Benchbook

for U.S. District

CourtJudges

FIFTH EDITION

FederalJudicialCenter

September 2007
The Federal Judicial Center produced this Benchbook for U.S. District Court

Judges in furtherance of its mission to develop and conduct education programs for the judicial branch. This Benchbook is not a statement of official Federal Judicial Center policy. Rather, it was prepared by, and it represents, the

considered views of the Center’s Benchbook Committee, a group of experienced district judges appointed by the Chief Justice of the United States in his

capacity as chair of the Center’s Board. The committee was assisted by Federal

Judicial Center staff.
iii

Preface

As was the purpose of the first edition published in 1969 by the

Federal Judicial Center, the purpose of this fifth edition of the

Benchbook for U.S. District Court Judges is to provide a quick,

practical guide to help judges with situations they are likely to

encounter on the bench. Although the Benchbook is written primarily for district court judges and magistrate judges, bankruptcy judges may also find useful information provided in

many of the sections. The Benchbook covers procedures that are

required by statute, rule, or case law, offering detailed guidance

from experienced trial judges on these requirements and other

matters that arise in the courtroom. New judges in particular

should benefit from the Benchbook, but even experienced

judges may find useful reminders on how to deal with routine

matters or helpful starting points when they face particular

situations for the first time.

This edition of the Benchbook incorporates recent changes to

relevant statutes, rules, and case law, including new material

covering United States v. Booker, 125 S. Ct. 738 (2005), and the

Crime Victims’ Rights Act (18 U.S.C. § 3771). There is a new section on preliminary injunctions, and a revised grand jury charge,

which was created by merging the former Benchbook charge with

the charge approved in 1986 by the Judicial Conference of the

United States.

It is important to emphasize that the material in the Benchbook represents only the Benchbook Committee’s recommended

approaches for dealing with specific situations. While the information provided is deemed to be accurate, responsible, and

valuable, it is not intended to serve as authority and should not

be cited as such. And because circuit law may vary, especially on

procedures, judges should always check the requirements of

their circuit’s law.

The materials presented in the Benchbook were prepared by

experienced judges. The book is reviewed, updated, and added

to by each succeeding Committee, together with Center staff.

The Center would like to thank the members of the Benchbook

Committee, who are appointed by the Chief Justice. The Committee is chaired by Judge Loretta A. Preska (S.D.N.Y.) and consists of Judge Joseph F. Anderson, Jr. (D.S.C.), Judge Irma E. Gon-
iv

zalez (S.D. Cal.), Judge James A, Parker (D.N.M.), Judge Paul L.

Friedman (D.D.C.), and Mr. John R. Steer, Vice Chair of the

United States Sentencing Commission. We also thank Judge

Wayne E. Alley (W.D. Okla.), who chaired the Committee during

the initial drafting of these revisions before retiring from the

bench in 2004.

I would also like to express the Center’s appreciation to other

judges who contributed suggestions, and to members of the Judicial Conference’s Court Administration and Case Management

Committee and staff at the Administrative Office of the U.S.

Courts, with whom we have consulted about particular topics.

We hope this edition of the Benchbook serves you well and

invite your continued comments and suggestions for making it

better.

Barbara J. Rothstein

Director, Federal Judicial Center
v

Contents

Preface iii

Section 1—Criminal pretrial

1.01—Initial appearance 1

1.02—Assignment of counsel or pro se representation 5

1.03—Release or detention pending trial 9

1.04—Offense committed in another district 15

1.05—Commitmentto another district(removal proceedings) 19

1.06—Waiver of indictment 25

1.07—Arraignment and plea 29

1.08—Jointrepresentation of codefendants 31

1.09—Waiver of jury trial (suggested procedures, questions, and

statements) 35

1.10—Speedy Trial Act 41

1.11—Delinquency proceedings 45

1.12—Mental competency in criminal matters 57

1.13—Referrals to magistrate judges (criminal matters) 67

Section 2—Plea taking/criminal trial

2.01—Taking pleas of guilty or nolo contendere 71

2.02—Taking pleas of guilty or nolo contendere (organization) 83

2.03—Trial outline—criminal 87

2.04—Findings of fact and conclusions of law in criminal cases and motions 91

2.05—Jury selection—criminal 93

2.06—Standard voir dire questions—criminal 97

2.07—Preliminary jury instructions—criminal case 101

2.08—General instructions to jury at end of criminal case 105

2.09—Verdict—criminal 109

2.10—Trial and post-trial motions 113

2.11—Release or detention pending sentence or appeal 119

Section 3—Capital cases

3.01—Death penalty procedures 123
vi

Section 4—Sentencing

4.01—Sentencing procedure 139

4.02—Revocation of probation or supervised release 151

Section 5— Special trial problems

5.01—Handling a disruptive defendant 157

5.02—Grants of immunity 159

5.03—Invoking the Fifth Amendment 161

5.04—Handling the recalcitrant witness 163

5.05—Criminal defendant’s motion for mistrial 169

Section 6—Civil proceedings

6.01—Trial outline—civil 173

6.02—Findings of fact and conclusions of law in civil cases and motions

175

6.03—Jury selection—civil 179

6.04—Standard voir dire questions—civil 181

6.05—Preliminary jury instructions—civil case 185

6.06—General instructions to jury at end of civil case 189

6.07—Verdict—civil 193

6.08—Referrals to magistrate judges (civil matters) 197

Section 7—Miscellaneous proceedings

7.01—Contempt—criminal 199

7.02—Contempt—civil 207

7.03—Injunctions 211

7.04—Grand jury selection and instructions 219

7.05—Foreign extradition proceedings 233

7.06—Naturalization proceedings 235

7.07—Excluding the public from court proceedings 237

7.08—Oaths 241

Appendix: FJC publications 251

Index 259
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 1

1.01 Initial appearance

Fed. R. Crim. P. 5

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

The first appearance of the defendant after arrest is usually

before a magistrate judge. If the defendant consents, the initial appearance may be conducted by video teleconferencing

(Fed. R. Crim. P. 5(f)).

A. If the arrest was made without a warrant, require that a

complaint be prepared and filed pursuant to Fed. R. Crim.

P. 3 and 4.

[Note: If you have any doubts about the defendant’s ability to speak and understand English, consider appointing a

certified interpreter in accordance with 28 U.S.C. § 1827. If

the defendant is a foreign national, regardless of immigration

status, advise the defendant of the right to consular notification and access.

1

]

B. For a felony charge, inform the defendant

1. of the nature of the complaint against him or her and of

any affidavit filed therewith;

2. of the defendant’s right to employ counsel or to request

the assignment of counsel if he or she is unable to employ

counsel (see infra section 1.02: Assignment of counsel or

pro se representation);

 

1. For more detailed guidance relating to the arrest and detention of foreign nationals, see Consular Notification and Access: Instructions for Federal,

State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them

on the U.S. Department of State website, http://travel.state.gov/consul_notify.html. See particularly the sections “Steps to Follow When a Foreign

National Is Arrested or Detained” and “Suggested Statements to Arrested or

Detained Foreign Nationals.”

NOTE

If the alleged offense 

was committed in another district, see infra

section 1.05: Commitment to another district (removal proceedings)
Section 1.01: Initial appearance

2 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

3. of the defendant’s right to have a preliminary hearing

(Fed. R. Crim. P. 5(d)(1)(D) and 5.1; 18 U.S.C. § 3060);

4. under what circumstances the defendant may secure

pretrialrelease;

5. that the defendant is not required to make any statement;

6. that if the defendant has made a statement, he or she

need say no more;

7. that if the defendant starts to make a statement, he or

she may stop at any time (Miranda v. Arizona, 384 U.S.

436 (1966)); and

8. that any statement made by the defendant may be used

against him or her.

Fed. R. Crim. P. 5(d)(1).

C. For a misdemeanor charge, the procedure is similar. See Fed.

R. Crim. P. 58(b)(2). The defendant must also be informed of

the right to trial, judgment, and sentencing before a district

judge unless he or she consents to trial, judgment, and sentencing before a magistrate judge.

D. Determine whether the defendant has had a reasonable opportunity to consult with counsel. Allow further consultation

if needed. Fed. R. Crim. P. 5(d)(2).

E. Determine whether to detain or release the defendant (see

infra section 1.03: Release or detention pending trial).

F. Schedule a preliminary hearing and/or detention hearing, if

applicable.

G. For release or detention of a material witness, see 18 U.S.C.

§ 3144.

H. If the person is before the court for violating probation or supervised release, see Fed. R. Crim. P. 32.1. Morrissey v. Brewer,

408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973);

Fed. R. Crim. P. 5(a)(2)(B).

I. If the offense was committed in another district, see Fed. R.

Crim. P. 5(c)(3) and infra section 1.04: Offense committed in

another district. If the defendant was arrested for failing to

appear in another district, see Fed. R. Crim. P. 40 and infra

section 1.05: Commitment to another district (removal proceedings).
Section 1.01: Initial appearance

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 3

Other FJC sources

David N. Adair, Jr., The Bail Reform Act of 1984, at 11–15 (3d ed.

2006)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 5

1.02 Assignment of counsel or pro se

representation

18 U.S.C. § 3006A; CJA Forms 20, 23

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

If counsel has not been assigned by the magistrate judge before

the defendant’s first court appearance, assignment of counsel

should be the first item of business before the judge.

[Note: If you have any doubts about the defendant’s ability to

speak and understand English, consider appointing a certified

interpreter in accordance with 28 U.S.C. § 1827.]

A. If the defendant has no attorney:

1. Inform the defendant

(a) of his or her constitutional right to be represented by

an attorney at every stage of the proceedings;

(b) that if he or she is unable to afford an attorney, the

court will appoint one without cost to him or her (18

U.S.C. § 3006A, Fed. R. Crim. P. 44);

(c) of the offense with which he or she is charged.

2. Ask the defendant

(a) if he or she understands his or herright to an attorney;

(b) if he or she wishes and is able to obtain counsel;

(c) if he or she wants the court to appoint counsel.

B. If the defendant requests appointed counsel:

1. Require the completion of a Financial Affidavit by the defendant on the appropriate Criminal Justice Act form.

2. Inform the defendant that he or she is swearing to the answers to the questions on the affidavit and that he or she

may be penalized for perjury if he or she gives false information.
Section 1.02: Assignment of counsel or pro se representation

6 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

3. Determine whether the defendant is unable to afford

privately retained counsel. If the defendant qualifies

financially for court-appointed counsel, make that

finding and sign the order appointing counsel.

C. If the defendant does not wish counsel:

The accused has a constitutional right to self-representation.

Waiver of counsel must, however, be knowing and voluntary.

This means that you must make clear on the record that the

defendant is fully aware of the hazards and disadvantages of

self-representation.

If the defendant states that he or she wishes to represent

himself or herself, you should ask questions similar to the following:

1. Have you ever studied law?

2. Have you ever represented yourself in a criminal

action?

3. Do you understand that you are charged with

these crimes: [state the crimes with which the defendant is charged]?

4. Do you understand that if you are found guilty of

the crime charged in Count I, the court must impose an assessment of $100 and could sentence

you to as many as ___ years in prison, impose a

term of supervised release that follows imprisonment, fine you as much as $____, and direct you

to pay restitution?

[Ask the defendant a similar question for each

crime charged in the indictment orinformation.]

5. Do you understand that if you are found guilty of

more than one of these crimes, this court can order that the sentences be served consecutively,

that is, one after another?

6. Do you understand that there are advisory Sentencing Guidelines that may have an effect on

your sentence if you are found guilty?

7. Do you understand that if you represent yourself,

you are on your own? I cannot tell you or even advise you how you should try your case.

NOTE:

The fine is $25 for

a Class A misdemeanor, $10 for a

Class B, $5 for a

Class C or infraction.
Section 1.02: Assignment of counsel or pro se representation

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 7

8. Are you familiar with the Federal Rules of Evidence?

9. Do you understand that the rules of evidence govern what evidence may or may not be introduced

at trial, that in representing yourself, you must

abide by those very technical rules, and that they

will not be relaxed for your benefit?

10.Are you familiar with the Federal Rules of Criminal Procedure?

11.Do you understand that those rules govern the

way a criminal action is tried in federal court, that

you are bound by those rules, and that they will

not be relaxed for your benefit?

[Then say to the defendant something to this effect:]

12.I must advise you that in my opinion, a trained

lawyer would defend you far better than you

could defend yourself. I think it is unwise of you

to try to represent yourself. You are not familiar

with the law. You are not familiar with court procedure. You are not familiar with the rules of evidence. I strongly urge you not to try to represent

yourself.

13.Now, in light of the penalty that you might suffer

if you are found guilty, and in light of all of the

difficulties of representing yourself, do you still

desire to represent yourself and to give up your

right to be represented by a lawyer?

14.Is your decision entirely voluntary?

[If the answers to the two preceding questions are yes,

say something to the following effect:]

15.I find that the defendant has knowingly and voluntarily waived the right to counsel. I will therefore permit the defendant to represent himself

[herself].

It is probably advisable to appoint standby counsel, who

can assist the defendant or can replace the defendant if
Section 1.02: Assignment of counsel or pro se representation

8 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

the court determines during trial that the defendant can

no longer be permitted to proceed pro se.

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 1–7 (5th ed. 2001)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 9

1.03 Release or detention pending

trial

18 U.S.C. §§ 3141–3148; Fed. R. Crim. P. 46

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them. Victims also

have a right “to be reasonably heard at any public proceeding in

the district court involving release” of the defendant.

§ 3771(a)(4).]

A. Preliminary

1. Ask the defendant:

(a) What is your full name?

(b) How old are you?

(c) Do you have an attorney?

[If the defendant is unrepresented by counsel, inform

the defendant of his or her right to counsel, and appoint counsel if the defendant is qualified (see supra

section 1.02: Assignment of counsel or pro se representation).]

2. If you are not sure the defendant understands English,

ask the defendant:

Are you able to speak and understand English?

[If the defendant has an attorney, ask counsel if he or

she has been able to communicate with the defendant in English. If you doubt the defendant’s capacity

to understand English, use a certified interpreter. See

28 U.S.C. § 1827.]

3. Ask the U.S. attorney whether the government wants to

move for detention under 18 U.S.C. § 3142(d) or(e). If the

motion is made, hold the appropriate hearing. This may

require a continuance (not to exceed five days on the defendant’s motion, three days on the government’s motion, except for good cause). 18 U.S.C. § 3142(f). If the motion is not made, proceed to the bail inquiry.
Section 1.03: Release or detention pending trial

10 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

B. Bail inquiry1

1. Review any pretrial services report provided by the probation office.

2. Hear information relevant to considerations for fixing

bail:

(a) the nature and circumstances of the offense charged,

including whether the offense is a crime of violence or

involves narcotics;

(b) the weight of the evidence against the accused;

(c) the history and characteristics of the accused, including

(i) character, physical and mental condition, family

ties, employment, financial resources, length of

residence in the community, community ties,

past conduct, history of drug or alcohol abuse,

criminal history, and record concerning appearances at court proceedings;

(ii) whether, at the time of the current offense or arrest, the defendant was on probation or parole or

on release pending trial, sentencing, appeal, or

completion of sentence under federal, state, or

local law;

(d) the nature and seriousness of danger to any person or

the community if the accused is released.

2 18 U.S.C.

§ 3142(g).

(e) In a case involving domestic violence, stalking, or violation of a protective order, give the alleged victim an

opportunity to be heard regarding the danger posed

by the defendant. 18 U.S.C. § 2263.

(f) Give any other victims present in the courtroom “an

opportunity to be reasonably heard.” 18 U.S.C.

§ 3771(a)(4).

 

1. Paragraphs B through F of this section cover procedures for setting bail

when detention is not requested, or when detention is denied and conditions of

release must be set. The information obtained under paragraphs B through E is

also relevant to deciding whether to detain the defendant under 18 U.S.C.

§ 3142(f). See paragraph H infra.

2. A crime victim has the right “to be reasonably protected from the accused.” 18 U.S.C. § 3771(a)(1).
Section 1.03: Release or detention pending trial

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 11

3. If a secured bond or surety bond is being considered, inquire about the defendant’s financial resources and, if

appropriate, the sources of any property to be designated

for potential forfeiture or offered as collateral. See 18

U.S.C. § 3142(c)(1)(B)(xii), (c)(2), and (g)(4).

C. If there is a pretrial services agency in your district (18 U.S.C.

§ 3154), use the report of the interview by the pretrial services officer as an aid to fixing bail. If you do not have a pretrial

services agency, consult the probation office.

D. In developing information from the defendant relevant to

bail, the following questions are typical:

[Note: This information is usually included in the pretrial

services report and is based on an interview of the defendant

and independent verification of the information provided.]

1. Are you married?

2. Do you have any children?

3. Are you living with your spouse or children? Do you

support your spouse or children?

4. Do you support or live with anyone else? Who?

5. Are you employed?

6. How long have you worked for your current employer?

7. What is your average weekly or monthly take-home

pay?

8. Do you own an automobile?

9. Do you have a savings account, bonds, stocks, or

similar liquid assets?

10.Do you own or rent your home?

11.Do you own any other real property?

12.How long have you lived at your current address?

13.How long have you lived in this city [state] or the surrounding area?

14.Do you have a telephone? Where can you be reached

by telephone?

15.Do you possess a passport?
Section 1.03: Release or detention pending trial

12 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

[Note: The defendant might be asked to deposit his or

her passport with the marshal (or bailiff) as a condition of bail.]

16.Do you owe anyone money? Do you have to make

mortgage payments, time payments, or other periodic

payments?

17.Are you regularly receiving medical treatment?

18.Have you ever been treated or hospitalized for mental

illness?

E. Ask the U.S. attorney for the defendant’s rap sheet (fingerprinting record) to determine past convictions and the issuance of bond forfeiture warrants indicating prior failure to

appear for scheduled court hearings.

[Note: This information is also typically included in the pretrial services report.]

F. Set bail with appropriate conditions, 18 U.S.C. § 3142(b) or

(c), or hold a detention hearing under § 3142(f). If you do not

hold a detention hearing:

1. In setting bail, determine whether appearance and community safety can reasonably be ensured by releasing

the accused on personal recognizance or on an unsecured

appearance bond with only the condition that the accused not commit a crime while on release.

2. If you determine that further conditions are necessary,

set them. Do not set a financial condition that the defendant cannot meet.

3. Explain the conditions to the defendant.

4. Execute a release order and obtain the defendant’s written acknowledgment of the conditions of release and the

consequences of violation.

5. Tell the defendant when to appear in court again, or explain how he or she will be advised when next to appear in

court.

6. Explain to the defendant, as 18 U.S.C. § 3142(h)(2) requires,

(a) that failing to appear in court as required is a crime for

which he or she can be sentenced to imprisonment

(18 U.S.C. § 3146);
Section 1.03: Release or detention pending trial

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 13

(b) that if the defendant violates any condition ofrelease,

a warrant for arrest may be issued, and he or she may

be jailed until trial and may also be prosecuted for

contempt of court (18 U.S.C. § 3148);

(c) that committing a crime while on release may lead to

more severe punishment than he or she would receive

for committing the same crime at any other time (18

U.S.C. § 3147); and

(d) that it is a crime to try to influence a juror, to threaten

or attempt to bribe a witness or other person who may

have information about this case, to retaliate against

anyone for providing information about the case, or to

otherwise obstruct the administration of justice (18

U.S.C. §§ 1503, 1510, 1512, 1513).

7. As required under § 3142(h)(1), include in the release order a written statement that clearly sets forth all the conditions of release to which the defendant is subject. Also,

“state in writing, or orally on the record, the reasons for an

order regarding the release or detention of a defendant.”

Fed. R. App. P. 9(a)(1).

G. If temporary detention for up to ten days is sought under 18

U.S.C. § 3142(d):

1. Ask the U.S. attorney to state the factual basis for the motion.

2. Give the defendant’s counsel an opportunity to respond.

3. Determine whether the defendant fits within one or more

of the categories set forth in 18 U.S.C. § 3142(d)(1).

4. If the defendant fits within one or more of these categories, determine whether he or she “may flee or pose a

danger to any other person or the community.” 18 U.S.C.

§ 3142(d)(2). If so, detention is mandatory.

