(3)(A) to at least 10 days prior to sentencing, unless the defendant waives the minimum period, conforms the rule to 18 U.S.C. 3552(d) The language requiring the court to provide the defendant and defense counsel with a copy of the presentence report complements the abrogation of subdivision (E), which had required the defense to return the probation report. Because a defendant or the government may seek to appeal a sentence, an option that is permitted under some circumstances, there will be cases in which the defendant has a need for the presentence report during the preparation of, or the response to, an appeal. This is one reason why the Committee decided that the defendant should not be required to return the nonconfidential portions of the presentence report that have been disclosed. Another reason is that district courts may find it desirable to adopt portions of the presentence report when making findings of fact under the guidelines. They would be inhibited unnecessarily from relying on careful, accurate presentence reports if such reports could not be retained by defendants. A third reason why defendant should be able to retain the reports disclosed to them is that the Supreme Courts decision in United States Department of Justice v. Julian The amended rule does not direct whether the defendant or the defendants lawyer should retain the presentence report. In exceptional cases where retention of a report in a local detention facility might pose a danger to persons housed there, the district judge may direct that the defendant not personally retain a copy of the report until the defendant has been transferred to the facility where the sentence will be served. Because the parties need not return the presentence report to the probation officer, the Solicitor General should be able to review the report in deciding whether to permit the United States to appeal a sentence under the Sentencing Reform Act of 1984, 18 U.S.C.  3551 et seq. Although the Committee was concerned about the potential unfairness of having confidential or diagnostic material included in presentence reports but not disclosed to a defendant who might be adversely affected by such material, it decided not to recommend at this time a change in the rule which would require complete disclosure. Some diagnostic material might be particularly useful when a court imposes probation, and might well be harmful to the defendant if disclosed. Moreover, some of this material might assist correctional officials in prescribing treatment programs for an incarcerated defendant. Information provided by confidential sources and information posing a possible threat of harm to third parties was particularly troubling to the Committee, since this information is often extremely negative and thus potentially harmful to a defendant. The Committee concluded, however, that it was preferable to permit the probation officer to include this information in a report so that the sentencing court may determine whether is [it] ought to be disclosed to the defendant. If the court determines that it should not be disclosed, it will have to decide whether to summarize the contents of the information or to hold that no finding as to the undisclosed information will be made because such information will not be taken into account in sentencing. Substantial due process problems may arise if a court attempts to summarize information in a presentence report, the defendant challenges the information, and the court attempts to make a finding as to the accuracy of the information without disclosing to the defendant the source of the information or the details placed before the court. In deciding not to require disclosure of everything in a presentence report, the Committee made no judgment that findings could validly be made based upon nondisclosed information. Finally, portions of the rule were gender-neutralized. Notes of Advisory Committee on Rules1991 Amendment The amendments are technical. No substantive changes are intended. Notes of Advisory Committee on Rules1993 Amendment The original subdivision (e) has been deleted due to statutory changes affecting the authority of a court to grant probation. See 18 U.S.C. 3561(a) United States v. Rosa We believe the sentence imposed on a defendant is the most critical stage of criminal proceedings, and is, in effect, the bottom-line for the defendant, particularly where the defendant has pled guilty. This being so, we can perceive no purpose in denying the defendant the ability to effectively cross-examine a government witness where such testimony may, if accepted, and substantially to the defendants sentence. In such a setting, we believe that the rationale of Jencks v. United States Id The court added that the defendant had not been sentenced under the new Sentencing Guidelines and that its decision could take on greater importance under those rules. Under Guideline sentencing, said the court, the trial judge has less discretion to moderate a sentence and is required to impose a sentence based upon specific factual findings which need not be established beyond a reasonable doubt. Id Although the Rosa Production of a statement is triggered by the witnesss oral testimony. The sanction provision rests on the assumption that the proponent of the witnesss testimony has deliberately elected to withhold relevant material. Notes of Advisory Committee on Rules1994 Amendment The amendments to Rule 32 are intended to accomplish two primary objectives. First, the amendments incorporate elements of a Model Local Rule for Guideline Sentencing which was proposed by the Judicial Conference Committee on Probation Administration in 1987. That model rule and the accompanying report were prepared to assist trial judges in implementing guideline sentencing mandated by the Sentencing Reform Act of 1984. See Federal Sentencing Law and Practice See Second, in the process of effecting those amendments, the rule was reorganized. Over time, numerous amendments to the rule had created a sort of hodge podge; the reorganization represents an attempt to reflect an appropriate sequential order in the sentencing procedures. Subdivision (a) The remainder of subdivision (a), which addressed the sentencing hearing, is now located in subdivision (c). Subdivision (b) First, subdivision (b)(2) is a new provision which provides that, on request, defense counsel is entitled to notice and a reasonable opportunity to be present at any interview of the defendant conducted by the probation officer. Although the courts have not held that presentence interviews are a critical stage of the trial for purposes of the Sixth Amendment right to counsel, the amendment reflects case law which has indicated that requests for counsel to be present should be honored. See United States v. Herrera-Figueroa United States v. Tisdale Subdivision (b)(6), formerly (c)(3), includes several changes which recognize the key role the presentence report is playing under guideline sentencing. The major thrust of these changes is to address the problem of resolving objections by the parties to the probation officers presentence report. Subdivision (b)(6)(A) now provides that the probation officer must present the presentence report to the parties not later than 35 days before the sentencing hearing (rather than 10 days before imposition of the sentence) in order to provide some additional time to the parties and the probation officer to attempt to resolve objections to the report. There has been a slight change in the practice of deleting from the copy of the report given to the parties certain information specified in (b)(6)(A). Under that new provision (changing former subdivision (c)(3)(A)), the court has the discretion (in an individual case or in accordance with a local rule) to direct the probation officer to withhold any final recommendation concerning the sentence. Otherwise, the recommendation, if any, is subject to disclosure. The prior practice of not disclosing confidential information, or other information which might result in harm to the defendant or other persons, is retained in (b)(5). New subdivisions (b)(6)(B), (C), and (D) now provide explicit deadlines and guidance on resolving disputes about the contents of the presentence report. The amendments are intended to provide early resolution of such disputes by (1) requiring the parties to provide the probation officer with a written list of objections to the report within 14 days of receiving the report; (2) permitting the probation officer to meet with the defendant, the defendants counsel, and the attorney for the Government to discuss objections to the report, conduct an additional investigation, and to make revisions to the report as deemed appropriate; (3) requiring the probation officer to submit the report to the court and the parties not later than 7 days before the sentencing hearing, noting any unresolved disputes; and (4) permitting the court to treat the report as its findings of fact, except for the parties unresolved objections. Although the rule does not explicitly address the question of whether counsels objections to the report are to be filed with the court, there is nothing in the rule which would prohibit a court from requiring the parties to file their original objections or have them included as an addendum to the presentence report. This procedure, which generally mirrors the approach in the Model Local Rule for Guideline Sentencing, supra, is intended to maximize judicial economy by providing for more orderly sentencing hearings while also providing fair opportunity for both parties to review, object to, and comment upon, the probation officers report in advance of the sentencing hearing. Under the amendment, the parties would still be free at the sentencing hearing to comment on the presentence report, and in the discretion of the court, to introduce evidence concerning their objections to the report. Subdivision (c) Subdivision (c)(1) is not intended to require that resolution of objections and imposition of the sentence occur at the same time or during the same hearing. It requires only that the court rule on any objections before sentence is imposed. In considering objections during the sentencing hearing, the court may in its discretion, permit the parties to introduce evidence. The rule speaks in terms of the courts discretion, but the Sentencing Guidelines specifically provide that the court must provide the parties with a reasonable opportunity to offer information concerning a sentencing factor reasonably in dispute. See see See, e.g., United States v. Zuleta-Alvarez Subdivision (c)(1) (formerly subdivision (c)(3)(D)) indicates that the court need not resolve controverted matters which will not be taken into account in, or will not affect, sentencing. The words will not affect did not exist in the former provision but were added in the revision in recognition that there might be situations, due to overlaps in the sentencing ranges, where a controverted matter would not alter the sentence even if the sentencing range were changed. The provision for disclosure of a witness statements, which was recently proposed as an amendment to Rule 32 as new subdivision (e), is now located in subdivision (c)(2). Subdivision (c)(3) includes minor changes. First, if the court intends to rely on information otherwise excluded from the presentence report under subdivision (b)(5), that information is to be summarized in writing and submitted to the defendant and the defendants counsel. Under the former provision in (c)(3)(A), such information could be summarized orally. Once the information is presented, the defendant and the defendants counsel are to be given a reasonable opportunity to comment; in appropriate cases, that may require a continuance of the sentencing proceedings. Subdivision (c)(5), concerning notification of the right to appeal, was formerly included in subdivision (a)(2). Although the provision has been rewritten, the Committee intends no substantive change in practice. That is, the court may, but is not required to, advise a defendant who has entered a guilty plea, nolo contendere plea or a conditional guilty plea of any right to appeal (such as an appeal challenging jurisdiction). However, the duty to advise the defendant in such cases extends only to advice on the right to appeal any sentence imposed. Subdivision (d) Subdivision (e) Under present practice, the court may permit, but is not required to hear, victim allocution before imposing sentence. The Committee considered, but rejected, a provision which would have required the court to hear victim allocution at sentencing. Notes of Advisory Committee on Rules1996 Amendment Subdivision (d)(2) See, e.g., United States v. Alexander Delaying forfeiture proceedings, however, can pose real problems, especially in light of the implementation of the Sentencing Reform Act in 1987 and the resulting delays between verdict and sentencing in complex cases. First, the governments statutory right to discover the location of property subject to forfeiture is triggered by entry of an order of forfeiture. See See l The amendment to Rule 32 is intended to address these concerns by specifically recognizing the authority of the court to enter a preliminary forfeiture order before sentencing. Entry of an order of forfeiture before sentencing rests within the discretion of the court, which may take into account anticipated delays in sentencing, the nature of the property, and the interests of the defendant, the government, and third persons. The amendment permits the court to enter its order of forfeiture at any time before sentencing. Before entering the order of forfeiture, however, the court must provide notice to the defendant and a reasonable opportunity to be heard on the question of timing and form of any order of forfeiture. The rule specifies that the order, which must ultimately be made a part of the sentence and included in the judgment, must contain authorization for the Attorney General to seize the property in question and to conduct appropriate discovery and to begin any necessary ancillary proceedings to protect third parties who have an interest in the property. Congressional Modification of Proposed 1994 Amendment Section 230101(a) of Pub. L. 103322 section 2074 of Title 28 Apr. 29, 1994 Dec. 1, 1994 section 230101(b) of Pub. L. 103322 Committee Notes on Rules2000 Amendment The rule is amended to reflect the creation of new Rule 32.2, which now governs criminal forfeiture procedures. Committee Notes on Rules2002 Amendment The language of Rule 32 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The rule has been completely reorganized to make it easier to follow and apply. For example, the definitions in the rule have been moved to the first section and the sequencing of the sections generally follows the procedure for presentencing and sentencing procedures. Revised Rule 32(a) contains definitions that currently appear in Rule 32(f). One substantive change was made in Rule 32(a)(2). The Committee expanded the definition of victims of crimes of violence or sexual abuse to include victims of child pornography under 18 U.S.C.  22512257 (child pornography and related offenses). The Committee considered those victims to be similar to victims of sexual offenses under 18 U.S.C.  22412248, who already possess that right. Revised Rule 32(d) has been amended to more clearly set out the contents of the presentence report concerning the application of the Sentencing Guidelines. Current Rule 32(e), which addresses the ability of a defendant to withdraw a guilty plea, has been moved to Rule 11(e). Rule 32(h) is a new provision that reflects Burns v. United States Burns Id Revised Rule 32(i)(3) addresses changes to current Rule 32(c)(1). Under the current rule, the court is required to rule on any unresolved objections to the presentence report. The rule does not specify, however, whether that provision should be read literally to mean every objection that might have been made to the report or only on those objections that might in some way actually affect the sentence. The Committee believed that a broad reading of the current rule might place an unreasonable burden on the court without providing any real benefit to the sentencing process. Revised Rule 32(i)(3) narrows the requirement for court findings to those instances when the objection addresses a controverted matter. If the objection satisfies that criterion, the court must either make a finding on the objection or decide that a finding is not required because the matter will not affect sentencing or that the matter will not be considered at all in sentencing. Revised Rule 32(i)(4)(B) provides for the right of certain victims to address the court during sentencing. As noted, supra Revised Rule 32(i)(1)(B) is intended to clarify language that currently exists in Rule 32(h)(3), that the court must inform both parties that the court will rely on information not in the presentence report and provide them with an opportunity to comment on the information. Rule 32(i)(4)(C) includes a change concerning who may request an in camera proceeding. Under current Rule 32(c)(4), the parties must file a joint motion for an in camera proceeding to hear the statements by defense counsel, the defendant, the attorney for the government, or any victim. Under the revised rule, any party may move (for good cause) that the court hear in camera any statementby a party or a victimmade under revised Rule 32(i)(4). Finally, the Committee considered, but did not adopt, an amendment that would have required the court to rule on any unresolved objection to a material matter in the presentence report, whether or not the court will consider it in imposing an appropriate sentence. The amendment was considered because an unresolved objection that has no impact on determining a sentence under the Sentencing Guidelines may affect other important post-sentencing decisions. For example, the Bureau of Prisons consults the presentence report in deciding where a defendant will actually serve his or her sentence of confinement. See A Judicial Guide to the Federal Bureau of Prisons United States v. Velasquez see also United States v. Brown To avoid unduly burdening the court, the Committee elected not to require resolution of objections that go only to service of sentence. However, because of the presentence reports critical role in post-sentence administration, counsel may wish to point out to the court those matters that are typically considered by the Bureau of Prisons in designating the place of confinement. For example, the Bureau considers: the type of offense, the length of sentence, the defendants age, the defendants release residence, the need for medical or other special treatment, and any placement recommendation made by the court. A Judicial Guide to the Federal Bureau of Prisons, supra If counsel objects to material in the presentence report that could affect the defendants service of sentence, the court may resolve the objection, but is not required to do so. Committee Notes on Rules2007 Amendment Subdivision (d) United States v. Booker Booker Id Changes Made to Proposed Amendment Released for Public Comment Booker Proposed subdivision (h) would have expanded the sentencing courts obligation to give notice to the parties when it intends to rely on grounds not identified in either the presentence report or the parties submissions. The amendment was intended to respond to the courts expanded discretion under Booker Booker Subdivision (k), which would have required that courts use a specified judgment and statement of reasons form, was withdrawn because of the passage of  735 of the USA Patriot Improvement and Reauthorization Act. This legislation amended 28 U.S.C.  994(w) to impose a statutory requirement that sentencing information for each case be provided on the written statement of reasons form issued by the Judicial Conference and approved by the United States Sentencing Commission. The Criminal Law Committee, which had previously requested that the uniform collection of sentencing information be addressed by an amendment to the rules, withdrew that request in light of the enactment of the statutory requirement. Finally, hereas in the other Booker Booker Committee Notes on Rules2008 Amendment Subdivision (a) Subdivision (c)(1) See Subdivision (d)(2)(B) Subdivision (i)(4) Subdivision (i)(4) has also been amended to incorporate the statutory language of the Crime Victims Rights Act, which provides that victims have the right to be reasonably heard in judicial proceedings regarding sentencing. See Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2009 Amendment Subdivision (d)(2)(G) Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2011 Amendment Subdivision (d)(2) Amendment by Public Law 1996Subd. (b)(1). Pub. L. 104132,  207(a)(1) Subd. (b)(4)(F) to (H). Pub. L. 104132,  207(a)(2) 1994Subd. (c)(3)(D). Pub. L. 103322,  230101(b)(4) Subd. (c)(3)(E). Pub. L. 103322,  230101(b)(1) Subd. (c)(4). Pub. L. 103322,  230101(b)(5) Subd. (f). Pub. L. 103322,  230101(b)(7) 1986Subd. (c)(2)(B). Pub. L. 99646 1984Subd. (a)(1). Pub. L. 98473,  215(a)(1)  (a) Sentence. (1)  Imposition of Sentence (A) determine that the defendant and the defendants counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(A) or summary thereof made available pursuant to subdivision (c)(3)(B); (B) afford counsel an opportunity to speak on behalf of the defendant; and (C) address the defendant personally and ask the defendant if the defendant wishes to make a statement in the defendants own behalf and to present any information in mitigation of punishment. The attorney for the government shall have an equivalent opportunity to speak to the court. Subd. (a)(2). Pub. L. 98473,  215(a)(2) Pub. L. 98473,  215(a)(3) Subd. (c)(1). Pub. L. 98473,  215(a)(4) The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless, with the permission of the court, the defendant waives a presentence investigation and report, or the court finds that there is in the record information sufficient to enable the meaningful exercise of sentencing discretion, and the court explains this finding on the record. Subd. (c)(2). Pub. L. 98473,  215(a)(5)  (2)  Report (A) any prior criminal record of the defendant; (B) a statement of the circumstances of the commission of the offense and circumstances affecting the defendants behavior; (C) information concerning any harm, including financial, social, psychological, and physical harm, done to or loss suffered by any victim of the offense; and (D) any other information that may aid the court in sentencing, including the restitution needs of any victim of the offense. Subd. (c)(3)(A). Pub. L. 98473,  215(a)(6) Subd. (c)(3)(D). Pub. L. 98473,  215(a)(7) Subd. (c)(3)(F). Pub. L. 98473,  215(a)(8) Subd. (d). Pub. L. 98473,  215(a)(9) 1982Subdiv. (c)(2). Pub. L. 97291 1975 Pub. L. 9464 Effective Date of 1996 Amendment Amendment by Pub. L. 104132 Apr. 24, 1996 section 211 of Pub. L. 104132 section 2248 of this title Effective Date of 1994 Amendment Amendment by Pub. L. 103322 Dec. 1, 1994 section 230101(c) of Pub. L. 103322 section 2074 of Title 28 Effective Date of 1986 Amendment Pub. L. 99646,  25(b) Nov. 10, 1986 100 Stat. 3597 The amendment made by subsection (a) shall take effect on the taking effect of the amendment made by section 215(a)(5) of the Comprehensive Crime Control Act of 1984 [  215(a)(5) of Pub. L. 98473 Nov. 1, 1987 Effective Date of 1984 Amendment Amendment by Pub. L. 98473 Nov. 1, 1987 section 235(a)(1) of Pub. L. 98473 section 3551 of this title Effective Date of 1982 Amendment Amendment by Pub. L. 97291 Oct. 14, 1982 section 9(a) of Pub. L. 97291 section 1512 of this title Effective Date of 1979 Amendment Amendment of this rule by abrogation of subd. (f) by order of the United States Supreme Court of Apr. 30, 1979 Dec. 1, 1980 section 1(1) of Pub. L. 9642 July 31, 1979 93 Stat. 326 section 2074 of Title 28 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 Rule 32.1. Revoking or Modifying Probation or Supervised Release (a) Initial Appearance. (1)  Person In Custody. (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. (3)  Advice. (A) the alleged violation of probation or supervised release; (B) the persons right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and (C) the persons right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1). (4)  Appearance in the District With Jurisdiction. (5)  Appearance in a District Lacking Jurisdiction. (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. (b) Revocation. (1)  Preliminary Hearing. (A)  In General (B)  Requirements (i) notice of the hearing and its purpose, the alleged violation, and the persons 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. (2)  Revocation Hearing. (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 persons 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. (2)  Exceptions. (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 courts 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 witnesss statement, the court must not consider that witnesss testimony. (Added Apr. 30, 1979 Dec. 1, 1980 Pub. L. 99646,  12(b) Nov. 10, 1986 100 Stat. 3594 Mar. 9, 1987 Aug. 1, 1987 Apr. 25, 1989 Dec. 1, 1989 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Apr. 12, 2006 Dec. 1, 2006 Apr. 28, 2010 Dec. 1, 2010  Notes of Advisory Committee on Rules1979 Note to Subdivision Morrissey v. Brewer Gagnon v. Scarpelli Escoe v. Zerbst Subdivision (a)(1) requires, consistent with the holding in Scarpelli United States v. Tucker United States v. Strada United States v. Langford Thomas v. United States United States v. Tucker Subdivision (a)(1)(A), (B) and (C) list the requirements for the preliminary hearing, as developed in Morrissey Scarpelli Kartman v. Parratt upon request Subdivision (a)(1)(D) provides for notice to the probationer of his right to be represented by counsel at the preliminary hearing. Although Scarpelli The federal magistrate (see definition in rule 54(c)) is to keep a record of what transpires at the hearing and, if he finds probable cause of a violation, hold the probationer for a revocation hearing. The probationer may be released pursuant to rule 46(c) pending the revocation hearing. Note to Subdivision The hearing required by rule 32.1(a)(2) is not a formal trial; the usual rules of evidence need not be applied. See Morrissey v. Brewer United States v. Francischine Subdivisions (a)(2)(A)(E) list the rights to which a probationer is entitled at the final revocation hearing. The final hearing is less a summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause. Thus, the probationer has certain rights not granted at the preliminary hearing: (i) the notice under (A) must by written; (ii) under (B) disclosure of all the evidence against the probationer is required; and (iii) under (D) the probationer does not have to specifically request the right to confront adverse witnesses, and the court may not limit the opportunity to question the witnesses against him. Under subdivision (a)(2)(E) the probationer must be given notice of his right to be represented by counsel. Although Scarpelli Revocation of probation is proper if the court finds a violation of the conditions of probation and that such violation warrants revocation. Revocation followed by imprisonment is an appropriate disposition if the court finds on the basis of the original offense and the intervening conduct of the probationer that: (i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the violation if probation were not revoked. See American Bar Association, Standards Relating to Probation  5.1 (Approved Draft, 1970). If probation is revoked, the probationer may be required to serve the sentence originally imposed, or any lesser sentence, and if imposition of sentence was suspended he may receive any sentence which might have been imposed. 18 U.S.C.  3653. When a split sentence is imposed under 18 U.S.C.  3651 and probation is subsequently revoked, the probationer is entitled to credit for the time served in jail but not for the time he was on probation. Thomas v. United States Schley v. Peyton Note to Subdivision Probation conditions should be subject to modification, for the sentencing court must be able to respond to changes in the probationers circumstances as well as new ideas and methods of rehabilitation. See generally ABA Standards, supra,  3.3. The Sentencing court is given the authority to shorten the term or end probation early upon its own motion without a hearing. And while the modification of probation is a part of the sentencing procedure, so that the probationer is ordinarily entitled to a hearing and presence of counsel, a modification favorable to the probationer may be accomplished without a hearing in the presence of defendant and counsel. United States v. Bailey Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1989 Amendment The amendments recognize that convicted defendants may be on supervised release as well as on probation. See 18 U.S.C.  3583, and 3624(e). Notes of Advisory Committee on Rules1991 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The addition of subdivision (c) is one of several amendments that extend Rule 26.2 to Rules 32(f), 32.1, 46, and Rule 8 of the Rules Governing Proceedings under 28 U.S.C.  2255. As noted in the Committee Note to Rule 26.2, the primary reason for extending that Rule to other hearings and proceedings rests heavily upon the compelling need for accurate information affecting the witnesses credibility. While that need is certainly clear in a trial on the merits, it is equally compelling, if not more so, in other pretrial and post-trial proceedings in which both the prosecution and defense have high interests at stake. In the case of revocation or modification of probation or supervised release proceedings, not only is the defendants liberty interest at stake, the government has a stake in protecting the interests of the community. Requiring production of witness statements at hearings conducted under Rule 32.1 will enhance the procedural due process which the rule now provides and which the Supreme Court required in Morrissey v. Brewer Gagnon v. Scarpelli A witnesss statement must be produced only if the witness testifies. Committee Notes on Rules2002 Amendment The language of Rule 32.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Rule 32.1 has been completely revised and expanded. The Committee believed that it was important to spell out more completely in this rule the various procedural steps that must be met when dealing with a revocation or modification of probation or supervised release. To that end, some language formerly located in Rule 40 has been moved to revised Rule 32.1. Throughout the rule, the terms magistrate judge, and court ( see See Revised Rule 32.1(a)(1)(4) is new material. Presently, there is no provision in the rules for conducting initial appearances for defendants charged with violating probation or supervised releasealthough some districts apply such procedures. Although the rule labels these proceedings as initial appearances, the Committee believed that it was best to separate those proceedings from Rule 5 proceedings, because the procedures differ for persons who are charged with violating conditions of probation or supervised release. The Committee is also aware that, in some districts, it is not the practice to have an initial appearance for a revocation of probation or supervised release proceeding. Although Rule 32.1(a) will require such an appearance, nothing in the rule prohibits a court from combining the initial appearance proceeding, if convened consistent with the without unnecessary delay time requirement of the rule, with the preliminary hearing under Rule 32.1(b). Revised Rule 32.1(a)(5) is derived from current Rule 40(d). Revised Rule 32.1(a)(6), which is derived from current Rule 46(c), provides that the defendant bears the burden of showing that he or she will not flee or pose a danger pending a hearing on the revocation of probation or supervised release. The Committee believes that the new language is not a substantive change because it makes no change in practice. Rule 32.1(b)(1)(B)(iii) and Rule 32.1(b)(2)(C) address the ability of a releasee to question adverse witnesses at the preliminary and revocation hearings. Those provisions recognize that the court should apply a balancing test at the hearing itself when considering the releasees asserted right to cross-examine adverse witnesses. The court is to balance the persons interest in the constitutionally guaranteed right to confrontation against the governments good cause for denying it. See, e.g., Morrissey v. Brewer United States v. Comito United States v. Walker United States v. Zentgraf Rule 32.1(c)(2)(A) permits the person to waive a hearing to modify the conditions of probation or supervised release. Although that language is new to the rule, the Committee believes that it reflects current practice. The remainder of revised Rule 32.1 is derived from the current Rule 32.1. Committee Notes on Rules2005 Amendment The amendments to Rule 32.1(b) and (c) are intended to address a gap in the rule. As noted by the court in United States v. Frazier See United States v. Patterson United States v. Rodriguez See United States v. Waters Frazier Id The amended rule recognizes the importance of allocution and now explicitly recognizes that right at Rule 32.1(b)(2) revocation hearings, and extends it as well to Rule 32.1(c)(1) modification hearings where the court may decide to modify the terms or conditions of the defendants probation. In each instance the court is required to give the defendant the opportunity to make a statement and present any mitigating information. Changes Made After Publication and Comment Committee Notes on Rules2006 Amendment Subdivision (a)(5)(B)(i). The amendment reflects a number of significant improvements in technology. First, receiving documents by facsimile has become very commonplace and many courts are now equipped to receive filings by electronic means, and indeed, some courts encourage or require that certain documents be filed by electronic means. Second, the technology has advanced to the state where such filings could be sent from, and received at, locations outside the courthouse. Third, electronic media can now provide improved quality of transmission and security measures. In short, in a particular case, using electronic media to transmit a document might be just as reliable and efficient as using a facsimile. The term electronic is used to provide some flexibility to the rule and make allowance for further technological advances in transmitting data. The Committee envisions that the term electronic would include use of facsimile transmissions. The rule requires that if electronic means are to be used to transmit a warrant to the magistrate judge, the means used be reliable. While the rule does not further define that term, the Committee envisions that a court or magistrate judge would make that determination as a local matter. In deciding whether a particular electronic means, or media, would be reliable, the court might consider first, the expected quality and clarity of the transmission. For example, is it possible to read the contents of the warrant in its entirety, as though it were the original or a clean photocopy? Second, the court may wish to consider whether security measures are available to insure that the transmission is not compromised. In this regard, most courts are now equipped to require that certain documents contain a digital signature, or some other similar system for restricting access. Third, the court may consider whether there are reliable means of preserving the document for later use. Changes Made After Publication and Comment. Committee Notes on Rules2010 Amendment Subdivision (a)(6). See United States v. Mincey The current rule provides that the person seeking release must bear the burden of establishing that he or she will not flee or pose a danger but does not specify the standard of proof that must be met. The amendment incorporates into the rule the standard of clear and convincing evidence. Changes Made to Proposed Amendment Released for Public Comment. Amendment by Public Law 1986Subd. (b). Pub. L. 99646 Effective Date of 1986 Amendment Pub. L. 99646,  12(c)(2) Nov. 10, 1986 100 Stat. 3594 The amendments made by subsection (b) [amending this rule] shall take effect 30 days after the date of enactment of this Act [ Nov. 10, 1986 Effective Date of Rule This rule added by order of the United States Supreme Court of Apr. 30, 1979 Dec. 1, 1980 section 1(1) of Pub. L. 9642 July 31, 1979 93 Stat. 326 section 2074 of Title 28 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. (B)  Evidence and Hearing. (2)  Preliminary Order. (A)  Contents of a Specific Order. (B)  Timing. (C)  General Order. (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. (4)  Sentence and Judgment. (A)  When Final. (B)  Notice and Inclusion in the Judgment. (C)  Time to Appeal. (5)  Jury Determination. (A)  Retaining the Jury. (B)  Special Verdict Form. (6)  Notice of the Forfeiture Order. (A)  Publishing and Sending Notice. (B)  Content of the Notice. (C)  Means of Publication; Exceptions to Publication Requirement. (D)  Means of Sending the Notice. (7)  Interlocutory Sale. (c) Ancillary Proceeding; Entering a Final Order of Forfeiture. (1)  In General. (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. (3)  Multiple Petitions. (4)  Ancillary Proceeding 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 partys 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. (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. (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. (Added Apr. 17, 2000 Dec. 1, 2000 Apr. 29, 2002 Dec. 1, 2002 Mar. 26, 2009 Dec. 1, 2009  Committee Notes on Rules2000 Rule 32.2 consolidates a number of procedural rules governing the forfeiture of assets in a criminal case. Existing Rules 7(c)(2), 31(e) and 32(d)(2) are also amended to conform to the new rule. In addition, the forfeiture-related provisions of Rule 38(e) are stricken. Subdivision (a) See United States v. DeFries See also United States v. Moffitt, Zwerling & Kemler, P.C affg Moffitt United States v. Voigt Subdivision (b) See United States v. Saccoccia One problem under Rule 31(e) concerns the scope of the determination that must be made prior to entering an order of forfeiture. This issue is the same whether the determination is made by the court or by the jury. As mentioned, the current rule requires the jury to return a special verdict as to the extent of the interest or property subject to forfeiture. Some courts interpret this to mean only that the jury must answer yes or no when asked if the property named in the indictment is subject to forfeiture under the terms of the forfeiture statute e.g extent See United States v. Ham The notion that the extent of the defendants interest must be established as part of the criminal trial is related to the fact that criminal forfeiture is an in personam United States v. Riley The problem is that third parties who might have an interest in the forfeited property are not parties to the criminal case. At the same time, a defendant who has no interest in property has no incentive, at trial, to dispute the governments forfeiture allegations. Thus, it was apparent by the 1980s that Rule 31(e) was an inadequate safeguard against the inadvertent forfeiture of property in which the defendant held no interest. In 1984, Congress addressed this problem when it enacted a statutory scheme whereby third party interests in criminally forfeited property are litigated by the court in an ancillary proceeding following the conclusion of the criminal case and the entry of a preliminary order of forfeiture. See l The notice provisions regarding the ancillary proceeding are equivalent to the notice provisions that govern civil forfeitures. Compare with see United States v. Bouler See United States v. BCCI Holdings (Luxembourg) S.A. (In re Petition of Indosuez Bank United States v. Hentz June 20, 1996 Thus, the ancillary proceeding has become the forum for determining the extent of the defendants forfeitable interest in the property. This allows the court to conduct a proceeding in which all third party claimants can participate and which ensures that the property forfeited actually belongs to the defendant. Since the enactment of the ancillary proceeding statutes, the requirement in Rule 31(e) that the court (or jury) determine the extent of the defendants interest in the property as part of the criminal trial has become an unnecessary anachronism that leads more often than not to duplication and a waste of judicial resources. There is no longer any reason to delay the conclusion of the criminal trial with a lengthy hearing over the extent of the defendants interest in property when the same issues will have to be litigated a second time in the ancillary proceeding if someone files a claim challenging the forfeiture. For example, in United States v. Messino A more sensible procedure would be for the court, once it (or a jury) determines that property was involved in the criminal offense for which the defendant has been convicted, to order the forfeiture of whatever interest a defendant may have in the property without having to determine exactly what that interest is. If third parties assert that they have an interest in all or part of the property, those interests can be adjudicated at one time in the ancillary proceeding. This approach would also address confusion that occurs in multi-defendant cases where it is clear that each defendant should forfeit whatever interest he may have in the property used to commit the offense, but it is not at all clear which defendant is the actual owner of the property. For example, suppose A and B are co-defendants in a drug and money laundering case in which the government seeks to forfeit property involved in the scheme that is held in Bs name but of which A may be the true owner. It makes no sense to invest the courts time in determining which of the two defendants holds the interest that should be forfeited. Both defendants should forfeit whatever interest they may have. Moreover, if under the current rule the court were to find that A is the true owner of the property, then B would have the right to file a claim in the ancillary proceeding where he may attempt to recover the property despite his criminal conviction. United States v. Real Property in Waterboro The new rule resolves these difficulties by postponing the determination of the extent of the defendants interest until the ancillary proceeding. As provided in (b)(1), the court, as soon as practicable after the verdict or finding of guilty in the criminal case, would determine if the property was subject to forfeiture in accordance with the applicable statute, e.g Subdivision (b)(1) recognizes that there are different kinds of forfeiture judgments in criminal cases. One type is a personal judgment for a sum of money; another is a judgment forfeiting a specific asset. See, e.g., United States v. Voigt United States v. Cleveland Aug. 26, 1997 modified Sept. 29, 1997 To the extent that the government is seeking forfeiture of a particular asset, such as the money on deposit in a particular bank account that is alleged to be the proceeds of a criminal offense, or a parcel of land that is traceable to that offense, the court must find that the government has established the requisite nexus between the property and the offense. To the extent that the government is seeking a money judgment, such as a judgment for the amount of money derived from a drug trafficking offense or the amount involved in a money laundering offense where the actual property subject to forfeiture has not been found or is unavailable, the court must determine the amount of money that the defendant should be ordered to forfeit. The court may make the determination based on evidence in the record, or on additional evidence submitted by the defendant or evidence submitted by the government in support of the motion for the entry of a judgment of forfeiture. The defendant would have no standing to object to the forfeiture on the ground that the property belonged to someone else. Under subdivision (b)(2), if the court finds that property is forfeitable, it must enter a preliminary order of forfeiture. It also recognizes that any determination of a third persons interest in the property is deferred until an ancillary proceeding, if any, is held under subdivision (c). Subdivision (b)(3) replaces Rule 32(d)(2) (effective December 1996). It provides that once the court enters a preliminary order of forfeiture directing the forfeiture of whatever interest each defendant may have in the forfeited property, the government may seize the property and commence an ancillary proceeding to determine the interests of any third party. The subdivision also provides that the Attorney General may designate someone outside of the Department of Justice to seize forfeited property. This is necessary because in cases in which the lead investigative agency is in the Treasury Department, for example, the seizure of the forfeited property is typically handled by agencies other than the Department of Justice. If no third party files a claim, the court, at the time of sentencing, will enter a final order forfeiting the property in accordance with subdivision (c)(2), discussed infra Because the order of forfeiture becomes final as to the defendant at the time of sentencing, his right to appeal from that order begins to run at that time. As courts have held, because the ancillary hearing has no bearing on the defendants right to the property, the defendant has no right to appeal when a final order is, or is not, amended to recognize third party rights. See, e.g., United States v. Christunas Because it is not uncommon for sentencing to be postponed for an extended period to allow a defendant to cooperate with the government in an ongoing investigation, the rule would allow the order of forfeiture to become final as to the defendant before sentencing, if the defendant agrees to that procedure. Otherwise, the government would be unable to dispose of the property until the sentencing took place. Subdivision (b)(4) addresses the right of either party to request that a jury make the determination of whether any property is subject to forfeiture. The provision gives the defendant, in all cases where a jury has returned a guilty verdict, the option of asking that the jury be retained to hear additional evidence regarding the forfeitability of the property. The only issue for the jury in such cases would be whether the government has established the requisite nexus between the property and the offense. For example, if the defendant disputes the governments allegation that a parcel of real property is traceable to the offense, the defendant would have the right to request that the jury hear evidence on that issue, and return a special verdict, in a bifurcated proceeding that would occur after the jury returns the guilty verdict. The government would have the same option of requesting a special jury verdict on this issue, as is the case under current law. See When Rule 31(e) was promulgated, it was assumed that criminal forfeiture was akin to a separate criminal offense on which evidence would be presented and the jury would have to return a verdict. In Libretti v. United States Even before Libretti See United States v. Myers United States v. Voigt Myers United States v. Smith United States v. Bieri Although an argument could be made under Libretti See Subdivision (c) See l in personam Experience has shown that ancillary hearings can involve issues of enormous complexity that require years to resolve. See United States v. BCCI Holdings (Luxembourg) S.A United States v. Porcelli Nov. 5, 1992 Because an ancillary hearing is connected to a criminal case, it would not be appropriate to make the Civil Rules applicable in all respects. The amendment, however, describes several fundamental areas in which procedures analogous to those in the Civil Rules may be followed. These include the filing of a motion to dismiss a claim, conducting discovery, disposing of a claim on a motion for summary judgment, and appealing a final disposition of a claim. Where applicable, the amendment follows the prevailing case law on the issue. See, e.g., United States v. Lavin United States v. BCCI Holdings (Luxembourg) S.A. (In re Petitions of General Creditors) United States v. BCCI (Holdings) Luxembourg S.A. (In re Petition of Department of Private Affairs) Dec. 8, 1993 See also United States v. BCCI Holdings (Luxembourg) S.A. (Petition of Banque Indosuez) Subdivision (c)(2) provides for the entry of a final order of forfeiture at the conclusion of the ancillary proceeding. Under this provision, if no one files a claim in the ancillary proceeding, the preliminary order would become the final order of forfeiture, but the court would first have to make an independent finding that at least one of the defendants had an interest in the property such that it was proper to order the forfeiture of the property in a criminal case. In making that determination, the court may rely upon reasonable inferences. For example, the fact that the defendant used the property in committing the crime and no third party claimed an interest in the property may give rise to the inference that the defendant had a forfeitable interest in the property. This subdivision combines and preserves two established tenets of current law. One is that criminal forfeitures are in personam in rem See United States v. Hentz June 20, 1996 See United States v. Bouler If no third parties assert their interests in the ancillary proceeding, the court must nonetheless determine that the defendant, or combination of defendants, had an interest in the property. Criminal defendants may be jointly and severally liable for the forfeiture of the entire proceeds of the criminal offense. See United States v. Hurley United States v. Cleveland Sept. 29, 1997 United States v. McCarroll June 25, 1996 Hurley affd sub nom. United States v. Jarrett United States v. DeFries revd on other grounds As noted in (c)(4), the ancillary proceeding is not considered a part of sentencing. Thus, the Federal Rules of Evidence would apply to the ancillary proceeding, as is the case currently. Subdivision (d) See United States v. Messino Finally, subdivision (d) provides a rule to govern what happens if the court determines that a third-party claim should be granted but the defendants appeal is still pending. The defendant is barred from filing a claim in the ancillary proceeding. See l Subdivision (e) See United States v. Hurley United States v. Voigt Hurley See United States v. Lester Subdivision (e)(1) makes clear that the right to a bifurcated jury trial to determine whether the government has established the requisite nexus between the property and the offense, see See United States v. Hurley United States v. Voigt Hurley United States v. Thompson See United States v. Saccoccia GAP ReportRule 32.2. Second, Rule 32.2(c)(4) was added to make it clear that the ancillary proceeding is not a part of sentencing. Third, the Committee clarified the procedures to be used if the government (1) discovers property subject to forfeiture after the court has entered an order of forfeiture and (2) seeks the forfeiture of substitute property under a statute authorizing such substitution. Committee Notes on Rules2002 Amendment The language of Rule 32.2 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Subdivision (a) Although forfeitures are not charged as counts, the federal judiciarys Case Management and Electronic Case Files system should note that forfeiture has been alleged so as to assist the parties and the court in tracking the subsequent status of forfeiture allegations. The court may direct the government to file a bill of particulars to inform the defendant of the identity of the property that the government is seeking to forfeit or the amount of any money judgment sought if necessary to enable the defendant to prepare a defense or to avoid unfair surprise. See, e.g., United States v. Moffitt, Zwerdling, & Kemler, P.C. United States v. Vasquez-Ruiz United States v. Best See also United States v. Columbo Subdivision (b)(1) Subparagraph (B) clarifies that the parties may submit additional evidence relating to the forfeiture in the forfeiture phase of the trial, which may be necessary even if the forfeiture is not contested. Subparagraph (B) makes it clear that in determining what evidence or information should be accepted, the court should consider relevance and reliability. Finally, subparagraph (B) requires the court to hold a hearing when forfeiture is contested. The Committee foresees that in some instances live testimony will be needed to determine the reliability of proffered information. Cf Subdivision (b)(2)(A) Subdivision (b)(2)(B) See United States v. King Subdivision (b)(2)(C) The authority to issue a general forfeiture order should be used only in unusual circumstances and not as a matter of course. For cases in which a general order was properly employed, see United States v. BCCI Holdings (Luxembourg) United States v. Saccoccia Subdivisions (b)(3) and (4) New subparagraphs (B) and (C) are intended to clarify what the district court is required to do at sentencing, and to respond to conflicting decisions in the courts regarding the application of Rule 36 to correct clerical errors. The new subparagraphs add considerable detail regarding the oral announcement of the forfeiture at sentencing, the reference to the forfeiture order in the judgment and commitment order, the availability of Rule 36 to correct the failure to include the forfeiture order in the judgment and commitment order, and the time to appeal. New subparagraph (C) clarifies the time for appeals concerning forfeiture by the defendant or government from two kinds of orders: the original judgment of conviction and later orders amending or refusing to amend the judgment under Rule 32.2(e) to add additional property. This provision does not address appeals by the government or a third party from orders in ancillary proceedings under Rule 32.2(c). Subdivision (b)(5)(A) Although the rule permits a party to make this request just before the jury retires, it is desirable, when possible, to make the request earlier, at the time when the jury is empaneled. This allows the court to plan, and also allows the court to tell potential jurors what to expect in terms of their service. Subdivision (b)(5)(B) Subdivisions (b)(6) and (7) Changes Made to Proposed Amendment Released for Public Comment In new subpart (b)(4)(C), dealing with the time for appeals, the words the defendant or the government were substituted for the phrase a party. This portion of the rule addresses only appeals from the original judgment of conviction and later orders amending or refusing to amend the judgment under Rule 32.2(e) to add additional property. Only the defendant and the government are parties at this stage of the proceedings. This portion of the rule does not address appeals by the government or a third party from orders in ancillary proceedings under Rule 32.2(c). This point was also clarified in the Committee note. Additionally, two other changes were made to the Committee Note: a reference to the use of the ECF system to aid the court and parties in tracking the status of forfeiture allegations, and an additional illustrative case.  References in Text The Supplemental Rules of the Federal Rules of Civil Procedure, referred to in subd. (b)(6)(C), (D), (7), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. The Federal Rules of Civil Procedure, referred to in subd. (c)(1)(B), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Rule 33. New Trial (a) Defendants Motion. Upon the defendants 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. (2)  Other Grounds. (As amended Feb. 28, 1966 July 1, 1966 Mar. 9, 1987 Aug. 1, 1987 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1944 This rule enlarges the time limit for motions for new trial on the ground of newly discovered evidence, from 60 days to two years; and for motions for new trial on other grounds from three to five days. Otherwise, it substantially continues existing practice. See Rule II of the Criminal Appeals Rules of 1933, 292 U.S. 661. Cf Notes of Advisory Committee on Rules1966 Amendment The amendments to the first two sentences make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant. Problems of double jeopardy arise when the court acts on its own motion. See United States v. Smith Gori v. United States Downum v. United States United States v. Tateo Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules1998 Amendment As currently written, the time for filing a motion for new trial on the ground of newly discovered evidence runs from the final judgment. The courts, in interpreting that language, have uniformly concluded that that language refers to the action of the Court of Appeals. See, e.g., United States v. Reyes Reyes Reyes, supra See also Herrera v. Collins It is the intent of the Committee to remove that element of inconsistency by using the trial courts verdict or finding of guilty as the triggering event. The change also furthers internal consistency within the rule itself; the time for filing a motion for new trial on any other ground currently runs from that same event. Finally, the time to file a motion for new trial based upon newly discovered evidence is increased to three years to compensate for what would have otherwise resulted in less time than that currently contemplated in the rule for filing such motions. Changes Made to Rule 33 After Publication (GAP Report) three Committee Notes on Rules2002 Amendment The language of Rule 33 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2005 Amendment Rule 33(b)(2) has been amended to remove the requirement that the court must act within seven days after a verdict or finding of guilty if it sets another time for filing a motion for a new trial. This amendment parallels similar changes to Rules 29 and 34. Further, a conforming amendment has been made to Rule 45(b)(2). Currently, Rule 33(b)(2) requires the defendant to move for a new trial within seven days after the verdict or the finding of guilty verdict, or within some other time set by the court in an order issued during that same seven-day period. Similar provisions exist in Rules 29 and 34. Courts have held that the seven-day rule is jurisdictional. Thus, if a defendant files a request for an extension of time to file a motion for a new trial within the seven-day period, the court must rule on that motion or request within the same seven-day period. If for some reason the court does not rule on the request within the seven days, it loses jurisdiction to act on the underlying substantive motion. See, e.g., United States v. Smith United States v. Marquez Assuming that the current rule was intended to promote finality, there is nothing to prevent the court from granting the defendant a significant extension of time, so long as it does so within the seven-day period. Thus, the Committee believed that the rule should be amended to be consistent with all of the other timing requirements in the rules, which do not force the court to act on a motion to extend the time for filing within a particular period of time or lose jurisdiction to do so. Accordingly, the amendment deletes the language regarding the courts acting within seven days to set the time for filing. Read in conjunction with the conforming amendment to Rule 45(b), the defendant is still required to file a timely motion for a new trial under Rule 33(b)(2) within the seven-day period specified. The defendant may, under Rule 45, seek an extension of time to file the underlying motion as long as the defendant does so within the seven-day period. But the court itself is not required to act on that motion within any particular time. Further, under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion for new trial within the specified time, the court may nonetheless consider that untimely underlying motion if the court determines that the failure to file it on time was the result of excusable neglect. Changes Made After Publication and Comment Committee Notes on Rules2009 Amendment Former Rules 29, 33, and 34 adopted 7-day periods for their respective motions. This period has been expanded to 14 days. Experience has proved that in many cases it is not possible to prepare a satisfactory motion in 7 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. This led to frequent requests for continuances, and the filing of bare bones motions that required later supplementation. The 14-day periodincluding intermediate Saturdays, Sundays, and legal holidays as provided by Rule 45(a)sets a more realistic time for the filing of these motions. Rule 34. Arresting Judgment (a) In General. Upon the defendants motion or on its own, the court must arrest judgment if 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. (As amended Feb. 28, 1966 July 1, 1966 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009 Apr. 25, 2014 Dec. 1, 2014  Notes of Advisory Committee on Rules1944 This rule continues existing law except that it enlarges the time for making motions in arrest of judgment from 3 days to 5 days. See Rule II (2) of Criminal Appeals Rules of 1933, 2 92 U.S.C. 661 Notes of Advisory Committee on Rules1966 Amendment The words on motion of a defendant are added to make clear here, as in Rule 33, that the court may act only pursuant to a timely motion by the defendant. The amendment to the second sentence is designed to clarify an ambiguity in the rule as originally drafted. In Lott v. United States Lott Committee Notes on Rules2002 Amendment The language of Rule 34 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2005 Amendment Rule 34(b) has been amended to remove the requirement that the court must act within seven days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere if it sets another time for filing a motion to arrest a judgment. The amendment parallels similar amendments to Rules 29 and 33. Further, a conforming amendment has been made to Rule 45(b). Currently, Rule 34(b) requires the defendant to move to arrest judgment within seven days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within some other time set by the court in an order issued by the court within that same seven-day period. Similar provisions exist in Rules 29 and 33. Courts have held that the seven-day rule is jurisdictional. Thus, if a defendant files a request for an extension of time to file a motion to arrest judgment within the seven-day period, the judge must rule on that motion or request within the same seven-day period. If for some reason the court does not rule on the request within the seven days, the court loses jurisdiction to act on the underlying substantive motion, if it is not filed within the seven days. See, e.g., United States v. Smith United States v. Marquez Assuming that the current rule was intended to promote finality, there is nothing to prevent the court from granting the defendant a significant extension of time, so long as it does so within the seven-day period. Thus, the Committee believed that the rule should be amended to be consistent with all of the other timing requirements in the rules, which do not force the court to rule on a motion to extend the time for filing within a particular period of time or lose jurisdiction to do so. Accordingly, the amendment deletes the language regarding the courts acting within seven days to set the time for filing. Read in conjunction with the conforming amendment to Rule 45(b), the defendant is still required to file a timely motion to arrest judgment under Rule 34 within the seven-day period specified. The defendant may, under Rule 45, seek an extension of time to file the underlying motion as long as the defendant does so within the seven-day period. But the court itself is not required to act on that motion within any particular time. Further, under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion within the specified time, the court may nonetheless consider that untimely motion if the court determines that the failure to file it on time was the result of excusable neglect. Changes Made After Publication and Comment Committee Notes on Rules2009 Amendment Former Rules 29, 33, and 34 adopted 7-day periods for their respective motions. This period has been expanded to 14 days. Experience has proved that in many cases it is not possible to prepare a satisfactory motion in 7 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. This led to frequent requests for continuances, and the filing of bare bones motions that required later supplementation. The 14-day periodincluding intermediate Saturdays, Sundays, and legal holidays as provided by Rule 45(a)sets a more realistic time for the filing of these motions. Committee Notes on Rules2014 Amendment Rule 34(a). Changes Made After Publication and Comment. 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 (2)  Later Motion. (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. (4)  Below Statutory Minimum. (c) Sentencing Defined. As used in this rule, sentencing means the oral announcement of the sentence. (As amended Feb. 28, 1966 July 1, 1966 Apr. 30, 1979 Aug. 1, 1979 Apr. 28, 1983 Aug. 1, 1983 Pub. L. 98473, title II,  215(b) Oct. 12, 1984 98 Stat. 2015 Apr. 29, 1985 Aug. 1, 1985 Pub. L. 99570, title I,  1009(a) Oct. 27, 1986 100 Stat. 32078 Apr. 30, 1991 Dec. 1, 1991 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 26, 2004 Dec. 1, 2004 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1944 The first sentence of the rule continues existing law. The second sentence introduces a flexible time limitation on the power of the court to reduce a sentence, in lieu of the present limitation of the term of court. Rule 45(c) abolishes the expiration of a term of court as a time limitation, thereby necessitating the introduction of a specific time limitation as to all proceedings now governed by the term of court as a limitation. The Federal Rules of Civil Procedure (Rule 6(c)) [28 U.S.C., Appendix], abolishes the term of court as a time limitation in respect to civil actions. The two rules together thus do away with the significance of the expiration of a term of court which has largely become an anachronism. Notes of Advisory Committee on Rules1966 Amendment The amendment to the first sentence gives the court power to correct a sentence imposed in an illegal manner within the same time limits as those provided for reducing a sentence. In Hill v. United States The second sentence has been amended to increase the time within which the court may act from 60 days to 120 days. The 60-day period is frequently too short to enable the defendant to obtain and file the evidence, information and argument to support a reduction in sentence. Especially where a defendant has been committed to an institution at a distance from the sentencing court, the delays involved in institutional mail inspection procedures and the time required to contact relatives, friends and counsel may result in the 60-day period passing before the court is able to consider the case. The other amendments to the second sentence clarify ambiguities in the timing provisions. In those cases in which the mandate of the court of appeals is issued prior to action by the Supreme Court on the defendants petition for certiorari, the rule created problems in three situations: (1) If the writ were denied, the last phrase of the rule left obscure the point at which the period began to run because orders of the Supreme Court denying applications for writs are not sent to the district courts. See Johnson v. United States The third sentence has been added to make it clear that the time limitation imposed by Rule 35 upon the reduction of a sentence does not apply to such reduction upon the revocation of probation as authorized by 18 U.S.C.  3653. Notes of Advisory Committee on Rules1979 Amendment Rule 35 is amended in order to make it clear that a judge may, in his discretion, reduce a sentence of incarceration to probation. To the extent that this permits the judge to grant probation to a defendant who has already commenced service of a term of imprisonment, it represents a change in the law. See United States v. Murray Affronti v. United States Murray Affronti United States v. Golphin Should the reduction to a sentence of probation occur after the defendant has been incarcerated more than six months, this would put into issue the applicability of 18 U.S.C.  3651, which provides that initially the court may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best. Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision United States v. Colvin United States v. Johnson United States v. Rice United States v. Kahane Johnson The Supreme Court declared in Korematsu v. United States The change facilitates the underlying objective of rule 35, which is to give every convicted defendant a second round before the sentencing judge, and [afford] the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case which may have been presented to him in the interim. United States v. Ellenbogan Johnson It frequently will be unrealistic for a defendant whose sentence has just been suspended to petition the court for the further relief of a reduction of that suspended sentence. Just as significant, we doubt that sentencing judges would be very receptive to Rule 35 motions proffered at the time the execution of a term of imprisonment is suspended in whole or in part and the defendant given a term of probation. Moreover, the sentencing judge cannot know of events that might occur later and that might bear on what would constitute an appropriate term of imprisonment should the defendant violate his probation. ... In particular, it is only with the revocation hearing that the judge is in a position to consider whether a sentence originally suspended pending probation should be reduced. The revocation hearing is thus the first point at which an offender can be afforded a realistic opportunity to plead for a light sentence. If the offender is to be provided two chances with the sentencing judge, to be meaningful this second sentence must occur subsequent to the revocation hearing. Notes of Advisory Committee on Rules1985 Amendment Note to Subdivision United States v. DeMier United States v. Smith United States v. Johnson United States v. Mendoza United States V. Stollings United States v. Addonizio United States v. Kajevic Addonizio As for the reasonable time limitation, reasonableness in this context must be evaluated in light of the policies supporting the time limitations and the reasons for the delay in each case. United States v. Smith, supra United States v. Stollings, supra In some instances the court may decide to reduce a sentence even though no motion seeking such action is before the court. When that is the case, the amendment makes clear, the reduction must actually occur within the time specified. This amendment does not preclude the filing of a motion by a defendant for further reduction of sentence after the court has reduced a sentence on its own motion, if filed within the 120 days specified in this rule. Notes of Advisory Committee on Rules1991 Amendment Rule 35(b), as amended in 1987 as part of the Sentencing Reform Act of 1984, reflects a method by which the government may obtain valuable assistance from defendants in return for an agreement to file a motion to reduce the sentence, even if the reduction would reduce the sentence below the mandatory minimum sentence. The title of subsection (b) has been amended to reflect that there is a difference between correcting an illegal or improper sentence, as in subsection (a), and reducing an otherwise legal sentence for special reasons under subsection (b). Under the 1987 amendment, the trial court was required to rule on the governments motion to reduce a defendants sentence within one year after imposition of the sentence. This caused problems, however, in situations where the defendants assistance could not be fully assessed in time to make a timely motion which could be ruled upon before one year had elapsed. The amendment requires the government to make its motion to reduce the sentence before one year has elapsed but does not require the court to rule on the motion within the one year limit. This change should benefit both the government and the defendant and will permit completion of the defendants anticipated cooperation with the government. Although no specific time limit is set on the courts ruling on the motion to reduce the sentence, the burden nonetheless rests on the government to request and justify a delay in the courts ruling. The amendment also recognizes that there may be those cases where the defendants assistance or cooperation may not occur until after one year has elapsed. For example, the defendant may not have obtained information useful to the government until after the time limit had passed. In those instances the trial court in its discretion may consider what would otherwise be an untimely motion if the government establishes that the cooperation could not have been furnished within the one-year time limit. In deciding whether to consider an untimely motion, the court may, for example, consider whether the assistance was provided as early as possible. Subdivision (c) is intended to adopt, in part, a suggestion from the Federal Courts Study Committee 1990 that Rule 35 be amended to recognize explicitly the ability of the sentencing court to correct a sentence imposed as a result of an obvious arithmetical, technical or other clear error, if the error is discovered shortly after the sentence is imposed. At least two courts of appeals have held that the trial court has the inherent authority, notwithstanding the repeal of former Rule 35(a) by the Sentencing Reform Act of 1984, to correct a sentence within the time allowed for sentence appeal by any party under 18 U.S.C. 3742 See United States v. Cook United States v. Rico The authority to correct a sentence under this subdivision is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action under Rule 35(a). The subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the courts discretion with regard to the application of the sentencing guidelines. Furthermore, the Committee did not intend that the rule relax any requirement that the parties state all objections to a sentence at or before the sentencing hearing. See, e.g., United States v. Jones The subdivision does not provide for any formalized method of bringing the error to the attention of the court and recognizes that the court could sua sponte Compare United States v. Cook, supra sua sponte United States v. Rico, supra Rule 35(c) provides an efficient and prompt method for correcting obvious technical errors that are called to the courts attention immediately after sentencing. But the addition of this subdivision is not intended to preclude a defendant from obtaining statutory relief from a plainly illegal sentence. The Committees assumption is that a defendant detained pursuant to such a sentence could seek relief under 28 U.S.C.  2255 if the seven day period provided in Rule 35(c) has elapsed. Rule 35(c) and  2255 should thus provide sufficient authority for a district court to correct obvious sentencing errors. The Committee considered, but rejected, a proposal from the Federal Courts Study Committee to permit modification of a sentence, within 120 days of sentencing, based upon new factual information not known to the defendant at the time of sentencing. Unlike the proposed subdivision (c) which addresses obvious technical mistakes, the ability of the defendant (and perhaps the government) to come forward with new evidence would be a significant step toward returning Rule 35 to its former state. The Committee believed that such a change would inject into Rule 35 a degree of postsentencing discretion which would raise doubts about the finality of determinate sentencing that Congress attempted to resolve by eliminating former Rule 35(a). It would also tend to confuse the jurisdiction of the courts of appeals in those cases in which a timely appeal is taken with respect to the sentence. Finally, the Committee was not persuaded by the available evidence that a problem of sufficient magnitude existed at