5. If detention for up to ten days is not ordered, proceed to

the release inquiry. If detention for up to ten days is ordered:

(a) Direct the U.S. attorney to notify the appropriate officials immediately and to notify the court and the defendant’s counsel immediately if any such official expressly declines or fails to take the defendant into

custody.
Section 1.03: Release or detention pending trial

14 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

(b) Fix a date and time for a bail hearing to be held in the

event that the defendant is not taken into custody by

any such official.

(c) Execute a temporary detention form.

H. If pretrial detention has been sought under 18 U.S.C.

§ 3142(e), conduct the required hearing under § 3142(f) (see

§ 3142(g) and paragraphs B to E supra for factors to consider):

1. Make findings of fact and state the reasons for the decision. If detention is ordered, these must be written. 18

U.S.C. § 3142(i)(1). See also Fed. R. App. P. 9.

2. If detention is not ordered, set bail, if any, impose conditions of release under § 3142(b) or (c), and issue a release

order pursuant to 18 U.S.C. § 3142(h). See paragraphs B

to F supra.

3. If detention is ordered, execute a pretrial detention order

that meets the requirements of 18 U.S.C. § 3142(i).

Other FJC sources 

David N. Adair, Jr., The Bail Reform Act of 1984 (3d ed. 2006)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 15

1.04 Offense committed in another

district

Fed. R. Crim. P. 5(c)(3), 20

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

The following procedure applies if the defendant and the government consent to transfer the prosecution of an offense committed in another district to the district where the defendant was

arrested oris being held. Fed. R. Crim. P. 20(a).

A. Preliminary

Have the oath administered and ask the defendant:

1. What is your full name?

2. How old are you?

3. How far did you go in school? What is your employment experience?

[If you are not sure the defendant understands English, ask the defendant:]

4. Are you able to speak and understand English?

[If the defendant has an attorney, ask counsel if he or

she has been able to communicate with the defendant in English. If you doubt the defendant’s capacity

to understand English, use a certified interpreter. See

28 U.S.C. § 1827.]

5. Are you currently or have you recently been under the

care of a physician or a psychiatrist, or been hospitalized or treated for narcotics addiction? Have you

taken any drugs, medicine, or pills or drunk any alcoholic beverage in the past twenty-four hours?

[If the answer to either question is yes, pursue the

subject with the defendant and with counsel to determine that the defendant is currently competent to
Section 1.04: Offense committed in another district

16 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

waive proceedings in the district where the offense

was committed.]

6. Do you have an attorney?

[If he or she does not have an attorney, inform the defendant of the right to counsel and appoint counsel if

the defendant qualifies. See supra section 1.02: Assignment of counsel or pro se representation.]

B. Obtain a waiver of indictment if one is required (see infra section 1.06: Waiver of indictment).

C. Explain that the defendant’s case cannot be handled in this

court unless he or she wishes to plead guilty or nolo contendere. [Note: For juveniles, see 18 U.S.C. § 5031 and Fed. R.

Crim. P. 20(d).]

D. Question the defendant to ascertain on the record that the

defendant understands he or she is agreeing to

1. plead guilty or nolo contendere;

2. waive proceedings in the district in which the crime was

allegedly committed; and

3. be proceeded against in this court.

E. Explain to the defendant and ask if the defendant understands that

1. he or she has a right to be tried in the district where the

crime is alleged to have been committed;

2. he or she cannot be convicted or sentenced in this court

unless he or she consents freely; and

3. if he or she does not consent to be proceeded against in

this court, he or she may be proceeded against in the district in which the crime was allegedly committed.

F. Obtain the defendant’s written statement incorporating the

understanding described above.

G. Obtain the written consents of the U.S. attorneys.

H. Take the defendant’s plea. [Note: All points should be covered in taking the plea, as in an ordinary arraignment. See

relevant portions of infra sections 1.07: Arraignment and plea

and 2.01: Taking pleas of guilty or nolo contendere.]

I. If the defendant or the government does not consent to proceedings in this court, follow the procedures in Fed. R. Crim.
Section 1.04: Offense committed in another district

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 17

P. 5(c)(3) for transfer to another district. See also infra section

1.05: Commitment to another district (removal proceedings).

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 19

1.05 Commitmentto another district

(removal proceedings)

Fed. R. Crim. P. 5, 32.1, and 401

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

A. Arrest of an individual in this district for an alleged offense

committed in another district (U.S. attorney will have filed a

Petition for Removal) Fed. R. Crim. P. 5(c).

1. Ascertain from the U.S. attorney or arresting officer, or

from court file materials received from the charging district

(a) where the alleged offense was committed;

(b) when the defendant was arrested and whether the arrest was with or without a warrant; and

(c) whether an indictment has been returned or an information or complaint filed.

2. If the arrest in this district was without a warrant (which

rarely occurs):

(a) The defendant cannot be ordered transferred until a

complaint and warrant are issued in the charging district.

(b) The complaint must be filed promptly. See Fed. R.

Crim. P. 5(b).

3. If it is not evident, ask the defendant if he or she can

speak and understand English. If the defendant has an

attorney, ask if counsel has been able to communicate

with the defendant in English. If you doubt the defendant’s capacity to understand English, use a certified

interpreter. See 28 U.S.C. § 1827.

 

1. Effective December 1, 2002, Rule 40 was completely revised and much of

it relocated to Rule 5.
Section 1.05: Commitment to another district (removal proceedings)

20 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

If the defendant is a foreign national, regardless of immigration status, advise the defendant of the right to consular notification and access.

2

4. Without asking the defendant to state his or her name or

other identifying information at this time, advise the defendant of his or her

(a) general rights under Fed. R. Crim. P. 5 (nature of

charge, right to counsel, right to remain silent—see

supra section 1.01: Initial appearance);

(b) right to waive removal and voluntarily return to the

district where charges are pending;

(c) right, if charges are based on complaint and warrant,

to

(i) have a preliminary examination in this district;

(ii) have a preliminary examination in the district

where the charges are pending; or

(iii) waive preliminary examination.

(d) right to an identity hearing and the right to waive that

hearing;

(e) right under Fed. R. Crim. P. 20 to plead guilty or nolo

contendere in this district if both U.S. attorneys consent.

5. If the defendant appears without counsel, appoint counsel or allow time for the defendant to retain counsel; set

an appropriate hearing or examination date to allow

counsel time to confer and elect options.

6. If the defendant appears with counsel or after counsel

has been appointed or retained, ascertain which of the

above options (4(b)–4(d) of this section) he or she desires,

then sign an Order of Removal (whereby the defendant

 

2. For more detailed guidance relating to the arrest and detention of foreign nationals, see Consular Notification and Access: Instructions for Federal,

State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them

on the U.S. Department of State website, http://travel.state.gov/consul_ notify.html. See particularly the sections “Steps to Follow When a Foreign National Is Arrested or Detained” and “Suggested Statements to Arrested or Detained Foreign Nationals.”
Section 1.05: Commitment to another district (removal proceedings)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 21

returns voluntarily) or set an appropriate examination or

hearing date.

(a) If the defendant waives the right to an identity hearing, have the defendant state his or her full name and

age for the record.

(b) Set the date of the hearing or examination to allow

time for inquiry into possible Fed. R. Crim. P. 20 transfer.

(c) Keep in mind Speedy Trial Actrequirements (see infra

section 1.10: Speedy Trial Act).

7. Determine whether to release or detain the defendant

pending further proceedings. A request for detention or

the amount of bail previously fixed in the district where

charges are pending must be taken into account but is

not binding. A different action, however, requires reasons

in writing. Note that the defendant is entitled to only one

detention hearing and may wish to reserve that right until

after being transferred to the charging district.

[Note: If there are any victims of the offense present, give

them an “opportunity to be reasonably heard” regarding

the defendant’s possible release. 18 U.S.C. § 3771(a)(4).]

8. Conduct hearings:

(a) Preliminary hearing (Fed. R. Crim. P. 5.1).

(b) Identity hearing (Fed. R. Crim. P. 5(c)(3)(D)(ii))

(i) Hear evidence as to physical descriptions, fingerprints, handwriting, hearsay statements,

telephone checks with charging district, photographs, probation officer’s testimony, etc.

(ii) The government has the burden of proof to show

probable cause that the person arrested is the

person named in the charging instrument.

(c) Fed. R. Crim. P. 20 transfer plea (see supra section

1.04: Offense committed in another district).

9. Order the defendant held and transferred (Order of Removal), or discharged; transmit papers and any bail to the

clerk of the charging district.
Section 1.05: Commitment to another district (removal proceedings)

22 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

B. Arrest of a probationer or a supervised releasee in a district

other than the district of supervision (Fed. R. Crim. P.

32.1(a)(5)).

3

1. Determine the time and place of, and authority for, the

arrest; inform the defendant of the charges; and advise

the defendant of general rights (nature of charge, right to

counsel, right to remain silent).

2. Ascertain if jurisdiction has been or will be transferred to

this district pursuant to 18 U.S.C. § 3605 (made applicable to supervised releasees by 18 U.S.C. § 3586). If so,

proceed under Fed. R. Crim. P. 32.1 as a normal revocation case in this district.

3. If the alleged violation occurred in this district and if jurisdiction is not transferred, schedule and hold a prompt

preliminary hearing after counsel has been secured.

(a) If probable cause is found, hold the defendant to answer in the supervising district, and order him or her

transferred there.

(b) If no probable cause is found, dismiss the proceedings and notify the supervising court.

4. If the alleged violation occurred in a district other than

this one, schedule and hold a prompt identity hearing

(unless waived) after counsel has been secured.

(a) If, upon production of certified copies of the probation order, warrant, and application for warrant, the

defendant is found to be the person named in the

warrant, hold the defendant to answer in the supervising district and order him or her transferred there.

Or

(b) Dismiss the proceedings and notify the supervising

court if you find the defendant is not the person so

named.

[Note: An amendment to Fed. R. Crim. P. 40(a), effective December 1, 2006, specifically authorizes magistrate judges to set re-

 

3. Note that the Crime Victims’ Rights Act, 18 U.S.C. § 3771, may apply if

the violation that caused the arrest involved the commission of a federal crime.

It was unclear at the time of this printing whether the rights of victims of the

original offense carry over to court proceedings for violations of probation or

supervised release.
Section 1.05: Commitment to another district (removal proceedings)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 23

lease conditions for persons arrested under a warrant issued in

another district for violating conditions of release set in that district.]

C. Arrest for failure to appear in another district (bench warrant)

(Fed. R. Crim. P. 40(a) and (b)).

When the person has been arrested in this district on a warrant issued in another district for failure to appear, pursuant

to a subpoena or the terms of his or herrelease:

1. Determine the time and place of, and authority for, the

arrest; inform the defendant of the charges; and advise

the defendant of general rights (nature of charges, right

to counsel, right to remain silent).

2. Schedule and hold an identity hearing (unless waived)

after counsel has been secured.

(a) If, upon production of the warrant or a certified copy

you find that the person before the court is the person

named in the warrant, hold the defendant to answer

in the district where the warrant was issued and order

him or her transferred there.

Or

(b) Dismiss the proceedings and notify the district where

the warrant was issued if you find the defendant is

not the person so named.

3. The court may modify any previous release or detention

order issued by the other district, but must state in writing the reasons for doing so. Fed. R. Crim. P. 40(c).

4. Note that the Crime Victims’ Rights Act, 18 U.S.C. § 3771,

may be applicable to this hearing.

Other FJC sources

David N. Adair, Jr., The Bail Reform Act of 1984, at 13 (3d ed.

2006)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 25

1.06 Waiver of indictment

Fed. R. Crim. P. 6 & 7

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

A. Preliminary

Have the oath administered and ask the defendant:

1. What is your full name?

2. How old are you?

3. How far did you go in school? What is your employment experience?

[If you are not sure the defendant can understand

English, ask:]

4. Are you able to speak and understand English?

[If the defendant has an attorney, ask counsel if he or

she has been able to communicate with the defendant. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28

U.S.C. § 1827.]

5. Are you currently or have you recently been under the

care of a physician or a psychiatrist or been hospitalized or treated for narcotics addiction? Have you

taken any drugs, medicine, or pills or drunk any alcoholic beverage in the past twenty-four hours?

[If the answer to either question is yes, pursue the

subject with the defendant and with counsel to determine that the defendant is currently competent to

waive indictment.]

6. Do you have an attorney?

[If the defendant does not have an attorney, inform

the defendant of the right to counsel and appoint

counsel if the defendant qualifies (see supra section

NOTE

An offense that may be

punishable by death

must be prosecuted by

indictment and therefore precludes waiver

of indictment. Fed. R.

Crim. P. 7(a) and (b).
Section 1.06: Waiver of indictment

26 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

1.02: Assignment of counsel or pro se representation).]

B. Ask the defendant:

Have you been furnished with a copy of the charge(s)

against you?

C. Explain in detail the charge(s) against the defendant and

make clear that he or she is charged with committing a felony.

D. Ask the defendant:

Do you understand the charge(s) against you?

E. Inform the defendant:

1. You have a constitutional right to be charged by an

indictment of a grand jury, but you can waive that

right and consent to being charged by information of

the U.S. attorney.

2. Instead of an indictment, these felony charges against

you have been brought by the U.S. attorney by the filing of an information.

3. Unless you waive indictment, you may not be charged

with a felony unless a grand jury finds by return of an

indictment that there is probable cause to believe

that a crime has been committed and that you committed it.

4. If you do not waive indictment, the government may

present the case to the grand jury and ask it to indict

you.

5. A grand jury is composed of at least sixteen and not

more than twenty-three persons, and at least twelve

grand jurors must find that there is probable cause to

believe you committed the crime with which you are

charged before you may be indicted.

[Fed. R. Crim. P. 6(a) and 6(f).]

6. The grand jury might or might not indict you.

7. If you waive indictment by the grand jury, the case

will proceed against you on the U.S. attorney’s

information just as though you had been indicted.
Section 1.06: Waiver of indictment

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 27

F. Ask the defendant:

1. Have you discussed waiving your right to indictment

by the grand jury with your attorney?

2. Do you understand your right to indictment by a

grand jury?

3. Have any threats or promises been made to induce

you to waive indictment?

4. Do you wish to waive your right to indictment by a

grand jury?

[Fed. R. Crim. P. 7(b).]

G. Ask defense counsel if there is any reason the defendant

should not waive indictment.

H. If the defendant waives indictment

1. Have the defendant sign the waiver of indictment form in

open court, state that the court finds that the waiver is

knowingly and voluntarily made by the defendant and is

accepted by the court, and enter an order and finding to

that effect.

1

2. Proceed to arraignment on information (see infra section

1.07: Arraignment and plea).

I. If the defendant does not waive indictment:

1. Ask the U.S. attorney whether the government intends to

present the matter to the grand jury.

(a) If so, detain the defendant pending indictment or

continue or reset bail (see supra section 1.03: Release

or detention pending trial).

(b) If not, discharge the defendant.

[Note: Because discharge entails a “release” of the defendant, the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(4), may require allowing any victims of the

offense to be “reasonably heard.”]

 

1. If the waiver was signed before the hearing, the court should examine the

signatures on the form and have the defendant and defendant’s counsel verify

that the signatures are theirs.

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 29

1.07 Arraignment and plea

Fed. R. Crim. P. 10

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

A defendant who was charged by indictment or misdemeanor information may waive appearance at the arraignment if a written

waiver is signed by the defendant and defense counsel, the defendant affirms that a copy of the indictment or information was

received, the plea is not guilty, and the court accepts the waiver.

Fed R. Crim. P. 10(b).

The following procedure may be used whether the defendant appears in person or has consented to video teleconference

under Fed R. Crim. P. 10(c). If the arraignment is by video teleconferencing and there is no prior written consent, begin the arraignment by having the defendant explicitly consent to conduct

the arraignment by video teleconference and waive the right to

appear in person.

A. Preliminary

Have oath administered and ask the defendant:

1. What is your full name?

2. How old are you?

3. How far did you go in school? What is your employment experience?

[If you are not sure the defendant can understand

English, ask:]

4. Are you able to speak and understand English?

[If the defendant has an attorney, ask counsel if he or

she has been able to communicate with the defendant. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28

U.S.C. § 1827.]
Section 1.07: Arraignment and plea

30 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

5. Are you currently or have you recently been under the

care of a physician or a psychiatrist or been hospitalized or treated for narcotics addiction? Have you

taken any drugs, medicine, or pills or drunk any alcoholic beverage in the past twenty-four hours?

[If the answer to either question is yes, pursue the

subject with the defendant and with counsel to determine that the defendant is currently competent to

enter a plea.]

6. Do you have an attorney?

[If not, see supra section 1.02: Assignment of counsel

or pro se representation).]

B. Ask the defendant:

1. Have you received a copy of the indictment (information)?

2. Have you had time to consult with your attorney?

3. Do you want the indictment (information) read, or

will you waive the reading of the indictment (information)?

[Have the indictment (information) read if the defendant so desires.]

4. How do you plead to the charges?

C. If the defendant’s plea is not guilty:

1. Set motion and/or trial dates according to your local

Speedy Trial Act plan.

2. Continue or reset bail (see supra section 1.03: Release or

detention pending trial).

D. If the defendant indicates a desire to plead guilty or nolo contendere, see infra section 2.01: Taking pleas of guilty or nolo

contendere.
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 31

1.08 Joint representation of 

codefendants

Fed. R. Crim. P. 44(c)(2)

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

Introduction

Fed. R. Crim. P. 44(c)(2) provides as follows in cases of joint representation:

The court must promptly inquire about the propriety of joint

representation and must personally advise each defendant of the

right to effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of

interest is likely to arise, the court must take appropriate measures to protect each defendant’s right to counsel.

When a trial court becomes aware of a potential conflict of interest, it must pursue the matter, even if counsel does not.

Judges should strongly recommend to codefendants that they

avoid dual representation and should make clear that a courtappointed attorney is available to represent each defendant or

to consult with each defendant concerning dual representation.

This section is a hearing procedure for so advising defendants

and for obtaining a waiver of the right to separate counsel. Note,

however, that in certain situations, a district court may disqualify

an attorney, despite a defendant’s voluntary, knowing, and intelligent waiver of the right to conflict-free counsel. See Wheat v.

United States, 486 U.S. 153, 163 (1988) (“district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be

demonstrated before trial, but in the more common cases where

a potential for conflict exists which may or may not burgeon into

an actual conflict as the trial progresses”).
Section 1.08: Joint representation of codefendants

32 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Procedure

A. Determine if the defendant is competent.

1. Ask the defendant:

(a) Mr., Ms., Mrs., Miss _________, how old are you?

(b) How far did you go in school?

[If you are not sure the defendant can understand

English, ask:]

(c) Are you able to speak and understand English?

[Ask defense counsel if he or she has been able to

communicate with the defendant in English. If you

doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 U.S.C. § 1827.]

(d) Have you taken any drugs, medicine, or pills or

drunk any alcoholic beverage in the past twentyfour hours? Do you understand what is happening today?

2. Then ask defense counsel and prosecutor:

Do either of you have any doubt as to the defendant’s competence at this time?

3. State your finding on the record of the defendant’s competence.

B. Emphasize the seriousness of the charges. Tell the defendant the maximum punishment for each count.

C. Tell the defendant:

1. If at any time you do not understand something or

have a question, consult your lawyer or ask me any

questions.

2. This proceeding can be continued to another day if

you wish to consult another lawyer.

D. Advise the defendant about the apparent conflict of interest

in his or herlawyer’s representation. For example, state:

The United States Constitution gives every defendant

the right to effective assistance of counsel. When one

lawyer represents two or more defendants in a case,
Section 1.08: Joint representation of codefendants

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 33

the lawyer may have trouble representing all of the

defendants with the same fairness. This is a conflict

of interest that denies the defendant the right to effective assistance of counsel. Such conflicts are always

a potential problem because different defendants

may have different degrees of involvement. Each defendant has the right to a lawyer who represents only

him or her.

E. Point out the various ways in which dual representation

might work to the defendant’s disadvantage. This may be

done by giving the defendant a form to read or by advising

the defendant in the following way:

1. Dual representation may inhibit or prevent counsel

from conducting an independent investigation in support of each defendant’s case. For example, the

attorney–client privilege may prevent your lawyer

from communicating to you information gathered

from another defendant.