this time which would warrant such an amendment. Committee Notes on Rules1998 Amendment The amendment to Rule 35(b) is intended to fill a gap in current practice. Under the Sentencing Reform Act and the applicable guidelines, a defendant who has provided substantial assistance to the Government before sentencing may receive a reduced sentence under United States Sentencing Guideline  5K1.1. In addition, a defendant who provides substantial assistance after the sentence has been imposed may receive a reduction of the sentence if the Government files a motion under Rule 35(b). In theory, a defendant who has provided substantial assistance both before and after sentencing could benefit from both  5K1.1 and Rule 35(b). But a defendant who has provided, on the whole, substantial assistance may not be able to benefit from either provision because each provision requires substantial assistance. As one court has noted, those two provisions contain distinct temporal boundaries. United States v. Drown Although several decisions suggest that a court may aggregate the defendants pre-sentencing and post-sentencing assistance in determining whether the substantial assistance requirement of Rule 35(b) has been met, United States v. Speed The amendment, however, is not intended to provide a double benefit to the defendant. Thus, if the defendant has already received a reduction of sentence under U.S.S.G.  5K1.1 for substantial pre-sentencing assistance, he or she may not have that assistance counted again in a post-sentence Rule 35(b) motion. Changes Made After Publication (GAP Report) Committee Notes on Rules2002 Amendment The language of Rule 35 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The Committee deleted current Rule 35(a) (Correction on Remand). Congress added that rule, which currently addresses the issue of the district courts actions following a remand on the issue of sentencing, in the Sentencing Reform Act of 1984. Pub. L. No. 98473. The rule cross-references 18 U.S.C.  3742, also enacted in 1984, which provides detailed guidance on the various options available to the appellate courts in addressing sentencing errors. In reviewing both provisions, the Committee concluded that Rule 35(a) was no longer needed. First, the statute clearly covers the subject matter and second, it is not necessary to address an issue that would be very clear to a district court following a decision by a court of appeals. Former Rule 35(c), which addressed the authority of the court to correct certain errors in the sentence, is now located in Rule 35(a). In the current version of Rule 35(c), the sentencing court is authorized to correct errors in the sentence if the correction is made within seven days of the imposition of the sentence. The revised rule uses the term sentencing. No change in practice is intended by using that term. A substantive change has been made in revised Rule 35(b). Under current Rule 35(b), if the government believes that a sentenced defendant has provided substantial assistance in investigating or prosecuting another person, it may move the court to reduce the original sentence; ordinarily, the motion must be filed within one year of sentencing. In 1991, the rule was amended to permit the government to file such motions after more than one year had elapsed if the government could show that the defendants substantial assistance involved information or evidence not known by the defendant until more than one year had elapsed. The current rule, however, did not address the question whether a motion to reduce a sentence could be filed and granted in those instances when the defendants substantial assistance involved information provided by the defendant within one year of sentence but that did not become useful to the government until more than one year after sentencing (e.g., when the government starts an investigation to which the information is pertinent). The courts were split on the issue. Compare United States v. Morales with United States v. Orozco Orozco address the apparent unforeseen situation presented in this case where a convicted defendant provides information to the government prior to the expiration of the jurisdictional, one-year period from sentence imposition, but that information does not become useful to the government until more than one year after sentence imposition. Id Nor does the existing rule appear to allow a substantial assistance motion under equally deserving circumstances where a defendant, who fails to provide information within one year of sentencing because its usefulness could not reasonably have been anticipated, later provides the information to the government promptly upon its usefulness becoming apparent. Revised Rule 35(b) is intended to address both of those situations. First, Rule 35(b)(2)(B) makes clear that a sentence reduction motion is permitted in those instances identified by the court in Orozco The rules one-year restriction generally serves the important interests of finality and of creating an incentive for defendants to provide promptly what useful information they might have. Thus, the proposed amendment would not eliminate the one-year requirement as a generally operative element. But where the usefulness of the information is not reasonably apparent until a year or more after sentencing, no sound purpose is served by the current rules removal of any incentive to provide that information to the government one year or more after the sentence (or if previously provided, for the government to seek to reward the defendant) when its relevance and substantiality become evident. By using the term involves in Rule 35(b)(2) in describing the sort of information that may result in substantial assistance, the Committee recognizes that a court does not lose jurisdiction to consider a Rule 35(b)(2) motion simply because other information, not covered by any of the three provisions in Rule 35(b)(2), is presented in the motion. Committee Notes on Rules2004 Amendment Rule 35(c) is a new provision, which defines sentencing for purposes of Rule 35 as the oral announcement of the sentence. Originally, the language in Rule 35 had used the term imposition of sentence. The term imposition of sentence was not defined in the rule and the courts addressing the meaning of the term were split. The majority view was that the term meant the oral announcement of the sentence and the minority view was that it meant the entry of the judgment. See United States v. Aguirre Changes Made to Rule 35 After Publication and Comment Committee Notes on Rules2007 Amendment Subdivision (b)(1) United States v. Booker Booker Id Changes Made to Proposed Amendment Released for Public Comment Booker Booker Committee Notes on Rules2009 Amendment Former Rule 35 permitted the correction of arithmetic, technical, or clear errors within 7 days of sentencing. In light of the increased complexity of the sentencing process, the Committee concluded it would be beneficial to expand this period to 14 days, including intermediate Saturdays, Sundays, and legal holidays as provided by Rule 45(a). Extension of the period in this fashion will cause no jurisdictional problems if an appeal has been filed, because Federal Rule of Appellate Procedure 4(b)(5) expressly provides that the filing of a notice of appeal does not divest the district court of jurisdiction to correct a sentence under Rule 35(a). Amendment by Public Law 1986Subd. (b). Pub. L. 99570 section 994 of title 28 28 U.S.C. 994(a) 1984 Pub. L. 98473  Rule 35. Correction or Reduction of Sentence (a)  Correction of Sentence The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b)  Reduction of Sentence A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. Effective Date of 1986 Amendment Pub. L. 99570, title I,  1009(b) Oct. 27, 1986 100 Stat. 32078 The amendment made by this section [amending this rule] shall take effect on the date of the taking effect of rule 35(b) of the Federal Rules of Criminal Procedure, as amended by section 215(b) of the Comprehensive Crime Control Act of 1984 [ section 215(b) of Pub. L. 98473 Nov. 1, 1987 Effective and Termination Dates of 1985 Amendments Section 2 of the Order of the Supreme Court dated Apr. 29, 1985 August 1, 1985 November 1, 1986 Pub. L. 98473 October 12, 1984 98 Stat. 2015 section 22 of Pub. L. 100182 Pub. L. 98473, title II,  235(a)(1) Oct. 12, 1984 98 Stat. 2031 Nov. 1, 1986 section 215(b) of Pub. L. 98473 Nov. 1, 1987 section 3551 of this title Effective Date of 1984 Amendment Amendment by Pub. L. 98473 Nov. 1, 1987 section 235(a)(1) of Pub. L. 98473 section 3551 of this title Application of Rule 35(b) to Conduct Occurring Before Effective Date of Sentencing Guidelines Pub. L. 100182,  22 Dec. 7, 1987 101 Stat. 1271 The amendment to rule 35(b) of the Federal Rules of Criminal Procedure made by the order of the Supreme Court on April 29, 1985 section 215(b) of Pub. L. 98473 Nov. 1, 1987 Authority To Lower a Sentence Below Statutory Minimum for Old Offenses Subd. (b) of this rule as amended by section 215(b) of Pub. L. 98473 section 235 of Pub. L. 98473 section 24 of Pub. L. 100182 section 3553 of this title Rule 36. Clerical Error  After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission. (As amended Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule continues existing law. Rupinski v. United States Committee Notes on Rules2002 Amendment The language of Rule 36 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 37. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal (a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. (b) Notice to the Court of Appeals. The movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue. (c) Remand. The district court may decide the motion if the court of appeals remands for that purpose. (Added Apr. 23, 2012 Dec. 1, 2012  Committee Notes on Rules2012 This new rule adopts for any motion that the district court cannot grant because of a pending appeal the practice that most courts follow when a party makes a motion under Rule 60(b) of the Federal Rules of Civil Procedure to vacate a judgment that is pending on appeal. After an appeal has been docketed and while it remains pending, the district court cannot grant a Rule 60(b) motion without a remand. But it can entertain the motion and deny it, defer consideration, or state that it would grant the motion if the court of appeals remands for that purpose or state that the motion raises a substantial issue. Experienced lawyers often refer to the suggestion for remand as an indicative ruling. (Federal Rule of Appellate Procedure 4(b)(3) lists three motions that, if filed within the relevant time limit, suspend the effect of a notice of appeal filed before or after the motion is filed until the judgment of conviction is entered and the last such motion is ruled upon. The district court has authority to grant the motion without resorting to the indicative ruling procedure.) The procedure formalized by Federal Rule of Appellate Procedure 12.1 is helpful when relief is sought from an order that the court cannot reconsider because the order is the subject of a pending appeal. In the criminal context, the Committee anticipates that Criminal Rule 37 will be used primarily if not exclusively for newly discovered evidence motions under Criminal Rule 33(b)(1) ( see United States v. Cronic To ensure proper coordination of proceedings in the district court and in the appellate court, the movant must notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue. Remand is in the court of appeals discretion under Federal Rule of Appellate Procedure 12.1. Often it will be wise for the district court to determine whether it in fact would grant the motion if the court of appeals remands for that purpose. But a motion may present complex issues that require extensive litigation and that may either be mooted or be presented in a different context by decision of the issues raised on appeal. In such circumstances the district court may prefer to state that the motion raises a substantial issue, and to state the reasons why it prefers to decide only if the court of appeals agrees that it would be useful to decide the motion before decision of the pending appeal. The district court is not bound to grant the motion after stating that the motion raises a substantial issue; further proceedings on remand may show that the motion ought not be granted. Changes Made to Proposed Amendment Released for Public Comment. 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. (2)  Stay Denied; Place of Confinement. (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 courts registry pending appeal; (2) post a bond to pay the fine and costs; or (3) submit to an examination concerning the defendants 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. (2)  Ensuring Compliance. (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 courts 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 defendants conviction or sentence creates a civil or employment disability under federal law, the district court, or the court of appeals under Federal Rule of Appellate Procedure 8, may stay the disability pending appeal on any terms considered appropriate. The court may issue any order reasonably necessary to protect the interest represented by the disability pending appeal, including a restraining order or an injunction. (As amended Dec. 27, 1948 Jan. 1, 1949 Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Apr. 24, 1972 Oct. 1, 1972 Pub. L. 98473, title II,  215(c) Oct. 12, 1984 98 Stat. 2016 Mar. 9, 1987 Aug. 1, 1987 Apr. 17, 2000 Dec. 1, 2000 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule substantially continues existing law except that it provides that in case an appeal is taken from a judgment imposing a sentence of imprisonment, a stay shall be granted only if the defendant so elects, or is admitted to bail. Under the present rule the sentence is automatically stayed unless the defendant elects to commence service of the sentence pending appeal. The new rule merely changes the burden of making the election. See Rule V of the Criminal Appeals Rules, 1933, 292 U.S. 661. Notes of Advisory Committee on Rules1966 Amendment A defendant sentenced to a term of imprisonment is committed to the custody of the Attorney General who is empowered by statute to designate the place of his confinement. 18 U.S.C.  4082. The sentencing court has no authority to designate the place of imprisonment. See, e.g., Hogue v. United States When the place of imprisonment has been designated, and notwithstanding the pendency of an appeal, the defendant is usually transferred from the place of his temporary detention within the district of his conviction unless he has elected not to commence service of the sentence. This transfer can be avoided only if the defendant makes the election, a course sometimes advised by counsel who may deem it necessary to consult with the defendant from time to time before the appeal is finally perfected. However, the election deprives the defendant of a right to claim credit for the time spent in jail pending the disposition of the appeal because 18 U.S.C.  3568 provides that the sentence of imprisonment commences, to run only from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. See, e.g., Shelton v. United States The amendment eliminates the procedure for election not to commence service of sentence. In lieu thereof it is provided that the court may recommend to the Attorney General that the defendant be retained at or transferred to a place of confinement near the place of trial or the place where the appeal is to be heard for the period reasonably necessary to permit the defendant to assist in the preparation of his appeal to the court of appeals. Under this procedure the defendant would no longer be required to serve dead time in a local jail in order to assist in preparation of his appeal. Notes of Advisory Committee on Rules1968 Amendment Subdivisions (b) and (c) of this rule relate to appeals, the provisions of which are transferred to and covered by the Federal Rules of Appellate Procedure. See Advisory Committee Note under rule 37. Notes of Advisory Committee on Rules1972 Amendment Rule 38(a)(2) is amended to reflect rule 9(b), Federal Rules of Appellate Procedure. The criteria for the stay of a sentence of imprisonment pending disposition of an appeal are those specified in rule 9(c) which incorporates 18 U.S.C.  3148 by reference. The last sentence of subdivision (a)(2) is retained although easy access to the defendant has become less important with the passage of the Criminal Justice Act which provides for compensation to the attorney to travel to the place at which the defendant is confined. Whether the court will recommend confinement near the place of trial or place where the appeal is to be heard will depend upon a balancing of convenience against the possible advantage of confinement at a more remote correctional institution where facilities and program may be more adequate. The amendment to subdivision (a)(4) gives the court discretion in deciding whether to stay the order placing the defendant on probation. It also makes mandatory the fixing of conditions for the stay if a stay is granted. The court cannot release the defendant pending appeal without either placing him on probation or fixing the conditions for the stay under the Bail Reform Act, 18 U.S.C.  3148. Former rule 38(a)(4) makes mandatory a stay of an order placing the defendant on probation whenever an appeal is noted. The court may or may not impose conditions upon the stay. See rule 46, Federal Rules of Criminal Procedure; and the Bail Reform Act, 18 U.S.C.  3148. Having the defendant on probation during the period of appeal may serve the objectives of both community protection and defendant rehabilitation. In current practice, the order of probation is sometimes stayed for an appeal period as long as two years. In a situation where the appeal is unsuccessful, the defendant must start under probation supervision after so long a time that the conditions of probation imposed at the time of initial sentencing may no longer appropriately relate either to the defendants need for rehabilitation or to the communitys need for protection. The purposes of probation are more likely to be served if the judge can exercise discretion, in appropriate cases, to require the defendant to be under probation during the period of appeal. The American Bar Association Project on Standards for Criminal Justice takes the position that prompt imposition of sentence aids in the rehabilitation of defendants, ABA Standards Relating to Pleas of Guilty  1.8(a)(i), Commentary p. 40 (Approved Draft, 1968). See also Sutherland and Cressey, Principles of Criminology 336 (1966). Under 18 U.S.C.  3148 the court now has discretion to impose conditions of release which are necessary to protect the community against danger from the defendant. This is in contrast to release prior to conviction, where the only appropriate criterion is insuring the appearance of the defendant. 18 U.S.C.  3146. Because the court may impose conditions of release to insure community protection, it seems appropriate to enable the court to do so by ordering the defendant to submit to probation supervision during the period of appeal, thus giving the probation service responsibility for supervision. A major difference between probation and release under 18 U.S.C.  3148 exists if the defendant violates the conditions imposed upon his release. In the event that release is under 18 U.S.C.  3148, the violation of the condition may result in his being placed in custody pending the decision on appeal. If the appeal were unsuccessful, the order placing him on probation presumably would become effective at that time, and he would then be released under probation supervision. If the defendant were placed on probation, his violation of a condition could result in the imposition of a jail or prison sentence. If the appeal were unsuccessful, the jail or prison sentence would continue to be served. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2000 Amendment The rule is amended to reflect the creation of new Rule 32.2 which now governs criminal forfeiture procedures. GAP ReportRule 38. Committee Notes on Rules2002 Amendment The language of Rule 38 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The reference to Appellate Rule 9(b) is deleted. The Committee believed that the reference was unnecessary and its deletion was not intended to be substantive in nature.  References in Text The Federal Rules of Appellate Procedure, referred to in subds. (c), (e)(1), and (g), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Amendment by Public Law 1984 Pub. L. 98473,  215(c)(1) Subd. (a). Pub. L. 98473,  215(c)(1) Pub. L. 98473,  215(c)(3) Subd. (b). Pub. L. 98473,  215(c)(3) Pub. L. 98473,  215(c)(2) Dec. 4, 1967 July 1, 1968 Subd. (c). Pub. L. 98473,  215(c)(3) Pub. L. 98473,  215(c)(2) Dec. 4, 1967 July 1, 1968 Subd. (d). Pub. L. 98473,  215(c)(3) An order placing the defendant on probation may be stayed if an appeal is taken. If not stayed, the court shall specify when the term of probation shall commence. If the order is stayed the court shall fix the terms of the stay. Subds. (e), (f). Pub. L. 98473,  215(c)(7) Effective Date of 1984 Amendment Amendment by Pub. L. 98473 Nov. 1, 1987 section 235(a)(1) of Pub. L. 98473 section 3551 of this title Rule 39. [Reserved] TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS 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 persons release under 18 U.S.C.  31413156 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. (d) Video Teleconferencing. Video teleconferencing may be used to conduct an appearance under this rule if the defendant consents. (As amended Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Apr. 30, 1979 Aug. 1, 1979 Pub. L. 9642,  1(2) July 31, 1979 93 Stat. 326 Apr. 28, 1982 Aug. 1, 1982 Pub. L. 98473, title II Oct. 12, 1984 98 Stat. 1986 Mar. 9, 1987 Aug. 1, 1987 Apr. 25, 1989 Dec. 1, 1989 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Apr. 27, 1995 Dec. 1, 1995 Apr. 29, 2002 Dec. 1, 2002 Apr. 12, 2006 Dec. 1, 2006 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Rules1944 1. This rule modifies and revamps existing procedure. The present practice has developed as a result of a series of judicial decisions, the only statute dealing with the subject being exceedingly general, 18 U.S.C. 591 For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any United States commissioner, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. * * * Where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had. The scope of a removal hearing, the issues to be considered, and other similar matters are governed by judicial decisions, Beavers v. Henkel Tinsley v. Treat Henry v. Henkel Rodman v. Pothier Morse v. United States Fetters v. United States ex rel. Cunningham United States ex rel. Kassin v. Mulligan et seq. 2. The purpose of removal proceedings is to accord safeguards to a defendant against an improvident removal to a distant point for trial. On the other hand, experience has shown that removal proceedings have at times been used by defendants for dilatory purposes and in attempting to frustrate prosecution by preventing or postponing transportation even as between adjoining districts and between places a few miles apart. The object of the rule is adequately to meet each of these two situations. 3. For the purposes of removal, all cases in which the accused is apprehended in a district other than that in which the prosecution is pending have been divided into two groups: first, those in which the place of arrest is either in another district of the same State, or if in another State, then less than 100 miles from the place where the prosecution is pending; and second, cases in which the arrest occurs in a State other than that in which the prosecution is pending and the place of arrest is 100 miles or more distant from the latter place. In the first group of cases, removal proceedings are abolished. The defendants right to the usual preliminary hearing is, of course, preserved, but the committing magistrate, if he holds defendant would bind him over to the district court in which the prosecution is pending. As ordinarily there are no removal proceedings in State prosecutions as between different parts of the same State, but the accused is transported by virtue of the process under which he was arrested, it seems reasonable that no removal proceedings should be required in the Federal courts as between districts in the same State. The provision as to arrest in another State but at a place less than 100 miles from the place where the prosecution is pending was added in order to preclude obstruction against bringing the defendant a short distance for trial. In the second group of cases mentioned in the first paragraph, removal proceedings are continued. The practice to be followed in removal hearings will depend on whether the demand for removal is based upon an indictment or upon an information or complaint. In the latter case, proof of identity and proof of reasonable cause to believe the defendant guilty will have to be adduced in order to justify the issuance of a warrant of removal. In the former case, proof of identity coupled with a certified copy of the indictment will be sufficient, as the indictment will be conclusive proof of probable cause. The distinction is based on the fact that in case of an indictment, the grand jury, which is an arm of the court, has already found probable cause. Since the action of the grand jury is not subject to review by a district judge in the district in which the grand jury sits, it seems illogical to permit such review collaterally in a removal proceeding by a judge in another district. 4. For discussions of this rule see, Homer Cummings, 29 A.B.A.Jour. 654, 656; Holtzoff, 3 F.R.D. 445, 450452; Holtzoff, 12 George Washington L.R. 119, 127130; Holtzoff, The Federal Bar Journal, October 1944, 1837; Berge, 42 Mich.L.R. 353, 374; Medalie, 4 Lawyers Guild R. (3)1, 4. Note to Subdivision Notes of Advisory Committee on Rules1966 Amendment The amendment conforms to the change made in the corresponding procedure in Rule 5(b). Notes of Advisory Committee on Rules1972 Amendment Subdivision (a) is amended to make clear that the person shall be taken before the federal magistrate without unnecessary delay. Although the former rule was silent in this regard, it probably would have been interpreted to require prompt appearance, and there is therefore advantage in making this explicit in the rule itself. See C. Wright, Federal Practice and Procedure: Criminal  652 (1969, Supp. 1971). Subdivision (a) is amended to also make clear that the person is to be brought before a federal magistrate rather than a state or local magistrate authorized by 18 U.S.C.  3041. The former rules were inconsistent in this regard. Although rule 40(a) provided that the person may be brought before a state or local officer authorized by former rule 5(a), such state or local officer lacks authority to conduct a preliminary examination under rule 5(c), and a principal purpose of the appearance is to hold a preliminary examination where no prior indictment or information has issued. The Federal Magistrates Act should make it possible to bring a person before a federal magistrate. See C. Wright, Federal Practice and Procedure: Criminal  653, especially n.35 (1969, Supp. 1971). Subdivision (b)(2) is amended to provide that the federal magistrate should inform the defendant of the fact that he may avail himself of the provisions of rule 20 if applicable in the particular case. However, the failure to so notify the defendant should not invalidate the removal procedure. Although the old rule is silent in this respect, it is current practice to so notify the defendant, and it seems desirable, therefore, to make this explicit in the rule itself. The requirement that an order of removal under subdivision (b)(3) can be made only by a judge of the United States and cannot be made by a United States magistrate is retained. However, subdivision (b)(5) authorizes issuance of the warrant of removal by a United States magistrate if he is authorized to do so by a rule of district court adopted in accordance with 28 U.S.C.  636(b): Any district court * * * by the concurrence of a majority of all the judges * * * may establish rules pursuant to which any full-time United States magistrate * * * may be assigned * * * such additional duties as are not inconsistent with the Constitution and laws of the United States. Although former rule 40(b)(3) required that the warrant of removal be issued by a judge of the United States, there appears no constitutional or statutory prohibition against conferring this authority upon a United States magistrate in accordance with 28 U.S.C.  636(b). The background history is dealt with in detail in 8A J. Moore, Federal Practice  40.01 and 40.02 (2d ed. Cipes 1970, Supp. 1971). Subdivision (b)(4) makes explicit reference to provisions of the Bail Reform Act of 1966 by incorporating a cross-reference to 18 U.S.C.  3146 and  3148. Notes of Advisory Committee on Rules1979 Amendment This substantial revision of rule 40 abolishes the present distinction between arrest in a nearby district and arrest in a distant district, clarifies the authority of the magistrate with respect to the setting of bail where bail had previously been fixed in the other district, adds a provision dealing with arrest of a probationer in a district other than the district of supervision, and adds a provision dealing with arrest of a defendant or witness for failure to appear in another district. Note to Subdivision This abolition of the distinction between arrest in a nearby district and arrest in a distant district rests upon the conclusion that the procedures prescribed in rules 5 and 5.1 are adequate to protect the rights of an arrestee wherever he might be arrested. If the arrest is without a warrant, it is necessary under rule 5 that a complaint be filed forthwith complying with the requirements of rule 4(a) with respect to the showing of probable cause. If the arrest is with a warrant, that warrant will have been issued upon the basis of an indictment or of a complaint or information showing probable cause, pursuant to rules 4(a) and 9(a). Under rule 5.1 dealing with the preliminary examination, the defendant is to be held to answer only upon a showing of probable cause that an offense has been committed and that the defendant committed it. Under subdivision (a), there are two situations in which no preliminary examination will be held. One is where an indictment has been returned or an information filed, which pursuant to rule 5(c) obviates the need for a preliminary examination. The order is where the defendant elects to have the preliminary examination conducted in the district in which the prosecution is pending. A defendant might wish to elect that alternative when, for example, the law in that district is that the complainant and other material witnesses may be required to appear at the preliminary examination and give testimony. See Washington v. Clemmer New subdivision (a) continues the present requirement that if the arrest was without a warrant a warrant must thereafter issue in the district in which the offense is alleged to have been committed. This will ensure that in the district of anticipated prosecution there will have been a probable cause determination by a magistrate or grand jury. Note to Subdivision Note to Subdivision Note to Subdivision If the probationer shall be arrested in any district other than that in which he was last supervised, he shall be returned to the district in which the warrant was issued, unless jurisdiction over him is transferred as above provided to the district in which he is found, and in that case he shall be detained pending further proceedings in such district. One possibility, provided for in subdivision (d)(1), is that of transferring jurisdiction over the probationer to the district in which he was arrested. This is permissible under the aforementioned statute, which provides in part: Whenever during the period of his probation, a probationer heretofore or hereafter placed on probation, goes from the district in which he is being supervised to another district, jurisdiction over him may be transferred, in the discretion of the court, from the court for the district from which he goes to the court for the other district, with the concurrence of the latter court. Thereupon the court for the district to which jurisdiction is transferred shall have all power with respect to the probationer that was previously possessed by the court for the district from which the transfer is made, except that the period of probation shall not be changed without the consent of the sentencing court. This process under the same conditions may be repeated whenever during the period of this probation the probationer goes from the district in which he is being supervised to another district. Such transfer may be particularly appropriate when it is found that the probationer has now taken up residence in the district where he was arrested or where the alleged occurrence deemed to constitute a violation of probation took place in the district of arrest. In current practice, probationers arrested in a district other than that of their present supervision are sometimes unnecessarily returned to the district of their supervision, at considerable expense and loss of time, when the more appropriate course of action would have been transfer of probation jurisdiction. Subdivision (d)(2) and (3) deal with the situation in which there is not a transfer of probation jurisdiction to the district of arrest. If the alleged probation violation occurred in the district of arrest, then, under subdivision (d)(2), the preliminary hearing provided for in rule 32.1(a)(1) is to be held in that district. This is consistent with the reasoning in Morrissey v. Brewer Gagnon v. Scarpelli Gerstein v. Pugh In Morrissey v. Brewer Gagnon v. Scarpelli However, if the alleged violation did not occur in that district, then first-hand testimony concerning the violation is unlikely to be available there, and thus the reasoning of Morrissey Gerstein Note to Subdivision Bandy v. United States The short answer to Bandys Rush v. United States Resort need not be had, however, to this [removal] procedure for the purpose of returning a prisoner who has been recaptured after an escape from custody. It has been pointed out that in such a case the court may summarily direct his return under its general power to issue writs not specifically provided for by statute, which may be necessary for the exercise of its jurisdiction and agreeable to the usages and principles of law. In fact, in such a situation no judicial process appears necessary. The prisoner may be retaken and administratively returned to the custody from which he escaped. Bandys arrest in New York was pursuant to a bench warrant issued by the United States District Court for the District of North Dakota on May 1, 1962 Consistent with Bandy, new subdivision (e) does not afford such a person all of the protections provided for in subdivision (a). However, subdivision (e) does ensure that a determination of identity will be made before that person is held to answer in the district of arrest. Note to Subdivision The Procedures Manual for United States Magistrates, issued under the authority of the Judicial Conference of the United States, provides in ch. 6, pp. 89: Where the arrest occurs in a distant district, the rules do not expressly limit the discretion of the magistrate in the setting of conditions of release. However, whether or not the magistrate in the district of arrest has authority to set his own bail under Rule 40, considerations of propriety and comity would dictate that the magistrate should not attempt to set bail in a lower amount than that fixed by a judge in another district. If an unusual situation should arise where it appears from all the information available to the magistrate that the amount of bail endorsed on the warrant is excessive, he should consult with a judge of his own district or with the judge in the other district who fixed the bail in order to resolve any difficulties. (Where an amount of bail is merely recommended on the indictment by the United States attorney, the magistrate has complete discretion in setting conditions of release.) Rule 40 as amended would encourage the above practice and hopefully would eliminate the present confusion and misunderstanding. The last sentence of subdivision (f) requires that the magistrate set forth the reasons for his action in writing whenever he fixes bail in an amount different from that previously fixed. Setting forth the reasons for the amount of bail fixed, certainly a sound practice in all circumstances, is particularly appropriate when the bail differs from that previously fixed in another district. The requirement that reasons be set out will ensure that the considerations of propriety and comity referred to above will be specifically taken into account. Congressional Modification of Proposed 1979 Amendment Pub. L. 9642,  1(2) July 31, 1979 93 Stat. 326 section 2074 of Title 28 Apr. 30, 1979 Aug. 1, 1979 Notes of Advisory Committee on Rules1982 Amendment The amendment to 40(d) is intended to make it clear that the transfer provisions therein apply whenever the arrest occurs other than in the district of probation jurisdiction, and that if probable cause is found at a preliminary hearing held pursuant to Rule 40(d)(2) the probationer should be held to answer in the district having probation jurisdiction. On occasion, the district of probation supervision and the district of probation jurisdiction will not be the same. See, e.g., Cupp v. Byington jurisdiction Cupp v. Byington Because Rule 32.1 has now taken effect, a cross-reference to those provisions has been made in subdivision (d)(1) so as to clarify how the magistrate is to proceed if jurisdiction is transferred. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1989 Amendment The amendments recognize that convicted defendants may be on supervised release as well as on probation. See 18 U.S.C.  3583, and 3624(e). Notes of Advisory Committee on Rules1993 Amendment The amendment to subdivision (a) is intended to expedite determining where a defendant will be held to answer by permitting facsimile transmission of a warrant or a certified copy of the warrant. The amendment recognizes an increased reliance by the public in general, and the legal profession in particular, on accurate and efficient transmission of important legal documents by facsimile machines. The Rule is also amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Notes of Advisory Committee on Rules1994 Amendment The amendment to subdivision (d) is intended to clarify the authority of a magistrate judge to set conditions of release in those cases where a probationer or supervised releasee is arrested in a district other than the district having jurisdiction. As written, there appeared to be a gap in Rule 40, especially under (d)(1) where the alleged violation occurs in a jurisdiction other than the district having jurisdiction. A number of rules contain references to pretrial, trial, and post-trial release or detention of defendants, probationers and supervised releasees. Rule 46, for example, addresses the topic of release from custody. Although Rule 46(c) addresses custody pending sentencing and notice of appeal, the rule makes no explicit provision for detaining or releasing probationers or supervised releasees who are later arrested for violating terms of their probation or release. Rule 32.1 provides guidance on proceedings involving revocation of probation or supervised release. In particular, Rule 32.1(a)(1) recognizes that when a person is held in custody on the ground that the person violated a condition of probation or supervised release, the judge or United States magistrate judge may release the person under Rule 46(c), pending the revocation proceeding. But no other explicit reference is made in Rule 32.1 to the authority of a judge or magistrate judge to determine conditions of release for a probationer or supervised releasee who is arrested in a district other than the district having jurisdiction. The amendment recognizes that a judge or magistrate judge considering the case of a probationer or supervised releasee under Rule 40(d) has the same authority vis a vis decisions regarding custody as a judge or magistrate judge proceeding under Rule 32.1(a)(1). Thus, regardless of the ultimate disposition of an arrested probationer or supervised releasee under Rule 40(d), a judge or magistrate judge acting under that rule may rely upon Rule 46(c) in determining whether custody should be continued and if not, what conditions, if any, should be placed upon the person. Notes of Advisory Committee on Rules1995 Amendment The amendment to Rule 40(a) is a technical, conforming change to reflect an amendment to Rule 5, which recognizes a limited exception to the general rule that all arrestees must be taken before a federal magistrate judge. Committee Notes on Rules2002 Amendment The language of Rule 40 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 40 has been completely revised. The Committee believed that it would be much clearer and more helpful to locate portions of Rule 40 in Rules 5 (initial appearances), 5.1 (preliminary hearings), and 32.1 (revocation or modification of probation or supervised release). Accordingly, current Rule 40(a) has been relocated in Rules 5 and 5.1. Current Rule 40(b) has been relocated in Rule 5(c)(2)(B) and current Rule 40(c) has been moved to Rule 5(c)(2)(F). Current Rule 40(d) has been relocated in Rule 32.1(a)(5). The first sentence of current Rule 40(e) is now located in revised Rule 40(a). The second sentence of current Rule 40(e) is now in revised Rule 40(b) and current Rule 40(f) is revised Rule 40(c). Committee Notes on Rules2006 Amendment Subdivision (a). See, e.g., United States v. Zhu Changes Made After Publication and Comment. Committee Notes on Rules2011 Amendment Subdivision (d). Changes Made to Proposed Amendment Released for Public Comment. Amendment by Public Law 1984Subd. (d)(1). Pub. L. 98473,  215(d) Subd. (f). Pub. L. 98473,  209(c) 1979Subd. (d)(1). Pub. L. 9642,  1(2)(A) Subd. (d)(2). Pub. L. 9642,  1(2)(B) Effective Date of 1984 Amendment Amendment by section 215(d) of Pub. L. 98473 Nov. 1, 1987 section 235(a)(1) of Pub. L. 98473 section 3551 of this title Rule 41. Search and Seizure (a) Scope and Definitions. (1)  Scope. (2)  Definitions. (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) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government: (1) a magistrate judge with authority in the districtor if none is reasonably available, a judge of a state court of record in the districthas 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 judgein an investigation of domestic terrorism or international terrorismwith 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 premisesno matter who owns themof a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the missions 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. (6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C.  1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts. (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. (2)  Requesting a Warrant in the Presence of a Judge. (A)  Warrant on an Affidavit (B)  Warrant on Sworn Testimony (C)  Recording Testimony (3)  Requesting a Warrant by Telephonic or Other Reliable Electronic Means. (e) Issuing the Warrant. (1)  In General. (2)  Contents of the Warrant. (A)  Warrant to Search for and Seize a Person or Property. (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. (C)  Warrant for a Tracking Device. (i) complete any installation authorized by the warrant within a specified time no longer than 10 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. (f) Executing and Returning the Warrant. (1)  Warrant to Search for and Seize a Person or Property. (A)  Noting the Time. (B)  Inventory. (C)  Receipt. (D)  Return. (2)  Warrant for a Tracking Device. (A)  Noting the Time. (B)  Return. (C)  Service. (3)  Delayed Notice. (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 propertys return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. (h) Motion to Suppress. A defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides. (i) Forwarding Papers to the Clerk. The magistrate judge to whom the warrant is returned must attach to the warrant a copy of the return, of the inventory, and of all other related papers and must deliver them to the clerk in the district where the property was seized. (As amended Dec. 27, 1948 Oct. 20, 1949 Apr. 9, 1956 July 8, 1956 Apr. 24, 1972 Oct. 1, 1972 Mar. 18, 1974 July 1, 1974 July 8, 1976 Aug. 1, 1976 Pub. L. 9578,  2(e) July 30, 1977 91 Stat. 320 Oct. 1, 1977 Apr. 30, 1979 Aug. 1, 1979 Mar. 9, 1987 Aug. 1, 1987 Apr. 25, 1989 Dec. 1, 1989 May 1, 1990 Dec. 1, 1990 Apr. 22, 1993 Dec. 1, 1993 Pub. L. 10756, title II,  219 Oct. 26, 2001 115 Stat. 291 Apr. 29, 2002 Dec. 1, 2002 Apr. 12, 2006 Dec. 1, 2006 Apr. 23, 2008 Dec. 1, 2008 Mar. 26, 2009 Dec. 1, 2009 Apr. 26, 2011 Dec. 1, 2011 Apr. 28, 2016 Dec. 1, 2016  Notes of Advisory Committee on Rules1944 This rule is a codification of existing law and practice. Note to Subdivision Note to Subdivision Conyer v. United States infra. Note to Subdivision Dumbra v. United States Note to Subdivision Note to Subdivision Weeks v. United States Silverthorne Lumber Co. v. United States Agello v. United States Gouled v. United States Note to Subdivision Note to Subdivision 18 U.S.C. 611626 18 U.S.C. 3105 U.S.C., Title 18: Section 287 [former] (Search warrant for suspected counterfeiture) U.S.C., Title 19: Section 1595 (Customs duties; searches and seizures) U.S.C., Title 26: Section 3117 [now 5557] (Officers and agents authorized to investigate, issue search warrants, and prosecute for violations) For statutes which incorporate by reference 18 U.S.C. [former] 98, and therefore are now controlled by this rule, see, e. g.: U.S.C., Title 18: Section 12 [former] (Subversive activities; undermining loyalty, discipline, or morale of armed forces; searches and seizures) U.S.C., Title 26: Section 3116 [now 7302] (Forfeitures and seizures) Statutory provision for a warrant for detention of war materials seized under certain circumstances is found in 22 U.S.C. 402 Other statutes providing for searches and seizures or entry without warrants are the following: U.S.C., Title 19: Section 482 (Search of vehicles and persons) U.S.C., Title 25: Section 246 [now 18 U.S.C. 3113 U.S.C., Title 26: Section 3601 [now 7606] (Entry of premises for examination of taxable objects) U.S.C., Title 29: Section 211 (Investigations, inspections, and records) U.S.C., Title 49: Section 781 [now 80302] (Unlawful use of vessels, vehicles, and aircrafts; contraband article defined) Section 782 [now 80303] (Seizure and forfeiture) Section 784 [now 80306] (Application of related laws) Notes of Advisory Committee on Rules1948 Amendment Subdivision (b)(3).The amendment is to substitute proper reference to Title 18 in place of the repealed acts. Subdivision (g).To eliminate reference to sections of the Act of June 15, 1917 June 25, 1948 Notes of Advisory Committee on Rules1972 Amendment Subdivision (a) is amended to provide that a search warrant may be issued only upon the request of a federal law enforcement officer or an attorney for the government. The phrase federal law enforcement officer is defined in subdivision (h) in a way which will allow the Attorney General to designate the category of officers who are authorized to make application for a search warrant. The phrase attorney for the government is defined in rule 54. The title to subdivision (b) is changed to make it conform more accurately to the content of the subdivision. Subdivision (b) is also changed to modernize the language used to describe the property which may be seized with a lawfully issued search warrant and to take account of a recent Supreme Court decision ( Warden v. Haden Recent state legislation authorizes the issuance of a search warrant for evidence of crime. See, e.g The general weight of recent text and law review comment has been in favor of allowing a search for evidence. 8 Wigmore, Evidence  2184a. (McNaughton rev. 1961); Kamisar. The Wiretapping-Eavesdropping Problem: A professors View, 44 Minn.L.Rev. 891 (1960); Kaplan, Search and Seizure: A No-Mans Land in the Criminal Law, 49 Calif.L.Rev. 474 (1961); Comments: 66 Colum.L.Rev. 355 (1966), 45 N.C.L.Rev. 512 (1967), 20 U.Chi.L.Rev. 319 (1953). There is no intention to limit the protection of the fifth amendment against compulsory self-incrimination, so items which are solely testimonial or communicative in nature might well be inadmissible on those grounds. Schmerber v. California Warden v. Hayden, supra: This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure. [387 U.S. at 303]. See ALI Model Code of Pre-Arraignment Procedure  551.03(2) and commentary at pp. 35 ( April 30, 1971 It seems preferable to allow the fifth amendment limitation to develop as cases arise rather than attempt to articulate the constitutional doctrine as part of the rule itself. The amendment to subdivision (c) is intended to make clear that a search warrant may properly be based upon a finding of probable cause based upon hearsay. That a search warrant may properly be issued on the basis of hearsay is current law. See, e.g., Jones v. United States Spinelli v. United States State v. Beal The provision in subdivision (c) that the magistrate may examine the affiant or witnesses under oath is intended to assure him an opportunity to make a careful decision as to whether there is probable cause. It seems desirable to do this as an incident to the issuance of the warrant rather than having the issue raised only later on a motion to suppress the evidence. See L. Tiffany, D. McIntyre, and D. Rotenberg, Detection of Crime 118 (1967). If testimony is taken it must be recorded, transcribed, and made part of the affidavit or affidavits. This is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if that question should later arise. The requirement that the warrant itself state the grounds for its issuance and the names of any affiants, is eliminated as unnecessary paper work. There is no comparable requirement for an arrest warrant in rule 4. A person who wishes to challenge the validity of a search warrant has access to the affidavits upon which the warrant was issued. The former requirement that the warrant require that the search be conducted forthwith is changed to read within a specified period of time not to exceed 10 days. The former rule contained an inconsistency between subdivision (c) requiring that the search be conducted forthwith and subdivision (d) requiring execution within 10 days after its date. The amendment resolves this ambiguity and confers discretion upon the issuing magistrate to specify the time within which the search may be conducted to meet the needs of the particular case. The rule is also changed to allow the magistrate to authorize a search at a time other than daytime, where there is reasonable cause shown for doing so. To make clear what daytime means, the term is defined in subdivision (h). Subdivision (d) is amended to conform its language to the Federal Magistrates Act. The language The warrant may be executed and returned only within 10 days after its date is omitted as unnecessary. The matter is now covered adequately in proposed subdivision (c) which gives the issuing officer authority to fix the time within which the warrant is to be executed. The amendment to subdivision (e) and the addition of subdivision (f) are intended to require the motion to suppress evidence to be made in the trial court rather than in the district in which the evidence was seized as now allowed by the rule. In DiBella v. United States There is a decision in the Second Circuit, United States v. Klapholz United States v. Lester As amended, subdivision (e) provides for a return of the property if (1) the person is entitled to lawful possession and The five grounds for returning the property, presently listed in the rule, are dropped for two reasons(1) substantive grounds for objecting to illegally obtained evidence ( e.g., Miranda United States v. Howard A sentence is added to subdivision (e) to provide that a motion for return of property, made in the district of trial, shall be treated also as a motion to suppress under rule 12. This change is intended to further the objective of rule 12 which is to have all pretrial motions disposed of in a single court appearance rather than to have a series of pretrial motions made on different dates, causing undue delay in administration. Subdivision (f) is new and reflects the position that it is best to have the motion to suppress made in the court of the district of trial rather than in the court of the district in which the seizure occurred. The motion to suppress in the district of trial should be made in accordance with the provisions of rule 12. Subdivision (g) is changed to conform to subdivision (c) which requires the return to be made before a federal judicial officer even though the search warrant may have been issued by a nonfederal magistrate. Subdivision (h) is former rule 41(g) with the addition of a definition of the term daytime and the phrase federal law enforcement officer. Notes of Advisory Committee on Rules1974 Amendment The amendment restores the words court of record which were inadvertently omitted from the amended text of the subdivision which was transmitted by the Judicial Conference to the Supreme Court and prescribed by the Court on April 24, 1972 Notes of Advisory Committee on Rules1977 Amendment Rule 41(c)(2) is added to establish a procedure for the issuance of a search warrant when it is not reasonably practicable for the person obtaining the warrant to present a written affidavit to a magistrate or a state judge as required by subdivision (c)(1). At least two states have adopted a similar procedure, Ariz.Rev.Stat. Ann.  131444(c)1445(c) (Supp. 1973); Cal.Pen. Code  1526(b), 1528(b) (West Supp. 1974), and comparable amendments are under consideration in other jurisdictions. See Israel, Legislative Regulation of Searches and Seizures: The Michigan Proposals, 73 Mich.L.Rev. 221, 25863 (1975); Nakell, Proposed Revisions of North Carolinas Search and Seizure Law, 52 N.Car.L.Rev. 277, 30611 (1973). It has been strongly recommended that every State enact legislation that provides for the issuance of search warrants pursuant to telephoned petitions and affidavits from police officers. National Advisory Commission on Criminal Justice Standards and Goals, Report on Police 95 (1973). Experience with the procedure has been most favorable. Miller, Telephonic Search Warrants: The San Diego Experience, 9 The Prosecutor 385 (1974). The trend of recent Supreme Court decisions has been to give greater priority to the use of a search warrant as the proper way of making a lawful search: It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants whenever reasonably practicable. ... This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities. Trupiano v. United States Chimel v. California See also Coolidge v. New Hampshire Use of search warrants can best be encouraged by making it administratively feasible to obtain a warrant when one is needed. One reason for the nonuse of the warrant has been the administrative difficulties involved in getting a warrant, particularly at times of the day when a judicial officer is ordinarily unavailable. See L. Tiffany, D. McIntyre, and D. Rotenberg, Detection of Crime 105116 (1967); LaFave, Improving Police Performance Through the Exclusionary Rule, 30 Mo.L.Rev. 391, 411 (1965). Federal law enforcement officers are not infrequently confronted with situations in which the circumstances are not sufficiently exigent to justify the serious step of conducting a warrantless search of private premises, but yet there exists a significant possibility that critical evidence would be lost in the time it would take to obtain a search warrant by traditional means. See, e.g., United States v. Johnson June 16, 1975 Subdivision (c)(2) provides that a warrant may be issued on the basis of an oral statement of a person not in the physical presence of the federal magistrate. Telephone, radio, or other electronic methods of communication are contemplated. For the warrant to properly issue, four requirements must be met: (1) The applicanta federal law enforcement officer or an attorney for the government, as required by subdivision (a)must persuade the magistrate that the circumstances of time and place make it reasonable to request the magistrate to issue a warrant on the basis of oral testimony. This restriction on the issuance of a warrant recognizes the inherent limitations of an oral warrant procedure, the lack of demeanor evidence, and the lack of a written record for the reviewing magistrate to consider before issuing the warrant. See Comment, Oral Search Warrants: A New Standard of Warrant Availability, 21 U.C.L.A. Law Review 691, 701 (1974). Circumstances making it reasonable to obtain a warrant on oral testimony exist if delay in obtaining the warrant might result in the destruction or disappearance of the property [see Chimel v. California (2) The applicant must orally state facts sufficient to satisfy the probable cause requirement for the issuance of the search warrant. (See subdivision (c)(1).) This information may come from either the applicant federal law enforcement officer or the attorney for the government or a witness willing to make an oral statement. The oral testimony must be recorded at this time so that the transcribed affidavit will provide an adequate basis for determining the sufficiency of the evidence if that issue should later arise. See Kipperman. Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971). It is contemplated that the recording of the oral testimony will be made by a court reporter, by a mechanical recording device, or by a verbatim contemporaneous writing by the magistrate. Recording a telephone conversation is no longer difficult with many easily operated recorders available. See 86:2 L.A. Daily Journal 1 (1973); Miller, Telephonic Search Warrants: The San Diego Experience, 9 The Prosecutor 385, 386 (1974). (3) The applicant must read the contents of the warrant to the federal magistrate in order to enable the magistrate to know whether the requirements of certainty in the warrant are satisfied. The magistrate may direct that changes be made in the warrant. If the magistrate approves the warrant as requested or as modified by the magistrate, he then issues the warrant by directing the applicant to sign the magistrates name to the duplicate original warrant. The magistrate then causes to be made a written copy of the approved warrant. This constitutes the original warrant. The magistrate enters the time of issuance of the duplicate original warrant on the face of the original warrant. (4) Return of the duplicate original warrant and the original warrant must conform to subdivision (d). The transcript of the sworn oral testimony setting forth the grounds for issuance of the warrant must be signed by affiant in the presence of the magistrate and filed with the court. Because federal magistrates are likely to be accessible through the use of the telephone or other electronic devices, it is unnecessary to authorize state judges to issue warrants under subdivision (c)(2). Although the procedure set out in subdivision (c)(2) contemplates resort to technology which did not exist when the Fourth Amendment was adopted, the Advisory Committee is of the view that the procedure complies with all of the requirements of the Amendment. The telephonic search warrant process has been upheld as constitutional by the courts, e.g., People v. Peck Reliance upon oral testimony as a basis for issuing a search warrant is permissible under the Fourth Amendment. Campbell v. Minnesota United States ex rel. Gaugler v. Brierley Tabasko v. Barton Frazier v. Roberts People v. Peck Christofferson v. Washington The Fourth Amendment requires that warrants issue upon probable cause, supported by Oath or affirmation. The significance of the oath requirement is that someone must take the responsibility for the facts alleged, giving rise to the probable cause for the issuance of a warrant. United States ex rel. Pugh v. Pate Frazier v. Roberts People v. Chavaz People v. Aguirre The availability of the procedure authorized by subdivision (c)(2) will minimize the necessity of federal law enforcement officers engaging in other practices which, at least on occasion, might threaten to a greater extent those values protected by the Fourth Amendment. Although it is permissible for an officer in the field to relay his information by radio or telephone to another officer who has more ready access to a magistrate and who will thus act as the affiant, Lopez v. United States State v. Banks Notes of Committee on the Judiciary, Senate Report No. 95354; 1977 Amendments Proposed by the Supreme Court The committee agrees with the Supreme Court that it is desirable to encourage Federal law enforcement officers to seek search warrants in situations where they might otherwise conduct warrantless searches by providing for a telephone search warrant procedure with the basic characteristics suggested in the proposed Rule 41(c)(2). As the Supreme Court has observed, It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants whenever reasonably practicable. After consideration of the Supreme Court version and a proposal set forth in H.R. 7888, the committee decided to use the language of the House bill as the vehicle, with certain modifications. A new provision, as indicated in subparagraph (c)(2)(A), is added to establish a procedure for the issuance of a search warrant where the circumstances make it reasonable to dispense with a written affidavit to be presented in person to a magistrate. At least two States have adopted a similar procedureArizona and Californiaand comparable amendments are under consideration in other jurisdictions. Such a procedure has been strongly recommended by the National Advisory Commission on Criminal Justice Standards and Goals and State experience with the procedure has been favorable. The telephone search warrant process has been upheld as constitutional by the courts and has consistently been so viewed by commentators. In recommending a telephone search warrant procedure, the Advisory Committee note on the Supreme Court proposal points out that the preferred method of conducting a search is with a search warrant. The note indicates that the rationale for the proposed change is to encourage Federal law enforcement officers to seek search warrants in situations when they might otherwise conduct warrantless searches. Federal law enforcement officers are not infrequently confronted with situations in which the circumstances are not sufficiently exigent to justify the serious step of conducting a warrantless search of private premises, but yet there exists a significant possibility that critical evidence would be lost in the time it would take to obtain a search warrant by traditional means. Subparagraph (c)(2)(B) provides that the person requesting the warrant shall prepare a duplicate original warrant which will be read and recorded verbatim by the magistrate on an original warrant. The magistrate may direct that the warrant be modified. Subparagraph (c)(2)(C) provides that, if the magistrate is satisfied that the circumstances are such as to make it reasonable to dispense with a written affidavit and that grounds for the application exist or there is probable cause to believe that they exist, he shall order the issuance of the warrant by directing the requestor to sign the magistrates name on the duplicate original warrant. The magistrate is required to sign the original warrant and enter the time of issuance thereon. The finding of probable cause may be based on the same type of evidence appropriate for a warrant upon affidavit. Subparagraph (c)(2)(D) requires the magistrate to place the requestor and any witness under oath and, if a voice recording device is available, to record the proceeding. If a voice recording is not available, the proceeding must be recorded verbatim stenographically or in longhand. Verified copies must be filed with the court as specified. Subparagraph (c)(2)(E) provides that the contents of the warrant upon oral testimony shall be the same as the contents of a warrant upon affidavit. Subparagraph (c)(2)(F) provides that the person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant. Unlike H.R. 7888, this subparagraph does not require the person who executes the warrant to have physical possession of the duplicate original warrant at the time of the execution of the warrant. The committee believes this would make an unwise and unnecessary distinction between execution of regular warrants issued on written affidavits and warrants issued by telephone that would limit the flexibility and utility of this procedure for no useful purpose. Finally, subparagraph (c)(2)(G) makes it clear that, absent a finding of bad faith by the government, the magistrates judgment that the circumstances made it reasonable to dispense with a written affidavita decision that does not go to the core question of whether there was probable cause to issue a warrantis not a ground for granting a motion to suppress evidence. Congressional Modification of Proposed 1977 Amendment Pub. L. 9578,  2(e) July 30, 1977 91 Stat. 320 Apr. 26, 1976 Notes of Advisory Committee on Rules1979 Amendment This amendment to Rule 41 is intended to make it possible for a search warrant to issue to search for Katz v. United States That part of the amendment which authorizes issuance of a search warrant to search for a person unlawfully restrained is consistent with ALI Model Code of Pre-Arraignment Procedure  SS 210.3(1)(d) (Proposed Official Draft, 1975), which specifies that a search warrant may issue to search for an individual * * * who is unlawfully held in confinement or other restraint. As noted in the Commentary thereto, id. at p. 507: Ordinarily such persons will be held against their will and in that case the persons are, of course, not subject to seizure. But they are, in a sense, evidence of crime, and the use of search warrants for these purposes presents no conceptual difficulties. Some state search warrant provisions also provide for issuance of a warrant in these circumstances. See, e. g., Ill.Rev.Stat. ch. 38,  1083 (Any person who has been kidnapped in violation of the laws of this State, or who has been kidnapped in another jurisdiction and is now concealed within this State). It may be that very often exigent circumstances, especially the need to act very promptly to protect the life or well-being of the kidnap victim, would justify an immediate warrantless search for the person restrained. But this is not inevitably the case. Moreover, as noted above there should be available a process whereby law enforcement agents may acquire in advance a judicial determination that they have cause to intrude upon the privacy of those at the place where the victim is thought to be located. That part of the amendment which authorizes issuance of a search warrant to search for a person to be arrested is also consistent with ALI Model Code of Pre-Arraignment Procedure  SS 210.3(1)(d) (Proposed Official Draft, 1975), which states that a search warrant may issue to search for an individual for whose arrest there is reasonable cause. As noted in the Commentary thereto, id. at p. 507, it is desirable that there be explicit statutory authority for such searches. Some state search warrant provisions also expressly provide for the issuance of a search warrant to search for a person to be arrested. See, e. g., Del.Code Ann. tit. 11,  2305 (Persons for whom a warrant of arrest has been issued). This part of the amendment to Rule 41 covers a defendant or witness for whom an arrest warrant has theretofore issued, or a defendant for whom grounds to arrest exist even though no arrest warrant has theretofore issued. It also covers the arrest of a deportable alien under 8 U.S.C.  1252, whose presence at a certain place might be important evidence of criminal conduct by another person, such as the harboring of undocumented aliens under 8 U.S.C.  1324(a)(3). In United States v. Watson United States v. Fernandez United States ex rel. Wright v. Woods United States v. Calhoun United States v. Lindsay Dorman v. United States Virgin Islands v. Gereau Fisher v. Volz Huotari v. Vanderport It is also unclear, assuming a need for a warrant, what kind of warrant is required, although it is sometimes assumed that an arrest warrant will suffice, e. g., United States v. Calhoun United States v. James Virgin Islands v. Gereau Fisher v. Volz Fisher v. Volz It has sometimes been contended that a search warrant should be required for a nonexigent entry to arrest even when the premises to be entered are those of the person to be arrested. Rotenberg & Tanzer, Searching for the Person to be Seized, 35 Ohio St.L.J. 56, 69 (1974). Case authority in support is lacking, and it may be that the protections of a search warrant are less important in such a situation because ordinarily rudimentary police procedure dictates that a suspects residence be eliminated as a possible hiding place before a search is conducted elsewhere. People v. Sprovieri Despite these uncertainties, the fact remains that in some circuits under some circumstances a search warrant is required to enter private premises to arrest. Moreover, the law on this subject is in a sufficient state of uncertainty that this position may be taken by other courts. It is thus important that Rule 41 clearly express that a search warrant for this purpose may issue. And even if future decisions head the other direction, the need for the amendment would still exist. It is clear that law enforcement officers may not constitutionally enter the home of a private individual to search for another person, though he be named in a valid arrest warrant in their possession, absent probable cause to believe that the named suspect is present within at the time. Fisher v. Volz Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1989 Amendment The amendment to Rule 41(e) conforms the rule to the practice in most districts and eliminates language that is somewhat confusing. The Supreme Court has upheld warrants for the search and seizure of property in the possession of persons who are not suspected of criminal activity. See, e.g., Zurcher v. Stanford Daily United States v. Wilson No standard is set forth in the rule to govern the determination of whether property should be returned to a person aggrieved either by an unlawful seizure or by deprivation of the property. The fourth amendment protects people from unreasonable seizures as well as unreasonable searches, United States v. Place The amendment deletes language dating from 1944 stating that evidence shall not be admissible at a hearing or at a trial if the court grants the motion to return property under Rule 41(e). This language has not kept pace with the development of exclusionary rule doctrine and is currently only confusing. The Supreme Court has now held that evidence seized in violation of the fourth amendment, but in good faith pursuant to a warrant, may be used even against a person aggrieved by the constitutional violation. United States v. Leon Rakas v. Illinois United States v. Havens Rule 41(e) is not intended to deny the United States the use of evidence permitted by the fourth amendment and federal statutes, even if the evidence might have been unlawfully seized. See, e.g., United States v. Calandra United States v. Roberts In opting for a reasonableness approach and in deleting the exclusionary language, the Committee rejects the analysis of Sovereign News Co. v. United States United States v. Wallace & Tiernan Co Goodman v. United States As amended, Rule 41(e) avoids an all or nothing approach whereby the government must either return records and make no copies or keep originals notwithstanding the hardship to their owner. The amended rule recognizes that reasonable accommodations might protect both the law enforcement interests of the United States and the property rights of property owners and holders. In many instances documents and records that are relevant to ongoing or contemplated investigations and prosecutions may be returned to their owner as long as the government preserves a copy for future use. In some circumstances, however, equitable considerations might justify an order requiring the government to return or destroy all copies of records that it has seized. See, e.g., Paton v. LaPrade The word judge is changed to court in the second sentence of subdivision (e) to clarify that a magistrate may receive evidence in the course of making a finding or a proposed finding for consideration by the district judge. Notes of Advisory Committee on Rules1990 Amendment Rule 41(a). The amendment to Rule 41(a) serves several purposes. First, it furthers the constitutional preference for warrants by providing a mechanism whereby a warrant may be issued in a district for a person or property that is moving into or through a district or might move outside the district while the warrant is sought or executed. Second, it clarifies the authority of federal magistrates to issue search warrants for property that is relevant to criminal investigation being conducted in a district and, although located outside the United States, that is in a place where the United States may lawfully conduct a search. The amendment is not intended to expand the class of persons authorized to request a warrant and the language upon request of a federal law enforcement officer, modifies all warrants covered by Rule 41. The amendment is intended to make clear that judges of state courts of record within a federal district may issue search warrants for persons or property located within that district. The amendment does not prescribe the circumstances in which a warrant is required and is not intended to change the law concerning warrant requirements. Rather the rule provides a mechanism for the issuance of a warrant when one is required, or when a law enforcement officer desires to seek a warrant even though warrantless activity is permissible. Rule 41(a)(1) permits anticipatory warrants by omitting the words is located, which in the past required that in all instances the object of the search had to be located within the district at the time the warrant was issued. Now a search for property or a person within the district, or expected to be within the district, is valid if it otherwise complies with the rule. Rule 41(a)(2) authorizes execution of search warrants in another district under limited circumstances. Because these searches are unusual, the rule limits to federal magistrates the authority to issue such warrants. The rule permits a federal magistrate to issue a search warrant for property within the district which is moving or may move outside the district. The amendment recognizes that there are inevitable delays between the application for a warrant and its authorization, on the one hand, and the execution of the warrant, on the other hand. The amendment also recognizes that when property is in motion, there may be good reason to delay execution until the property comes to rest. The amendment provides a practical tool for federal law enforcement officers that avoids the necessity of their either seeking several warrants in different districts for the same property or their relying on an exception to the warrant requirement for search of property or a person that has moved outside a district. The amendment affords a useful warrant procedure to cover familiar fact patterns, like the one typified by United States v. Chadwick Chadwick See also United States v. Karo United States v. Knotts Chadwick The amendment is not intended to abrogate the requirements of probable cause and prompt execution. At some point, a warrant issued in one district might become stale when executed in another district. But staleness can be a problem even when a warrant is executed in the district in which it was issued. See generally United States v. Harris Cf. Illinois v. Andreas Nor does the