2. The government may offer immunity or offer to recommend a lesser sentence to one defendant for cooperating with the government. Should you receive

such an offer, your lawyer ought to advise you

whether or not to accept it. But if your lawyer advises

you to accept the offer, it may harm the cases of the

other defendants represented by that lawyer.

3. The government may let a defendant who is not as involved as other defendants plead guilty to lesser

charges than the other defendants. After the guilty

plea, however, the government may require the defendant to testify. A lawyer who represents more than

one defendant might recommend that the first defendant not plead guilty in order to protect the other defendants that the lawyer represents. On the other

hand, the lawyer might recommend that the first defendant plead guilty, which might harm the cases of

the other defendants.

4. Dual representation may affect how your lawyer exercises peremptory challenges or challenges for cause

during jury selection. Potential jurors who may be

perceived as favorable to you may be perceived as
Section 1.08: Joint representation of codefendants

34 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

harmful to another defendant, or jurors who may be

perceived as favorable to other defendants may be

harmful to you.

5. Sometimes one of the defendants represented by a

lawyer will take the stand to testify in his or her own

behalf. In order to represent the other defendants

fairly, the lawyer should question the defendant on

the stand as completely as possible. However, the

lawyer may not be able to do that because he or she

cannot ask the defendant as a witness about anything

that the defendant has told the lawyer in confidence.

6. The best defense for a single defendant often is the

argument that while the other defendants may be

guilty, he or she is not. A lawyer representing two or

more defendants cannot effectively make such an argument.

7. Evidence that helps one defendant might harm another defendant’s case. When one lawyer represents

two or more defendants, the lawyer might offer or

object to evidence that could help one defendant but

harm another.

8. Regarding sentencing, dual representation would

prohibit the lawyer from engaging in post-trial negotiations with the government as to full disclosure by

one defendant against the other. It would also prohibit the lawyer from arguing the relative culpability

of the defendants to the sentencing judge.

F. An attorney proposing to represent codefendants should be

required to assure the court that there will be no conflict that

could result in a lack of effective assistance of counsel or

other prejudice to any defendant.

G. Consider recommending that the defendant consult with

other, independent counsel about the wisdom of waiving the

right to separate counsel. Offer to make CJA counsel available

(if appropriate) and allow adjournment for that purpose.

H. If the defendant wants to waive the right to separate counsel,

get a clear, on-the-record oral waiver by him or her of the right

to separate counsel. In addition, you may want the defendant to sign a written waiver.
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 35

1.09 Waiver of jury trial

(suggested procedures,

questions, and statements)

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

Introduction

Trial by jury is a fundamental constitutional right, and waiver of

the right to a jury trial should be accepted by a trial judge only

when three requirements are satisfied:

1. the procedures of Fed. R. Crim. P. 23(a) have been followed;

2. the waiver is knowing and voluntary; and

3. the defendant is competent to waive a constitutional

right.

Fed. R. Crim. P. 23(a) requires that the accused’s waiver of

the right to trial by jury be

1. made in writing;

2. consented to by the government; and

3. approved by the court.

Following this rule alone does not satisfy the requirement

that the waiver be knowing and voluntary, however.

The trial judge should ascertain on the record

1. whether the accused understands that he or she has a

right to be tried by a jury;

2. whether the accused understands the difference between a jury trial and a nonjury trial; and

3. whether the accused has been made to understand the

advantages and disadvantages of a jury trial.

Before approving the waiver, a trial judge must consider a defendant’s mental capacity to waive a jury trial. A defendant is not
Section 1.09: Waiver of jury trial

36 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

competent to waive a constitutional right if mental incapacity or

illness substantially impairs his or her ability to make a reasoned

choice among the alternatives presented and to understand the

nature and consequences of the waiver.

When information available from any source presents a

question as to the defendant’s competence to waive a jury trial,

sua sponte inquiry into that competence must be made.

In any psychiatric examination ordered under the inherent

power of the court or under 18 U.S.C. § 4241, the examining psychiatrist should be directed to give an opinion on the defendant’s competence to make an intelligent waiver. Whenever any

question as to the defendant’s competence arises, a specific

finding of competence orincompetence should be made.

Finally, if any doubt of competence exists, the judge should

order a jury trial.

Suggested Procedures and Questions

A. Preliminary questions for the defendant

1. The court is informed that you desire to waive your

right to a jury trial. Is that correct?

2. Before accepting your waiver to a jury trial, there are

a number of questions I will ask you to ensure that it

is a valid waiver. If you do not understand any of the

questions or at any time wish to interrupt the proceeding to consult further with your attorney, please

say so, since it is essential to a valid waiver that you

understand each question before you answer. Do you

understand?

3. What is your full name?

4. How old are you?

5. How far did you go in school?

[If you are not sure the defendant understands English, ask:]

6. Are you able to speak and understand English?

[Ask defense counsel if he or she has been able to

communicate with the defendant in English. If you

doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 U.S.C. § 1827.]
Section 1.09: Waiver of jury trial

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 37

7. What is your employment background?

8. Have you taken any drugs, medicine, or pills, or

drunk any alcoholic beverage in the past twenty-four

hours?

9. Do you understand that you are entitled to a trial by

jury on the charges filed against you?

10.Do you understand that a jury trial means that you

will be tried by a jury consisting of twelve people and

that all of the jurors must agree on the verdict?

11.Do you understand that you have the right to participate in the selection of the jury?

12.Do you understand that if I approve your waiver of a

jury trial, the court will try the case and determine

your innocence or guilt?

13.Have you discussed with your attorney your right to a

jury trial?

14.Have you discussed with your attorney the advantages and disadvantages of a jury trial? Do you want

to discuss this issue further with your attorney?

B. Questions for counsel

In determining whether the accused has made a “knowing

and voluntary” waiver and is competent to waive the right to

a jury trial, the judge should question both the defense counsel and the prosecutor.

1. Ask the defense counsel:

(a) Have you discussed with the defendant the advantages and disadvantages of a jury trial?

(b) Do you have any doubt that the defendant is

making a “knowing and voluntary” waiver of the

right to a jury trial?

(c) Has anything come to your attention suggesting

that the defendant may not be competent to

waive a jury trial?

2. Ask the prosecutor:

Has anything come to your attention suggesting

that the defendant may not be competent to

waive a jury trial?
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38 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

C. Form of waiver and oral finding

1. A written waiver of a jury trial must be signed by the defendant, approved by the defendant’s attorney, consented to by the government, and approved by the court.

2. It is suggested that the judge state orally:

This court finds that the defendant has knowingly

and voluntarily waived his [her] right to a jury trial,

and I approve that waiver.

3. An appropriate written waiver of jury trial may take the

form of the one shown on the next page.

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 10–12 (5th ed. 2001)
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In the U.S. District Court

for the District of [ ]

United States of America )

) No. Cr

v. ) Waiver of trial

) by jury

)

[Defendant] )

I acknowledge that I was fully informed of my right to trial by jury

in this cause. I hereby waive that right, request the court to try all

issues of fact and law without a jury, and waive my right to special findings.

Dated at , this day of , 20 .

Defendant

APPROVED:

Attorney for Defendant

The United States of America consents to the defendant’s waiver

of a jury trial and waives its right to request special findings.

Assistant U.S. Attorney

I find that the defendant has knowingly and voluntarily waived

the right to a jury trial, and I approve the waiver.

Judge

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 41

1.10 Speedy Trial Act

18 U.S.C. §§ 3161–3166

Title I of the Speedy Trial Act of 1974 (18 U.S.C. § 3161) imposes

time limits within which criminal defendants must be brought to

trial. The time limits are expressed as numbers of days from certain events, but the statute provides that certain periods of time

be “excluded” in computing these limits, thereby extending the

deadlines. The statute applies to offenses other than petty offenses.

1 This section is offered as a general guide to the time limits and exceptions in the Speedy Trial Act. Judges should be

aware that circuit law may differ on specific issues.

Judges should also be aware of the possible effect of the

Crime Victims’ Rights Act. Any victims of the offense have the

right to be notified of and to attend any public proceeding. They

also have a right to “proceedings free from unreasonable delay,”

which may need to be considered if exceptions to the Speedy

Trial Act’s time limits are requested. See 18 U.S.C. § 3771(a)(2),

(3), and (7).

Dismissal

Failure to comply with the time limits generally requires that a

cause be dismissed, although not necessarily with prejudice. In

deciding whether to dismiss with or without prejudice, the court

should consider the seriousness of the offense, the facts and circumstances that led to the dismissal, and the impact of a

reprosecution on the administration of the Speedy Trial Act and

the administration of justice. See 18 U.S.C. § 3162(a)(1) and (2).

If the defendant may be released, victims should be given an

“opportunity to be reasonably heard” at any public proceeding

on the issue. 18 U.S.C. § 3771(a)(4).

Waiver by defendant

Although a defendant’s failure to make a timely motion for dismissal on speedy trial grounds is deemed a waiver of the right to

dismissal, see 18 U.S.C. § 3162(a)(2), courts should notrely solely

 

1. “Petty offense” means an offense that is punishable by imprisonment of

six months or less and for which the maximum fine (including any “alternative

fine” under 18 U.S.C. § 3571(d)) is no more than $5,000 for individuals or

$10,000 for organizations. 18 U.S.C. §§ 19 and 3581.
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42 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

on defendants’ agreements to delay their trials beyond the

statutory time limits. As the Supreme Courtrecently concluded,

§ 3161(h) has no provision excluding periods of delay during

which a defendant waives the application of the Act, and it is apparent from the terms of the Act that this omission was a considered one. Instead of simply allowing defendants to opt out of the

Act, the Act demands that defense continuance requests fit within

one of the specific exclusions set out in subsection (h).

Zedner v. United States, 126 S. Ct. 1976, 1985–87 (2006) (holding

that “a defendant may not prospectively waive the application of

the Act” and that “petitioner’s waiver ‘for all time’ was ineffective”).

Basic time limits

Indictment or information

An indictment or information must be filed within thirty days after arrest or service of a summons. However, if a defendant is

charged with a felony in a district in which no grand jury has

been in session during the thirty-day period, the time for filing

an indictment shall be extended an additional thirty days. See 18

U.S.C. § 3161(b). If an indictment or information is dismissed or

otherwise dropped and if charges based on or arising from the

same conduct are later refiled, “the provisions of subsections (b)

and (c) of this section shall be applicable with respect to such

subsequent complaint, indictment, or information.” 18 U.S.C.

§ 3161(d)(1).

Trial

A trial must commence within seventy days after the later of

(a) the date of the indictment or information or (b) the date of

the defendant’s initial appearance before a judicial officer in the

districtin which charges were brought. See 18 U.S.C. § 3161(c). In

some circumstances, the deadline for trial on a superseding indictment relates back to the original indictment.

Trial, defendant in custody

A trial of a defendant held in pretrial detention must also commence within ninety days of the beginning of continuous custody. This deadline may in some cases be earlier than the seventy-day deadline referred to above. See 18 U.S.C. § 3164(b).

The sanction is release from custody rather than dismissal of the
Section 1.10: Speedy Trial Act

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case. See 18 U.S.C. § 3164(c). If the defendant’s release involves

a “public hearing,” a victim has the right to be heard. See 18

U.S.C. § 3771(a)(4).

Retrial

A retrial following a mistrial or order for a new trial must commence within seventy days after the date the action occasioning

the retrial becomes final. 18 U.S.C. § 3161(e). Retrial following a

dismissal by the trial court and reinstatement after appeal, or following an appeal or collateral attack, must also commence within

seventy days, but an extension of up to 180 days may be allowed

if trial within seventy days is impractical. 18 U.S.C. § 3161(d) and

(e).

Trial commencement limitations

The Act requires that the trial date be determined at the earliest

practicable time, after consultation with counsel. See 18 U.S.C.

§ 3161(a). A trial may not commence less than thirty days after

the defendant first appears through counsel or expressly waives

counsel and elects to proceed pro se, unless the defendant consents in writing. See 18 U.S.C. § 3161(c)(2).

Excludable periods

There are several periods of delay that “shall be excluded” from

the time limits for filing an indictment or information or for commencing trial. See 18 U.S.C. § 3161(h)(1)–(9). Among these are

periods of delay resulting “from other proceedings concerning

the defendant,” “from the absence or unavailability of the defendant or an essential witness,” and “from the fact that the defendant is mentally incompetent or physically unable to stand

trial.”

A period of delay resulting from the granting of a continuance

may also be excluded if the continuance was granted on the basis of a finding that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant

in a speedy trial.” The court must put on the record, “either orally

or in writing, its reasons for [that] finding.”2 See 18 U.S.C.

§ 3161(h)(8)(A). Note that a continuance under this section may

not be granted “because of general congestion of the court’s cal-

 

2. Consider asking the U.S. attorney to prepare the form of the order.
Section 1.10: Speedy Trial Act

44 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

endar, orlack of diligent preparation or failure to obtain available

witnesses on the part of the attorney for the Government.” 18

U.S.C. § 3161(h)(8)(C). The right of crime victims to “proceedings

free from unreasonable delay” may also have to be considered.

See 18 U.S.C. § 3771(a)(7).

Other aids to interpretation

The speedy trial plan adopted by each district court pursuant to

18 U.S.C. §§ 3165, 3166

Administrative Office of the U.S. Courts, 1 Clerks Manual: United

States District Courts § 8.08 (1993)

Judicial Conference Committee on the Administration of the

Criminal Law, Guidelines to the Administration of the Speedy

Trial Act of 1974 (rev. ed. October 1984), 106 F.R.D. 271 (1984)

Other FJC sources

Anthony Partridge, Legislative History of Title I of the Speedy

Trial Act of 1974 (1980)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 45

1.11 Delinquency proceedings

18 U.S.C. §§ 5031 et seq.

A. Proceeding as an adult or a juvenile

1. Jurisdiction

(a) The district court has jurisdiction over a juvenile who

is alleged to have committed a violation of law in the

court’s special maritime and territorial jurisdiction for

which the maximum authorized term of imprisonment is six months orless.

(b) In other cases, the district court has jurisdiction only if

the Attorney General, after investigation, certifies one

of the following:

(i) that a juvenile court or other appropriate state

court does not have jurisdiction or refuses to assume jurisdiction over a juvenile with respect to

the alleged act of juvenile delinquency;

(ii) that the state does not have available programs

and services adequate for the needs of juveniles;

or

(iii) that the offense charged is a crime of violence

that is a felony, or is an offense described in certain sections of title 21, and that there is a substantial federal interest in the case or the offense.

If jurisdiction is not established under paragraph (a) or

(b) above, the juvenile must be surrendered to appropriate state authorities. If jurisdiction is established, the

prosecution proceeds by information or by violation notice or complaint under 18 U.S.C. § 3401(g). See 18 U.S.C.

§ 5032. See also the Calendar of Events at the end of this

section.

2. Preliminary procedures

(a) Clear the courtroom of all persons except those associated with the case. Close the outside and inside

doors and instruct the marshal not to open them during the proceedings.

(b) Take the appearances of counsel.
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46 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

(c) Explain to the parties that the hearing will be divided

into two parts as follows:

(i) the court determines if the juvenile should proceed as an adult or a juvenile;

(ii) the juvenile admits or denies the charges against

him or her (see subsection B of this section).

(d) Ensure that the juvenile can speak and understand

English and that defense counsel has been able to

communicate with the juvenile in English. If there is

any doubt about the juvenile’s ability to understand

English, use a certified interpreter. See 28 U.S.C.

§ 1827.

3. Explain the rights of an adult:

(a) to an initial appearance before the magistrate judge;

(b) to counsel;

(c) to a bail hearing;

(d) to an indictment, if applicable;

(e) to a preliminary examination to determine probable

cause if the defendant is not indicted; and

(f) to a trial by jury (explain composition of jury) in which

the government will have to prove that the defendant

is guilty beyond a reasonable doubt and in which the

defendant has the right

(i) to confront and cross-examine witnesses; and

(ii) to remain silent, testify, or call witnesses.

4. Explain the rights of a juvenile:

(a) to an initial appearance before the magistrate judge;

(b) to counsel;

(c) to an information, violation notice, or complaint, as

opposed to an indictment by grand jury;

1

(d) to a hearing before the court to determine delinquency,

2 during which the defendant has the right

(i) to confront and cross-examine witnesses;

3

 

1. 18 U.S.C. § 5032; United States v. Hill, 538 F.2d 1072 (4th Cir. 1976).

2. McKeiver v. Pennsylvania, 403 U.S. 528 (1971); United States v. Hill, 538

F.2d 1072 (4th Cir. 1976).

3. In re Gault, 387 U.S. 1 (1967); United States v. Costanzo, 395 F.2d 441 (4th

Cir.), cert. denied, 393 U.S. 883 (1968).
Section 1.11: Delinquency proceedings

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(ii) to remain silent, testify, or call witnesses;

4 and

(iii) to have the government prove guilt beyond a

reasonable doubt;

5

and

(e) to have his or her name and picture withheld from the

media.

6

5. Election to proceed as an adult or a juvenile

(a) Explain the maximum penalties under the applicable

statute if the juvenile elects to proceed as an adult.

(b) Explain the disposition under the Federal Juvenile

Delinquency Act (FJDA), which gives the court the following options:

(i) to suspend the findings of delinquency;

(ii) to require that the juvenile make restitution to

the victim(s) of the delinquent conduct;

(iii) to place the juvenile on probation; or

(iv) to commit the juvenile to official detention.

18 U.S.C. § 5037(a)

(c) Explain that if the juvenile elects to proceed as an

adult,

(i) the request must be in writing and upon the advice of counsel.

7

(ii) the juvenile may plead not guilty and force the

government to trial by jury under an indictment,

if applicable.

(iii) the juvenile may plead guilty and forgo trial.

(d) Explain that if the juvenile elects to proceed as a juvenile,

(i) the request may be oral.

 

4. In re Gault, 387 U.S. 1 (1967); United States v. Hill, 538 F.2d 1072 (4th Cir.

1976); West v. United States, 399 F.2d 467 (5th Cir. 1968) (factors in deciding if

juvenile has waived privilege against self-incrimination), cert. denied, 393 U.S.

1102 (1969).

5. In re Gault, 387 U.S. 1 (1967); United States v. Hill, 538 F.2d 1072 (4th Cir.

1976); United States v. Costanzo, 395 F.2d 441 (4th Cir.), cert. denied, 393 U.S.

883 (1968).

6. 18 U.S.C. § 5038(e).

7. 18 U.S.C. § 5032.
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48 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

(ii) the juvenile may deny the charges against him or

her and force the government to try the case before the judge.

(iii) the juvenile may admit the charges filed in the

information, violation notice, or complaint, forgoing trial.

(e) Ask counsel

(i) if proceeding as a juvenile is in the individual’s

best interests; and

(ii) if family members present in the courtroom have

discussed the individual’s election with counsel.

(f) Ask the juvenile:

Do you elect to proceed as an adult or as a juvenile?

(i) If the juvenile elects to proceed as an adult, proceed to arraignment as an adult (see infra section

2.01: Taking pleas of guilty or nolo contendere).

(ii) If the juvenile elects to proceed as a juvenile,

proceed to arraignment of a juvenile (see subsection B of this section).

6. Motion by Attorney General to proceed against the juvenile as an adult

(a) The Attorney General may make a motion to transfer

the juvenile to adult prosecution if the juvenile

(i) committed an act that if committed by an adult

would be a felony that is a crime of violence or a

specified drug offense from title 21; and

(ii) committed the act after his or her fifteenth birthday.

(b) The court may grant the motion if, after a hearing and

after considering and making findings in the record

on the factors listed in the statute, it finds that the

transfer would be “in the interest of justice.”

(c) The age limit for committing the act is lowered to after

the thirteenth birthday for certain crimes of violence

or if the juvenile possessed a firearm during the offense.

(d) Reasonable notice of a transfer hearing must be given

to the juvenile; the juvenile’s parents, guardian, or
Section 1.11: Delinquency proceedings

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custodian; and counsel. The juvenile shall be assisted

by counsel, and any statements the juvenile makes

before or during the transfer hearing are not admissible at subsequent criminal prosecutions.