amendment abrogate the requirement of particularity. Thus, it does not authorize searches of premises other than a particular place. As recognized by the Supreme Court in Karo, supra The amendment would authorize the search of a particular object or container provided that law enforcement officials were otherwise in a lawful position to execute the search without making an impermissible intrusion. For example, it would authorize the search of luggage moving aboard a plane. Rule 41(a)(3) [The Supreme Court did not adopt the addition of a subsection (3) to Rule 41(a)] provides for warrants to search property outside the United States. No provision for search warrants for persons is made lest the rule be read as a substitute for extradition proceedings. As with the provision for searches outside a district, supra Some searches and seizures by federal officers outside the territory of the United States may be governed by the fourth amendment. See generally See generally Military Rules of Evidence Manual Although the amendment rests on the assumption that the Constitution applies to some extraterritorial searches, cf United States v. Verdugo-Urquidez See United States v. Patterson Notes of Advisory Committee on Rules1993 Amendment The amendment to Rule 41(c)(2)(A) is intended to expand the authority of magistrates and judges in considering oral requests for search warrants. It also recognizes the value of, and the publics increased dependence on facsimile machines to transmit written information efficiently and accurately. As amended, the Rule should thus encourage law enforcement officers to seek a warrant, especially when it is necessary, or desirable, to supplement oral telephonic communications by written materials which may now be transmitted electronically as well. The magistrate issuing the warrant may require that the original affidavit be ultimately filed. The Committee considered, but rejected, amendments to the Rule which would have permitted other means of electronic transmission, such as the use of computer modems. In its view, facsimile transmissions provide some method of assuring the authenticity of the writing transmitted by the affiant. The Committee considered amendments to Rule 41(c)(2)(B), Application, Rule 41(c)(2)(C), Issuance, and Rule 41(g), Return of Papers to Clerk, but determined that allowing use of facsimile transmissions in those instances would not save time and would present problems and questions concerning the need to preserve facsimile copies. The Rule is also amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment The language of Rule 41 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as otherwise noted below. Rule 41 has been completely reorganized to make it easier to read and apply its key provisions. Rule 41(b)(3) is a new provision that incorporates a congressional amendment to Rule 41 as a part of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. The provision explicitly addresses the authority of a magistrate judge to issue a search warrant in an investigation of domestic or international terrorism. As long as the magistrate judge has authority in a district where activities related to terrorism may have occurred, the magistrate judge may issue a warrant for persons or property not only within the district, but outside the district as well. Current Rule 41(c)(1), which refers to the fact that hearsay evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1972, apparently to reflect emerging federal case law. See See, e.g., Brinegar v. United States Current Rule 41(d) provides that the officer taking the property under the warrant must provide a receipt for the property and complete an inventory. The revised rule indicates that the inventory may be completed by an officer present during the execution of the warrant, and not necessarily the officer actually executing the warrant. Committee Notes on Rules2006 Amendment The amendments to Rule 41 address three issues: first, procedures for issuing tracking device warrants; second, a provision for delaying any notice required by the rule; and third, a provision permitting a magistrate judge to use reliable electronic means to issue warrants. Subdivision (a). Subdivision (b). see see, e.g., United States v. Karo United States v. Knotts See, e.g., United States v. Karo, supra The amendment provides that a magistrate judge may issue a warrant, if he or she has the authority to do so in the district, to install and use a tracking device, as that term is defined in 18 U.S.C.  3117(b). The magistrate judges authority under this rule includes the authority to permit entry into an area where there is a reasonable expectation of privacy, installation of the tracking device, and maintenance and removal of the device. The Committee did not intend by this amendment to expand or contract the definition of what might constitute a tracking device. The amendment is based on the understanding that the device will assist officers only in tracking the movements of a person or property. The warrant may authorize officers to track the person or property within the district of issuance, or outside the district. Because the authorized tracking may involve more than one district or state, the Committee believes that only federal judicial officers should be authorized to issue this type of warrant. Even where officers have no reason to believe initially that a person or property will move outside the district of issuance, issuing a warrant to authorize tracking both inside and outside the district avoids the necessity of obtaining multiple warrants if the property or person later crosses district or state lines. The amendment reflects the view that if the officers intend to install or use the device in a constitutionally protected area, they must obtain judicial approval to do so. If, on the other hand, the officers intend to install and use the device without implicating any Fourth Amendment rights, there is no need to obtain the warrant. See, e.g., United States v. Knotts, supra Subdivision (d). See United States v. Karo Subdivision (e). The amendment recognizes the significant improvements in technology. First, more counsel, courts, and magistrate judges now routinely use facsimile transmissions of documents. And many courts and magistrate judges are now equipped to receive filings by electronic means. Indeed, some courts encourage or require that certain documents be filed by electronic means. Second, the technology has advanced to the state where such filings may be sent from, and received at, locations outside the courthouse. Third, electronic media can now provide improved quality of transmission and security measures. In short, in a particular case, using facsimiles and electronic media to transmit a warrant can be both reliable and efficient use of judicial resources. The term electronic is used to provide some flexibility to the rule and make allowance for further technological advances in transmitting data. Although facsimile transmissions are not specifically identified, the Committee envisions that facsimile transmissions would fall within the meaning of electronic means. While the rule does not impose any special requirements on use of facsimile transmissions, neither does it presume that those transmissions are reliable. The rule treats all electronic transmissions in a similar fashion. Whatever the mode, the means used must be reliable. While the rule does not further define that term, the Committee envisions that a court or magistrate judge would make that determination as a local matter. In deciding whether a particular electronic means, or media, would be reliable, the court might consider first, the expected quality and clarity of the transmission. For example, is it possible to read the contents of the warrant in its entirety, as though it were the original or a clean photocopy? Second, the court may consider whether security measures are available to insure that the transmission is not compromised. In this regard, most courts are now equipped to require that certain documents contain a digital signature, or some other similar system for restricting access. Third, the court may consider whether there are reliable means of preserving the document for later use. Amended Rule 41(e)(2)(B) is a new provision intended to address the contents of tracking device warrants. To avoid open-ended monitoring of tracking devices, the revised rule requires the magistrate judge to specify in the warrant the length of time for using the device. Although the initial time stated in the warrant may not exceed 45 days, extensions of time may be granted for good cause. The rule further specifies that any installation of a tracking device authorized by the warrant must be made within ten calendar days and, unless otherwise provided, that any installation occur during daylight hours. Subdivision (f). Amended Rule 41(f)(2)(C) addresses the particular problems of serving a copy of a tracking device warrant on the person who has been tracked, or whose property has been tracked. In the case of other warrants, current Rule 41 envisions that the subjects of the search typically know that they have been searched, usually within a short period of time after the search has taken place. Tracking device warrants, on the other hand, are by their nature covert intrusions and can be successfully used only when the person being investigated is unaware that a tracking device is being used. The amendment requires that the officer must serve a copy of the tracking device warrant on the person within 10 calendar days after the tracking has ended. That service may be accomplished by either personally serving the person, or both by leaving a copy at the persons residence or usual abode and by sending a copy by mail. The Rule also provides, however, that the officer may (for good cause) obtain the courts permission to delay further service of the warrant. That might be appropriate, for example, where the owner of the tracked property is undetermined, or where the officer establishes that the investigation is ongoing and that disclosure of the warrant will compromise that investigation. Use of a tracking device is to be distinguished from other continuous monitoring or observations that are governed by statutory provisions or caselaw. See as amended United States v. Biasucci United States v. Torres Finally, amended Rule 41(f)(3) is a new provision that permits the government to request, and the magistrate judge to grant, a delay in any notice required in Rule 41. The amendment is co-extensive with 18 U.S.C.  3103a(b). That new provision, added as part of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, authorizes a court to delay any notice required in conjunction with the issuance of any search warrants. Changes Made After Publication and Comment. Committee Notes on Rules2008 Amendment Subdivision (b)(5) Rule 41(b)(5) provides the authority to issue warrants for the seizure of property in the designated locations when law enforcement officials are required or find it desirable to obtain such warrants. The Committee takes no position on the question whether the Constitution requires a warrant for searches covered by the rule, or whether any international agreements, treaties, or laws of a foreign nation might be applicable. The rule does not address warrants for persons, which could be viewed as inconsistent with extradition requirements. Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2009 Amendment The time set in the former rule at 10 days has been revised to 14 days. See the Committee Note to Rule 45(a). Subdivision (e)(2) The term electronically stored information is drawn from Rule 34(a) of the Federal Rules of Civil Procedure, which states that it includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained. The 2006 Committee Note to Rule 34(a) explains that the description is intended to cover all current types of computer-based information and to encompass future changes and developments. The same broad and flexible description is intended under Rule 41. In addition to addressing the two-step process inherent in searches for electronically stored information, the Rule limits the 10 [14] day execution period to the actual execution of the warrant and the on-site activity. While consideration was given to a presumptive national or uniform time period within which any subsequent off-site copying or review of the media or electronically stored information would take place, the practical reality is that there is no basis for a one size fits all presumptive period. A substantial amount of time can be involved in the forensic imaging and review of information. This is due to the sheer size of the storage capacity of media, difficulties created by encryption and booby traps, and the workload of the computer labs. The rule does not prevent a judge from imposing a deadline for the return of the storage media or access to the electronically stored information at the time the warrant is issued. However, to arbitrarily set a presumptive time period for the return could result in frequent petitions to the court for additional time. It was not the intent of the amendment to leave the property owner without an expectation of the timing for return of the property, excluding contraband or instrumentalities of crime, or a remedy. Current Rule 41(g) already provides a process for the person aggrieved to seek an order from the court for a return of the property, including storage media or electronically stored information, under reasonable circumstances. Where the person aggrieved requires access to the storage media or the electronically stored information earlier than anticipated by law enforcement or ordered by the court, the court on a case by case basis can fashion an appropriate remedy, taking into account the time needed to image and search the data and any prejudice to the aggrieved party. The amended rule does not address the specificity of description that the Fourth Amendment may require in a warrant for electronically stored information, leaving the application of this and other constitutional standards concerning both the seizure and the search to ongoing case law development. Subdivision (f)(1) Changes Made to Proposed Amendment Released for Public Comment The Committee Note was amended to reflect the change to the text and to clarify that the amended Rule does not speak to constitutional questions concerning warrants for electronic information. Issues of particularity and search protocol are presently working their way through the courts. Compare United States v. Carey and United States v. Fleet Management Ltd. with United States v. Comprehensive Drug Testing, Inc. United States v. Brooks Minor changes were also made to conform to style conventions. Committee Notes on Rules2011 Amendment Subdivisions (d)(3) and (e)(3) Subdivision (e)(2) December 1, 2009 Subdivisions (f)(1) and (2) December 1, 2009 Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2016 Amendment Subdivision (b) Subdivision (b)(6) First, subparagraph (b)(6)(A) provides authority to issue a warrant to use remote access within or outside that district when the district in which the media or information is located is not known because of the use of technology such as anonymizing software. Second, (b)(6)(B) allows a warrant to use remote access within or outside the district in an investigation of a violation of 18 U.S.C.  1030(a)(5) if the media to be searched are protected computers that have been damaged without authorization, and they are located in many districts. Criminal activity under 18 U.S.C.  1030(a)(5) (such as the creation and control of botnets) may target multiple computers in several districts. In investigations of this nature, the amendment would eliminate the burden of attempting to secure multiple warrants in numerous districts, and allow a single judge to oversee the investigation. As used in this rule, the terms protected computer and damage have the meaning provided in 18 U.S.C.  1030(e)(2) & (8). The amendment does not address constitutional questions, such as the specificity of description that the Fourth Amendment may require in a warrant for remotely searching electronic storage media or seizing or copying electronically stored information, leaving the application of this and other constitutional standards to ongoing case law development. Subdivision (f)(1)(C) Amendment by Public Law 2001Subd. (a). Pub. L. 10756 section 2331 of title 18 Effective Date of 1977 Amendment Amendment of this rule by order of the United States Supreme Court on Apr. 26, 1976 Pub. L. 9578 Oct. 1, 1977 section 4 of Pub. L. 9578 Pub. L. 9578 section 2074 of Title 28 Effective Date of 1976 Amendment Amendment of subd. (c)(1) by order of the United States Supreme Court of Apr. 26, 1976 Aug. 1, 1976 section 1 of Pub. L. 94349 section 2074 of Title 28 Effective Date of 1956 Amendment Amendment by Order of April 9, 1956 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. (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. (3)  Trial and Disposition. (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. (As amended Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 The rule-making power of the Supreme Court with respect to criminal proceedings was extended to proceedings to punish for criminal contempt of court by the Act of November 21, 1941 55 Stat. 779 18 U.S.C. 689 Note to Subdivision Ex parte Terry Cooke v. United States Note to Subdivision 28 U.S.C. 386390 18 U.S.C. 401 29 U.S.C. 111 18 U.S.C. 3692 2. The requirement in the second sentence that the notice shall describe the criminal contempt as such is intended to obviate the frequent confusion between criminal and civil contempt proceedings and follows the suggestion made in McCann v. New York Stock Exchange Nye v. United States 3. The fourth sentence relating to trial by jury preserves the right to a trial by jury in those contempt cases in which it is granted by statute, but does not enlarge the right or extend it to additional cases. The respondent in a contempt proceeding may demand a trial by jury as of right if the proceeding is brought under the Act of March 23, 1932 47 Stat. 72 29 U.S.C. 111 18 U.S.C. 3692 October 15, 1914 38 Stat. 738 28 U.S.C. 387 4. The provision in the sixth sentence disqualifying the judge affected by the contempt if the charge involves disrespect to or criticism of him, is based, in part, on 29 U.S.C. former  112 (Contempts; demand for retirement of judge sitting in proceeding) and the observations of Chief Justice Taft in Cooke v. United States 5. Among the statutory provisions defining criminal contempts are the following: U.S.C., Title 7: Section 499m (Perishable Agricultural Commodities Act; investigation of complaints; procedure; penalties; etc.(c) Disobedience to subpenas; remedy; contempt) U.S.C., Title 9: Section 7 (Witnesses before arbitrators; fees, compelling attendance) U.S.C., Title 11: Section 69 [former] (Referees; contempts before) U.S.C., Title 15: Section 49 (Federal Trade Commission; documentary evidence; depositions; witnesses) Section 78u (Regulation of Securities Exchanges; investigation; injunctions and prosecution of offenses) Section 100 (Trademarks; destruction of infringing labels; service of injunction, and proceedings for enforcement) Section 155 (China Trade Act; authority of registrar in obtaining evidence) U.S.C., Title 17: Section 36 [now 502] (Injunctions; service and enforcement) U.S.C., Title 19: Section 1333 (Tariff Commission; testimony and production of papers(b) Witnesses and evidence) U.S.C., Title 22: Section 270f (International Bureaus; Congresses, etc.; perjury; contempts; penalties) U.S.C., Title 28: Section 385 [now 459; 18 U.S.C. 401 Section 386 [now 18 U.S.C. 402 Section 387 [now 18 U.S.C. 402 Section 388 [former] (Same; review of conviction) Section 389 [now 18 U.S.C. 402 Section 390 [now 18 U.S.C. 3285 Section 390a [now 18 U.S.C. 402 Section 648 [now Rule 17(f), FRCP, 18 U.S.C., Appendix; Rule 45(d), FRCP, 28 U.S.C., Appendix] (Depositions under dedimus potestatem; witnesses; when required to attend) Section 703 [former] (Punishment of witness for contempt) Section 714 [now 1784] (Failure of witness to obey subpena; order to show cause in contempt proceedings) Section 715 [now 1784] (Direction in order to show cause for seizure of property of witness in contempt) Section 716 [now 1784] (Service of order to show cause) Section 717 [now 1784] (Hearing on order to show cause; judgment; satisfaction) Section 750 [now 2405] (Garnishees in suits by United States against a corporation; garnishee failing to appear) U.S.C., Title 29: Section 111 [now 18 U.S.C. 3692 Section 112 [now Rule 42, FRCP, 18 U.S.C., Appendix] (Contempts; demands for retirement of judge sitting in proceeding) Section 160 (Prevention of unfair labor practices(h) Jurisdiction of courts unaffected by limitations prescribed in sections 101115 of Title 29) Section 161 (Investigatory powers of Board(2) Court aid in compelling production of evidence and attendance of witnesses) Section 209 (Fair Labor Standards Act; attendance of witnesses) U.S.C., Title 33: Section 927 (Longshoremens and Harbor Workers Compensation Act; powers of deputy commissioner) U.S.C., Title 35: Section 56 [now 24] (Failing to attend or testify) U.S.C., Title 47: Section 409 (Federal Communications Commission; hearing; subpenas; oaths; witnesses; production of books and papers; contempts; depositions; penalties) U.S.C., Title 48: Section 1345a (Canal Zone; general jurisdiction of district court; issue of process at request of officials; witnesses; contempt) U.S.C., Title 49: Section 12 [see 721(c)(2), 13301(c)(2)] (Interstate Commerce Commission; authority and duties of commission; witnesses; depositions(3) Compelling attendance and testimony of witnesses, etc.) Federal Rules of Civil Procedure: Rule 45 (Subpoena) subdivision (f) (Contempt) Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 42 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The revised rule is intended to more clearly set out the procedures for conducting a criminal contempt proceeding. The current rule implicitly recognizes that an attorney for the government may be involved in the prosecution of such cases. Revised Rule 42(a)(2) now explicitly addresses the appointment of a prosecutor and adopts language to reflect the holding in Young v. United States ex rel. Vuitton Rule 42(b) has been amended to make it clear that a court may summarily punish a person for committing contempt in the courts presence without regard to whether other rules, such as Rule 32 (sentencing procedures), might otherwise apply. See, e.g., United States v. Martin-Trigona TITLE IX. GENERAL PROVISIONS Rule 43. Defendants 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. (2)  Misdemeanor Offense. (3)  Conference or Hearing on a Legal Question. (4)  Sentence Correction. (c) Waiving Continued Presence. (1)  In General. (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)  Waivers Effect. (As amended Apr. 22, 1974 Dec. 1, 1975 Pub. L. 9464,  3(35) July 31, 1975 89 Stat. 376 Mar. 9, 1987 Aug. 1, 1987 Apr. 27, 1995 Dec. 1, 1995 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Rules1944 1. The first sentence of the rule setting forth the necessity of the defendants presence at arraignment and trial is a restatement of existing law, Lewis v. United States Diaz v. United States United States v. Lynch 2. The second sentence of the rule is a restatement of existing law that, except in capital cases, the defendant may not defeat the proceedings by voluntarily absenting himself after the trial has been commenced in his presence, Diaz v. United States United States v. Noble United States v. Barracota United States v. Vassalo 3. The fourth sentence of the rule empowering the court in its discretion, with the defendants written consent, to conduct proceedings in misdemeanor cases in defendants absence adopts a practice prevailing in some districts comprising very large areas. In such districts appearance in court may require considerable travel, resulting in expense and hardship not commensurate with the gravity of the charge, if a minor infraction is involved and a small fine is eventually imposed. The rule, which is in the interest of defendants in such situations, leaves it discretionary with the court to permit defendants in misdemeanor cases to absent themselves and, if so, to determine in what types of misdemeanors and to what extent. Similar provisions are found in the statutes of a number of States. See A.L.I. Code of Criminal Procedure, pp. 881882. 4. The purpose of the last sentence of the rule is to resolve a doubt that at times has arisen as to whether it is necessary to bring the defendant to court from an institution in which he is confined, possibly at a distant point, if the court determines to reduce the sentence previously imposed. It seems in the interest of both the Government and the defendant not to require such presence, because of the delay and expense that are involved. Notes of Advisory Committee on Rules1974 Amendment The revision of rule 43 is designed to reflect Illinois v. Allen Allen Since rule 43 formerly limited trial in absentia to situations in which there is a voluntary absence after the trial has been commenced, it could be read as precluding a federal judge from exercising the third option held to be constitutionally permissible in Allen The decision in Allen The concurring opinion of Mr. Justice Brennan stresses that the trial judge should make a reasonable effort to enable an excluded defendant to communicate with his attorney and, if possible, to keep apprised of the progress of the trial. 397 U.S. at 351, 90 S.Ct. 1057. The Federal Judicial Center is presently engaged in experimenting with closed circuit television in courtrooms. The experience gained from these experiments may make closed circuit television readily available in federal courtrooms through which an excluded defendant would be able to hear and observe the trial. The defendants right to be present during the trial on a capital offense has been said to be so fundamental that it may not be waived. Diaz v. United States Near v. Cunningham However, in Illinois v. Allen, supra Furman v. Georgia Subdivision (b)(1) makes clear that voluntary absence may constitute a waiver even if the defendant has not been informed by the court of his obligation to remain during the trial. Of course, proof of voluntary absence will require a showing that the defendant knew of the fact that the trial or other proceeding was going on. C. Wright, Federal Practice and Procedure: Criminal  723 n. 35 (1969). But it is unnecessary to show that he was specifically warned of his obligation to be present; a warning seldom is thought necessary in current practice. [See Taylor v. United States Subdivision (c)(3) makes clear that the defendant need not be present at a conference held by the court and counsel where the subject of the conference is an issue of law. The other changes in the rule are editorial in nature. In the last phrase of the first sentence, these rules is changed to read this rule, because there are no references in any of the other rules to situations where the defendant is not required to be present. The phrase at the time of the plea, is added to subdivision (a) to make perfectly clear that defendant must be present at the time of the plea. See rule 11(c)(5) which provides that the judge may set a time, other than arraignment, for the holding of a plea agreement procedure. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 43 of the Federal Rules of Criminal Procedure deals with the presence of the defendant during the proceedings against him. It presently permits a defendant to be tried in absentia only in non-capital cases where the defendant has voluntarily absented himself after the trial has begun. The Supreme Court amendments provide that a defendant has waived his right to be present at the trial of a capital or noncapital case in two circumstances: (1) when he voluntarily absents himself after the trial has begun; and (2) where he engages in conduct which is such as to justify his being excluded from the courtroom. B. Committee Action. The Committee added language to subdivision (b)(2), which deals with excluding a disruptive defendant from the courtroom. The Advisory Committee Note indicates that the rule proposed by the Supreme Court was drafted to reflect the decision in Illinois v. Allen Allen Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1995 Amendment The revisions to Rule 43 focus on two areas. First, the amendments make clear that a defendant who, initially present at trial or who has entered a plea of guilty or nolo contendere, but who voluntarily flees before sentencing, may nonetheless be sentenced in absentia. Second, the rule is amended to extend to organizational defendants. In addition, some stylistic changes have been made. Subdivision (a) Subdivision (b) The right to be present at court, although important, is not absolute. The caselaw, and practice in many jurisdictions, supports the proposition that the right to be present at trial may be waived through, inter alia, the act of fleeing. See generally Crosby v. United States The words at trial, or having pleaded guilty or nolo contendere have been added at the end of the first sentence to make clear that the trial of an absent defendant is possible only if the defendant was previously present at the trial or has entered a plea of guilty or nolo contendere. See Crosby v. United States, supra. Subdivision (c) Committee Notes on Rules1998 Amendment The amendment to Rule 43(c)(4) is intended to address two issues. First, the rule is rewritten to clarify whether a defendant is entitled to be present at resentencing proceedings conducted under Rule 35. As a result of amendments over the last several years to Rule 35, implementation of the Sentencing Reform Act, and caselaw interpretations of Rules 35 and 43, questions had been raised whether the defendant had to be present at those proceedings. Under the present version of the rule, it could be possible to require the defendants presence at a reduction of sentence hearing conducted under Rule 35(b), but not a correction of sentence hearing conducted under Rule 35(a). That potential result seemed at odds with sound practice. As amended, Rule 43(c)(4) would permit a court to reduce or correct a sentence under Rule 35(b) or (c), respectively, without the defendant being present. But a sentencing proceeding being conducted on remand by an appellate court under Rule 35(a) would continue to require the defendants presence. See, e.g., United States v. Moree The second issue addressed by the amendment is the applicability of Rule 43 to resentencing hearings conducted under 18 U.S.C.  3582(c). Under that provision, a resentencing may be conducted as a result of retroactive changes to the Sentencing Guidelines by the United States Sentencing Commission or as a result of a motion by the Bureau of Prisons to reduce a sentence based on extraordinary and compelling reasons. The amendment provides that a defendants presence is not required at such proceedings. In the Committees view, those proceedings are analogous to Rule 35(b) as it read before the Sentencing Reform Act of 1984, where the defendants presence was not required. Further, the court may only reduce the original sentence under these proceedings. Changes Made to Rule 43 After Publication (GAP Report) Committee Notes on Rules2002 Amendment The language of Rule 43 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The first substantive change is reflected in Rule 43(a), which recognizes several exceptions to the requirement that a defendant must be present in court for all proceedings. In addition to referring to exceptions that might exist in Rule 43 itself, the amendment recognizes that a defendant need not be present when the court has permitted video teleconferencing procedures under Rules 5 and 10 or when the defendant has waived the right to be present for the arraignment under Rule 10. Second, by inserting the word initial before arraignment, revised Rule 43(a)(1) reflects the view that a defendant need not be present for subsequent arraignments based upon a superseding indictment. The Rule has been reorganized to make it easier to read and apply; revised Rule 43(b) is former Rule 43(c). Committee Notes on Rules2011 Amendment Subdivision (b) The Committee reiterates the concerns expressed in the 2002 Committee Notes to Rules 5 and 10, when those rules were amended to permit video teleconferencing. The Committee recognized the intangible benefits and impact of requiring a defendant to appear before a federal judicial officer in a federal courtroom, and what is lost when virtual presence is substituted for actual presence. These concerns are particularly heightened when a defendant is not present for the determination of guilt and sentencing. However, the Committee concluded that the use of video teleconferencing may be valuable in circumstances where the defendant would otherwise be unable to attend and the rule now authorizes proceedings in absentia. Changes Made to Proposed Amendment Released for Public Comment Amendment by Public Law 1975 Pub. L. 9464 Effective Date of Amendments Proposed April 22, 1974 Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974 section 3 of Pub. L. 9464 Dec. 1, 1975 section 2 of Pub. L. 9464 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. (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)  Courts Responsibilities in Cases of Joint Representation. (As amended Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Apr. 30, 1979 Dec. 1, 1980 Mar. 9, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 1. This rule is a restatement of existing law in regard to the defendants constitutional right of counsel as defined in recent judicial decisions. The Sixth Amendment provides: In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense. 28 U.S.C. former  394 (now  1654) provides: In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein. 18 U.S.C. former  563 (now  3005), which is derived from the act of April 30, 1790 1 Stat. 118  Every person who is indicted of treason or other capital crime, shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried or some judge thereof, shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire, and they shall have free access to him at all seasonable hours. The present extent of the right of counsel has been defined recently in Johnson v. Zerbst Walker v. Johnston Glasser v. United States 2. The rule is intended to indicate that the right of the defendant to have counsel assigned by the court relates only to proceedings in court and, therefore, does not include preliminary proceedings before a committing magistrate. Although the defendant is not entitled to have counsel assigned to him in connection with preliminary proceedings, he is entitled to be represented by counsel retained by him, if he so chooses, Rule 5(b) (Proceedings before the Commissioner; Statement by the Commissioner) and Rule 40(b)(2) (Commitment to Another District; RemovalArrest in Distant DistrictStatement by Commissioner or Judge). As to defendants right of counsel in connection with the taking of depositions, see Rule 15(c) (DepositionsDefendants Counsel and Payment of Expenses). Notes of Advisory Committee on Rules1966 Amendment A new rule is provided as a substitute for the old to provide for the assignment of counsel to defendants unable to obtain counsel during all stages of the proceeding. The Supreme Court has recently made clear the importance of providing counsel both at the earliest possible time after arrest and on appeal. See Crooker v. California Cicenia v. LaGay White v. Maryland Gideon v. Wainwright Douglas v. California 78 Stat. 552 Like the original rule the amended rule provides a right to counsel which is broader in two respects than that for which compensation is provided in the Criminal Justice Act of 1964: (1) the right extends to petty offenses to be tried in the district courts, and (2) the right extends to defendants unable to obtain counsel for reasons other than financial. These rules do not cover procedures other than those in the courts of the United States and before United States commissioners. See Rule 1. Hence, the problems relating to the providing of counsel prior to the initial appearance before a court or commissioner are not dealt with in this rule. Cf. Escobedo v. United States Massiah v. United States Escobedo v. Illinois Subdivision (a).This subdivision expresses the right of the defendant unable to obtain counsel to have such counsel assigned at any stage of the proceedings from his initial appearance before the commissioner or court through the appeal, unless he waives such right. The phrase from his initial appearance before the commissioner or court is intended to require the assignment of counsel as promptly as possible after it appears that the defendant is unable to obtain counsel. The right to assignment of counsel is not limited to those financially unable to obtain counsel. If a defendant is able to compensate counsel but still cannot obtain counsel, he is entitled to the assignment of counsel even though not to free counsel. Subdivision (b).This new subdivision reflects the adoption of the Criminal Justice Act of 1964. See Report of the Judicial Conference of the United States on the Criminal Justice Act of 1964, 36 F.R.D. 277 (1964). Notes of Advisory Committee on Rules1972 Amendment Subdivision (a) is amended to reflect the Federal Magistrates Act of 1968. The phrase federal magistrate is defined in rule 54. Notes of Advisory Committee on Rules1979 Amendment Note to Subdivision Holloway v. Arkansas United States v. Carrigan When a potential conflict of interest arises, either where a court has assigned the same counsel to represent several defendants or where the same counsel has been retained by co-defendants in a criminal case, the proper course of action for the trial judge is to conduct a hearing to determine whether a conflict exists to the degree that a defendant may be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the Sixth Amendment. The defendant should be fully advised by the trial court of the facts underlying the potential conflict and be given the opportunity to express his views. See also United States v. Lawriw Abraham v. United States United States v. Mari United States v. Truglio United States v. DeBerry United States ex rel. Hart v. Davenport United States v. Alberti United States v. Foster Campbell v. United States State v. Olsen,  This procedure is also consistent with that recommended in the ABA Standards Relating to the Function of the Trial Judge (Approved Draft, 1972), which provide in  3.4(b): Whenever two or more defendants who have been jointly charged, or whose cases have been consolidated, are represented by the same attorney, the trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel. Avoiding a conflict-of-interest situation is in the first instance a responsibility of the attorney. If a lawyer represents multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment, and he is to resolve all doubts against the propriety of the representation. Code of Professional Responsibility, Ethical Consideration 515. See also ABA Standards Relating to the Defense Function  3.5(b) (Approved Draft, 1971), concluding that the potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation. It by no means follows that the inquiry provided for by rule 44(c) is unnecessary. For one thing, even the most diligent attorney may be unaware of facts giving rise to a potential conflict. Often counsel must operate somewhat in the dark and feel their way uncertainly to an understanding of what their clients may be called upon to meet upon a trial and consequently are frequently unable to foresee developments which may require changes in strategy. United States v. Carrigan United States v. Lawriw Moreover, it is important that the trial judge ascertain whether the effective and fair administration of justice would be adversely affected by continued joint representation, even when an actual conflict is not then apparent. As noted in United States v. Mari Trial court insistence that, except in extraordinary circumstances, codefendants retain separate counsel will in the long run ... prove salutary not only to the administration of justice and the appearance of justice but the cost of justice; habeas corpus petitions, petitions for new trials, appeals and occasionally retrials ... can be avoided. Issues as to whether there is an actual conflict of interest, whether the conflict has resulted in prejudice, whether there has been a waiver, whether the waiver is intelligent and knowledgeable, for example, can all be avoided. Where a conflict that first did not appear subsequently arises in or before trial, ... continuances or mistrials can be saved. Essentially by the time a case ... gets to the appellate level the harm to the appearance of justice has already been done, whether or not reversal occurs; at the trial level it is a matter which is so easy to avoid. A rule 44(c) inquiry is required whether counsel is assigned or retained. It makes no difference whether counsel is appointed by the court or selected by the defendants; even where selected by the defendants the same dangers of potential conflict exist, and it is also possible that the rights of the public to the proper administration of justice may be affected adversely. United States v. Mari United States v. Lawriw United States v. Carrigan Ford v. United States Lollar v. United States Under rule 44(c), an inquiry is called for when the joined defendants are represented by the same attorney and also when they are represented by attorneys associated in the practice of law. This is consistent with Code of Professional Responsibility, Disciplinary Rule 5105(D) (providing that if a lawyer is required to decline employment or to withdraw from employment because of a potential conflict, no partner or associate of his or his firm may accept or continue such employment); and ABA Standards Relating to the Defense Function  3.5(b) (Approved Draft, 1971) (applicable to a lawyer or lawyers who are associated in practice). Attorneys representing joined defendants should so advise the court if they are associated in the practice of law. The rule 44(c) procedure is not limited to cases expected to go to trial. Although the more dramatic conflict situations, such as when the question arises as to whether the several defendants should take the stand, Morgan v. United States The problem is that even where as here both codefendants pleaded guilty there are frequently potential conflicts of interest ... [T]he prosecutor may be inclined to accept a guilty plea from one codefendant which may harm the interests of the other. The contrast in the dispositions of the cases may have a harmful impact on the codefendant who does not initially plead guilty; he may be pressured into pleading guilty himself rather than face his codefendants bargained-for testimony at a trial. And it will be his own counsels recommendation to the initially pleading codefendant which will have contributed to this harmful impact upon him ... [I]n a given instance it would be at least conceivable that the prosecutor would be willing to accept pleas to lesser offenses from two defendants in preference to a plea of guilty by one defendant to a greater offense. United States v. Mari It is contemplated that under rule 44(c) the court will make appropriate inquiry of the defendants and of counsel regarding the possibility of a conflict of interest developing. Whenever it is necessary to make a more particularized inquiry into the nature of the contemplated defense, the court should pursue the inquiry with defendants and their counsel on the record but in chambers so as to avoid the possibility of prejudicial disclosures to the prosecution. United States v. Foster United States v. Alberti United States v. Foster Under rule 44(c), the court is to take appropriate measures to protect each defendants right to counsel unless it appears there is good cause to believe no conflict of interest is likely to arise as a consequence of the continuation of such joint representation. A less demanding standard would not adequately protect the Sixth Amendment right to effective assistance of counsel or the effective administration of criminal justice. Although joint representation is not per se violative of constitutional guarantees of effective assistance of counsel, Holloway v. Arkansas Fryar v. United States Glasser v. United States Holloway v. Arkansas Rule 44(c) does not specify what particular measures must be taken. It is appropriate to leave this within the courts discretion, for the measures which will best protect each defendants right to counsel may well vary from case to case. One possible course of action is for the court to obtain a knowing, intelligent and voluntary waiver of the right to separate representation, for, as noted in Holloway v. Arkansas United States v. DeBerry United States v. Garcia As in Rule 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorneys possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. It is, of course, vital that the waiver be established by clear, unequivocal, and unambiguous language. ... Mere assent in response to a series of questions from the bench may in some circumstances constitute an adequate waiver, but the court should nonetheless endeavor to have each defendant personally articulate in detail his intent to forego this significant constitutional protection. Recordation of the waiver colloque between defendant and judge, will also serve the governments interest by assisting in shielding any potential conviction from collateral attack, either on Sixth Amendment grounds or on a Fifth or Fourteenth Amendment fundamental fairness basis. See also Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The Courts Headache, 5 Hofstra L.Rev. 315, 334 (1977). Another possibility is that the court will order that the defendants be separately represented in subsequent proceedings in the case. Though the court must remain alert to and take account of the fact that certain advantages might accrue from joint representation, Holloway v. Arkansas there will be cases where the court should require separate counsel to represent certain defendants despite the expressed wishes of such defendants. Indeed, failure of the trial court to require separate representation may ... require a new trial, even though the defendants have expressed a desire to continue with the same counsel. The right to effective representation by counsel whose loyalty is undivided is so paramount in the proper administration of criminal justice that it must in some cases take precedence over all other considerations, including the expressed preference of the defendants concerned and their attorney. United States v. Carrigan United States v. Lawriw Abraham v. United States United States v. Dolan not satisfied that the waiver is proper. For example, a defendant may be competent enough to stand trial, but not competent enough to understand the complex, subtle, and sometimes unforeseeable dangers inherent in multiple representation. More importantly, the judge may find that the waiver cannot be intelligently made simply because he is not in a position to inform the defendant of the foreseeable prejudices multiple representation might entail for him. As concluded in Dolan Faretta v. California absolute when a trial court finds an actual conflict of interest which impairs the ability of a criminal defendants chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendants comprehension of the waiver. Under such circumstances, the court can elect to exercise its supervisory authority over members of the bar to enforce the ethical standard requiring an attorney to decline multiple representation. United States v. Dolan The failure in a particular case to conduct a rule 44(c) inquiry would not, standing alone, necessitate the reversal of a conviction of a jointly represented defendant. However, as is currently the case, a reviewing court is more likely to assume a conflict resulted from the joint representation when no inquiry or an inadequate inquiry was conducted. United States v. Carrigan United States v. DeBerry Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment The language of Rule 44 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Revised Rule 44 now refers to the appointment of counsel, rather than the assignment of counsel; the Committee believed the former term was more appropriate. See Effective Date of 1979 Amendment Amendment of this rule by addition of subd. (c) by order of the United States Supreme Court of Apr. 30, 1979 Dec. 1, 1980 section 1(1) of Pub. L. 9642 July 31, 1979 93 Stat. 326 section 2074 of Title 28 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. (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. (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 Clerks Office. (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. (A) for electronic filing, at midnight in the courts time zone; and (B) for filing by other means, when the clerks office is scheduled to close. (5)  Next Day Defined. (6)  Legal Holiday Defined. (A) the day set aside by statute for observing New Years Day, Martin Luther King Jr.s Birthday, Washingtons Birthday, Memorial Day, Juneteenth National Independence 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. (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. (c) Additional Time After Certain Kinds of Service. Whenever a party must or may act within a specified time after being served and service is made under Rule 49(a)(4)(C), (D), and (E), 3 days are added after the period would otherwise expire under subdivision (a). (As amended Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Mar. 1, 1971 July 1, 1971 Apr. 28, 1982 Aug. 1, 1982 Apr. 29, 1985 Aug. 1, 1985 Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Apr. 30, 2007 Dec. 1, 2007 Apr. 23, 2008 Dec. 1, 2008 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2016 Dec. 1, 2016 Apr. 26, 2018 Dec. 1, 2018 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1944 The rule is in substance the same as Rule 6 of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. It seems desirable that matters covered by this rule should be regulated in the same manner for civil and criminal cases, in order to preclude possibility of confusion. Note to Subdivision May 7, 1934 Note to Subdivision Note to Subdivision Notes of Advisory Committee on Rules1966 Amendment Subdivision (a).This amendment conforms the subdivision with the amendments made effective on July 1, 1963 Subdivision (b).The amendment conforms the subdivision to the amendments made effective in 1948 to the comparable provision in Civil Rule 6(b). One of these conforming changes, substituting the words extend the time for the words enlarge the period clarifies the ambiguity which gave rise to the decision in United States v. Robinson Subdivision (c).Subdivision (c) of Rule 45 is rescinded as unnecessary in view of the 1963 amendment to 28 U.S.C.  138 eliminating terms of court. Notes of Advisory Committee on Rules1968 Amendment The amendment eliminates inappropriate references to Rules 37 and 39 which are to be abrogated. Notes of Advisory Committee on Rules1971 Amendment The amendment adds Columbus Day to the list of legal holidays to conform the subdivision to the Act of June 28, 1968 82 Stat. 250 January 1, 1971 The Act, which amended Title 5, U.S.C.,  6103(a), changes the day on which certain holidays are to be observed. Washingtons Birthday, Memorial Day and Veterans Day are to be observed on the third Monday in February, the last Monday in May and the fourth Monday in October, respectively, rather than, as heretofore, on February 22, May 30, and November 11, respectively. Columbus Day is to be observed on the second Monday in October. New Years Day, Independence Day, Thanksgiving Day and Christmas continue to be observed on the traditional days. Notes of Advisory Committee on Rules1982 Amendment The amendment to subdivision (a) takes account of the fact that on rare occasion severe weather conditions or other circumstances beyond control will make it impossible to meet a filing deadline under Rule 45(a). Illustrative is an incident which occurred in Columbus, Ohio during the great blizzard of 1978, in which weather conditions deteriorated to the point where personnel in the clerks office found it virtually impossible to reach the courthouse, and where the GSA Building Manager found it necessary to close and secure the entire building. The amendment covers that situation and also similar situations in which weather or other conditions made the clerks office, though open, not readily accessible to the lawyer. Whether the clerks office was in fact inaccessible on a given date is to be determined by the district court. Some state time computation statutes contain language somewhat similar to that in the amendment; see, e.g., Md.Code Ann. art. 94,  2. Notes of Advisory Committee on Rules1985 Amendment The rule is amended to extend the exclusion of intermediate Saturdays, Sundays, and legal holidays to the computation of time periods less than 11 days. Under the current version of the Rule, parties bringing motions under rules with 10-day periods could have as few as 5 working days to prepare their motions. This change corresponds to the change being made in the comparable provision in Fed.R.Civ.P. 6(a). The Birthday of Martin Luther King, Jr., which becomes a legal holiday effective January 1986, has been added to the list of legal holidays enumerated in the Rule. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 45 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The additional three days provided by Rule 45(c) is extended to the means of service authorized by the new paragraph (D) added to Rule 5(b) of the Federal Rules of Civil Procedure, includingwith the consent of the person servedservice by electronic means. The means of service authorized in civil actions apply to criminal cases under Rule 49(b). Rule 45(d), which governs the timing of written motions and affidavits, has been moved to Rule 47. Committee Notes on Rules2005 Amendment Rule 45(b) has been amended to conform to amendments to Rules 29, 33, and 34, which have been amended to remove the requirement that the court must act within the seven-day period specified in each of those rules if it sets another time for filing a motion under those rules. Currently, Rules 29(c)(1), 33(b)(2), and 34(b) require the defendant to move for relief under those rules within the seven-day periods specified in those rules or within some other time set by the court in an order issued during that same seven-day period. Courts have held that the seven-day rule is jurisdictional. Thus, for example, if a defendant files a request for an extension of time to file a motion for a judgment of acquittal or a motion for new trial within the seven-day period, the court must rule on that motion or request within the same seven-day period. If for some reason the court does not rule on the request for an extension of time within the seven days, the court loses jurisdiction to act on the underlying substantive motion. See, e.g., United States v. Smith United States v. Marquez Rule 45(b)(2) currently specifies that a court may not extend the time for taking action under Rules 29, 33, or 34, except as provided in those rules. Assuming that the current provisions in Rules 29, 33, and 34 were intended to promote finality, there is nothing to prevent the court from granting the defendant a significant extension of time, under those rules, as long as it does so within the seven-day period. Thus, the Committee believed that those rules should be amended to be consistent with all of the other timing requirements in the rules, which do not force the court to rule on a motion to extend the time for filing, within a particular period of time or lose jurisdiction to do so. The change to Rule 45(b)(2) is thus a conforming amendment. The defendant is still required to file motions under Rules 29, 33, and 34 within the seven-day period specified in those rules. The defendant, however, may consistently with Rule 45, seek an extension of time to file the underlying motion as long as the defendant does so within the seven-day period. But the court itself is not required to act on that motion within any particular time. Further, under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion within the specified time, the court may nonetheless consider that untimely motion if the court determines that the failure to file it on time was the result of excusable neglect. Changes Made After Publication and Comment Committee Notes on Rules2007 Amendment Subdivision (c) Application of Rule 45(c) to a period that is less than eleven days can be illustrated by a paper that is served by mailing on a Friday. If ten days are allowed to respond, intermediate Saturdays, Sundays, and legal holidays are excluded in determining when the period expires under Rule 45(a). If there is no legal holiday, the period expires on the Friday two weeks after the paper was mailed. The three added Rule 45(c) days are Saturday, Sunday, and Monday, which is the third and final day to act unless it is a legal holiday. If Monday is a legal holiday, the next day that is not a legal holiday is the final day to act. Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2008 Amendment This amendment revises the cross references to Civil Rule 5, which have been renumbered as part of a general restyling of the Federal Rules of Civil Procedure. No substantive change is intended. Committee Notes on Rules2009 Amendment Subdivision (a) The time-computation provisions of subdivision (a) apply only when a time period must be computed. They do not apply when a fixed time to act is set. The amendments thus carry forward the approach taken in Violette v. P.A. Days, Inc. In re American Healthcare Management, Inc. November 1, 2007 Subdivision (a) does not apply when computing a time period set by a statute if the statute specifies a method of computing time. See, e.g. Subdivision (a)(1) See, e.g. Under former Rule 45(a), a period of 11 days or more was computed differently than a period of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in computing the longer periods, but excluded in computing the shorter periods. Former Rule 45(a) thus made computing deadlines unnecessarily complicated and led to counterintuitive results. For example, a 10-day period and a 14-day period that started on the same day usually ended on the same dayand the 10-day period not infrequently ended later than the 14-day period. See Miltimore Sales, Inc. v. Int1 Rectifier, Inc. Under new subdivision (a)(1), all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other daysincluding intermediate Saturdays, Sundays, and legal holidaysare counted, with only one exception: if the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday. An illustration is provided below in the discussion of subdivision (a)(5). Subdivision (a)(3) addresses filing deadlines that expire on a day when the clerks office is inaccessible. Where subdivision (a) formerly referred to the act, event, or default that triggers the deadline, the new subdivision (a) refers simply to the event that triggers the deadline; this change in terminology is adopted for brevity and simplicity, and is not intended to change the meaning. Periods previously expressed as less than 11 days will be shortened as a practical matter by the decision to count intermediate Saturdays, Sundays, and legal holidays in computing all periods. Many of those periods have been lengthened to compensate for the change. See, e.g. Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation methodtwo Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the periodthe 14th day after a Monday, for example, is a Monday. This advantage of using weeklong periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods. Thirty-day and longer periods, however, were generally retained without change. Subdivision (a)(2) Under subdivision (a)(2), a deadline stated in hours starts to run immediately on the occurrence of the event that triggers the deadline. The deadline generally ends when the time expires. If, however, the time period expires at a specific time (say, 2:17 p.m.) on a Saturday, Sunday, or legal holiday, then the deadline is extended to the same time (2:17 p.m.) on the next day that is not a Saturday, Sunday, or legal holiday. Periods stated in hours are not to be rounded up to the next whole hour. Subdivision (a)(3) addresses situations when the clerks office is inaccessible during the last hour before a filing deadline expires. Subdivision (a)(2)(B) directs that every hour be counted. Thus, for example, a 72-hour period that commences at 10:23 a.m. on Friday, November 2, 2007 Subdivision (a)(3) Subdivision (a)(3)s extensions apply [u]nless the court orders otherwise. In some circumstances, the court might not wish a period of inaccessibility to trigger a full 24-hour extension; in those instances, the court can specify a briefer extension. The text of the rule no longer refers to weather or other conditions as the reason for the inaccessibility of the clerks office. The reference to weather was deleted from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system. Weather can still be a reason for inaccessibility of the clerks office. The rule does not attempt to define inaccessibility. Rather, the concept will continue to develop through caselaw, see, e.g. When Is Office of Clerk of Court Inaccessible Due to Weather or Other Conditions for Purpose of Computing Time Period for Filing Papers under Rule 6(a) of Federal Rules of Civil Procedure see, e.g. Subdivision (a)(4) 28 U.S.C.  452 provides that [a]ll courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders. A corresponding provision exists in Rule 56(a). Some courts have held that these provisions permit an after-hours filing by handing the papers to an appropriate official. See, e.g. Casalduc v. Diaz Subdivision (a)(5) after See, e.g. before See, e.g. after September 1, 2007 September 4, 2007 before Subdivision (a)(6) For forward-counted periods i.e. April 21, 2008 Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2016 Amendment Subdivision (c) Civil Rule 5 was amended in 2001 to allow service by electronic means with the consent of the person served, and a parallel amendment to Rule 45(c) was adopted in 2002. Although electronic transmission seemed virtually instantaneous even then, electronic service was included in the modes of service that allow 3 added days to act after being served. There were concerns that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments. Those concerns have been substantially alleviated by advances in technology and widespread skill in using electronic transmission. A parallel reason for allowing the 3 added days was that electronic service was authorized only with the consent of the person to be served. Concerns about the reliability of electronic transmission might have led to refusals of consent; the 3 added days were calculated to alleviate these concerns. Diminution of the concerns that prompted the decision to allow the 3 added days for electronic transmission is not the only reason for discarding this indulgence. Many rules have been changed to ease the task of computing time by adopting 7-, 14-, 21-, and 28-day periods that allow day-of-the-week counting. Adding 3 days at the end complicated the counting, and increased the occasions for further complication by invoking the provisions that apply when the last day is a Saturday, Sunday, or legal holiday. Eliminating Rule 5(b) subparagraph (2)(E) from the modes of service that allow 3 added days means that the 3 added days cannot be retained by consenting to service by electronic means. Consent to electronic service in registering for electronic case filing, for example, does not count as consent to service by any other means of delivery under subparagraph (F). Electronic service after business hours, or just before or during a weekend or holiday, may result in a practical reduction in the time available to respond. Extensions of time may be warranted to prevent prejudice. Committee Notes on Rules2018 Amendment Rule 49 previously required service and filing in a manner provided in the Civil Rules, and the time counting provisions in Criminal Rule 45(c) referred to certain means of service under Civil Rule 5. A contemporaneous amendment moves the instructions for filing and service in criminal cases from Civil Rule 5 into Criminal Rule 49. This amendment revises the cross references in Rule 45(c) to reflect this change. Committee Notes on Rules2023 Amendment The amendment adds Juneteenth National Independence Day to the list of legal holidays. See Juneteenth National Independence Day Act, P.L. 11717 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 persons 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. (2)  Setting Aside. (A) the surety later surrenders into custody the person released on the suretys appearance bond; or (B) it appears that justice does not require bail forfeiture. (3)  Enforcement. (A)  Default Judgment and Execution (B)  Jurisdiction and Service (C)  Motion to Enforce (4)  Remission. (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. (2)  Reports. (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 propertys value would be an appropriate sentence for the charged offense. (j) Producing a Statement. (1)  In General. (2)  Sanctions for Not Producing a Statement. (As amended Apr. 9, 1956 July 8, 1956 Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Pub. L. 98473, title II,  209(d) Oct. 12, 1984 98 Stat. 1987 Mar. 9, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Pub. L. 103322, title XXXIII,  330003(h) Sept. 13, 1994 108 Stat. 2141 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Note to Subdivision 18 U.S.C. 596 Note to Subdivision 18 U.S.C. 682 Note to Subdivision Note to Subdivision 6 U.S.C. 15 31 U.S.C. 9103 Note to Subdivision 6 U.S.C. 614 31 U.S.C. 9304930 Note to Subdivision 2. Subdivision (f)(2) changes existing law in that it increases the discretion of the court to set aside a forfeiture. The present power of the court is limited to cases in which the defendants default had not been willful. 3. The second sentence of paragraph (3) is similar to Rule 73(f) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. This paragraph also substitutes simple motion procedure for enforcing forfeited bail bonds for the procedure by scire facias Note to Subdivision 18 U.S.C. 599 Notes of Advisory Committee on Rules1966 Amendment Subdivision (c).The more inclusive word terms is substituted for amount in view of the amendment to subdivision (d) authorizing releases without security on such conditions as are necessary to insure the appearance of the defendant. The phrase added at the end of this subdivision is designed to encourage commissioners and judges to set the terms of bail so as to eliminate unnecessary detention. See Stack v. Boyle Bandy v. United States Bandy v. United States Carbo v. United States Subdivision (d).The amendments are designed to make possible (and to encourage) the release on bail of a greater percentage of indigent defendants than now are released. To the extent that other considerations make it reasonably likely that the defendant will appear it is both good practice and good economics to release him on bail even though he cannot arrange for cash or bonds in even small amounts. In fact it has been suggested that it may be a denial of constitutional rights to hold indigent prisoners in custody for no other reason than their inability to raise the money for a bond. Bandy v. United States The first change authorizes the acceptance as security of a deposit of cash or government securities in an amount less than the face amount of the bond. Since a defendant typically purchases a bail bond for a cash payment of a certain percentage of the face of the bond, a direct deposit with the court of that amount (returnable to the defendant upon his appearance) will often be equally adequate as a deterrent to flight. Cf. Ill.CodeCrim.Proc.  1107 (1963). The second change authorizes the release of the defendant without financial security on his written agreement to appear when other deterrents appear reasonably adequate. See the discussion of such deterrents in Bandy v. United States For full discussion and general approval of the changes made here see Report of the Attorney Generals Committee on Poverty and the Administration of Criminal Justice 5889 (1963). Subdivision (h).The purpose of this new subdivision is to place upon the court in each district the responsibility for supervising the detention of defendants and witnesses and for eliminating all unnecessary detention. The device of the report by the attorney for the government is used because in many districts defendants will be held in custody in places where the court sits only at infrequent intervals and hence they cannot be brought personally before the court without substantial delay. The magnitude of the problem is suggested by the facts that during the fiscal year ending June 30, 1960 June 30, 1960 Notes of Advisory Committee on Rules1972 Amendment The amendments are intended primarily to bring rule 46 into general conformity with the Bail Reform Act of 1966 and to deal in the rule with some issues not now included within the rule. Subdivision (a) makes explicit that the Bail Reform Act of 1966 controls release on bail prior to trial. 18 U.S.C.  3146 refers to release of a defendant. 18 U.S.C.  3149 refers to release of a material witness. Subdivision (b) deals with an issue not dealt with by the Bail Reform Act of 1966 or explicitly in former rule 46, that is, the issue of bail during trial. The rule gives the trial judge discretion to continue the prior conditions of release or to impose such additional conditions as are adequate to insure presence at trial or to insure that his conduct will not obstruct the orderly and expeditious progress of the trial. Subdivision (c) provides for release during the period between a conviction and sentencing and for the giving of a notice of appeal or of the expiration of the time allowed for filing notice of appeal. There are situations in which defense counsel may informally indicate an intention to appeal but not actually give notice of appeal for several days. To deal with this situation the rule makes clear that the district court has authority to release under the terms of 18 U.S.C.  3148 pending notice of appeal ( e.g Subdivisions (d), (e), (f), and (g) remain unchanged. They were formerly lettered (e), (f), (g), and (h). Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The addition of subdivision (i) is one of a series of similar amendments to Rules 26.2, 32, 32.1, and Rule 8 of the Rules Governing Proceedings Under 28 U.S.C.  2255 which extend Rule 26.2 to other proceedings and hearings. As pointed out in the Committee Note to the amendment to Rule 26.2, there is continuing and compelling need to assess the credibility and reliability of information relied upon by the court, whether the witnesss testimony is being considered at a pretrial proceeding, at trial, or a post-trial proceeding. Production of a witnesss prior statements directly furthers that goal. The need for reliable information is no less crucial in a proceeding to determine whether a defendant should be released from custody. The issues decided at pretrial detention hearings are important to both a defendant and the community. For example, a defendant charged with criminal acts may be incarcerated prior to an adjudication of guilt without bail on grounds of future dangerousness which is not subject to proof beyond a reasonable doubt. Although the defendant clearly has an interest in remaining free prior to trial, the community has an equally compelling interest in being protected from potential criminal activity committed by persons awaiting trial. In upholding the constitutionality of pretrial detention based upon dangerousness, the Supreme Court in United States v. Salerno See, e.g The Committee recognized that pretrial detention hearings are often held very early in a prosecution, and that a particular witnesss statement may not yet be on file, or even known about. Thus, the amendment recognizes that in a particular case, the court may decide that good cause exists for not applying the rule. Committee Notes on Rules2002 Amendment The language of Rule 46 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Although the general rule is that an appeal to a circuit court deprives the district court of jurisdiction, Rule 46(c) recognizes the apparent exception to that rulethat the district court retains jurisdiction to decide whether the defendant should be detained, even if a notice of appeal has been filed. See, e.g., United States v. Meyers cert. denied United States v. Affleck Jago v. United States District Court See also Revised Rule 46(h) deletes the requirement that the attorney for the government file bi-weekly reports with the court concerning the status of any defendants in pretrial detention. The Committee believed that the requirement was no longer necessary in light of the Speedy Trial Act provisions. 18 U.S.C.  3161, et seq. On the other hand, the requirement that the attorney for the government file reports regarding detained material witnesses has been retained in the rule. Rule 46(i) addresses the ability of a court to order forfeiture of property where a defendant has failed to appear as required by the court. The language in the current rule, Rule 46(h), was originally included by Congress. The new language has been restyled with no change in substance or practice intended. Under this provision, the court may only forfeit property as permitted under 18 U.S.C.  3146(d) and 3142(c)(1)(B)(xi). The term appropriate sentence means a sentence that is consistent with the Sentencing Guidelines. Amendment by Public Law 1994Subd. (i)(1). Pub. L. 103322 1984Subd. (a). Pub. L. 98473,  209(d)(1) Subd. (c). Pub. L. 98473,  209(d)(2) Subd. (e)(2). Pub. L. 98473,  209(d)(3) Subd. (h). Pub. L. 98473,  209(d)(4) Effective Date of 1956 Amendment Amendment by Order of April 9, 1956 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 motionexcept when made during a trial or hearingmust 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 motionother than one that the court may hear ex parteand 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. (As amended Apr. 29, 2002 Dec. 1, 2002 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1944 1. This rule is substantially the same as the corresponding civil rule (first sentence of Rule 7(b)(1), Federal Rules of Civil Procedure) [28 U.S.C., Appendix], except that it authorizes the court to permit motions to be made orally and does not require that the grounds upon which a motion is made shall be stated with particularity, as is the case with the civil rule. 2. This rule is intended to state general requirements for all motions. For particular provisions applying to specific motions, see Rules 6(b)(2), 12, 14, 15, 16, 17(b) and (c), 21, 22, 29 and Rule 41(e). See also Rule 49. 3. The last sentence providing that a motion may be supported by affidavit is not intended to permit speaking motions (e.g. motion to dismiss an indictment for insufficiency supported by affidavits), but to authorize the use of affidavits when affidavits are appropriate to establish a fact (e.g. authority to take a deposition or former jeopardy). Committee Notes on Rules2002 Amendment The language of Rule 47 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. In Rule 47(b), the word orally has been deleted. The Committee believed, first, that the term should not act as a limitation on those who are not able to speak orally and, second, a court may wish to entertain motions through electronic or other reliable means. Deletion of the term also comports with a similar change in Rule 26, regarding the taking of testimony during trial. In place of that word, the Committee substituted the broader phrase by other means. Committee Notes on Rules2009 Amendment The time set in the former rule at 5 days, which excluded intermediate Saturdays, Sundays, and legal holidays, has been expanded to 7 days. See the Committee Note to Rule 45(a). 