See 18 U.S.C. § 5032.

7. Mandatory proceeding as an adult

The juvenile shall be transferred to district court for

prosecution as an adult if the juvenile

(a) committed an act after his or her sixteenth birthday

that if committed by an adult would be a felony offense that is a crime of violence, or a drug offense or

other serious crime as described in the statute; and

(b) has been previously found guilty of an act that if

committed by an adult would have been one of the offenses described above or in paragraph 6 above, or

found guilty of a violation of a state felony statute that

would have been such an offense if committed under

federal jurisdiction.

See 18 U.S.C. § 5032.

B. Arraignment of a juvenile

1. Administer oath and make sure the juvenile understands

that to lie under oath is to commit the crime of perjury.

2. Direct the U.S. attorney to read the charge(s) against the

juvenile.

(a) The charge(s) must

(i) reflect that the individual committed an act of

juvenile delinquency;

(ii) cite the statute allegedly violated; and

(iii) cite 18 U.S.C. § 5032.

(b) The court should direct the following questions to the

juvenile:

(1) Have you been given a copy of the charge(s)?

(2) Have you talked to counsel about the

charge(s) filed against you?

[Explain the charge(s) and inquire:]

(3) Do you understand the charge(s) against you?
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[Explain the penalty and inquire:]

(4) Do you understand the maximum penalty that

could be assessed against you if you are found

guilty of the charge(s)?

(5) Do you understand that you are entitled to

have counsel present with you at all times during these proceedings?

(6) Are you satisfied with your representation

(counsel)?

(7) Do you understand that you have a right to

deny the charge(s) that has (have) just been

read?

(8) Do you understand that if you deny the

charge(s), the government will have to bring

witnesses that your counsel can crossexamine, and the government will have to convince the court beyond a reasonable doubt

(a) that you committed the crime with which

you have been charged; and

(b)that you committed this crime before you

reached the age of eighteen?

3. Read the elements of the offense that the government

will have to prove.

4. Determine the competence of the juvenile to understand

the proceedings and to enter an admission or denial.

(a) The court should ask the following questions:

(1) Have you taken any drugs, medicines, or pills or

drunk any alcoholic beverages in the past twentyfour hours?

(2) Do you understand what is happening today?

(b) The court should also ask the juvenile’s counsel and

the prosecutor this question:

Do either of you have any doubt as to the juvenile’s competence to admit or deny the charge(s)

against him [her] at this time?
Section 1.11: Delinquency proceedings

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(c) If, after further interrogation of the juvenile and

counsel, there is any question of the juvenile’s understanding of the proceedings and of his or her competence to plead, continue the taking of the admission

or denial to a later date.

5. Determine the juvenile’s awareness of the consequences

of an admission. Ask:

(a) Are you aware that, if you admit the charge(s)

against you, you are giving up your right:

(1) to trial by the court?

(2) to confront and cross-examine witnesses?

(3) to remain silent, testify, and call witnesses?

(4) to require the government to prove guilt beyond a reasonable doubt?

(b) Are you aware that if you admit the charge(s)

against you, you will lose the right to elect to proceed as an adult with the following rights:

8

(1) to an indictment, if applicable?

(2) to a trial by jury?

[See subsection A.3(f) of this section.]

6. Explain to the juvenile that if he or she admits the act with

which he or she has been charged, the government will

then tell the court what it believes the facts to be and

what it could prove if the case were to go to trial. Further,

explain that the court would then ask the juvenile

(a) if what the government says is true as far as he or she

knows;

(b) if any part of what the government says is not true,

and if so, what is not true;

(c) if he or she believes that the government can prove

what it says it can prove; and

(d) if he or she committed [here, go through the elements

of the offense].

 

8. Cf. United States v. Doe, 627 F.2d 181 (9th Cir. 1980) (discussing timing

requirement for making request to proceed as an adult).
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52 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

7. Determine the voluntariness of the admission:

The court must be satisfied that if the juvenile admits the

charge(s) against him or her, this admission is voluntary

and not the result of any force or threat or inducement.

Suggested questions to ask the juvenile include the following:

(a) Has anyone threatened you or anyone else or

forced you in any way to admit the charge(s)?

[If the answer is yes, ascertain the facts and recess

if necessary to permit the juvenile and his or her

counsel to confer, or postpone taking the admission.]

(b) Do you understand that no one can compel you

to admit anything?

8. Take the admission or denial. Ask the juvenile:

Do you admit or deny that you are a juvenile delinquent as charged in the information?

(a) If the juvenile denies the charge(s), set the case for

trial.

(b) If the juvenile admits the charge(s):

(1) Ask the U.S. attorney to state what he or she can

prove at trial.

(2) Ask the juvenile the following questions:

(a) So far as you know, is what the government

says true?

(b)Is any part of what the government says not

true, and if so, what is not true?

(c) Do you believe that the government can

prove what it says it can prove?

(d) Did you [here, go through the elements of

the offense]?

(3) Ask counsel for the juvenile if counsel is satisfied that the government can prove what it says

it can prove.

NOTE

Consider asking the juvenile to tell, in his or

her own words, what

he or she did.
Section 1.11: Delinquency proceedings

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9. Make findings for the record:

(a) Find that all laws (18 U.S.C. § 5031 et seq.) have been

complied with and that a basis for federal jurisdiction

exists (see subsection A.1 of this section).

(b) Find that the juvenile is competent.

(c) Find that the juvenile understands his or her rights

and has elected to give them up, except the right to

counsel.

(d) Find that the juvenile has voluntarily admitted the

charge(s) against him or her after fully knowing and

understanding his or her constitutional rights as a juvenile.

(e) Find that the juvenile is aware of the maximum penalty that could be imposed against him or her.

(f) Find that the juvenile is aware that the government

has sufficient facts to support an adjudication of juvenile delinquency.

(g) Ask the juvenile if he or she wants to change his or her

mind and not proceed as a juvenile or not admit the

charge(s) against him or her.

(h) Adjudge that the juvenile is a juvenile delinquent.

10. Inform the juvenile and his or her parents or guardian, in

writing, of the juvenile’s rights relating to the confidentiality of juvenile records.

9

C. Disposition (18 U.S.C. § 5037)

10

1. Detention prior to disposition (18 U.S.C. § 5035)

(a) A juvenile alleged to be delinquent may be detained

only in a juvenile facility or other suitable place designated by the Attorney General.

(b) Detention shall be in a foster home or communitybased facility located in or near the juvenile’s home

community whenever possible.

 

9. 18 U.S.C. § 5038(b). See 18 U.S.C. § 5038(a), (c), (d), and (f) for authority

to release juvenile records.

10. The following outline is not intended as a procedure for conducting a

dispositional hearing, but as supplemental material to be used in setting the

dispositional hearing.
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(c) The juvenile shall not be detained or confined in any

institution in which he or she would have regular contact with adults convicted of crimes or awaiting trial on

criminal charges. Also, insofar as possible, alleged delinquents shall be kept separate from adjudicated delinquents.

(d) Every juvenile in custody should be provided with

adequate food, heat, light, sanitary facilities, bedding, clothing, recreation, education, and medical

care, including necessary psychiatric, psychological,

or other care and treatment.

2. Timing of hearing (18 U.S.C. § 5037(a))

If the juvenile is adjudicated to be delinquent, the court

must have a hearing disposing of the case within twenty

court days after said adjudication unless the court has ordered further studies in accordance with 18 U.S.C.

§ 5037(d). (See paragraph C.5 of this section.)

3. Judgment following disposition hearing

After the disposition hearing, the court may

(a) suspend the findings of delinquency;

(b) require the juvenile to make restitution pursuant to

18 U.S.C. § 3556;

(c) place the juvenile on probation; or

(d) commit the juvenile to official detention in the custody of the Attorney General.

4. Sentence

A juvenile may not be placed on probation or committed

for a term longer than the maximum probation or prison

term that would have been authorized had the juvenile

been sentenced as an adult under the Sentencing Guidelines. United States v. R.L.C., 112 S. Ct. 1329, 1339 (1992).

Subject to that limitation, the maximum terms applicable

are as follows:

(a) For a juvenile under eighteen at the time of disposition, neither the probation term nor the detention

term may extend beyond the juvenile’s twenty-first

birthday. 18 U.S.C. § 5037(b)(1), (c)(1).

(b) For a juvenile between eighteen and twenty-one at

the time of disposition, the probation term may not
Section 1.11: Delinquency proceedings

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 55

exceed three years. 18 U.S.C. § 5037(b)(2). The detention term may not exceed five years if the act of delinquency was a Class A, B, or C felony; it may not exceed

three years in other cases. 18 U.S.C. § 5037(c)(2).

5. Observation and study (§ 5037(d))

An alleged or adjudicated delinquent may be committed,

after notice and a hearing at which the juvenile is represented by counsel, to the custody of the Attorney General

for observation and study by an appropriate agency. This

observation and study shall be conducted on an outpatient basis unless the court determines that inpatient observation and study are necessary to obtain the desired

information. If the juvenile is only an alleged juvenile delinquent, inpatient study may be ordered only with the

consent of the juvenile and his or her attorney. The

agency shall make a complete study of the alleged or adjudicated delinquent to ascertain his or her personal

traits, capabilities, and background; any previous delinquency or criminal experience; any mental or physical defects; and any other relevant factors.

The Attorney General must submit a report on the observation and study to the court and “to the attorneys for

the juvenile and the government” within thirty days after

commitment unless the court grants additional time.

Calendar of events

Juvenile in custody

The juvenile must be brought to trial within thirty days from the

date detention was begun. 18 U.S.C. § 5036.

The dispositional hearing must occur within twenty court

days after a juvenile is adjudicated delinquent. 18 U.S.C.

§ 5037(a).

Juvenile not in custody

The juvenile must be tried within seventy days from the date of

filing of the charging information or from the date the juvenile

appeared before a judicial officer of the court in which such
Section 1.11: Delinquency proceedings

56 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

charge is pending, whichever date occurs last. 18 U.S.C. §§ 3161

et seq.

11

The dispositional hearing must occur within twenty court

days after a juvenile is adjudicated delinquent. 18 U.S.C.

§ 5037(a).

 

11. But see Model Statement of the Time Limits and Procedures for Achieving Prompt Disposition of Criminal Cases (Committee on the Administration of

the Criminal Law of the Judicial Conference of the United States) (1979) (except

as specifically provided, the time limits are not applicable to proceedings under

the FJDA).
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 57

1.12 Mental competency in criminal

matters

18 U.S.C. §§ 4241–4248; Fed. R. Crim. P. 12.2

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

The mental competency of a the defendant may come before the

court in a number of different contexts. The most important are

• competency to stand trial;

• competency to plead guilty;

• competency to commit the crime with which the defendant is charged (e.g., ability to form the requisite intent);

• competency after acquittal by reason of insanity;

• competency to be sentenced;

• mental condition as it bears on the sentence to be imposed; and

• civil commitment of a convicted offender in need of care

or treatment for a mental condition.

The Insanity Defense Reform Act of 1984, 18 U.S.C. §§ 4241–

4248, is now controlling with respect to most situations involving

the mental competency of a defendant. It is a complex enactment, the provisions of which are spelled out in great detail. Its

provisions must be read with care and complied with meticulously.

A. Competency to stand trial (18 U.S.C. § 4241)

1. Section 4241(a) provides that after the commencement of

a prosecution and prior to sentencing, either the U.S. attorney or defense counsel may move for a hearing to determine the defendant’s mental competency. The court

shall grant the motion, or shall order a hearing on its own

motion, if there is reasonable cause to believe that the defendant is not mentally competent
Section 1.12: Mental competency in criminal matters

58 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

(a) to understand the nature and consequences of the

proceedings against him or her; or

(b) to assist properly in his or her defense.

2. Prior to the hearing the court may (and probably should)

order that a psychiatric or psychological examination be

conducted and that a report be filed with the court. 18

U.S.C. § 4241(b).

(a) The examiner should be asked for his or her opinion

as to whether the defendant is suffering from a mental disease or defect rendering the defendant mentally incompetent to understand the nature and consequences of the proceedings against him or her or to

assist properly in his or her defense. The examiner’s

report must include all of the information required by

18 U.S.C. § 4247(c)(1) through (c)(4).

(b) The psychiatrist or psychologist should not be asked

to determine the defendant’s mental competency at

the time the alleged offense was committed.

(c) To secure a § 4241 examination, the court may, if necessary, order the defendant committed to a suitable

hospital or facility for a reasonable period not to exceed thirty days, even if the defendant is not otherwise confined. Forjust cause this commitment may be

extended by fifteen days. 18 U.S.C. § 4247(b).

3. The court shall then hold an evidentiary hearing, to be

conducted pursuant to the provisions of 18 U.S.C.

§ 4247(d). The defendant “shall be represented by counsel.” Id.

4. At the conclusion of the evidentiary hearing, the court

shall make a finding by a preponderance of the evidence

as to the accused’s mental competency to stand trial. 18

U.S.C. § 4241(d).

(a) A finding of mental competency to stand trial does not

prejudice a plea of not guilty by reason of insanity,

because the court’s finding is not admissible in evidence on the issue of guilt or innocence. 18 U.S.C.

§ 4241(f).

(b) If the defendant is found to be incompetent to stand

trial, the court shall commit the defendant to the custody of the Attorney General. 18 U.S.C. § 4241(d). The
Section 1.12: Mental competency in criminal matters

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 59

trial court should receive periodic reports as to the defendant’s mental condition.

(c) The Attorney General shall hospitalize the defendant

for a reasonable period not to exceed four months, to

determine whether there is a substantial probability

that the defendant will in the foreseeable future become competent to stand trial. 18 U.S.C. § 4241(d)(l).

(d) The Attorney General may hospitalize the defendant

for an additional reasonable period of time if the court

finds that within that additional period there is a substantial probability that the defendant will become

competent to stand trial. 18 U.S.C. § 4241(d)(2).

(e) If, at the end of the time provided for by 18 U.S.C.

§ 4241(d), the defendant is still not competent to be

tried, he or she is subject to further commitment under the provisions of § 4246 if the court finds by clear

and convincing evidence that releasing the defendant

would create a substantial risk of bodily injury to another or of serious damage to another’s property. The

provisions of § 4246 are detailed and complex. To

avoid error the court must refer to those provisions

and follow them with great care. The report of any

§ 4246 psychiatric or psychological examination must

comply with the requirements of § 4247(c). Any hearing must be held pursuant to the provisions of

§ 4247(d).

(f) When the director of the facility certifies to the court

that the defendant is competent to stand trial, the

court must hold a hearing, conducted pursuant to the

requirements of 18 U.S.C. § 4247(d). If the court determines that the defendant is competent to stand

trial, it shall order the defendant’s discharge from the

facility and set the matter for trial. 18 U.S.C. § 4241(e).

B. Competency to plead guilty

Because a defendant is required to make a knowing and voluntary waiver of certain constitutional rights in entering a

guilty plea, the court must, in accepting a Fed. R. Crim. P. 11

plea, be satisfied that the defendant has sufficient mental

competency to waive those rights, to make a reasoned choice

among the alternatives presented to him or her, and to un-
Section 1.12: Mental competency in criminal matters

60 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

derstand the nature and consequences of the guilty plea (see

the plea colloquy infra section 2.01: Taking pleas of guilty or

nolo contendere).

If there is any question as to the defendant’s mental

competency to enter a guilty plea, an 18 U.S.C. § 4241 examination should be ordered and a hearing held prior to acceptance of the plea. In requesting such an examination, the

court should spell out for the examiner the criteria that the

examiner is to apply in determining whether the defendant is

competent to enter a guilty plea. The examiner should be requested to furnish the information required by § 4247(c),

along with an opinion as to the defendant’s competency to

enter a guilty plea.

C. Competency to commit the crime with which the defendant

is charged (Fed. R. Crim. P. 12.2; 18 U.S.C. §§ 17, 4242):

1. If the defendant intends to rely on the insanity defense

or to introduce expert testimony relating to his or her

mental condition, the defendant must notify the government attorney in writing of that intention within the

time provided for filing pretrial motions or at a later time if

so ordered by the court. The court may allow late filing of

the notice if good cause is shown. Fed. R. Crim. P. 12.2(a)

and (b).

2. The court may order the defendant to submit to a competency examination under 18 U.S.C. § 4241. If the defendant has provided notice of a defense of insanity under

Fed. R. Crim. P. 12(a), the court must order an examination under 18 U.S.C. § 4242 upon motion of the government. If the defendant provides notice of an intent to introduce expert evidence relating to the defendant’s mental condition under Fed. R. Crim. P. 12(b), the court may,

upon motion of the government, order the defendant examined under procedures ordered by the court. Fed. R.

Crim. P. 12.2(c)(1).

The examiner should be asked to give his or her opinion as to whether, at the time of the acts constituting the

offense, the defendant was unable to appreciate the nature and quality or the wrongfulness of his or her acts as a

result of a severe mental disease or defect. See 18 U.S.C.

§ 17(a). The examiner should be requested to include in
Section 1.12: Mental competency in criminal matters

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 61

his or her report all of the information required by

§ 4247(c).

3. The defendant bears the burden of proving the defense

of insanity by clear and convincing evidence. 18 U.S.C.

§ 17(b).

4. No statement made by the defendant during a courtordered mental examination (whether the examination

was with or without the defendant’s consent), no testimony by the expert based on that statement, and no fruit

of that statement may be admitted against the defendant in any criminal proceeding except with regard to an

issue concerning mental condition on which the defendant has introduced testimony or, in a capital sentencing

proceeding, has introduced expert evidence. Fed. R.

Crim. P. 12.2(b)(2) and (c)(4).

5. Results and reports of any examination conducted for a

capital sentencing hearing after notice under Fed. R.

Crim. P. 12.2(b)(2) must be sealed and not disclosed to either party unless the defendant is found guilty of a capital crime and intends to offer at sentencing expert evidence on mental condition. Once the results and reports

of the government’s examination have been disclosed,

the defendant must disclose to the government the results and reports of any examination on mental condition

conducted by the defendant’s expert about which the defendant intends to introduce expert evidence. Fed. R.

Crim. P. 12.2(c)(2) and (3).

6. If the defendant fails to provide timely notice to the government attorney of his or her intent to introduce expert

testimony relating to an insanity defense, or if he or she

fails to submit to an examination, the court may exclude

the testimony of any expert witness offered by the defendant on the issue of the defendant’s mental condition

at the time of the alleged criminal offense or on the issue

of punishment in a capital case. Fed. R. Crim. P. 12.2(d).

D. Competency after acquittal by reason of insanity (18 U.S.C.

§ 4243)

If a defendant is found not guilty only by reason of insanity,

he or she shall be committed to a suitable facility until such

time as he or she is eligible for release under 18 U.S.C.

NOTE

Serious due process

and compulsory process issues may arise if

the court excludes expert testimony concerning an insanity defense when a continuance of the trial would

be feasible. See 

Taliaferro v. Maryland,

456 A.2d 29, cert. denied, 461 U.S. 948

(1983) (White, J., dissenting).
Section 1.12: Mental competency in criminal matters

62 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

§ 4243(f). The provisions of § 4243(e) relating to the confinement and release of a defendant acquitted by reason of

insanity are detailed and complex. Those provisions must be

followed with meticulous care. Any hearing must comply with

the provisions of § 4247(d). Any report of a psychiatric or psychological examination must comply with the requirements

of § 4247(c).

E. Competency to be sentenced

Because the defendant has the right of allocution at sentencing and must be able to understand the nature of the proceedings, the defendant cannot be sentenced if he or she

does not have the mental capacity to exercise the right of allocution or to understand the nature of the proceedings.

If there is any question as to the defendant’s mental

competency to be sentenced, an 18 U.S.C. § 4241 examination should be ordered and a hearing held before sentencing.

The court should provide the examiner with the criteria the

examiner is to apply in determining whether the defendant is

competent to be sentenced. The court should request the examiner to include in his or her report all of the information

required by § 4247(c). Any hearing must be held pursuant to

the requirements of § 4247(d).