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 defendants consent. (b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial. (As amended Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Note to Subdivision nolle prosequi Confiscation Cases United States v. Woody 2. The rule confers the power to file a dismissal by leave of court on the Attorney General, as well as on the United States attorney, since under existing law the Attorney General exercises general superintendence and direction over the United States attorneys as to the manner of discharging their respective duties, 5 U.S.C. 317 28 U.S.C. 509 nolle prosequi 3. The rule permits the filing of a dismissal of an indictment, information or complaint. The word complaint was included in order to resolve a doubt prevailing in some districts as to whether the United States attorney may file a nolle prosequi 4. The second sentence is a restatement of existing law, Confiscation Cases United States v. Shoemaker nolle prosequi. Note to Subdivision Ex parte Altman Committee Notes on Rules2002 Amendment The language of Rule 48 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The Committee considered the relationship between Rule 48(b) and the Speedy Trial Act. See See, e.g., United States v. Goodson United States v. Carlone United States v. Balochi Rule 49. Serving and Filing Papers (a) Service on a Party. (1)  What is Required. (2)  Serving a Partys Attorney. (3)  Service by Electronic Means. (A)  Using the Courts Electronic-Filing System. (B)  Using Other Electronic Means. (4)  Service by Nonelectronic Means. (A) handing it to the person; (B) leaving it: (i) at the persons office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office or the office is closed, at the persons dwelling or usual place of abode with someone of suitable age and discretion who resides there; (C) mailing it to the persons last known addressin which event service is complete upon mailing; (D) leaving it with the court clerk if the person has no known address; or (E) delivering it by any other means that the person consented to in writingin which event service is complete when the person making service delivers it to the agency designated to make delivery. (b) Filing. (1)  When Required; Certificate of Service. (2)  Means of Filing. (A)  Electronically. (B)  Nonelectronically. (i) to the clerk; or (ii) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk. (3)  Means Used by Represented and Unrepresented Parties. (A)  Represented Party. (B)  Unrepresented Party. (4)  Signature. (5)  Acceptance by the Clerk. (c) Service and Filing by Nonparties. A nonparty may serve and file a paper only if doing so is required or permitted by law. A nonparty must serve every party as required by Rule 49(a), but may use the courts electronic-filing system only if allowed by court order or local rule. (d) Notice of a Court Order. When the court issues an order on any post-arraignment motion, the clerk must serve notice of the entry on each party as required by Rule 49(a). A party also may serve notice of the entry by the same means. Except as Federal Rule of Appellate Procedure 4(b) provides otherwise, the clerks failure to give notice does not affect the time to appeal, or relieveor authorize the court to relievea partys failure to appeal within the allowed time. (As amended Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Apr. 29, 1985 Aug. 1, 1985 Mar. 9, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 27, 1995 Dec. 1, 1995 Apr. 29, 2002 Dec. 1, 2002 Apr. 26, 2011 Dec. 1, 2011 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1944 Note to Subdivision Note to Subdivision Note to Subdivision Hill v. Hawes Note to Subdivision Notes of Advisory Committee on Rules1966 Amendment Subdivision (a).The words adverse parties in the original rule introduced a question of interpretation. When, for example, is a co-defendant an adverse party? The amendment requires service on each of the parties thus avoiding the problem of interpretation and promoting full exchange of information among the parties. No restriction is intended, however, upon agreements among co-defendants or between the defendants and the government restricting exchange of papers in the interest of eliminating unnecessary expense. Cf. the amendment made effective July 1, 1963 Subdivision (c).The words affected thereby are deleted in order to require notice to all parties. Cf. the similar change made effective July 1, 1963 The sentence added at the end of the subdivision eliminates the possibility of extension of the time to appeal beyond the provision for a 30 day extension on a showing or excusable neglect provided in Rule 37(a)(2). Cf. the similar change made in Civil Rule 77(d) effective in 1948. The question has arisen in a number of cases whether failure or delay in giving notice on the part of the clerk results in an extension of the time for appeal. The general rule has been said to be that in the event of such failure or delay the time for taking an appeal runs from the date of later actual notice or receipt of the clerks notice rather than from the date of entry of the order. Lohman v. United States Rosenbloom v. United States Wilkinson v. United States Hyche v. United States Notes of Advisory Committee on Rules1968 Amendment The amendment corrects the reference to Rule 37(a)(2), the pertinent provisions of which are contained in Rule 4(b) of the Federal Rules of Appellate Procedure. Notes of Advisory Committee on Rules1985 Amendment 18 U.S.C.  3575(a) and 21 U.S.C.  849(a), dealing respectively with dangerous special offender sentencing and dangerous special drug offender sentencing, provide for the prosecutor to file notice of such status with the court and for the court to order the notice sealed under specified circumstances, but also declare that disclosure of this notice shall not be made to the presiding judge without the consent of the parties before verdict or plea of guilty or nolo contendere. It has been noted that these provisions are regrettably unclear as to where, in fact, such notice is to be filed and that possibly filing with the chief judge is contemplated. United States v. Tramunti United States v. Gaylor United States v. Tramunti, supra. The first sentence of subdivision (e) clarifies that the filing of such notice with the court is to be accomplished by filing with the clerk of the court, which is generally the procedure for filing with the court; see subdivision (d) of this rule. Except in a district having a single judge and no United States magistrate, the clerk will then, as provided in the second sentence, transmit the notice to the chief judge or to some other judge or a United States magistrate if the chief judge is scheduled to be the presiding judge in the case, so that the determination regarding sealing of the notice may be made without the disclosure prohibited by the aforementioned statutes. But in a district having a single judge and no United States magistrate this prohibition means the clerk may not disclose the notice to the court at all until the time specified by statute. The last sentence of subdivision (e) contemplates that in such instances the clerk will seal the notice if the case falls within the local rule describing when a public record may prejudice fair consideration of a pending criminal matter, the determination called for by the aforementioned statutes. The local rule might provide, for example, that the notice is to be sealed upon motion by any party. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Notes of Advisory Committee on Rules1995 Amendment Subdivision (e) has been deleted because both of the statutory provisions cited in the rule have been abrogated. Committee Notes on Rules2002 Amendment The language of Rule 49 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Rule 49(c) has been amended to reflect proposed changes in the Federal Rules of Civil Procedure that permit (but do not require) a court to provide notice of its orders and judgments through electronic means. See Committee Notes on Rules2011 Amendment Subdivision (e) Changes Made to Proposed Amendment Released for Public Comment Committee Notes on Rules2018 Amendment Rule 49 previously required service and filing in a manner provided in a civil action. The amendments to Rule 49 move the instructions for filing and service from the Civil Rules into Rule 49. Placing instructions for filing and service in the criminal rule avoids the need to refer to two sets of rules, and permits independent development of those rules. Except where specifically noted, the amendments are intended to carry over the existing law on filing and service and to preserve parallelism with the Civil Rules. Additionally, the amendments eliminate the provision permitting electronic filing only when authorized by local rules, movingwith the Rules governing Appellate, Civil, and Bankruptcy proceedingsto a national rule that mandates electronic filing for parties represented by an attorney with certain exceptions. Electronic filing has matured. Most districts have adopted local rules that require electronic filing by represented parties, and allow reasonable exceptions as required by the former rule. The time has come to seize the advantages of electronic filing by making it mandatory in all districts for a party represented by an attorney, except that nonelectronic filing may be allowed by the court for good cause, or allowed or required by local rule. Rule 49(a)(1). Rule 49(a)(2). Rule 49(a)(3) and (4). By listing service by filing with the courts electronic-filing system first, in (3)(A), the rule now recognizes the advantages of electronic filing and service and its widespread use in criminal cases by represented defendants and government attorneys. But the e-filing system is designed for attorneys, and its use can pose many challenges for pro se parties. In the criminal context, the rules must ensure ready access to the courts by all pro se defendants and incarcerated individuals, filers who often lack reliable access to the internet or email. Although access to electronic-filing systems may expand with time, presently many districts do not allow e-filing by unrepresented defendants or prisoners. Accordingly, subsection (3)(A) provides that represented parties may serve registered users by filing with the courts electronic-filing system, but unrepresented parties may do so only if allowed by court order or local rule. Subparagraph (3)(B) permits service by other electronic means, such as email, that the person served consented to in writing. Both subparagraphs (3)(A) and (B) include the direction from Civil Rule 5 that service is complete upon e-filing or transmission, but is not effective if the serving party learns that the person to be served did not receive the notice of e-filing or the paper transmitted by other electronic means. The language mirrors Civil Rule 5(b)(2)(E). But unlike Civil Rule 5, Criminal Rule 49 contains a separate provision for service by use of the courts electronic-filing system. The rule does not make the court responsible for notifying a person who filed the paper with the courts electronic-filing system that an attempted transmission by the courts system failed. Subsection (a)(4) lists a number of traditional, nonelectronic means of serving papers, identical to those provided in Civil Rule 5. Rule 49(b)(1). The language requiring filing of papers that must be served is retained from former subdivision (d), but has been moved to subsection (1) of subdivision (b), and revised to restore the passive phrasing prior to the restyling in 2002. That restyling departed from the phrasing in Civil Rule 5(d)(1) and inadvertently limited this requirement to filing by parties. The language in former subdivision (d) that required filing in a manner provided for in a civil action has been replaced in new subsection (b)(1) by language drawn from Civil Rule 5(d)(1). That provision used to state Any paper . . . that is required to be servedtogether with a certificate of servicemust be filed within a reasonable time after service. A contemporaneous amendment to Civil Rule 5(d)(1) has subdivided this provision into two parts, one of which addresses the Certificate of Service. Although the Criminal Rules version is not subdivided in the same way, it parallels the Civil Rules provision from which it was drawn. Because within might be read as barring filing before the paper is served, no later than is substituted to ensure that it is proper to file a paper before it is served. The second sentence of subsection (b)(1), which states that no certificate of service is required when service is made using the courts electronic-filing system, mirrors the contemporaneous amendment to Civil Rule 5. When service is not made by filing with the courts electronic-filing system, a certificate of service must be filed. Rule 49(b)(2). Subsection (b)(2)(B) carries over from the Civil Rule two nonelectronic methods of filing a paper: delivery to the court clerk and delivery to a judge who agrees to accept it for filing. Rule 49(b)(3). Subsection (b)(3)(B) requires unrepresented parties to file nonelectronically, unless allowed to file electronically by court order or local rule. This language differs from that of the amended Civil Rule, which provides that an unrepresented party may be required to file electronically by a court order or local rule that allows reasonable exceptions. A different approach to electronic filing by unrepresented parties is needed in criminal cases, where electronic filing by pro se prisoners presents significant challenges. Pro se parties filing papers under the criminal rules generally lack the means to e-file or receive electronic confirmations, yet must be provided access to the courts under the Constitution. Rule 49(b)(4). Rule 49(b)(5). Rule 49(c). The rule provides that nonparties, like unrepresented parties, may use the courts electronic-filing system only when permitted to do so by court order or local rule. Rule 49(d).  References in Text The Federal Rules of Appellate Procedure, referred to in subd. (d), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 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 individuals 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 individuals birth; (3) the minors 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, 1 1 (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 petitioners 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 nonpartys 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 persons own information by filing it without redaction and not under seal. (Added Apr. 30, 2007 Dec. 1, 2007  Committee Notes on Rules2007 The rule is adopted in compliance with section 205(c)(3) of the E-Government Act of 2002, Public Law No. 107347. Section 205(c)(3) requires the Supreme Court to prescribe rules to protect privacy and security concerns relating to electronic filing of documents and the public availability . . . of documents filed electronically. The rule goes further than the E-Government Act in regulating paper filings even when they are not converted to electronic form. But the number of filings that remain in paper form is certain to diminish over time. Most districts scan paper filings into the electronic case file, where they become available to the public in the same way as documents initially filed in electronic form. It is electronic availability, not the form of the initial filing, that raises the privacy and security concerns addressed in the E-Government Act. The rule is derived from and implements the policy adopted by the Judicial Conference in September 2001 to address the privacy concerns resulting from public access to electronic case files. See While providing for the public filing of some information, such as the last four digits of an account number, the rule does not intend to establish a presumption that this information never could or should be protected. For example, it may well be necessary in individual cases to prevent remote access by nonparties to any part of an account number or social security number. It may also be necessary to protect information not covered by the redaction requirementsuch as drivers license numbers and alien registration numbersin a particular case. In such cases, protection may be sought under subdivision (d) or (e). Moreover, the Rule does not affect the protection available under other rules, such as Criminal Rule 16(d) and Civil Rules 16 and 26(c), or under other sources of protective authority. Parties must remember that any personal information not otherwise protected by sealing or redaction will be made available over the internet. Counsel should notify clients of this fact so that an informed decision may be made on what information is to be included in a document filed with the court. The clerk is not required to review documents filed with the court for compliance with this rule. The responsibility to redact filings rests with counsel and the party or nonparty making the filing. Subdivision (e) provides that the court can order in a particular case more extensive redaction than otherwise required by the Rule, where necessary to protect against disclosure to nonparties of sensitive or private information. Nothing in this subdivision is intended to affect the limitations on sealing that are otherwise applicable to the court. Subdivision (f) allows a person who makes a redacted filing to file an unredacted document under seal. This provision is derived from section 205(c)(3)(iv) of the E-Government Act. Subdivision (g) allows the option to file a register of redacted information. This provision is derived from section 205(c)(3)(v) of the E-Government Act, as amended in 2004. In accordance with the E-Government Act, subdivision (f) of the rule refers to redacted information. The term redacted is intended to govern a filing that is prepared with abbreviated identifiers in the first instance, as well as a filing in which a personal identifier is edited after its preparation. Subdivision (h) allows a person to waive the protections of the rule as to that persons own personal information by filing it unsealed and in unredacted form. One may wish to waive the protection if it is determined that the costs of redaction outweigh the benefits to privacy. If a person files an unredacted identifier by mistake, that person may seek relief from the court. Trial exhibits are subject to the redaction requirements of Rule 49.1 to the extent they are filed with the court. Trial exhibits that are not initially filed with the court must be redacted in accordance with the rule if and when they are filed as part of an appeal or for other reasons. The Judicial Conference Committee on Court Administration and Case Management has issued Guidance for Implementation of the Judicial Conference Policy on Privacy and Public Access to Electronic Criminal Case Files (March 2004). This document sets out limitations on remote electronic access to certain sensitive materials in criminal cases. It provides in part as follows: The following documents shall not be included in the public case file and should not be made available to the public at the courthouse or via remote electronic access:  unexecuted summonses or warrants of any kind ( e.g.  pretrial bail or presentence investigation reports;  statements of reasons in the judgment of conviction;  juvenile records;  documents containing identifying information about jurors or potential jurors;  financial affidavits filed in seeking representation pursuant to the Criminal Justice Act;  ex parte requests for authorization of investigative, expert or other services pursuant to the Criminal Justice Act; and  sealed documents ( e.g. To the extent that the Rule does not exempt these materials from disclosure, the privacy and law enforcement concerns implicated by the above documents in criminal cases can be accommodated under the rule through the sealing provision of subdivision (d) or a protective order provision of subdivision (e). Changes Made to Proposed Amendment Released for Public Comment A number of revisions were made in all of the e-government rules. These include: (1) using of the term individual rather than person where possible, (2) clarifying that the responsibility for redaction lies with the person making the filing, (3) rewording the exemption from redaction for information necessary to identify property subject to forfeiture, so that it is clearly applicable in ancillary proceedings related to forfeiture, and (4) rewording the exemption from redaction for judicial decisions that were not subject to redaction when originally filed. Additionally, some changes of a technical or stylistic nature (involving matters such as hyphenation and the use of a or the) were made to achieve clarity as well as consistency among the various e-government rules. Two changes were made to the provisions concerning actions under  2241, 2254, and 2255, which the published rule exempted from the redaction requirement. First, in response to criticism that the original exemption was unduly broad, the Committee limited the exemption to pro se filings in these actions. Second, a new subdivision (c) was added to provide that all actions under  2241 in which immigration claims were made would be governed exclusively by Civil Rule 5.2. This change (which was made after the Advisory Committee meeting) was deemed necessary to ensure consistency in the treatment of redaction and public access to records in immigration cases. The addition of the new subdivision required renumbering of the subdivisions designated as (c) to (g) at the time of publication. The provision governing protective orders was revised to employ the flexible cause shown standard that governs protective orders under the Federal Rules of Civil Procedure. Finally, language was added to the Note clarifying the impact of the CACM policy that is reprinted in the Note: if the materials enumerated in the CACM policy are not exempt from disclosure under the rule, the sealing and protective order provisions of the rule are applicable.  References in Text The Federal Rules of Civil Procedure, referred to in subd. (c), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Rule 50. Prompt Disposition  Scheduling preference must be given to criminal proceedings as far as practicable. (As amended Apr. 24, 1972 Oct. 1, 1972 Mar. 18, 1974 July 1, 1974 July 8, 1976 Aug. 1, 1976 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 This rule is a restatement of the inherent residual power of the court over its own calendars, although as a matter of practice in most districts the assignment of criminal cases for trial is handled by the United States attorney. Cf. Federal Rules of Civil Procedure, Rules 40 and 78 [28 U.S.C., Appendix]. The direction that preference shall be given to criminal proceedings as far as practicable is generally recognized as desirable in the orderly administration of justice. Notes of Advisory Committee on Rules1972 Amendment The addition to the rule proposed by subdivision (b) is designed to achieve the more prompt disposition of criminal cases. Preventing undue delay in the administration of criminal justice has become an object of increasing interest and concern. This is reflected in the Congress. See, e.g., 116 Cong.Rec. S729197 (daily ed. May 18, 1970 Proposals for dealing with the problem of delay have also been made by the Presidents Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts (1967) especially pp. 8490, and by the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Speedy Trial (Approved Draft, 1968). Both recommend specific time limits for each stage in the criminal process as the most effective way of achieving prompt disposition of criminal cases. See also Note, Nevadas 1967 Criminal Procedure Law from Arrest to Trial: One States Response to a Widely Recognized Need, 1969 Utah L.Rev. 520, 542 no. 114. Historically, the right to a speedy trial has been thought of as a protection for the defendant. Delay can cause a hardship to a defendant who is in custody awaiting trial. Even if afforded the opportunity for pretrial release, a defendant nonetheless is likely to suffer anxiety during a period of unwanted delay, and he runs the risk that his memory and those of his witnesses may suffer as time goes on. Delay can also adversely affect the prosecution. Witnesses may lose interest or disappear or their memories may fade thus making them more vulnerable to cross-examination. See Note, The Right to a Speedy Criminal Trial, 57 Colum.L.Rev. 846 (1957). There is also a larger public interest in the prompt disposition of criminal cases which may transcend the interest of the particular prosecutor, defense counsel, and defendant. Thus there is need to try to expedite criminal cases even when both prosecution and defense may be willing to agree to a continuance or continuances. It has long been said that it is the certain and prompt imposition of a criminal sanction rather than its severity that has a significant deterring effect upon potential criminal conduct. See Banfield and Anderson, Continuances in the Cook County Criminal Courts, 35 U.Chi.L.Rev. 259, 25963 (1968). Providing specific time limits for each stage of the criminal justice system is made difficult, particularly in federal courts, by the widely varying conditions which exist between the very busy urban districts on the one hand and the far less busy rural districts on the other hand. In the former, account must be taken of the extremely heavy caseload, and the prescription of relatively short time limits is realistic only if there is provided additional prosecutorial and judicial manpower. In some rural districts, the availability of a grand jury only twice a year makes unrealistic the provision of short time limits within which an indictment must be returned. This is not to say that prompt disposition of criminal cases cannot be achieved. It means only that the achieving of prompt disposition may require solutions which vary from district to district. Finding the best methods will require innovation and experimentation. To encourage this, the proposed draft mandates each district court to prepare a plan to achieve the prompt disposition of criminal cases in the district. The method prescribed for the development and approval of the district plans is comparable to that prescribed in the Jury Selection and Service Act of 1968, 28 U.S.C.  1863(a). Each plan shall include rules which specify time limits and a means for reporting the status of criminal cases. The appropriate length of the time limits is left to the discretion of the individual district courts. This permits each district court to establish time limits that are appropriate in light of its criminal caseload, frequency of grand jury meetings, and any other factors which affect the progress of criminal actions. Where local conditions exist which contribute to delay, it is contemplated that appropriate efforts will be made to eliminate those conditions. For example, experience in some rural districts demonstrates that grand juries can be kept on call thus eliminating the grand jury as a cause for prolonged delay. Where manpower shortage is a major cause for delay, adequate solutions will require congressional action. But the development and analysis of the district plans should disclose where manpower shortages exist; how large the shortages are; and what is needed, in the way of additional manpower, to achieve the prompt disposition of criminal cases. The district court plans must contain special provision for prompt disposition of cases in which there is reason to believe that the pretrial liberty of a defendant poses danger to himself, to any other person, or to the community. Prompt disposition of criminal cases may provide an alternative to the pretrial detention of potentially dangerous defendants. See 116 Cong.Rec. S729197 (daily ed. May 18, 1970 Approval of the original plan and any subsequent modification must be obtained from a reviewing panel made up of one judge from the district submitting the plan (either the chief judge or another active judge appointed by him) and the members of the judicial council of the circuit. The makeup of this reviewing panel is the same as that provided by the Jury Selection and Service Act of 1968, 28 U.S.C.  1863(a). This reviewing panel is also empowered to direct the modification of a district court plan. The Circuit Court of Appeals for the Second Circuit recently adopted a set of rules for the prompt disposition of criminal cases. See 8 Cr.L. 2251 ( Jan. 13, 1971 July 5, 1971 Notes of Advisory Committee on Rules1974 Amendment The amendment designates the first paragraph of Rule 50 as subdivision (a) entitled Calendars, in view of the recent addition of subdivision (b) to the rule. Notes of Advisory Committee on Rules1976 Amendment This amendment to rule 50(b) takes account of the enactment of The Speedy Trial Act of 1974, 18 U.S.C.  31523156, 31613174. As the various provisions of the Act take effect, see 18 U.S.C.  3163, they and the district plans adopted pursuant thereto will supplant the plans heretofore adopted under rule 50(b). The first such plan must be prepared and submitted by each district court before July 1, 1976 That part of rule 50(b) which sets out the necessary contents of district plans has been deleted, as the somewhat different contents of the plans required by the Act are enumerated in 18 U.S.C.  3166. That part of rule 50(b) which describes the manner in which district plans are to be submitted, reviewed, modified and reported upon has also been deleted, for these provisions now appear in 18 U.S.C.  3165(c) and (d). Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment The language of Rule 50 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The first sentence in current Rule 50(a), which says that a court may place criminal proceedings on a calendar, has been deleted. The Committee believed that the sentence simply stated a truism and was no longer necessary. Current Rule 50(b), which simply mirrors 18 U.S.C.  3165, has been deleted in its entirety. The rule was added in 1971 to meet congressional concerns in pending legislation about deadlines in criminal cases. Provisions governing deadlines were later enacted by Congress and protections were provided in the Speedy Trial Act. The Committee concluded that in light of those enactments, Rule 50(b) was no longer necessary. Effective Date of 1976 Amendment Amendment of subd. (b) by the order of the United States Supreme Court of Apr. 26, 1976 Aug. 1, 1976 section 1 of Pub. L. 94349 July 8, 1976 90 Stat. 822 section 2074 of Title 28 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 courtwhen the court ruling or order is made or soughtof the action the party wishes the court to take, or the partys objection to the courts action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103. (As amended Mar. 9, 1987 Aug. 1, 1987 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 1. This rule is practically identical with Rule 46 of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. It relates to a matter of trial practice which should be the same in civil and criminal cases in the interest of avoiding confusion. The corresponding civil rule has been construed in Ulm v. Moore-McCormack Lines, Inc Bucy v. Nevada Construction Company 2. Many States have abolished the use of exceptions in criminal and civil cases. See, e.g., Cal.Pen. Code (Deering, 1941), sec. 1259; Mich.Stat.Ann. (Henderson, 1938), secs. 28.1046, 28.1053; Ohio Gen Code Ann. (Page, 1938), secs. 11560, 134427; Oreg.Comp. Laws Ann. (1940), secs. 5704, 261001. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 51 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The Rule includes a new sentence that explicitly states that any rulings regarding evidence are governed by Federal Rule of Evidence 103. The sentence was added because of concerns about the Supersession Clause, 28 U.S.C.  2072(b), of the Rules Enabling Act, and the possibility that an argument might have been made that Congressional approval of this rule would supersede that Rule of Evidence.  References in Text The Federal Rules of Evidence, referred to in subd. (b), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 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 courts attention. (As amended Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Note to Subdivision Note to Subdivision Wiborg v. United States Hemphill v. United States Committee Notes on Rules2002 Amendment The language of Rule 52 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 52(b) has been amended by deleting the words or defect after the words plain error. The change is intended to remove any ambiguity in the rule. As noted by the Supreme Court, the language plain error or defect was misleading to the extent that it might be read in the disjunctive. See United States v. Olano United States v. Young Rule 53. Courtroom Photographing and Broadcasting Prohibited  Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom. (As amended Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 While the matter to which the rule refers has not been a problem in the Federal courts as it has been in some State tribunals, the rule was nevertheless included with a view to giving expression to a standard which should govern the conduct of judicial proceedings, Orfield, 22 Texas L.R. 194, 2223; Robbins, 21 A.B.A.Jour. 301, 304. See, also, Report of the Special Committee on Cooperation between Press, Radio and Bar, as to Publicity Interfering with Fair Trial of Judicial and Quasi-Judicial Proceedings Id Id Committee Notes on Rules2002 Amendment The language of Rule 53 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Although the word radio has been deleted from the rule, the Committee does not believe that the amendment is a substantive change but rather one that accords with judicial interpretation applying the current rule to other forms of broadcasting and functionally equivalent means. See, e.g., United States v. Hastings United States v. McVeigh Also, although the revised rule does not explicitly recognize exceptions within the rules themselves, the restyled rule recognizes that other rules might permit, for example, video teleconferencing, which clearly involves broadcasting of the proceedings, even if only for limited purposes. Rule 54. [Transferred] 1 1  Committee Notes on Rules2002 Amendment Certain provisions in current Rule 54 have been moved to revised Rule 1 as part of a general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Other provisions in Rule 54 have been deleted as being unnecessary. Rule 55. Records  The clerk of the district court must keep records of criminal proceedings in the form prescribed by the Director of the Administrative Office of the United States Courts. The clerk must enter in the records every court order or judgment and the date of entry. (As amended Dec. 27, 1948 Oct. 20, 1949 Feb. 28, 1966 July 1, 1966 Apr. 24, 1972 Oct. 1, 1972 Apr. 28, 1983 Aug. 1, 1983 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 The Federal Rules of Civil Procedure Rule 79 [28 U.S.C., Appendix], prescribed in detail the books and records to be kept by the clerk in civil cases. Subsequently to the effective date of the civil rules, however, the Act establishing the Administrative Office of the United States Courts became law (Act of August 7, 1939 53 Stat. 1223 28 U.S.C. 444450 28 U.S.C. 446 Notes of Advisory Committee on Rules1948 Amendment To incorporate nomenclature provided for by Revised Title 28 U.S.C.,  331. Notes of Advisory Committee on Rules1966 Amendment Rule 37(a)(2) provides that for the purpose of commencing the running of the time for appeal a judgment or order is entered when it is entered in the criminal docket. The sentence added here requires that such a docket be kept and that it show the dates on which judgments or orders are entered therein. Cf. Civil Rule 79(a). Notes of Advisory Committee on Rules1983 Amendment The Advisory Committee Note to original Rule 55 observes that, in light of the authority which the Director and Judicial Conference have over the activities of clerks, it seems best not to prescribe the records to be kept by clerks. Because of current experimentation with automated record-keeping, this approach is more appropriate than ever before. The amendment will make it possible for the Director to permit use of more sophisticated record-keeping techniques, including those which may obviate the need for a criminal docket book. The reference to the Judicial Conference has been stricken as unnecessary. See 28 U.S.C.  604. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Committee Notes on Rules2002 Amendment The language of Rule 55 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. 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 clerks officewith the clerk or a deputy in attendancemust 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 clerks office will be open for specified hours on Saturdays or legal holidays other than those set aside by statute for observing New Years Day, Martin Luther King Jr.s Birthday, Washingtons Birthday, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. (As amended Dec. 27, 1948 Oct. 20, 1949 Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Mar. 1, 1971 July 1, 1971 Apr. 25, 1988 Aug. 1, 1988 Apr. 29, 2002 Dec. 1, 2002 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1944 1. The first sentence of this rule is substantially the same as Rule 77(a) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix], except that it is applicable to circuit courts of appeals as well as to district courts. 2. In connection with this rule, see 28 U.S.C. [former] 14 (Monthly adjournments for trial of criminal causes) and sec. 15 [now 141] (Special terms). These sections indicate a policy of avoiding the hardships consequent upon a closing of the court during vacations, Abbott v. Brown 3. The second sentence of the rule is identical with the first sentence of Rule 77(c) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. 