F. Mental condition as it bears on sentence imposed

l. Adult offenders (18 U.S.C. § 3552(b))

1

(a) If the court determines that it needs more detailed information about the defendant’s mental condition as

a basis for determining the sentence to be imposed,

the court may order a study of the defendant.

(b) The study should be conducted by a qualified consultant in the local community, unless the court finds

that there is a compelling reason to have the study

done by the Bureau of Prisons or that there are no

adequate professional resources in the local community to perform the study.

 

1. Subsections (b) and (c) of § 3552 both authorize studies in aid of sentencing. Subsection (c) specifically authorizes a psychiatric or psychological

exam, but it appears preferable to rely on the more flexible general authority of

§ 3552(b).
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ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 63

(i) If the study is to be done in the local community,

the court should designate a consultant, usually

a psychiatrist or psychologist, to conduct the

study and order the defendant to submit to the

examination. The probation office will assist in

identifying people who are qualified and willing

to perform such studies; the probation office can

also provide funds for this purpose.

(ii) If the study is to be done by the Bureau of Prisons, the defendant should be committed under

18 U.S.C. § 3552(b) to the custody of the bureau

to be studied. Imposing a provisional sentence is

not necessary.

(c) The court order should specify the additional information the court needs before determining the sentence to be imposed and should inform the examiner

of any guideline or policy statement that should be

addressed by the study.

(d) The court order should specify a period for the study,

not to exceed sixty days. The period may be extended,

at the discretion of the court, for up to sixty more

days.

2

(e) To minimize delay if the study is to be done by the Bureau of Prisons, the court should consider directing

the probation officer to secure immediate designation

of the institution at which the study will be performed, and directing the marshal to transport the defendant to that institution by the most expeditious

means available.

(f) After receiving the report of the study, the court

should proceed to sentencing. The report must be included in the presentence report. See Fed. R. Crim. P.

32(d)(2)(E).

(g) See also U.S.S.G. §§ 5H1.3 and 5K2.13, which delineate the extent to which a defendant’s mental or emotional condition may be taken into account under the

Sentencing Guidelines.

 

2. A court may also have to consider that, if there are victims of the offense,

they have a right “to proceedings free from unreasonable delay.” 18 U.S.C.

§ 3771(a)(7).
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64 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

2. Juvenile offenders (18 U.S.C. § 5037(d))

(a) If the court determines that it needs additional information concerning an alleged or adjudicated juvenile

delinquent’s mental condition, the court may commit

the juvenile to the Attorney General’s custody for observation and study after notice and a hearing at

which the juvenile is represented by counsel.

(b) The observation and study of the juvenile must be

performed on an outpatient basis, unless the court

determines that inpatient observation is necessary to

obtain the desired information. If the juvenile has not

been adjudicated delinquent, inpatient study can be

ordered only with the consent of the juvenile and his

or her attorney.

(c) The agency selected by the Attorney General shall

make a complete study of the juvenile’s mental

health.

(d) The Attorney General shall submit to the court and to

the juvenile’s attorney the results of the study. That

report shall be submitted within thirty days of the juvenile’s commitment, unless the time for reporting is

extended by the court.

G. Civil commitment of convicted offender in need of care or

treatment for mental condition (18 U.S.C. § 4244)

3

1. Upon motion of the defendant or the government or on

its own motion, the court may, before sentencing, determine that there is reasonable cause to believe that the

defendant may be suffering from a mental disease or defect that requires custody for treatment in a suitable facility. In that event the court shall order a hearing. 18 U.S.C.

§ 4244(a).

2. Before the hearing the court may order that a psychiatric

or psychological examination of the defendant be conducted and that a report be filed with the court, pursuant

to § 4247(b) and (c). If it is the opinion of the examiner

 

3. If the civil commitment hearing is considered a “public proceeding in

the district court involving . . . sentencing,” any victims of the offense have the

rights to notification and attendance, plus the right “to be reasonably heard.”

18 U.S.C. § 3771(a)(2)–(4).
Section 1.12: Mental competency in criminal matters

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 65

that the defendant is suffering from a mental disease or

defect but that the condition is not such as to require the

defendant’s custody for care or treatment, the examiner

shall give his or her opinion concerning the sentencing alternatives that could best accord the defendant the kind

of treatment he or she does need. 18 U.S.C. § 4244(b).

3. The hearing shall be conducted pursuant to the provisions of § 4247(d).

4. If, after the hearing, the court finds by a preponderance

of the evidence that the defendant is suffering from a

mental disease or defect and that, in lieu of being sentenced to imprisonment, he or she should be committed

to a suitable facility for care or treatment, the court shall

commit the defendant to the custody of the Attorney

General for care or treatment in a suitable facility. Such

commitment shall constitute a provisional sentence of

imprisonment to the maximum term authorized by law

for the offense of which the defendant was found guilty.

18 U.S.C. § 4244(d).

5. When the director of the facility to which the defendant is

sent certifies that the defendant is no longer in need of

custody for care or treatment, the court shall proceed to

sentencing, provided that the provisional sentence has

not yet expired. 18 U.S.C. § 4244(e).

Other FJC sources

David N. Adair, Jr., The Bail Reform Act of 1984, at 25 (3d ed.

2006)

Pattern Criminal Jury Instructions 67 (1987)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 67

1.13 Referrals to magistrate judges

(criminal matters)

Fed. R. Crim. P. 58 and 59; 28 U.S.C. § 636

Procedure

The general procedure for referring matters to magistrate judges

is set forth in Fed. R. Crim. P. 59, which became effective December 1, 2005:

(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. . . .

(b) Dispositive Matters.

(1) . . . A district judge may refer to a magistrate judge for recommendation a defendant's motion to dismiss or quash an indictment or information, a motion to suppress evidence, or any

matter that may dispose of a charge or defense. The magistrate

judge must promptly conduct the required proceedings. A record must be made of any evidentiary proceeding and of any

proceeding if the magistrate judge considers it necessary. The

magistrate judge must enter on the record a recommendation for

disposing of the matter, including any proposed findings of fact.

In either case, the parties have ten days to object to the order

or recommendation, unless the court sets a longer period. “Failure to object in accordance with this rule waives a party’s right to

review,” Fed. R. Crim. P. 59(a) and (b)(2), although the district

court retains discretion to review the decision. The Advisory

Committee Notes to Rule 59 emphasize that, “[a]lthough 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.”

Specific Proceedings

Listed below are duties in criminal matters that are covered in

Sections 1, 2, and 4 of this Benchbook and that may be referred to

magistrate judges. See also 28 U.S.C. § 636. Most districts have
Section 1.13: Referrals to magistrate judges (criminal matters)

68 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

local rules or standing orders governing referrals to magistrate

judges.

For a more comprehensive listing of the duties magistrate

judges may perform, see Inventory of United States Magistrate

Judge Duties (December 1999), available from the Magistrate

Judges Division of the Administrative Office of the U.S. Courts.

1

This information also appears in Chapter 3, “Jurisdiction,” of the

Legal Manual for U.S. Magistrate Judges, published by the Administrative Office.

A magistrate judge may conduct

1. bail proceedings and detention hearings. 18 U.S.C.

§§ 3041, 3141–3148; 28 U.S.C. § 636(a)(2). (See supra section 1.03: Release or detention pending trial.)

2. arraignments, and may take not guilty pleas in felony

cases.

2 28 U.S.C. § 636(b)(1)(A). (See supra section 1.07:

Arraignment and plea.)

3. trial, judgment, and sentencing in a petty offense case;

for other misdemeanors, the defendant’s express consent

to be tried before a magistrate judge in writing or orally on

the record is required. The defendant must also specifically waive trial, judgment, and sentencing by a district

judge. See Fed. R. Crim. P. 58(b)(2)(E) and (3)(A); 18

U.S.C. § 3401(b); 28 U.S.C. § 636(a)(3)–(5). A judgment of

conviction or sentence by a magistrate judge may be appealed to the district court. 18 U.S.C. § 3402. Fed. R. Crim.

P. 58 governs trials and appeals of misdemeanors and

petty offenses. (See generally infra section 2.03: Trial outline—criminal.)

 

1. The Administrative Office also provides an online web page summarizing more recent decisions and articles relating to the duties and authority of

magistrate judges at http://jnet.ao.dcn/Judges/Magistrate_Judges/Authority/

Decisions.html.

2. Note that your circuit may allow a magistrate judge to take a plea of

guilty in a felony case if the defendant consents. See Inventory of United States

Magistrate Judge Duties 124–26. It is recommended that this consent be in writing and expressly waive the right to enter the plea before an Article III judge. It

is also advisable for the district court, at the start of the sentencing hearing, to

state on the record that it, too, accepts the defendant’s plea of guilty, based

upon information provided at the plea hearing and contained in the presentence report.
Section 1.13: Referrals to magistrate judges (criminal matters)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 69

4. pretrial matters:

(a) A magistrate judge may hear and determine nondispositive pretrial matters in felony cases,

3 including

discovery and appointment of counsel. A district court

may reconsider a magistrate judge’s ruling on a nondispositive matter if it is “clearly erroneous or contrary

to law.” 28 U.S.C. § 636(b)(1)(A) and Fed. R. Crim. P.

59(a).

(b) A magistrate judge may hear and submit to the district court proposed findings of fact and recommended determinations of dispositive pretrial matters, such as a motion to suppress evidence or to dismiss an indictment. 28 U.S.C. § 636(b)(1)(B) and Fed.

R. Crim. P. 58(b)(1). A district court must make a de

novo determination of those portions of proposed

findings and recommendations to which the parties

object, 28 U.S.C. § 636(b)(1)(C) and Fed. R. Crim. P.

58(b)(3), but need not hold a de novo hearing of all

the evidence, United States v. Raddatz, 447 U.S. 667

(1980).

See generally infra section 2.03: Trial outline—criminal.

5. voir dire in a felony case, if the parties consent. Peretz v.

United States, 111 S. Ct. 2661 (1991). A magistrate judge

may not conduct voir dire in a felony trial if the defendant

objects. Gomez v. United States, 490 U.S. 858 (1989). (See

infra section 2.06: Standard voir dire questions—

criminal.)

6. probation and supervised release modification hearings:

(a) A magistrate judge may revoke, modify, or reinstate

probation and modify, revoke, or terminate supervised release if any magistrate judge imposed the probation or supervised release in a misdemeanor case.

18 U.S.C. § 3401(d), (h).

(b) In other cases, a district court judge may designate a

magistrate judge to conduct hearings to modify, revoke, or terminate supervised release, and to submit

 

3. The Supreme Court held that decisions touching the core trial features of

a felony case may be delegated to a magistrate judge only if expressly authorized by statute. Gomez v. United States, 490 U.S. 858 (1989).
Section 1.13: Referrals to magistrate judges (criminal matters)

70 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

to the district judge proposed findings of fact and recommend disposition under 18 U.S.C. § 3583(e). 18

U.S.C. § 3401(i).

4

See generally infra section 4.02: Revocation of probation

or supervised release.

7. an omnibus hearing, subject to any right of review before

a district court of dispositive matters. 28 U.S.C.

§ 636(b)(1)(A) and (B).

8. extradition hearings. 18 U.S.C. § 3184; Ward v. Rutherford,

921 F.2d 286 (D.C. Cir. 1990), cert. dismissed, 111 S. Ct.

2844 (1991). (See supra section 7.05: Foreign extradition

proceedings.)

9. “additional duties [that] are not inconsistent with the

Constitution and laws of the United States.” 28 U.S.C.

§ 636(b)(3). For examples of additional duties and case

law on § 636(b)(3), see Inventory of United States Magistrate Judge Duties 112–40 (December 1999).

 

4. The Ninth Circuit held that neither 28 U.S.C. § 636 nor 18 U.S.C. § 3401

authorizes a magistrate judge to conduct probation revocation hearings in a felony case without the defendant’s consent. See United States v. Colacurcio, 84

F.3d 326, 329–34 (9th Cir. 1996) (reversed). See also United States v. Curry, 767

F.2d 328, 331 (7th Cir. 1985) (magistrate judge not authorized by 28 U.S.C.

§ 636(b)(3) to conduct probation revocation hearings without the defendant’s

consent); Banks v. United States, 614 F.2d 95, 97–98 (6th Cir. 1980) (same).
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 71

2.01 Taking pleas of guilty or nolo

contendere

Fed. R. Crim. P. 11

[Note: Effective December 1, 2002, amendments to Rule 11 significantly changed the numbering of the rule’s paragraphs. For

this edition of the Benchbook, the former paragraph numbers

appear in brackets following the current designations.]

Introduction

This section is intended to serve as a guide to district judges, and

to magistrate judges who are authorized to conduct change of

plea hearings by consent,

1 when they conduct the formal plea

taking, whether it occurs before or after review of the presentence report. It is important to emphasize that, while the plea of

guilty is entered at the Rule 11 proceeding, the court may defer

deciding whether to accept the terms of a plea agreement until

after review of the presentence report.

2 If after review of the report the district court rejects an agreement made pursuant to

Rule 11(c)(1)(A) or (C) [formerly 11(e)(1)(A) or (C)], the court

shall give the defendant the option to withdraw the plea. In either event, the judge’s goal in taking the plea must be to establish that the defendant is competent, that the plea is free and

voluntary, that the defendant understands the charges and

penalties, and that there is a factual basis for the plea.

This section is not intended to be all-inclusive. Circumstances may require that additional matters be established ofrecord. In some cases, moreover, the court may find it necessary to

resolve disputes about the presentence report before determining whether a plea agreement is acceptable. See infra section

4.01: Sentencing procedure.

Taking pleas from defendants who do not speak English

raises problems beyond the obvious language barrier. Judges

should be mindful not only of the need to avoid using legalisms

and other terms that interpreters may have difficulty translating,

but also of the need to explain such concepts as the right not to

 

1. If the defendant consents to entering a plea of guilty before a magistrate

judge, it is recommended that the consent be in writing and expressly waive the

defendant’s right to enter the plea before an Article III judge.

2. Fed. R. Crim. P. 11(c)(3)(A) [formerly 11(e)(2)]; U.S.S.G. § 6B1.1(c), p.s.
Section 2.01: Taking pleas of guilty or nolo contendere

72 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

testify and the right to question witnesses, which may not be familiar to persons from different cultures. See 28 U.S.C. § 1827 regarding use of certified interpreters.

Some courts have developed Application for Permission to

Enter Plea of Guilty forms and Written Plea Agreement forms. If

used, such forms do not obviate the need for complete oral proceedings in open court that meet the requirements of Fed. R.

Crim. P. 11.

Outline

[Note: Before proceeding with the hearing, the court may want to

ask the prosecutor if there are any victims of the offense and, if

so, whether the government has fulfilled its duty to notify them

of the hearing and their right to attend, and whether any victims

want to be “reasonably heard.” 18 U.S.C. § 3771(a)(2)–(4).

3

]

A. Determine, on the record, the purpose of the defendant’s

appearance, that is, obtain a statement from defense counsel

4 that the defendant wishes to enter a plea of guilty (or

nolo contendere).

B. If it has not previously been established, determine whether

the plea is being made pursuant to a plea agreement of any

kind. If so, require disclosure of the terms of the agreement

(or if the agreement is in writing, require that a copy be produced for your inspection and filing). See Fed. R. Crim. P.

11(c)(2) [formerly 11(e)(2)].

C. Have the clerk administer the oath to the defendant.

5

[Note: If you have any doubts about the defendant’s ability

to speak and understand English, consider appointing a certified interpreter in accordance with 28 U.S.C. § 1827.]

 

3. If there are many victims who want to be heard, the court may need to

“fashion a reasonable procedure to give effect to [their right to be heard] that

does not unduly complicate or prolong the proceedings.” 18 U.S.C.

§ 3771(d)(2).

4. If the defendant lacks counsel, you must advise the defendant of the

right to an attorney. See supra section 1.02: Assignment of counsel or pro se

representation; Fed. R. Crim. P. 11(b)(1)(D) [formerly 11(c)(2)].

5. An oath (or affirmation) is not required by Fed. R. Crim. P. 11, but is

strongly recommended to avoid any subsequent contention in a proceeding

under 28 U.S.C. § 2255 that the defendant did not answer truthfully at the taking of the plea because he or she was not sworn.
Section 2.01: Taking pleas of guilty or nolo contendere

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 73

D. Ask the defendant:

1. Do you understand that you are now under oath and

if you answer any of my questions falsely, your answers may later be used against you in another prosecution for perjury or making a false statement?

[See Fed. R. Crim. P. 11(b)(1)(A) [formerly 11(c)(5).]]

2. What is your full name?

3. How old are you?

4. How far did you go in school?

5. Have you been treated recently for any mental illness

or addiction to narcotic drugs of any kind?

[Note: If the answer to this question is yes, pursue the

subject with the defendant and with counsel in order

to determine that the defendant is currently competent to plead.]

6. Are you currently under the influence of any drug,

medication, or alcoholic beverage of any kind?

[Note: Again, if the answer is yes, pursue the subject

with the defendant and with counsel to determine

that the defendant is currently competent to plead.]

7. Have you received a copy of the indictment (information)6 pending against you—that is, the written

charges made against you in this case—and have you

fully discussed those charges, and the case in general,

with Mr./Ms. __________ as your counsel?

8. Are you fully satisfied with the counsel, representation, and advice given to you in this case by your attorney, Mr./Ms. __________?

E. If there is a plea agreement of any kind, ask the defendant:

1. [If the agreement is written:]

Did you have an opportunity to read and discuss the

plea agreement with your lawyer before you signed it?

 

6. If the case involves a felony offense being prosecuted by information

rather than indictment, and if a waiver of indictment has not previously been

obtained in open court (see Fed. R. Crim. P. 7(b)), refer to supra section 1.06:

Waiver of indictment.
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74 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

2. Does the plea agreement represent in its entirety any

understanding you have with the government?

3. Do you understand the terms of the plea agreement?

4. Has anyone made any promise or assurance that is

not in the plea agreement to persuade you to accept

this agreement? Has anyone threatened you in any

way to persuade you to accept this agreement?

5. [If the terms of the plea agreement are nonbinding

recommendations pursuant to Rule 11(c)(1)(B) [formerly 11(e)(1)(B)]:

7 ]

Do you understand that the terms of the plea agreement are merely recommendations to the court—that

I can reject the recommendations without permitting

you to withdraw your plea of guilty and impose a sentence that is more severe than you may anticipate?

6. [If any or all of the terms of the plea agreement are

pursuant to Rule 11(c)(1)(A) or (C) [formerly

11(e)(1)(A) or (C)]:]

Do you understand that if I choose not to follow the

terms of the plea agreement [if some, but not all,

terms are binding, identify those terms], I will give

you the opportunity to withdraw your plea of guilty,

and that if you choose not to withdraw your plea, I

may impose a more severe sentence, without being

bound by the plea agreement [or the specific terms

rejected by the court]?

F. Whether or not there is a plea agreement, ask the defendant:

 

7. Note that a plea agreement may contain factual stipulations which, unless part of a Rule 11(c)(1)(C) [formerly 11(e)(1)(C)] agreement, are not binding

under the Rules or the Guidelines. However, some cases have held that a factual

stipulation that directly affected the severity of the sentence should have been

construed as a Rule 11(e)(1)(C) agreement, or that the stipulation was otherwise

relied on by the parties so that it should have been followed or the defendant allowed to withdraw the plea. See, e.g., United States v. Bohn, 959 F.2d 389 (2d

Cir. 1992); United States v. Torres, 926 F.2d 321 (3d Cir. 1991); United States v.

Kemper, 908 F.2d 33 (6th Cir. 1990); United States v. Jeffries, 908 F.2d 1520 (11th

Cir. 1990); United States v. Mandell, 905 F.2d 970 (6th Cir. 1990). See also Guideline Sentencing: An Outline of Appellate Case Law § IX.A.4 (Federal Judicial

Center 2002). Courts are advised to discuss any such stipulations before accepting the plea and to warn the defendant that the court might not follow them

and that the defendant will not be allowed to withdraw the plea.
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ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 75

Has anyone attempted in any way to force you to plead

guilty (nolo contendere) or otherwise threatened you?

Has anyone made any promises or assurances of any

kind to get you to plead guilty (other than those that are

in the plea agreement)? Are you pleading guilty of your

own free will because you are guilty?