4. The term legal holidays includes Federal holidays as well as holidays prescribed by the laws of the State where the clerks office is located. Notes of Advisory Committee on Rules1948 Amendment To incorporate nomenclature provided for by Revised Title 28, U.S.C.  43(a). Notes of Advisory Committee on Rules1966 Amendment The change is in conformity with the changes made in Rule 45. See the similar changes in Civil Rule 77(c) made effective July 1, 1963 Notes of Advisory Committee on Rules1968 Amendment The provisions relating to courts of appeals are included in Rule 47 of the Federal Rules of Appellate Procedure. Notes of Advisory Committee on Rules1971 Amendment The amendment adds Columbus Day to the list of legal holidays. See the Note accompanying the amendment of Rule 45(a). Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2002 Amendment The language of Rule 56 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2023 Amendment The amendment adds Juneteenth National Independence Day to the list of legal holidays. See Juneteenth National Independence Day Act, P.L. 11717 Rule 57. District Court Rules (a) In General. (1)  Adopting Local Rules. (2)  Limiting Enforcement. (b) Procedure When There Is No Controlling Law. A judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local district rules unless the alleged violator was furnished with actual notice of the requirement before the noncompliance. (c) Effective Date and Notice. A local rule adopted under this rule takes effect on the date specified by the district court and remains in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of local rules and their amendments, when promulgated, must be furnished to the judicial council and the Administrative Office of the United States Courts and must be made available to the public. (As amended Dec. 27, 1948 Oct. 20, 1949 Dec. 4, 1967 July 1, 1968 Apr. 29, 1985 Aug. 1, 1985 Apr. 22, 1993 Dec. 1, 1993 Apr. 27, 1995 Dec. 1, 1995 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1944 Note to Subdivision 28 U.S.C. 731 Note to Subdivision Sibbach v. Wilson 2. While the rules are intended to constitute a comprehensive procedural code for criminal cases in the Federal courts, nevertheless it seemed best not to endeavor to prescribe a uniform practice as to some matters of detail, but to leave the individual courts free to regulate them, either by local rules or by usage. Among such matters are the mode of impaneling a jury, the manner and order of interposing challenges to jurors, the manner of selecting the foreman of a trial jury, the matter of sealed verdicts, the order of counsels arguments to the jury, and other similar details. Notes of Advisory Committee on Rules1948 Amendment To incorporate nomenclature provided for by Revised Title 28, U.S.C.,  43(a). Notes of Advisory Committee on Rules1968 Amendment The provisions relating to the court of appeals are included in Rule 47 of the Federal Rules of Appellate Procedure. Notes of Advisory Committee on Rules1985 Amendment Rule 57 has been reformulated to correspond to Fed.R.Civ.P. 83, including the proposed amendments thereto. The purpose of the reformulation is to emphasize that the procedures for adoption of local rules by a district court are the same under both the civil and the criminal rules. In particular, the major purpose of the reformulation is to enhance the local rulemaking process by requiring appropriate public notice of proposed rules and an opportunity to comment on them. See Committee Note to Fed.R.Civ.P. 83. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Notes of Advisory Committee on Rules1995 Amendment Subdivision (a) The amendment also requires that the numbering of local rules conform with any numbering system that may be prescribed by the Judicial Conference. Lack of uniform numbering might create unnecessary traps for counsel and litigants. A uniform numbering system would make it easier for an increasingly national bar to locate a local rule that applies to a particular procedural issue. Paragraph (2) is new. Its aim is to protect against loss of rights in the enforcement of local rules relating to matters of form. The proscription of paragraph (2) is narrowly drawncovering only nonwillful violations and only those involving local rules directed to matters of form. It does not limit the courts power to impose substantive penalties upon a party if it or its attorney stubbornly or repeatedly violates a local rule, even one involving merely a matter of form. Nor does it affect the courts power to enforce local rules that involve more than mere matters of formfor example, a local rule requiring that the defendant waive a jury trial within a specified time. Subdivision (b) There should be no adverse consequence to a party or attorney for violating special requirements relating to practice before a particular judge unless the party or attorney has actual notice of those requirements. Furnishing litigants with a copy outlining the judges practicesor attaching instructions to a notice setting a case for conference or trialwould suffice to give actual notice, as would an order in a case specifically adopting by reference a judges standing order and indicating how copies can be obtained. Committee Notes on Rules2002 Amendment The language of Rule 57 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 58. Petty Offenses and Other Misdemeanors (a) Scope. (1)  In General. (2)  Petty Offense Case Without Imprisonment. (3)  Definition. (b) Pretrial Procedure. (1)  Charging Document. (2)  Initial Appearance. (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 counselunless the charge is a petty offense for which the appointment of counsel is not required; (D) the defendants 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 judgeunless: (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 judgeunless the charge is a petty offense; (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; and (H) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendants country of nationality that the defendant has been arrestedbut that even without the defendants request, a treaty or other international agreement may require consular notification. (3)  Arraignment. (A)  Plea Before a Magistrate Judge (B)  Failure to Consent (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. (2)  Waiving Venue. (A)  Conditions of Waiving Venue (B)  Effect of Waiving Venue (3)  Sentencing. (4)  Notice of a Right to Appeal. (d) Paying a Fixed Sum in Lieu of Appearance. (1)  In General. (2)  Notice to Appear. (3)  Summons or Warrant. (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 Judges Order or Judgment. (2)  From a Magistrate Judges Order or Judgment. (A)  Interlocutory Appeal. (B)  Appeal from a Conviction or Sentence. (C)  Record (D)  Scope of Appeal (3)  Stay of Execution and Release Pending Appeal. (Added May 1, 1990 Dec. 1, 1990 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 11, 1997 Dec. 1, 1997 Apr. 29, 2002 Dec. 1, 2002 Apr. 12, 2006 Dec. 1, 2006 Mar. 26, 2009 Dec. 1, 2009 Apr. 25, 2014 Dec. 1, 2014  Notes of Advisory Committee on Rules1990 This new rule is largely a restatement of the Rules of Procedure for the Trial of Misdemeanors before United States Magistrates which were promulgated in 1980 to replace the Rules for the Trial of Minor Offenses before United States Magistrates (1970). The Committee believed that a new single rule should be incorporated into the Rules of Criminal Procedure where those charged with its execution could readily locate it and realize its relationship with the other Rules. A number of technical changes have been made throughout the rule and unless otherwise noted, no substantive changes were intended in those amendments. The Committee envisions no major changes in the way in which the trial of misdemeanors and petty offenses are currently handled. The title of the rule has been changed by deleting the phrase Before United States Magistrates to indicate that this rule may be used by district judges as well as magistrates. The phrase and Petty Offenses has been added to the title and elsewhere throughout the rule because the term misdemeanor does not include an infraction. See Subdivision (a) supra Subdivision (b) Subdivision (b)(2) Subdivision (b)(3)(A) See Subdivision (c) supra See, e.g., United States v. Shaw affmd Cf Subdivision (d) Subdivision (e) Subdivision (f) Subdivision (g) The new rule does not include Magistrates Rules 8 and 9. Rule 8 has been deleted because the subject of local rules is covered in Rule 57. Rule 9, which defined a petty offense, is now covered in 18 U.S.C.  19. Notes of Advisory Committee on Rules1991 Amendment The amendments are technical. No substantive changes are intended. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [ P.L. 101650, Title III section 631 of title 28 Notes of Advisory Committee on Rules1997 Amendment The Federal Courts Improvement Act of 1996, Sec. 202, amended 18 U.S.C.  3401(b) and 28 U.S.C.  636(a) to remove the requirement that a defendant must consent to a trial before a magistrate judge in a petty offense that is a class B misdemeanor charging a motor vehicle offense, a class C misdemeanor, or an infraction. Section 202 also changed 18 U.S.C.  3401(b) to provide that in all other misdemeanor cases, the defendant may consent to trial either orally on the record or in writing. The amendments to Rule 58(b)(2) and (3) conform the rule to the new statutory language and include minor stylistic changes. Committee Notes on Rules2002 Amendment The language of Rule 58 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The title of the rule has been changed to Petty Offenses and Other Misdemeanors. In Rule 58(c)(2)(B) (regarding waiver of venue), the Committee amended the rule to require that the district clerk, instead of the magistrate judge, inform the original district clerk if the defendant waives venue and the prosecution proceeds in the district where the defendant was arrested. The Committee intends no change in practice. In Rule 58(g)(1) and (g)(2)(A), the Committee deleted as unnecessary the word decision because its meaning is covered by existing references to an order, judgment, or sentence by a district judge or magistrate judge. In the Committees view, deletion of that term does not amount to a substantive change. Committee Notes on Rules2006 Amendment Subdivision (b)(2)(G). Changes Made After Publication and Comment. Committee Notes on Rules2009 Amendment The times set in the former rule at 10 days have been revised to 14 days. See the Committee Note to Rule 45(a). Committee Notes on Rules2014 Amendment Rule 58(b)(2)(H). Providing this advice at the initial appearance is designed, not to relieve law enforcement officers of that responsibility, but to provide additional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of that action. The Committee concluded that the most effective and efficient method of conveying this information is to provide it to every defendant, without attempting to determine the defendants citizenship. At the time of this amendment, many questions remain unresolved by the courts concerning Article 36, including whether it creates individual rights that may be invoked in a judicial proceeding and what, if any, remedy may exist for a violation of Article 36. Sanchez-Llamas v. Oregon Changes Made After Publication and Comment.  References in Text The Federal Rules of Appellate Procedure, referred to in subd. (g)(1), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 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 partys right to review. (b) Dispositive Matters. (1)  Referral to Magistrate Judge. (2)  Objections to Findings and Recommendations. (3)  De Novo Review of Recommendations. (Added Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009  Committee Notes on Rules2002 Rule 59, which dealt with the effective date of the Federal Rules of Criminal Procedure, is no longer necessary and has been deleted. Committee Notes on Rules2005 Rule 59 is a new rule that creates a procedure for a district judge to review nondispositive and dispositive decisions by magistrate judges. The rule is derived in part from Federal Rule of Civil Procedure 72. The Committees consideration of a new rule on the subject of review of a magistrate judges decisions resulted from United States v. Abonce-Barrera Rule 59(a) sets out procedures to be used in reviewing nondispositive matters, that is, those matters that do not dispose of the case. The rule requires that if the district judge has referred a matter to a magistrate judge, the magistrate judge must issue an oral or written order on the record. To preserve the issue for further review, a party must object to that order within 10 days after being served with a copy of the order or after the oral order is stated on the record or at some other time set by the court. If an objection is made, the district court is required to consider the objection. If the court determines that the magistrate judges order, or a portion of the order, is contrary to law or is clearly erroneous, the court must set aside the order, or the affected part of the order. See also Rule 59(b) provides for assignment and review of recommendations made by magistrate judges on dispositive matters, including motions to suppress or quash an indictment or information. The rule directs the magistrate judge to consider the matter promptly, hold any necessary evidentiary hearings, and enter his or her recommendation on the record. After being served with a copy of the magistrate judges recommendation, under Rule 59(b)(2), the parties have a period of 10 days to file any objections. If any objections are filed, the district court must consider the matter de novo and accept, reject, or modify the recommendation, or return the matter to the magistrate judge for further consideration. Both Rule 59(a) and (b) contain a provision that explicitly states that failure to file an objection in accordance with the rule amounts to a waiver of the issue. This waiver provision is intended to establish the requirements for objecting in a district court in order to preserve appellate review of magistrate judges decisions. In Thomas v. Arn Peretz v. United States Despite the waiver provisions, the district judge retains the authority to review any magistrate judges decision or recommendation whether or not objections are timely filed. This discretionary review is in accord with the Supreme Courts decision in Thomas v. Arn, supra See also Matthews v. Weber Although the rule distinguishes between dispositive and nondispositive matters, it does not attempt to define or otherwise catalog motions that may fall within either category. Instead, that task is left to the case law. Changes Made After Publication and Comment Committee Notes on Rules2009 Amendment The times set in the former rule at 10 days have been revised to 14 days. See the Committee Note to Rule 45(a). Rule 60. Victims Rights (a) In General. (1)  Notice of a Proceeding. (2)  Attending the Proceeding. (3)  Right to Be Heard on Release, a Plea, or Sentencing. (b) Enforcement and Limitations. (1)  Time for Deciding a Motion. (2)  Who May Assert the Rights. 1 1 (3)  Multiple Victims. (4)  Where Rights May Be Asserted. (5)  Limitations on Relief. (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. (Added Apr. 23, 2008 Dec. 1, 2008  Committee Notes on Rules2008 This rule implements several provisions of the Crime Victims Rights Act, codified at 18 U.S.C.  3771, in judicial proceedings in the federal courts. Subdivision (a)(1) See Subdivision (a)(2) Rule 615 of the Federal Rules of Evidence addresses the sequestration of witnesses. Although Rule 615 requires the court upon the request of a party to order the witnesses to be excluded so they cannot hear the testimony of other witnesses, it contains an exception for a person authorized by statute to be present. Accordingly, there is no conflict between Rule 615 and this rule, which implements the provisions of the Crime Victims Rights Act. Subdivision (a)(3) Subdivision (b) The statute provides that those rights are to be asserted in the district court where the defendant is being prosecuted (or if no prosecution is underway, in the district where the crime occurred). Where there are too many victims to accord each the rights provided by the statute, the district court is given the authority to fashion a reasonable procedure to give effect to the rights without unduly complicating or prolonging the proceedings. Finally, the statute and the rule make it clear that failure to provide relief under the rule never provides a basis for a new trial. Failure to afford the rights provided by the statute and implementing rules may provide a basis for re-opening a plea or a sentence, but only if the victim can establish all of the following: the victim asserted the right before or during the proceeding, the right was denied, the victim petitioned for mandamus within 10 days as provided by 18 U.S.C.  3771(d)(5)(B), andin the case of a pleathe defendant did not plead guilty to the highest offense charged. Changes Made to Proposed Amendment Released for Public Comment Subdivision(b)(2) was revised to respond to concerns that the amendments did not clearly state that the victims lawful representative could assert the victims rights. The Committee Note makes it clear that a victim or the lawful representative of a victim may generally participate through counsel, and provides that any other person authorized by 18 U.S.C. 3771(d) and (e) may assert the victims rights, such as persons authorized to raise the rights of victims who are minors or are incompetent. References throughout subdivision (b) were revised to indicate that they were applicable to the victims rights described in the Federal Rules of Criminal Procedure, not merely subdivision (a) of Rule 60. Other minor changes were made at the suggestion of the Style Consultant to improve clarity.  References in Text 18 U.S.C.  3771(e), referred to in subd. (b)(2), was redesignated 18 U.S.C.  3771(e)(2) by Pub. L. 11422, title I,  113(a)(3)(A) May 29, 2015 129 Stat. 240 Rule 61. Title  These rules may be known and cited as the Federal Rules of Criminal Procedure. (As amended Apr. 29, 2002 Dec. 1, 2002 Apr. 23, 2008 Dec. 1, 2008  Short Title of 2020 Amendment Pub. L. 116182,  1 Oct. 21, 2020 134 Stat. 894 This Act [amending rule 5 of these rules] may be cited as the Due Process Protections Act. Short Title of 1975 Amendment Pub. L. 9464,  1 July 31, 1975 89 Stat. 370 That this Act [amending rules 4, 9, 11, 12, 12.1, 12.2, 15, 16, 17, 20, 32 and 43 of these rules and enacting provisions set out as a note under rule 4] may be cited as the Federal Rules of Criminal Procedure Amendments Act of 1975. Notes of Advisory Committee on Rules1944 This rule is similar to Rule 85 of the Federal Rules of Civil Procedure [28 U.S.C., Appendix], which reads as follows: These rules may be known and cited as the Federal Rules of Civil Procedure. Committee Notes on Rules2002 Amendment No changes have been made to Rule 60, as a result of the general restyling of the Criminal Rules. Committee Notes on Rules2008 Amendment Excerpt from Report of the Advisory Committee on Federal Rules of Criminal Procedure Changes Made to Proposed Amendment Released for Public Comment Rule 62. Criminal Rules Emergency (a) Conditions for an Emergency. The Judicial Conference of the United States may declare a Criminal Rules emergency if it determines that: (1) extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, substantially impair the courts ability to perform its functions in compliance with these rules; and (2) no feasible alternative measures would sufficiently address the impairment within a reasonable time. (b) Declaring an Emergency. (1)  Content. (A) designate the court or courts affected; (B) state any restrictions on the authority granted in (d) and (e); and (C) be limited to a stated period of no more than 90 days. (2)  Early Termination. (3)  Additional Declarations. (c) Continuing a Proceeding After a Termination. Termination of a declaration for a court ends its authority under (d) and (e). But if a particular proceeding is already underway and resuming compliance with these rules for the rest of the proceeding would not be feasible or would work an injustice, it may be completed with the defendants consent as if the declaration had not terminated. (d) Authorized Departures from These Rules After a Declaration. (1)  Public Access to a Proceeding. (2)  Signing or Consenting for a Defendant. (3)  Alternate Jurors. (4)  Correcting or Reducing a Sentence. (e) Authorized Use of Videoconferencing and Teleconferencing After a Declaration. (1)  Videoconferencing for Proceedings Under Rules 5, 10, 40, and 43(b)(2). (2)  Videoconferencing for Certain Proceedings at Which the Defendant Has a Right to Be Present. (A) the districts chief judge finds that emergency conditions substantially impair a courts ability to hold in-person proceedings in the district within a reasonable time; (B) the court finds that the defendant will have an adequate opportunity to consult confidentially with counsel before and during the proceeding; and (C) the defendant consents after consulting with counsel. (3)  Videoconferencing for Felony Pleas and Sentencings. (A) the districts chief judge finds that emergency conditions substantially impair a courts ability to hold in-person felony pleas and sentencings in the district within a reasonable time; (B) the defendant, before the proceeding and after consulting with counsel, consents in a writing signed by the defendant that the proceeding be conducted by videoconferencing; and (C) the court finds that further delay in that particular case would cause serious harm to the interests of justice. (4)  Teleconferencing by One or More Participants. (A) the requirements under any applicable rule, including this rule, for conducting the proceeding by videoconferencing have been met; (B) the court finds that: (i) videoconferencing is not reasonably available for any person who would participate by teleconference; and (ii) the defendant will have an adequate opportunity to consult confidentially with counsel before and during the proceeding if held by teleconference; and (C) the defendant consents. (Added Apr. 24, 2023 Dec. 1, 2023  Committee Notes on Rules2023 Subdivision (a) The rules have been promulgated under the Rules Enabling Act and carefully designed to protect constitutional and statutory rights and other interests. Any authority to depart from the rules must be strictly limited. Compliance with the rules cannot be cast aside because of cost or convenience, or without consideration of alternatives that would permit compliance to continue. Subdivision (a) narrowly restricts the conditions that would permit a declaration granting emergency authority to depart from the rules and defines who may make that declaration. First, subdivision (a) specifies that the power to declare a rules emergency rests solely with the Judicial Conference of the United States, the governing body of the judicial branch. To find that a rules emergency exists, the Judicial Conference will need information about the ability of affected courts to comply with the rules, as well as the existence of reasonable alternatives to continue court functions in compliance with the rules. The judicial council of a circuit, for example, may be able to provide helpful information it has received from judges within the circuit regarding local conditions and available resources. Paragraph (a)(1) requires that before declaring a Criminal Rules emergency, the Judicial Conference must determine that circumstances are extraordinary and that they relate to public health or safety or affect physical or electronic access to a court. These requirements are intended to prohibit the use of this emergency rule to respond to other challenges, such as those arising from staffing or budget issues. Second, those extraordinary circumstances must substantially impair the ability of a court to perform its functions in compliance with the rules. In addition, paragraph (a)(2) requires that even if the Judicial Conference determines the extraordinary circumstances defined in (a)(1), it cannot declare a Criminal Rules emergency unless it also determines that no feasible alternative measures would sufficiently address the impairment and allow the affected court to perform its functions in compliance with the rules within a reasonable time. For example, in the districts devastated by hurricanes Katrina and Maria, the ability of courts to function in compliance with the rules was substantially impaired for extensive periods of time. But there would have been no Criminal Rules emergency under this rule because those districts were able to remedy that impairment and function effectively in compliance with the rules by moving proceedings to other districts under 28 U.S.C.  141. Another example might be a situation in which the judges in a district are unable to carry out their duties as a result of an emergency that renders them unavailable, but courthouses remain safe. The unavailability of judges would substantially impair that courts ability to function in compliance with the rules, but temporary assignment of judges from other districts under 28 U.S.C.  292(b) and (d) would eliminate that impairment. Subdivision (a) also recognizes that emergency circumstances may affect only one or a small number of courtsfamiliar examples include hurricanes, floods, explosions, or terroristic threatsor may have widespread impact, such as a pandemic or a regional disruption of electronic communications. This rule provides a uniform procedure that is sufficiently flexible to accommodate different types of emergency conditions with local, regional, or nationwide impact. Paragraph (b)(1) Subparagraph (b)(1)(B) provides that the Judicial Conferences declaration of a Criminal Rules emergency must state any restrictions on the authority granted by subdivisions (d) and (e) to depart from the rules. For example, if the emergency arises from a disruption in electronic communications, there may be no reason to authorize videoconferencing for proceedings in which the rules require in-person appearance. But (b)(1)(B) does not allow a declaration to expand departures from the rules beyond those authorized by subdivisions (d) and (e). Under (b)(1)(C), each declaration must state when it will terminate, which may not exceed 90 days from the date of the declaration. This sunset clause is included to ensure that these extraordinary deviations from the rules last no longer than necessary. Paragraph (b)(2) Paragraph (b)(3) Subdivision (c) Subdivisions (d) and (e) Paragraph (d)(1) The duty arises only when the substantial impairment of in-person access by the public is caused by emergency conditions. The rule does not apply when reasons other than emergency conditions restrict access. The duty arises not only when emergency conditions substantially impair the attendance of anyone, but also when conditions would allow participants but not the public to attend, as when capacity must be restricted to prevent contagion. Alternative access must be contemporaneous when feasible. For example, if public health conditions limit courtroom capacity, contemporaneous transmission to an overflow courthouse space ordinarily could be provided. When providing reasonable alternative access, courts must comply with the constitutional guarantees of public access and any applicable statutory provision, including the Crime Victims Rights Act, 18 U.S.C.  3771. Paragraph (d)(2) The court may sign for a pro se defendant, if that defendant consents on the record. There is no provision for the court to sign for a counseled defendant, even if the defendant provides consent on the record. The Committee concluded that rules requiring the defendants signature, written consent, or written waiver protect important rights, and permitting the judge to bypass defense counsel and sign once the defendant agrees could result in a defendant perceiving pressure from the judge to sign. Requiring a writing from defense counsel is an essential protection when the defendants own signature is not reasonably available because of emergency conditions. It is generally helpful for the court to conduct a colloquy with the defendant to ensure that defense counsel consulted with the defendant with regard to the substance and import of the pleading or document being signed, and that the consent to allow counsel to sign was knowing and voluntary. Paragraph (d)(3) Paragraph (d)(4) Subdivision (e) Subdivision (e) applies to the use of videoconferencing and teleconferencing for the proceedings defined in paragraphs (1) through (3), for all or part of the proceeding, by one or more participants. But it does not regulate the use of video and teleconferencing technology for all possible proceedings in a criminal case. It does not speak to or prohibit the use of videoconferencing or teleconferencing for proceedings, such as scheduling conferences, at which the defendant has no right to be present. Instead, it addresses three groups of proceedings: (1) proceedings for which the rules already authorize videoconferencing; (2) certain other proceedings at which a defendant has the right to be present, excluding felony trials; and (3) felony pleas and sentencings. The new rule does not address the use of technology to maintain communication with a defendant who has been removed from a proceeding for misconduct. Paragraph (e)(1) See The requirement is based upon experience during the COVID19 pandemic, when conditions dramatically limited the ability of counsel to meet or even speak with clients. The Committee believed it was essential to include this prerequisite for conferencing under Rules 5, 10, 40, and 43(b)(2), as well as conferencing authorized only during a declaration by paragraphs (e)(2), (3), and (4), in order to safeguard the defendants constitutional right to counsel. The rule does not specify any particular means of providing an adequate opportunity for private communication. Paragraph (e)(2) First, subparagraph (e)(2)(A) restricts videoconferencing authority to affected districts in which the chief judge (or alternate under 28 U.S.C.  136(e)) has found that emergency conditions substantially impair a courts ability to hold proceedings in person within a reasonable time. Recognizing that important policy concerns animate existing limitations in Rule 43 on virtual proceedings, even with the defendants consent, this district-wide finding is not an invitation to substitute virtual conferencing for in-person proceedings without regard to conditions in a particular division, courthouse, or case. If a proceeding can be conducted safely in-person within a reasonable time, a court should hold it in person. Second, subparagraph (e)(2)(B) conditions videoconferencing upon the courts finding that the defendant will have an adequate opportunity to consult confidentially with counsel before and during the proceeding. If emergency conditions prevent the defendants presence, and videoconferencing is employed as a substitute, counsel will not have the usual physical proximity to the defendant during the proceeding and may not have ordinary access to the defendant before and after the proceeding. Third, subparagraph (e)(2)(C) requires that the defendant consent to videoconferencing after consulting with counsel. Insisting on consultation with counsel before consent assures that the defendant will be informed of the potential disadvantages and risks of virtual proceedings. It also provides some protection against potential pressure to consent, from the government or the judge. The Committee declined to provide authority in this rule to conduct felony trials without the physical presence of the defendant, even if the defendant wishes to appear at trial by videoconference during an emergency declaration. And this rule does not address the use of technology to maintain communication with a defendant who has been removed from a proceeding for misconduct. Nor does it address if or when trial participants other than the defendant may appear by videoconferencing. Paragraph (e)(3) Subparagraph (e)(3)(A) requires that the chief judge of the district (or alternate under 28 U.S.C.  136(e)) make a district-wide finding that emergency conditions substantially impair a courts ability to hold felony pleas and sentencings in person in that district within a reasonable time. This finding serves as assurance that videoconferencing may be necessary and that individual judges cannot on their own authorize virtual pleas and sentencings when in-person proceedings might be manageable with patience or adaptation. Although the finding serves as assurance that videoconferencing might be necessary in the district, as under (e)(2), individual courts within the district may not conduct virtual plea and sentencing proceedings in individual cases unless they find the remaining criteria of (e)(3) and (4) are satisfied. As protection against undue pressure to waive physical presence, subparagraph (e)(3)(B) states that, before the proceeding and after consultation with counsel, the defendant must consent in writing that the proceeding be conducted by videoconferencing. This requirement of writing is, like other requirements of writing in the rules, subject to the emergency provisions in (d)(2), unless the relevant emergency declaration excludes the authority in (d)(2). To ensure that the defendant consulted with counsel with regard to this decision, and that the defendants consent was knowing and voluntary, the court may need to conduct a colloquy with the defendant before accepting the written request. Subparagraph (e)(3)(C) requires that before a court may conduct a plea or sentencing proceeding by videoconference, it must find that the proceeding in that particular case cannot be further delayed without serious harm to the interests of justice. Examples may include some pleas and sentencings that would allow transfer to a facility preferred by the defense, or result in immediate release, home confinement, probation, or a sentence shorter than the time expected before conditions would allow in-person proceedings. A judge might also conclude that under certain emergency conditions, delaying certain guilty pleas under Rule 11(c)(1)(C), even those calling for longer sentences, may result in serious harm to the interests of justice. Paragraph (e)(4) The first prerequisite, in (e)(4)(A), is that all of the conditions for the use of videoconferencing for the proceeding must be met before a court may conduct a proceeding, in whole or in part, by audio-only. For example, videoconferencing for a sentencing under Rule 32 requires compliance with (e)(3)(A), (B), and (C). No part of a felony sentencing proceeding may be held by teleconference, nor may any person participate in such a proceeding by audio only, unless those videoconferencing requirements have been met. Likewise, for a misdemeanor proceeding, teleconferencing requires compliance with (e)(1) and Rule 43(b)(2). Second, (e)(4)(B)(i) requires the court to find that videoconferencing for all or part of the proceeding is not reasonably available before allowing participation by audio only. Because it focuses on what is reasonably available, this requirement is flexible. It is intended to allow courts to use audio only connections when necessary, but not otherwise. For example, it precludes the use of teleconferencing alone if videoconferencingthough generally limitedis available for all participants in a particular proceeding. But it permits the use of teleconferencing in other circumstances. For example, if only an audio connection with a defendant were feasible because of security concerns at the facility where the defendant is housed, a court could find that videoconferencing for that defendant in the particular proceeding is not reasonably available. Or, if the video connection fails for one or more participants during a proceeding started by videoconference and audio is the only option for completing that proceeding expeditiously, this rule permits the affected participants to use audio technology to finish the proceeding. Third, (e)(4)(B)(ii) provides that the court must find that the defendant will have an adequate opportunity to consult confidentially with counsel before and during the teleconferenced proceeding. Opportunities for confidential consultation may be more limited with teleconferencing than they are with videoconferencing as when a defendant or a defense attorney has only one telephone line to use to call into the conference, and there are no breakout rooms for private conversations like those videoconferencing platforms provide. This situation may arise not only when a proceeding is held entirely by phone, but also when, in the midst of a videoconference, video communication fails for either the defendant or defense counsel. An attorney or client may have to call into the conference using the devices they had previously been using for confidential communication. Experiences like these prompted this requirement that the court specifically find that an alternative opportunity for confidential consultation is in place before permitting teleconferencing in whole or in part. Finally, recognizing the differences between videoconferencing and teleconferencing, subparagraph (e)(4)(C) provides that the defendant must consent to teleconferencing for the proceeding, even if the defendant previously requested or consented to videoconferencing. A defendant who is willing to be sentenced with a videoconference connection with the judge may balk, understandably, at being sentenced over the phone. Subparagraph (e)(4)(C) does not require that consent to teleconferencing be given only after consultation with counsel. By requiring only consent, it recognizes that the defendant would have already met the consent requirements for videoconferencing for that proceeding, and it allows the court more flexibility to address varied situations. To give one example, if the video but not audio feed drops for the defendant or another participant near the very end of a videoconference, and the judge asks the defendant, do you want to talk to your lawyer about finishing this now without the video?, an answer No, Im ok, we can finish now would be sufficient consent under (e)(4)(C).  References in Text Criminal Rules, referred to in subd. (a), probably means the Federal Rules of Criminal Procedure, which are set out in this Appendix.