[See Fed. R. Crim. P. 11(b)(2) [formerly 11(d)].

G. If the plea relates to a felony offense, consider asking the defendant:

Do you understand that the offense to which you are

pleading guilty (nolo contendere) is a felony offense, that

if your plea is accepted you will be adjudged guilty of that

offense, and that such adjudication may deprive you of

valuable civil rights, such as the right to vote, the right to

hold public office, the right to serve on a jury, and the

right to possess any kind of firearm?

[If the defendant is not a citizen of the United States, ask:

Do you understand that your plea of guilty may affect

your residency or your status with the immigration

authorities?]

H. Inform the defendant of the following:

1. The maximum possible penalty provided by law, and any

mandatory minimum penalty:

(a) For drug offenses: Determine whether the drug quantity involved or other aggravating factors will trigger

application of a mandatory minimum sentence. Because this may not be known at the time the plea is

taken, the court is advised to warn the defendant of

any possible maximum and mandatory minimum sentences that may be imposed after a final determination of quantity and other aggravating factors.

(b) Determine whether the defendant faces a mandatory

minimum sentence or an increase in the statutory

maximum sentence because of one or more prior firearms offenses, violent felonies, or drug offenses. If

this is not known at the time of the plea, advise the

defendant of the possible maximum sentence.

(c) Include the duration of any authorized or mandatory

term of supervised release, and ask the defendant:
Section 2.01: Taking pleas of guilty or nolo contendere

76 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Do you understand that if you violate the conditions of supervised release, you can be given additional time in prison?

(d) If the offense carries a maximum sentence of twenty-five

years or more, or the statute specifically prohibits probation, include a reference to the unavailability of a probation sentence under 18 U.S.C. § 3561(a)(1) or(2).

(e) Inform the defendant of the maximum possible fine,

if any.

2. If applicable, that the court may also order, or may be required to order under the Mandatory Victims Restitution

Act, that the defendant make restitution to any victim of

the offense. See 18 U.S.C. § 3663A. See also 18 U.S.C.

§ 3771(a)(6) (giving victims the right “to full and timely

restitution as provided in law”).

3. If applicable, that the court may require the defendant to

forfeit certain property to the government.

4. If the offense involved fraud or other intentionally deceptive

practices, that the court may order the defendant to provide notice of the conviction to victims of the offense. See

18 U.S.C. § 3555.

5. That for each offense, the defendant must pay a special

assessment of $100 ($25 for a Class A misdemeanor, $10

for Class B, $5 for Class C or infraction) required by

18 U.S.C. § 3013.

Fed. R. Crim. P. 11(b)(1) [formerly 11(c)].

I. Ask the defendant:

Do you understand those possible consequences of your

plea?

J. Inform the defendant that his or her sentence will be determined by a combination of advisory Sentencing Guidelines,

possible authorized departures from those guidelines, and

other statutory sentencing factors.

8

 

8. Effective December 1, 2007, Fed. R. Crim. P. 11(b)(1) states that “the

court must inform the defendant of, and determine that the defendant understands, . . . (M) in determining a sentence, the court’s obligation to calculate the

applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under

18 U.S.C. § 3553(a).”
Section 2.01: Taking pleas of guilty or nolo contendere

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 77

K. Ask the defendant:

1. Have you and your attorney talked about how these

advisory Sentencing Guidelines might apply to your

case?

[Note: If there is a plea agreement that a specific sentence

will be imposed (Fed. R. Crim. P. 11(c)(1)(C) [formerly

11(e)(1)(C)]), skip to question 4.]

2. Do you understand that the court will not be able to

determine the advisory guideline range for your case

until after the presentence report has been completed

and you and the government have had an opportunity to challenge the reported facts and the application of the guidelines recommended by the probation

officer, and that the sentence ultimately imposed may

be different from any estimate your attorney may

have given you?

3. Do you also understand that, after your initial advisory guideline range has been determined, the court

has the authority in some circumstances to depart

upward or downward from that range, and will also

examine other statutory sentencing factors, under 18

U.S.C. § 3553(a), that may result in the imposition of

a sentence that is either greater or lesser than the advisory guideline sentence?

4. Do you also understand that parole has been abolished and that if you are sentenced to prison you will

not be released on parole?

L. Ask the defendant:

1. Do you also understand that under some circumstances you or the government may have the right to

appeal any sentence that I impose?

[If the plea agreement involves a waiver of the right to appeal the sentence, ask the defendant:]

2. Do you understand that by entering into this plea

agreement and entering a plea of guilty, you will have

waived, or given up, your right to appeal or collaterally attack all or part of this sentence?
Section 2.01: Taking pleas of guilty or nolo contendere

78 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

[The court should discuss the specific terms of the waiver

with the defendant to ensure that the waiver is knowingly

and voluntarily entered into and that the defendant understands the consequences. Fed. R. Crim. P

11(b)(1)(N).

9

]

M. Ask the defendant:

1. Do you understand

(a) that you have a right to plead not guilty to any offense charged against you and to persist in that

plea;

(b)that you would then have the right to a trial by

jury;

(c) that at trial you would be presumed to be innocent and the government would have to prove

your guilt beyond a reasonable doubt;

(d)that you would have the right to the assistance of

counsel for your defense—appointed by the court

if necessary—at trial and every other stage of the

proceeding, the right to see and hear all the witnesses and have them cross-examined in your defense, the right on your own part to decline to testify unless you voluntarily elected to do so in your

own defense, and the right to compel the attendance of witnesses to testify in your defense?

Do you understand that should you decide not to testify or put on any evidence, these facts cannot be

used against you?

2. Do you further understand that by entering a plea of

guilty (nolo contendere), if that plea is accepted by

the court, there will be no trial and you will have

waived, or given up, your right to a trial as well as

those other rights associated with a trial as I just described them?

See Fed. R. Crim. P. 11(b(1)(B) to (F) [formerly 11(c)(3) and

(4)].

 

9. Note that the waiver may not be enforceable if the sentence is not in

accordance with the terms of the plea agreement.
Section 2.01: Taking pleas of guilty or nolo contendere

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 79

N. Inform the defendant of the nature of the charge(s) to which

he or she is pleading guilty (nolo contendere) by reading or

summarizing the indictment (information). Then

1. further explain the essential elements of the offense, i.e.,

what the government would be required to prove at

trial;

10 and/or (except in pleas of nolo contendere)

2. have the defendant explain and assent to the facts constituting the crime(s) charged.

See Fed. R. Crim. P. 11(b)(1)(G) [formerly 11(c)(1)].

O. In the case of a plea of guilty (including an Alford plea11), have

the government counsel make a representation concerning

the facts the government would be prepared to prove at trial

(to establish an independent factual basis for the plea). See

Fed. R. Crim. P. 11(b)(3) [formerly 11(f)].

If the defendant’s plea is nolo contendere, he or she is neither admitting nor denying guilt.

12 Fed. R. Crim P. 11(b)(3)

[formerly 11(f)] is therefore not applicable. The court may

wish to consider having the government make a representation concerning the facts of the case.

P. If there is a plea agreement involving dismissal of other

charges, or an agreement that a specific sentence will be imposed, and if consideration of the agreement is to be deferred, ask the defendant:

Do you understand that if you plead guilty, a presentence report will be prepared, and I will then consider

whether or not to accept the plea agreement, and

that if I decide to reject the plea agreement, you will

 

10. Reference may be made to the standard or pattern jury instructions

normally used in your court.

11. North Carolina v. Alford, 400 U.S. 25 (1970). See also United States v.

Tunning, 69 F.3d 107, 110–14 (6th Cir. 1995) (discussing establishment of factual basis for Alford plea and difference between Alford plea and plea of nolo

contendere).

12. The plea of nolo contendere is never entertained as a matter of course.

Fed. R. Crim. P. 11(a)(1) [formerly 11(b)] provides that the plea may be entered

“with the consent of the court.” Rule 11(a)(3) provides further that before accepting the plea “the court must consider the parties’ views and the public interest in the effective administration of justice.” In general, courts accept a plea

of nolo contendere only in certain types of cases involving nonviolent crimes

where civil implications may arise from a guilty plea.
Section 2.01: Taking pleas of guilty or nolo contendere

80 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

then have an opportunity to withdraw your plea and

change it to not guilty?

Q. Ask the defendant:

How do you now plead to the charge: guilty or not

guilty?

R. Before accepting the defendant’s plea, if there are victims of

the offense present, allow them the opportunity “to be reasonably heard.” 18 U.S.C. § 3771(a)(4).

S. If you are satisfied with the responses given during the hearing, make the following finding on the record:

It is the finding of the court in the case of United

States v. ______ that the defendant is fully competent

and capable of entering an informed plea, that the

defendant is aware of the nature of the charges and

the consequences of the plea, and that the plea of

guilty (nolo contendere) is a knowing and voluntary

plea supported by an independent basis in fact containing each of the essential elements of the offense.

The plea is therefore accepted, and the defendant is

now adjudged guilty of that offense.

T. If a presentence report has been reviewed before plea taking

or is not required (see Fed. R. Crim. P. 32(c)(1)(A) [formerly

32(b)(1)]), proceed to disposition. (See infra section 4.01: Sentencing procedure.) Otherwise, inform the defendant

1. that a written presentence report will be prepared by the

probation office to assist the judge in sentencing;

2. that the defendant will be asked to give information for

the report, and that his or her attorney may be present if

the defendant wishes;

3. that the court shall permit the defendant and counsel to

read the presentence report and file any objections to the

report before the sentencing hearing (Fed. R. Crim. P.

32(e)(2) and (f) [formerly 32(b)(6)]);

4. that the defendant and his or her counsel shall have an

opportunity to speak on behalf of the defendant at the

sentencing hearing (Fed. R. Crim. P. 32(i)(4)(A) [formerly

32(c)(1)]); and

5. that, if there are any victims of the offense, the victims

shall be afforded an opportunity to be heard at the sen-
Section 2.01: Taking pleas of guilty or nolo contendere

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 81

tencing hearing. 18 U.S.C. § 3771(a)(4).

U. Refer the defendant to the probation officer for a presentence investigation and report (pursuant to Fed. R. Crim. P.

32(c)(1) [formerly 32(b)(1)]), set the disposition date for sentencing, and determine bail or conditions of release pending

sentencing. See infra section 2.11: Release or detention pending sentence or appeal.

1. If the defendant has been at liberty on bond or personal

recognizance, invite defense counsel to argue for release

pending sentencing. See 18 U.S.C. § 3143(a). Give the

U.S. attorney an opportunity to respond. If any victims of

the offense are present, allow them an opportunity “to be

reasonably heard.” 18 U.S.C. § 3771(a)(4).

2. If the defendant is to be released pending sentencing,

advise the defendant

(a) when and where he or she is required to appear for

sentencing;

(b) that failure to appear as required is a criminal offense

for which he or she could be sentenced to imprisonment;

(c) that all the conditions on which he or she was released

up to now continue to apply; and

(d) that the penalties for violating those conditions can

be severe.

V. If appropriate, enter a preliminary order of forfeiture under

Fed. R. Crim. P. 32(k)(2) [formerly 32(d)(2)] and 32.2(b). Note

that the defendant must be provided notice and a reasonable opportunity to be heard on the timing and form of the

order.

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 83

2.02 Taking pleas of guilty or nolo

contendere (organization1)

Fed. R. Crim. P. 11

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them. Also, any

victims who are present at the plea hearing have a right “to be

reasonably heard.” § 3771(a)(4).]

2

A. Before accepting a plea of guilty or nolo contendere from the

representative of an organization, the court should be satisfied that

1. the person appearing before the court is an officer or

authorized employee of the organization;

2. the board of directors is empowered to authorize a person

to enter a plea of guilty or nolo contendere to a charge

brought against the organization;

3. the person before the court is authorized by a valid resolution to enter a plea of guilty or nolo contendere to the

charge before the court; and

4. the organization is financially able to pay a substantial

fine that could be imposed by the court for the charge involved in the plea of guilty or nolo contendere.

B. After receiving the information set out above and ascertaining that the plea can be taken from the person before the

court, the person should be placed under oath and informed

of the following:

1. the nature of the charge(s) to which the plea is offered;

 

1. Effective December 1, 1999, Fed. R. Crim. P. 11(a) substitutes “organization” for “corporation.” Organization is defined in 18 U.S.C. § 18 as “a person

other than an individual.”

2. If there are many victims who want to be heard, the court may need to

“fashion a reasonable procedure to give effect to [their right to be heard] that

does not unduly complicate or prolong the proceedings.” 18 U.S.C.

§ 3771(d)(2).
Section 2.02: Taking pleas of guilty or nolo contendere (organization)

84 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

2. the mandatory minimum penalty provided by law, if any;

3. the special assessment for each offense of $400 ($125 for

a Class A misdemeanor, $50 for Class B, $25 for Class C or

infraction)required by 18 U.S.C. § 3013;

4. the maximum possible penalty provided by law;

5. if applicable, that the court may also order the organization to make restitution to any victim of the offense;

6. if applicable, that the court may require the organization

to forfeit certain property to the government;

7. if the offense involved fraud or other intentionally deceptive

practices, that the court may order the organization to

provide notice of the conviction to victims of the offense

(see 18 U.S.C. § 3555);

8. if appropriate, the right to be represented by an attorney;

9. that the organization has the right to plead not guilty or to

persist in that plea if it has already been made;

10. that the organization has a right to be tried by a jury and

at that trial has the right to

(a) the assistance of counsel;

(b) confront and cross-examine witnesses against the organization;

11. that if the organization pleads guilty, there will be no further trial of any kind;

12. that by pleading guilty for the organization, the representative of the organization waives the organization’s right

to trial;

13. that the court will ask the representative of the organization questions about the offense before the court and

that if he or she answers these questions, under oath, on

the record, and in the presence of counsel, the answers

may later be used against the representative in a prosecution for perjury or false statement; and

14. the essential elements of the offense that are involved,

and whether the representative understands what the

government must prove.

C. The court will then inquire

1. whether the plea is voluntarily made on behalf of the organization and not as a result of force, threats, or promises apart from a plea agreement; and
Section 2.02: Taking pleas of guilty or nolo contendere (organization)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 85

2. whether there is a plea agreement and, if so, what the

agreement is.

D. If the court is satisfied with the representative’s responses,

ask how he or she pleads: guilty, not guilty, or nolo contendere.

E. If the plea is guilty, follow your normal Fed. R. Crim. P. 11 procedure for establishing the factual basis in the case. If the

plea is nolo contendere, the court may wish to consider having the government make a representation concerning the

facts of the case.

F. Make the required findings concerning the establishment of

the plea, which should include findings concerning items A.1,

A.2, A.3, and A.4 above, relating to the propriety of taking the

plea from the representative of the organization. Allow any

victims of the offense who are present to be “reasonably

heard.” 18 U.S.C. § 3771(a)(4).

G. Make a finding on the guilt of the organization after the guilty

or nolo contendere plea.

H. Inform the representative

1. that a written presentence report will be prepared by the

probation office to assist the court in sentencing;

2. that the organization, the representative, or both will be

required to give information for the report and that the

organization’s attorney may be present;

3. that the representative and the organization’s counsel

shall be afforded the opportunity to speak on behalf of

the organization at the sentencing hearing (Fed. R. Crim.

P. 32(i)(4)(A) [formerly 32(c)(1)]);

4. that if there are any victims of the offense, the victims

shall be afforded an opportunity to be heard at the sentencing hearing (18 U.S.C. § 3771(a)(4)); and

5. that the court shall permit the representative and counsel

to read the presentence report before the sentencing

hearing (Fed. R. Crim. P. 32(e)(2) [formerly 32(b)(6)]).

I. Advise the representative of the date, time, and place of the

sentencing hearing, and order him or her to appear.

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 87

2.03 Trial outline—criminal

1. Have the case called for trial.

1

2. Jury is selected (see infra section 2.05: Jury selection—

criminal).

3. Give preliminary instructions to the jury (see infra section

2.07: Preliminary jury instructions—criminal case).

4. Ascertain whether any party wishes to invoke the rule to

exclude from the courtroom witnesses scheduled to testify in the case. [But see 18 U.S.C. § 3510, stating that victims of the offense may not be excluded from trial merely

because they may speak at the sentencing hearing. See

also 18 U.S.C. § 3771(a)(3) and (b), giving any victim of

the offense the right to attend “any public court proceeding . . . involving the crime” unless the court finds that

“testimony by the victim would be materially altered if

the victim heard other testimony at that proceeding.” The

court “shall make every effort to permit the fullest attendance possible by the victim.”2

5. Government counsel makes an opening statement.

6. Defense counsel makes an opening statement (unless

counsel asked to reserve).

7. Government counsel calls witnesses. [Note: If there may

be testimony by child victims or child witnesses, judges

should be aware of the special procedures and safeguards in 18 U.S.C. § 3509 that may apply.]

8. Government rests.

9. Motion for judgment of acquittal. Fed. R. Crim. P. 29(a)

(see infra section 2.10: Trial and post-trial motions).

10. Defense counsel makes an opening statement if he or she

has asked to reserve.

11. Defense counsel calls witnesses for the defense.

12. Defense rests.

 

1. Fed. R. Crim. P. 43 prohibits trial in absentia of a defendant who is not

present at the beginning of trial. Crosby v. United States, 506 U.S. 255 (1993).

2. Note also that Fed. R. Evid. 615 does not authorize the exclusion of “a

person authorized by statute to be present.”
Section 2.03: Trial outline—criminal

88 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

13. Counsel callrebuttal witnesses.

14. Government rests on its entire case.

15. Defense rests on its entire case.

16. Motion for judgment of acquittal. Fed. R. Crim. P. 29(a),

(b) (see infra section 2.10: Trial and post-trial motions).

17. Out of hearing of the jury, rule on counsel’s requests for

instructions and inform counsel as to the substance of the

court’s charge. Fed. R. Crim. P. 30(b).

18. Closing argument by prosecution, closing argument by

defense, rebuttal by prosecution. Fed. R. Crim. P. 29.1.

19. Charge the jury (see infra section 2.08: General instructions to jury at end of criminal case). In the court’s discretion, the jury may be instructed before closing arguments. Fed. R. Crim. P. 30(c).

20. Rule on objections to the charge and make any appropriate additional charge. Provide an opportunity for counsel

to object out of the jury’s hearing and, on request, out of

the jury’s presence. Fed. R. Crim. P. 30(d).

21. If you are going to discharge the alternate jurors, excuse

and thank them.

3 If you plan to retain the alternate jurors, ensure that they do not discuss the case with any

other person unless they replace a regular juror. If an alternate juror replaces a juror after deliberations have begun, instruct the jury to begin its deliberations anew. Fed.

R. Crim. P. 24(c)(3).

22. Instruct the jury to go to the jury room and commence its

deliberations.

23. Determine which exhibits are to be sent to the jury room.

24. Have the clerk give the exhibits and the verdict forms to

the jury.

25. Recess court during the jury deliberations.

26. Before responding to any communications from the jury,

consult with counsel on the record (see infra section 2.08:

General instructions to jury at end of criminal case).

 

3. In a case involving potentially lengthy jury deliberations, judges may

wish to consider retaining at least one alternate juror.
Section 2.03: Trial outline—criminal

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 89

27. If the jury fails to arrive at a verdict before the conclusion

of the first day’s deliberations, either provide for their

overnight sequestration or permit them to separate after

instructing them as to their conduct and fixing the time

for their return to resume deliberations. Provide for safekeeping of exhibits.

28. If the jury reports that they cannot agree on a verdict, determine by questioning whether they are hopelessly

deadlocked. Do not inquire as to the numerical split of

the jury. If you are convinced that the jury is hopelessly

deadlocked, declare a mistrial. If you are not so convinced, direct them to resume their deliberations. Consider giving your circuit’s approved Allen-type charge to

the jury before declaring a mistrial.

29.When the jury has agreed on a verdict, reconvene court

and take the verdict (see infra section 2.09: Verdict—

criminal).

30. Poll the jurors individually on the request of either party

(see infra section 2.09: Verdict—criminal). Fed. R. Crim. P.

31(d).

31. Thank and discharge the jury.

32. If the verdict is “not guilty,” discharge the defendant.

33. If the defendant has been found guilty, determine

whether the defendant should be committed to the custody of the U.S. marshal or released on bail (see infra section 2.11: Release or detention pending sentence or appeal).

34. Fix a time for post-trial motions.

35. Adjourn orrecess court.

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials (5th ed. 2001)

For a discussion of case-management techniques in civil trials,

some of which may also be helpful in the management of

criminal trials, see Civil Litigation Management Manual 87–

90 (Judicial Conference of the United States 2001)
Section 2.03: Trial outline—criminal

90 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

For a discussion of trial management in complex civil litigation,

some of which may be applicable to management of a criminal trial, see Manual for Complex Litigation, Fourth 131–66

(2004)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 91

2.04 Findings of fact and conclusions

of law in criminal cases and

motions

Fed. R. Crim. P. 12 and 23

A. When required

1. Fed. R. Crim. P. 23(c):

In all cases 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.”

2. Fed. R. Crim. P. 12 (d) and (f)—Ruling upon Motions:

“When factual issues are involved in deciding a motion,

the court must state its essential findings on the record.”

(Emphasis added.)

B. Form

1. Fed. R. Crim. P. 23(c) provides that, after a trial without a

jury, “the court must state its specific findings of fact in

open court orin a written decision or opinion.”

2. Fed. R. Crim. P. 12(d) provides that “[w]hen factual issues

are involved in deciding a motion, the court must state its

essential findings on the record.”

3. Fed. R. Crim. P. 12(f) provides that “[a]ll proceedings at a

motion hearing, including any findings of fact or conclusions of law made orally by the court, must be recorded by

a courtreporter or a suitable recording device.”

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 93

2.05 Jury selection—criminal

The Benchbook Committee recognizes that there is no uniform

recommended procedure for selecting jurors to serve in criminal

or civil cases and that judges will develop the patterns or procedures most appropriate for their districts and their courts. Section 2.06 infra, however, provides an outline of standard voir dire

questions. For a sample juror questionnaire, see Sample Forms

42 and 43 on pages 358–60 of the Civil Litigation Management

Manual (Judicial Conference of the United States 2001) (updating and replacing the Manual for Litigation Management and Cost

and Delay Reduction (Federal Judicial Center 1992)). A discussion

of Batson cases and anonymous juries is included below.

The 1982 Federal Judicial Center publication Jury Selection

Procedures in United States District Courts, by Gordon Bermant,

contains a detailed discussion of several different methods of

jury selection. Copies are available on request. See also the section on jury selection and composition (pp. 580–82) in Judge William W Schwarzer’s article “Reforming Jury Trials” in volume 132

of Federal Rules Decisions (1990).

Note that any victims of the offense are entitled to be notified of and to attend “any public court proceeding . . . involving

the crime,” which would include jury selection. See 18 U.S.C.

§ 3771(a)(2) and (3).

Peremptory challenges

Judges should be aware of the cases, beginning with Batson v.

Kentucky, 476 U.S. 79 (1986), that prohibit peremptory challenges based on race. Batson has been extended to cover a criminal defendant’s peremptory challenges, Georgia v. McCollum,

505 U.S. 42 (1992), and a defendant may object to race-based exclusions whether or not he or she is the same race as the challenged juror, Powers v. Ohio, 499 U.S. 400 (1991). Peremptory

strikes based on gender are also prohibited. J.E.B. v. Alabama ex

rel. T.B., 511 U.S. 127 (1994).

The Supreme Court has left it to the trial courts to develop

rules of procedure and evidence for implementing these decisions. It has, however, set out a three-step inquiry for resolving a

Batson challenge (see Purkett v. Elem, 514 U.S. 765, 767 (1995)):
Section 2.05: Jury selection—criminal

94 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

1. The opponent of a peremptory challenge must make out

a prima facie case of discrimination based on the totality

of the relevant facts.

1

2. The burden of production then shifts to the proponent of

the strike, who must come forward with a nondiscriminatory (i.e., race- and gender-neutral) explanation of the

strike.

3. The trial court must then decide whether the opponent of

the strike has proved purposeful discrimination.

The Benchbook Committee suggests that judges

• conduct the above inquiry on the record but outside of

the venire’s hearing, to avoid “tainting” the venire by discussions of race, gender, or other characteristics of potential jurors; and

• use a method of jury selection which requires litigants to

exercise challenges at sidebar or otherwise outside the

venire’s hearing and in which no venire members are

dismissed until all of the challenges have been exercised.

See Jury Selection Procedures in United States District

Courts,supra.

These procedures should ensure that prospective jurors are

never aware of Batson discussions or arguments about challenges and therefore can draw no adverse inferences by being

temporarily dismissed from the venire and then recalled.

2

 

1. “[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” The defendant does not have to show that it was

“more likely than not” that discrimination occurred. Johnson v. California, 125

S. Ct. 2410, 2417 (2005).

2. For a summary of procedures that courts developed for criminal cases in

the first two years after Batson, see Bench Comment, nos. 3 & 4 (1988). For a discussion of voir dire practices in light of Batson, see Chambers to Chambers, vol.

5, no. 2 ( Federal Judicial Center 1987).
Section 2.05: Jury selection—criminal

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 95

Anonymous juries3

In rare cases, a district court may determine that a jury should be

impaneled anonymously because of concerns about juror safety

or tampering. The court may enter an order to prevent disclosure

of names, addresses, places of employment, and other facts that

might reveal the identity of jurors.

4 The Benchbook Committee

neither advocates nor discourages use of an anonymous jury but

notes that courts must be careful to take steps to minimize potential prejudice to defendants from this procedure. Listed below are the main “rules” that may be summarized from circuit

court decisions on this issue.

5

1. There must be a strong reason to believe the jury needs

protection. For example, anonymous juries have been

approved in cases involving organized crime figures who,

currently or previously, attempted to or did influence, intimidate, or harm witnesses, jurors, or judges. Extensive

 

3. Note that, with one exception, anonymous juries are not allowed in capital cases. See 18 U.S.C. § 3432 (defendant charged with capital offense must be

given list of potential jurors and witnesses three days before trial, “except that

such list of the veniremen and witnesses need not be furnished if the court

finds by a preponderance of the evidence that providing the list may jeopardize

the life or safety of any person”) (exception added Sept. 13, 1994).

4. The Third Circuit held that it is within the trial court’s discretion to hold

an evidentiary hearing on whether the facts warrant an anonymous jury. It also

held that the court is not required to make findings and give reasons on the record for using an anonymous jury, but suggested that doing so is the “better

practice.” See United States v. Eufrasio, 935 F.2d 553 (3d Cir.), cert. denied sub

nom. Idone v. United States, 112 S. Ct. 340 (1991).

5. Most circuits have now ruled on this issue and approved the use of

anonymous juries under appropriate circumstances. See United States v.

Shryock, 342 F.3d 948, 971 (9th Cir. 2003), cert. denied, 124 S. Ct. 1729 (2004);

United States v. Talley, 164 F.3d 989, 1001–02 (6th Cir.), cert. denied, 119 S. Ct.

1793 (1999); United States v. DeLuca, 137 F.3d 24 (1st Cir.), cert denied, 119 S.

Ct. 174 (1998); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert. denied,

116 S. Ct. 1449 (1996); United States v. Krout, 66 F.3d 1420 (5th Cir. 1995), cert.

denied, 116 S. Ct. 963 (1996); United States v. Edmond, 52 F.3d 1080 (D.C. Cir.)

(per curiam), cert denied, 116 S. Ct. 539 (1995); United States v. Ross, 33 F.3d

1507 (11th Cir. 1994), cert. denied, 115 S. Ct. 2558 (1995); United States v. Crockett, 979 F.2d 1204 (7th Cir. 1992), cert. denied, 113 S. Ct. 1617 (1993); United

States v. Paccione, 949 F.2d 1183 (2d Cir. 1991) (also discussing several prior

Second Circuit cases), cert. denied, 112 S. Ct. 3029 (1992); United States v.

Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910 (1988).
Section 2.05: Jury selection—criminal

96 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

media coverage may be considered in combination with

other factors.

2. The court must take reasonable precautions to minimize

any prejudicial effects on the defendant and ensure that

fundamental rights to an impartial jury and fair trial are

not infringed. For example, the court should

(a) ensure that the voir dire allows the defendant to adequately assess the prospective jurors and uncover

possible bias as to the defendant or the issues in the

case. The court should conduct a thorough and

searching voir dire, which could include use of written

questionnaires.

(b) give plausible and nonprejudicial reasons to ensure

that the explanation for jury anonymity does not adversely reflect on the defendant. The court may, for

example, assure jurors that this is a common practice

or that it is to protect them from unwanted media attention.

6 It may be advisable to repeat the explanation during jury instructions and before jury deliberation, to stress that the need for anonymity should

have no effect on the verdict.

Other FJC sources

For a discussion of techniques for selecting and assisting the jury

in civil trials, some of which may also be helpful in criminal

trials, see Civil Litigation Management Manual 83–84, 87–88

(Judicial Conference of the United States 2001) and Manual

for Complex Litigation, Fourth 150–53 (2004)

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 12–18 (5th ed. 2001)

Gordon Bermant, Jury Selection Procedures in United States District Courts (1982)

 

6. For examples of explanations, see Ross, 33 F.3d 1507, at n.27; United

States v. Tutino, 883 F.2d 1125 (2d Cir. 1989), cert. denied, 493 F.2d 1081 (1990);

Scarfo, 850 F.2d 1015, at Appendix; United States v. Barnes, 604 F.2d 121 (2d Cir.

1979), cert. denied, 446 U.S. 907 (1980).
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 97

2.06 Standard voir dire questions—

criminal

[Note: Under the Crime Victims’ Rights Act, 18 U.S.C.

§ 3771(a)(2) and (3), any victim of the offense has the right to notice of “any public court proceeding . . . involving the crime . . . of

the accused,” and to attend that proceeding. It may be advisable

to ask the prosecutor if there are any victims and, if so, whether

the government has fulfilled its duty to notify them.]

A. The following outline for an initial in-depth voir dire examination of the entire panel by the court assumes that

1. if there are affirmative responses to any questions, follow-up questions will be addressed to the juror(s) (at

sidebar, if such questions concern private or potentially

embarrassing matters); and

2. the court and counsel have been furnished with the

name, address, age, and occupation of each prospective

juror.

B. If the court conducts the entire examination, it should require counsel to submit proposed voir dire questions before

trial to permit the court to incorporate additional questions at

the appropriate places in this outline.

1. Have the jury panel sworn.

2. Explain to the jury panel that the purpose of the voir dire

examination is

(a) to enable the court to determine whether any prospective juror should be excused for cause; and

(b) to enable counsel for the parties to exercise their individual judgment with respect to peremptory challenges—that is, challenges for which no reason need

be given.

3. Explain to prospective jurors that presenting the evidence is expected to take days, and ask if this presents a special problem for any of them.

4. Read or summarize the indictment.

NOTE

Fed. R. Crim P.

24(a)(1) provides

that the court “may

examine prospective jurors or may

permit the attorneys

for the parties to do

so.”
Section 2.06: Standard voir dire questions—criminal

98 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

5. Ask if any member of the panel has heard or read anything about the case.

6. Ask counsel for the government to introduce himself or

herself and counsel associated with the trial, as well as all

the witnesses who will testify in the government’s presentation of its case in chief. Ask if the jurors

(a) know any of these persons;

(b) had any business dealings with them or were represented by them or members of their firms; and

(c) had any other similarrelationship or business connection with any of them.

7. Ask counsel for each defendant to introduce himself or

herself and indicate any witnesses that the defendant

may choose to call. Ask if the jurors

(a) know any of these persons;

(b) had any business dealings with them or were represented by them or members of their firms; and

(c) had any other similarrelationship or business connection with any of them.

8. Ask prospective jurors:

(a) Have you ever served as a juror in a criminal or

civil case or as a member of a grand jury in either

a federal or state court?

(b) Have you, any member of your family, or any

close friend ever been employed by a law enforcement agency?

(c) If you answer yes to [either of] the following question[s], or if you do not understand the question[s], please come forward, be seated in the

well of the courtroom, and be prepared to discuss

your answer with the court and counsel at the

bench.

(1) Have you ever been involved, in any court, in a

criminal matter that concerned yourself, any

member of your family, or a close friend either

as a defendant, a witness, or a victim?
Section 2.06: Standard voir dire questions—criminal

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 99

(2) [Only if the charged crime relates to illegal

drugs or narcotics, ask:]

Have you had any experience involving yourself, any member of your family, or any close

friend that relates to the use or possession of

illegal drugs or narcotics?

(d)If you are selected to sit on this case, will you be

able to render a verdict solely on the evidence presented at the trial and in the context of the law as

I will give it to you in my instructions, disregarding

any other ideas, notions, or beliefs about the law

that you may have encountered in reaching your

verdict?

(e) Is there any member of the panel who has any

special disability or problem that would make

serving as a member of this jury difficult or impossible?

[At this point, if the court is conducting the entire examination, it should ask those questions suggested

by counsel that in the opinion of the court are

appropriate.]

(f) Having heard the questions put to you by the

court, does any other reason suggest itself to you

as to why you could not sit on this jury and render

a fair verdict based on the evidence presented to

you and in the context of the court’s instructions

to you on the law?

9. If appropriate, permit counsel to conduct additional direct voir dire examination, subject to such time and subject matter limitations as the court deems proper, or state

to counsel that if there are additional questions that

should have been asked or were overlooked, counsel may

approach the bench and discuss them with the court.

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 101

2.07 Preliminary jury instructions—

criminal case

These suggested instructions are designed to be given following

the swearing of the jury. They are general and may require modification in light of the nature of the particular case. They are intended to give the jury, briefly and in understandable language,

information to make the trial more meaningful. Other instructions may be given, as the need arises, at appropriate points during the trial. Many circuits have developed model or pattern jury

instructions, and judges should consult the instructions that

have been prepared for their circuits.

Members of the jury: Now that you have been sworn, I will give

you some preliminary instructions to guide you in your participation in the trial.

Duty of the jury

It will be your duty to find from the evidence what the facts are.

You and you alone will be the judges of the facts. You will then

have to apply to those facts the law as the court will give it to

you. You must follow that law whether you agree with it or not.

Nothing the court may say or do during the course of the

trial is intended to indicate, or should be taken by you as indicating, what your verdict should be.

Evidence

The evidence from which you will find the facts will consist of the

testimony of witnesses, documents and other things received

into the record as exhibits, and any facts that the lawyers agree

to or stipulate to or that the court may instruct you to find.

Certain things are not evidence and must not be considered

by you. I will list them for you now.

1. Statements, arguments, and questions by lawyers are not

evidence.

2. Objections to questions are not evidence. Lawyers have

an obligation to their clients to make objections when

they believe evidence being offered is improper under the

rules of evidence. You should not be influenced by the
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102 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

objection or by the court’s ruling on it. If the objection is

sustained, ignore the question. If it is overruled, treat the

answer like any other. If you are instructed that some

item of evidence is received for a limited purpose only,

you must follow that instruction.

3. Testimony that the court has excluded or told you to disregard is not evidence and must not be considered.

4. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are

to decide the case solely on the evidence presented here

in the courtroom.

There are two kinds of evidence: direct and circumstantial.

Direct evidence is direct proof of a fact, such as testimony of an

eyewitness. Circumstantial evidence is proof of facts from which

you may infer or conclude that other facts exist. I will give you

further instructions on these as well as other matters at the end

of the case, but keep in mind that you may consider both kinds

of evidence.

It will be up to you to decide which witnesses to believe,

which witnesses not to believe, and how much of any witness’s

testimony to accept or reject. I will give you some guidelines for

determining the credibility of witnesses at the end of the case.

Rules for criminal cases

As you know, this is a criminal case. There are three basic rules

about a criminal case that you must keep in mind.

First, the defendant is presumed innocent until proven guilty.

The indictment brought by the government against the defendant is only an accusation, nothing more. It is not proof of guilt

or anything else. The defendant therefore starts out with a clean

slate.

Second, the burden of proof is on the government until the

very end of the case. The defendant has no burden to prove his

or her innocence, or to present any evidence, or to testify. Since

the defendant has the right to remain silent, the law prohibits

you from arriving at your verdict by considering that the defendant may not have testified.

Third, the government must prove the defendant’s guilt beyond a reasonable doubt. I will give you further instructions on

this point later, but bear in mind that in this respect a criminal

case is different from a civil case.
Section 2.07: Preliminary jury instructions—criminal case

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 103

Summary of applicable law

In this case the defendant is charged with ____________. I will

give you detailed instructions on the law at the end of the case,

and those instructions will control your deliberations and decision. But in order to help you follow the evidence, I will now give

you a brief summary of the elements of the offense that the government must prove to make its case.

[Summarize the elements of the offense.]

Conduct of the jury

Now, a few words about your conduct as jurors.

First, I instruct you that during the trial you are not to discuss the case with anyone or permit anyone to discuss it with

you. Until you retire to the jury room at the end of the case to

deliberate on your verdict, you simply are not to talk about this

case.

1

Second, do not read or listen to anything touching on this

case in any way. If anyone tries to talk to you about it, bring it to

the court’s attention promptly.

Third, do not try to do any research or make any investigation about the case on your own.

Finally, do not form any opinion until all the evidence is in.

Keep an open mind until you start your deliberations at the end

of the case.

[If the court decides to allow note taking, state:]

If you want to take notes during the course of the trial you

may do so. However, it is difficult to take detailed notes and pay

attention to what the witnesses are saying at the same time. If

you do take notes, be sure that your note taking does not interfere with your listening to and considering all of the evidence.

Also, if you do take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with

you at the end of the day—be sure to leave them in the jury

room.

If you choose not to take notes, remember that it is your own

individual responsibility to listen carefully to the evidence. You

 

1. Judges may wish to advise jurors that this prohibition includes any form

of communication over the Internet, such as e-mail, instant messaging, websites, and blogs; the use of cell phones for text messaging or video and audio recording; and the use of any other recording or transmitting device.
Section 2.07: Preliminary jury instructions—criminal case

104 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

cannot give this responsibility to someone who is taking notes.

We depend on the judgment of all members of the jury; you all

must remember the evidence in this case.

2

Course of the trial

The trial will now begin. First, the government will make an

opening statement, which is simply an outline to help you understand the evidence as it comes in. Next, the defendant’s attorney may, but does not have to, make an opening statement.

Opening statements are neither evidence nor arguments.

The government will then present its witnesses, and counsel

for the defendant may cross-examine them. Following the government’s case, the defendant may, if he [she] wishes, present

witnesses whom the government may cross-examine. After all

the evidence is in, the attorneys will present their closing arguments to summarize and interpret the evidence for you, and the

court will instruct you on the law.

3 After that, you will retire to

deliberate on your verdict.

Other FJC sources

Pattern Criminal Jury Instructions 1–10 (1987)

For a discussion of techniques for assisting the jury in civil trials,

some of which may also be helpful in criminal trials, see Civil

Litigation Management Manual 87–88 (Judicial Conference

of the United States 2001) and Manual for Complex Litigation, Fourth 154–60 (2004)

For a discussion of jury-related problems in criminal cases, see

Donald S. Voorhees, Manual on Recurring Problems in

Criminal Trials 18–39 (5th ed. 2001)

 

2. For another sample instruction on note taking, see Civil Litigation Management Manual 374–75 (Judicial Conference of the United States 2001).

3. Some judges may wish to give some instructions before closing arguments. See Fed. R. Crim. P. 30.
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 105

2.08 General instructions to jury at

end of criminal case

Fed. R. Crim. P. 30

Introductory note

Fed. R. Crim. P. 30 outlines the procedure for the submission and

consideration of the parties’ requests for specific jury instructions. Itrequires

1. that the court inform the parties before closing arguments of its proposed action upon the instructions requested by counsel; and

2. that the court give counsel adequate opportunity to object to the court’s instructions outside the hearing of the

jury or, ifrequested, outside the presence of the jury.

There is no prescribed method for the court to settle on its final set of instructions. Some courts hold an on-the-record charge

conference with counsel during trial. At that conference the tendered instructions are discussed and are accepted, rejected, or

modified by the court.

Other courts, without holding a charge conference, prepare a

set of proposed instructions from those tendered by counsel.

These courts then give a copy of the proposed instructions to all

counsel and permit counsel to take exception to the instructions.

Thereafter, the court may revise its instructions if convinced by

counsel’s objections that the instructions should be modified.

Still other courts require counsel to confer during trial and to

agree, to the extent that they can, on the instructions that should

be given. The court then considers only those instructions upon

which the parties cannot agree.

The court may, of course, give an instruction to the jury that

neither party has tendered.

While the court is free to ignore tendered instructions and to

instruct the jury sua sponte, the usual practice is for the court to

formulate the final instructions with the assistance of counsel

and principally from the instructions counsel tendered.

Local practice varies as to whether a written copy of the instructions is given to the jury for use during its deliberations.

Many courts always give the jury a written copy of the instructions. Some courts have the instructions recorded as they are
Section 2.08: General instructions to jury at end of criminal case

106 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

given in court and permit the jury to play them back in the jury

room. Some courts do neither but willrepeat some or all of the instructions in response to a request from the jury.

Note that the court may instruct the jury either before or after

closing arguments, or at both times. Fed. R. Crim. P. 30(c).

Outline of instructions

Instructions delivered at the end of a case consist of three parts:

first, general rules that define and control the jury’s duties in a

criminal case; second, definitions of the elements of the offenses

charged in the indictment (information); third, rules and guidelines for jury deliberation and return of verdict. Many circuits

have developed model or pattern jury instructions, and judges

should consult the instructions that have been prepared for use

in their circuits.

A. General rules:

1. Outline the duty of the jury:

(a) to find the facts from admitted evidence;

(b) to apply the law as given by the court to facts as found

by the jury; and

(c) to decide the case on the evidence and the law, regardless of personal opinions and without bias, prejudice, or sympathy.

2. Clearly enunciate the three basic rules in a criminal case:

(a) presumption of innocence;

(b) burden of proof on government; and

(c) proof beyond a reasonable doubt.

3. Indicate the evidence to be considered:

(a) sworn testimony of witnesses;

(b) exhibits;

(c) stipulations; and

(d) facts judicially noticed.

4. Indicate what is not evidence:

(a) arguments and statements of counsel;

(b) questions to witnesses;

(c) evidence excluded by rulings of the court; and

(d) indictment (information).
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ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 107

B. Define with precision and with specific consideration of the

law of your circuit the elements of each offense to be submitted to the jury and of each defense the jury is to consider.

C. Jury procedure

1. Explain the selection and duty of the foreperson.

2. Explain the process of jury deliberation:

(a) rational discussion of the evidence by all jurors for the

purpose ofreaching a unanimous verdict;

(b) each juror to decide the case for himself or herself in

the context of the evidence and the law, with proper

consideration of other jurors’ views;

(c) jurors may reconsider their views if persuaded by rational discussion but not solely for the sake of reaching a unanimous verdict.

3. The verdict must be unanimous on each count (explain

verdict form if used).

1

4. The jury’s communications with the court during deliberation must be in writing and signed by the foreperson.

5. The jury must not disclose how it stands numerically or

otherwise on the question of guilt orinnocence.

D. Consider providing the jury with a written copy or transcript

of the jury instructions.

Other FJC sources

Pattern Criminal Jury Instructions (1987)

For a discussion of techniques for assisting the jury in civil trials,

some of which may also be helpful in criminal trials, see Civil

Litigation Management Manual 87–88 (Judicial Conference

of the United States 2001) and Manual for Complex Litigation, Fourth 154–60 (2004)

 

1. If special verdict forms or jury interrogatories are used, instruct the jury

on how to answer them. Such devices should be used with caution, but they

may be useful in multidefendant or other complex cases, or where jury findings

(e.g., drug weights) affect statutory maximums. Note that special verdicts and

jury interrogatories in criminal cases are not covered by the criminal rules of

procedure or by statute, so the court should be familiar with the law of its circuit.
Section 2.08: General instructions to jury at end of criminal case

108 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

For a discussion of jury-related problems in criminal cases, see

Donald S. Voorhees, Manual on Recurring Problems in

Criminal Trials 18–39 (5th ed. 2001)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 109

2.09 Verdict—criminal

Fed. R. Crim. P. 31 and 43

A. Reception of unsealed verdict

1. Upon announcement by the jury that it has reached a

verdict, have all interested parties convene in open court

to receive the verdict. The presence of the defendant(s) is

required under Fed. R. Crim. P. 43(a), unless one of the

exceptions in Fed. R. Crim. P. 43(b) or (c) applies. Any victims of the offense should be given “reasonable, accurate, and timely notice” of the return of verdict so that

they can be present. See 18 U.S.C. § 3771(a)(2) and (3).

2. When court is convened, announce that the jury is ready

to return its verdict(s), and instruct the deputy marshal

(or bailiff) to have the jurors enter and assume their seats

in the jury box.

3. If not already known, inquire of the jury who speaks as its

foreperson.

4. Ask the foreperson if the jury has unanimously agreed on

its verdict. [Note: If the response is anything other than

an unqualified yes, the jury should be returned without

further inquiry to continue its deliberations.]

5. Instruct the foreperson to hand the verdict form(s) to the

clerk to be delivered to you for inspection before publication.

6. Inspect the verdict(s) to ensure regularity of form. [Note:

If the verdict form(s) is (are) not properly completed, take

appropriate corrective action before publication.]

7. Explain to the jurors that their verdict(s) will nowbe “published”—that is, read aloud in open court.

8. Instruct the jury to pay close attention as the verdict(s) is

(are) published; explain that, following publication, the

jury may be “polled”—that each juror may be asked, individually, whether the verdict(s) as published constituted his or herindividual verdict(s) in allrespects.

9. Publish the verdict(s) by reading it (them) aloud (or by

having the clerk do so).
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110 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

10. If either party requests, or on your own motion, poll the

jury by asking (or by having the clerk ask) each juror, by

name or number, whether the verdict(s) as published

constituted his or her individual verdict(s) in all respects.

(Fed. R. Crim. P. 31(d) requires polling upon request.)

11. If polling verifies unanimity, direct the clerk to file and record the verdict, and discharge the jurors with appropriate instructions concerning their future service, if any.

12. If polling results in any doubt as to unanimity, make no

further inquiry and have no further discussions with the

jury; rather, confer privately, on the record, with counsel

and determine whether the jury should be returned for

further deliberations or a mistrial should be declared.

B. Reception of sealed verdict

In some cases a sealed verdict may be delivered to the clerk

for subsequent “reception” and publication in open court

when the jury, the judge, and all necessary parties are present. For example, on some occasions an indispensable party

may not be available to receive a verdict when the jury

reaches agreement. This may occur when the jury reaches its

verdict late in the evening, a defendant is absent from the

courtroom because of illness, or the judge is unavailable. In

these instances, the verdict may be sealed and the jurors allowed to return home. A sealed verdict may also be appropriate when the jury reaches a verdict as to one defendant but

not as to another or when the jury wishes to return a partial

verdict.

1. Upon announcement by the jury that it has reached a

verdict, have all interested and available parties convene

in open court and on the record. The presence of the defendant(s) is required under Fed. R. Crim. P. 43(a), unless

one of the exceptions in Fed. R. Crim. P. 43(b) or (c) applies. Any victims of the offense should be given “reasonable, accurate, and timely notice” of the return of verdict

so that they can be present. See 18 U.S.C. § 3771(a)(2)

and (3).

2. When court is thus convened, announce that the jury is

ready to return its verdict(s) and explain that a sealed

verdict will be taken in accordance with the following procedure:
Section 2.09: Verdict—criminal

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 111

(a) Instruct the deputy marshal (or bailiff) to usher the

jurors into the courtroom to assume their seats in the

jury box.

(b) If not already known, inquire of the jury who speaks

forit as its foreperson.

(c) Ask the foreperson if the jury has unanimously agreed

on its verdict.

[Note: If the response is anything other than an unqualified yes, the jury should be returned without further inquiry to continue its deliberations.]

(d) Poll the jurors individually on the record.

(e) Explain to the jury that a sealed verdict will be taken,

and further explain why that procedure has become

necessary in the case.

(f) Direct the clerk to hand a suitable envelope to the

foreperson. Instruct the foreperson to place the verdict form(s) in the envelope, to seal the envelope, and

to hand it to the clerk for safekeeping.

[Note: In the event the jury will not be present at the

opening of the verdict, it is recommended that each

juror sign the verdict form(s).]

(g) Recess the proceedings, instructing the jury and all interested parties to return at a fixed time for the opening and formal reception of the verdict. Instruct that,

in the interim, no member of the jury should have any

conversation with any other person, including any

other juror, concerning the verdict or any other aspect

of the case.

(h) When court is again convened for reception of the

verdict, have the clerk hand the sealed envelope to

the jury foreperson.

(i) Instruct the foreperson to open the envelope and verify that the contents consist of the jury’s verdict

form(s) without modification or alteration of any kind.

(j) Follow the steps or procedures outlined in paragraphs

A.5 through A.12, supra.
Section 2.09: Verdict—criminal

112 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 35–37 (5th ed. 2001)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 113

2.10 Trial and post-trial motions

Fed. R. Crim. P. 29, 33, 34, and 45(b)

Effective December 1, 2005, Fed. R. Crim. P. 29, 33, and 34 were

amended to eliminate the restriction that a court may extend the

time to make a motion under these rules only if it acts within the

seven-day period the defendant has to file the motion or seek an

extension. Motions for extending time to file under these rules

are now covered by Rule 45(b).

Also note that if the motion occurs during a “public court proceeding,” any victims of the offense must be notified and allowed to attend. If the motion is granted and the defendant

might be released, victims would have the right to “be reasonably heard.” See 18 U.S.C. § 3771(a)(2)–(4).

The case law on this subject will vary from circuit to circuit.

The suggested procedure may be varied to conform with the law

of the circuit, the practice of the district, and the preferences of

the individual judge.

A. Fed. R. Crim. P. 29—Motion for Judgment of Acquittal

1. Timing

(a) The motion may be made by the defendant or the

court before submission to the jury, after the evidence

on either side is closed. Fed. R. Crim. P. 29(a).

(b) The motion may also be made orrenewed (if the court

earlier reserved decision under Fed. R. Crim. P. 29(b))

within seven days of a guilty verdict or discharge of

the jury, whichever is later, or within such further time

as the court may fix. Fed. R. Crim. P. 29(c)(1) and

45(b); Carlisle v. United States, 517 U.S. 416 (1996).

(c) Failure to make a Fed. R. Crim. P. 29 motion prior to

submission of the case to the jury does not waive the

defendant’s right to move after the jury returns a

guilty verdict or is discharged without reaching a verdict. Fed. R. Crim. P. 32(c)(3).

2. Procedure

(a) The motion should be heard out of the presence of

the jury. Whether an oral hearing will be held or the

motion will be decided on written submissions only is
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114 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

a matter within the court’s discretion. If the court reserved decision on a motion that is later renewed, “it

must decide the motion on the basis of the evidence

at the time the ruling was reserved.” Fed. R. Crim. P.

29(b).

(b) If the defendant moves for a judgment of acquittal,

but not for a new trial under Fed. R. Crim. P. 33, the

district court may not grant a new trial in lieu of granting the motion forjudgment of acquittal. If the motion

for acquittal is granted and the defendant has moved

for a new trial, the court must conditionally determine

whether any motion for new trial should be granted in

case the judgment of acquittal is vacated or reversed

on appeal. The reasons for that determination must

be specified. See Fed. R. Crim. P. 29(d)(1).

(c) When the court grants a motion for judgment of acquittal, it should consider whether the evidence was

sufficient to sustain conviction of a lesser offense necessarily included in the offense charged.

3. Standard

(a) The motion shall be granted for “any offense for

which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).

(b) In resolving the motion, the court should not assess

the credibility of witnesses, weigh the evidence, or

draw inferences of fact from the evidence.

1 The role of

the court is simply to decide whether the evidence

viewed in the light most favorable to the government

was sufficient for any rational trier of fact to find guilt

beyond a reasonable doubt.

Caution: Consult your circuit’s law for any special

rules governing consideration of the evidence.

B. Fed. R. Crim. P. 33—Motion for New Trial

1. Timing

Except as noted below with respect to newly discovered

evidence, the motion must be made within seven days af-

 

1. Of course, these restrictions do not apply in a bench trial. However, the

standard for deciding the motion remains the same.
Section 2.10: Trial and post-trial motions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 115

ter a verdict or finding of guilty, unless the court fixes a

longer period.

Exception: A motion for a new trial based on newly discovered evidence may be made only within three years after

the verdict or finding of guilty. If made during the

pendency of an appeal, the motion may be granted only

if the case is remanded.

2. Procedure

Whether an oral hearing will be held or the motion will be

decided on written submissions only is a matter within

the discretion of the court. The propriety of holding a

hearing will depend necessarily on the grounds invoked.

This motion may be made only by the defendant and

cannot be granted by the court sua sponte. Fed. R. Crim.

P. 33(b).

3. Standard

(a) Any alleged error in the trial that could be raised on

appeal may be raised on a motion for a new trial, and

the motion may be granted “if the interest of justice so

requires,” that is, if letting the verdict stand would result in a miscarriage of justice. Fed. R. Crim. P. 33(a).

(b) When the motion for a new trial is made on the ground

that the verdict is contrary to the weight of the evidence, the motion should be granted only in exceptional cases where the evidence preponderates heavily against the verdict. Unlike a motion for judgment

of acquittal, a motion for a new trial does not require

the court to view the evidence in the light most favorable to the government. Some circuits hold that the

court has broad power to weigh the evidence and consider the credibility of witnesses. However, other circuits reject the idea of the court as a “thirteenth juror”

and limit the extent to which courts may reweigh the

evidence. Courts should look to the law of their circuit

on this issue.

(c) For a motion based on newly discovered evidence, a

defendant must show that the evidence is newly discovered and was unknown to the defendant at the

time of trial; failure to discover the evidence sooner

was not due to lack of diligence by the defendant; the
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116 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

evidence is material, not merely cumulative or impeaching; and the new evidence would likely lead to

acquittal at a new trial. Many circuits have held that

such motions are disfavored and should be granted

with caution.

4. Findings and conclusions

The court’s findings and conclusions should be placed on

the record. An order denying a new trial is appealable as a

final decision under 28 U.S.C. § 1291. An order granting a

new trial may be appealed by the government under 18

U.S.C. § 3731.

C. Fed. R. Crim. P. 34—Motion for Arrest of Judgment

1. Timing

The motion must be made within seven days after a verdict or finding of guilty, or after a plea of guilty or nolo

contendere, unless the court fixes a longer period.

2. Procedure

Whether an oral hearing will be held or the motion will be

decided on written submissions only is a matter within

the discretion of the court. Despite the fact that this motion raises jurisdictional issues, after trial it cannot be

granted by the court sua sponte but may only be made by

the defendant. Compare Fed. R. Crim. P. 12(b)(2) (same

issues raised here may be raised pretrial by either the defendant or the court).

3. Standard

The motion is resolved upon examination of the “record”

(i.e., the indictment or information, the plea or the verdict, and the sentence). The court does not consider the

evidence produced at trial. A motion for arrest of judgment is based only on one or both of the following contentions: (i) the indictment or information does not charge

an offense or (ii) the court was without jurisdiction of the

offense charged. Fed. R. Crim. P. 34(a)(1) and (2).
Section 2.10: Trial and post-trial motions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 117

Other FJC sources

For a discussion of techniques in managing motions in civil trials,

some of which may be helpful in criminal trials, see Civil Litigation Management Manual 43–48 (Judicial Conference of

the United States 2001)

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 160–61 (5th ed. 2001)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 119

2.11 Release or detention pending

sentence or appeal

18 U.S.C. §§ 3142, 3143, 3145; Fed. R. Crim. P. 46;

Fed. R. App. P. 9

A. Release or detention pending imposition or execution of sentence

1. If the defendant was in custody at the time of sentencing,

there will ordinarily be no question of release after sentencing to a term of imprisonment.

2. If the defendant was at liberty at the time of sentencing,

invite counsel for the defendant to address the question

of whether continued release is appropriate. Invite counsel for the government to respond. If any victims of the offense are present, give them the opportunity “to be reasonably heard.” 18 U.S.C. § 3771(a)(4).

3. Except for those individuals subject to paragraph 4 below,

a person may be released while awaiting imposition or

execution of sentence only if the judge finds “by clear and

convincing evidence that the person is not likely to flee or

pose a danger to the safety of any other person or the

community.” 18 U.S.C. § 3143(a)(1). “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.” Fed. R. Crim. P. 46(c).

Release shall be in accordance with the provisions of 18

U.S.C. § 3142(b) or (c) (governing release pending trial).

This authority may be used to permit an offender to surrender at a Bureau of Prisons institution as well as to permit a delay before a defendant begins to serve the sentence.

4. Persons convicted of a crime of violence, an offense punishable by life imprisonment or death, or a drug offense

for which the maximum term of imprisonment is ten years

or more shall not be released pending imposition or execution of sentence unless the judge finds by clear and

convincing evidence that the person is not likely to flee or

to pose a danger to any other person or the community,

and (i) there is a substantial likelihood that a motion for
Section 2.11: Release or detention pending sentence or appeal

120 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

acquittal or new trial will be granted or (ii) an attorney for

the government has recommended that no sentence of

imprisonment be imposed upon the person. 18 U.S.C.

§ 3143(a)(2). Release may also be authorized “if it is

clearly shown that there are exceptional reasons why such

person’s detention would not be appropriate.” See 18

U.S.C. § 3145(c).

B. Release or detention pending appeal by the defendant

1. Except for those individuals subject to paragraph 2 below,

if the defendant appeals, he or she may be released

pending appeal only if the judge finds

(A) by clear and convincing evidence that the person is not

likely to flee or pose a danger to the safety of any other

person or the community if released under section

3142(b) or (c) of this title; and

(B) that the appeal is not for purpose of delay and raises a

substantial question1 of law or fact likely to result

2 in—

 

1. A “substantial question” has been defined differently by different circuits. Compare United States v. Giancola, 754 F.2d 898, 900–01 (11th Cir. 1985)

(per curiam) (“a ‘close’ question or one that very well could be decided the

other way”), cert. denied, 107 S. Ct. 669 (1986), with United States v. Handy, 761

F.2d 1279, 1281–83 (9th Cir. 1985) (“fairly debatable”). Most circuits that have

considered the issue have followed Giancola: United States v. Steinhorn, 927

F.2d 195, 196 (4th Cir. 1991); United States v. Perholtz, 836 F.2d 554, 555 (D.C.

Cir. 1987) (per curiam); United States v. Shoffner, 791 F.2d 586, 589–90 (7th Cir.

1986) (per curiam); United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985);

United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985); United States v. Powell,

761 F.2d 1227, 1231–34 (8th Cir. 1985) (en banc), cert. denied, 106 S. Ct. 1947

(1986); United States v. Valera-Elizondo, 761 F.2d 1020, 1024–25 (5th Cir. 1985);

United States v. Affleck, 765 F.2d 944, 952 (10th Cir. 1985) (en banc). The Third

Circuit has followed Handy, which is generally regarded as posing less of a barrier to the appellant seeking release. United States v. Smith, 793 F.2d 85, 89–90

(3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987). The Second Circuit has expressed the view that the two standards are not significantly different but has

indicated a preference for the Giancola formulation. United States v. Randell,

761 F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008 (1985).

2. “Likely to result” means likely to result if the defendant prevails on the

substantial question. United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985), and

cases cited supra note 1. A substantial question concerning only harmless error

would not meet this requirement. “Likely” has been defined by some circuits as

“more probable than not.” United States v. Bayko, 774 F.2d 516, 522 (1st Cir.

1985); United States v. Valera-Elizondo, 761 F.2d 1020, 1024–25 (5th Cir. 1985);

United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985); United States v. Bi-
Section 2.11: Release or detention pending sentence or appeal

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 121

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less

than the total of the time already served plus the expected duration of the appeal process.

18 U.S.C. § 3143(b).

Release under § 3143(b) shall be in accordance with the

provisions of 18 U.S.C. § 3142(b) or (c) (governing release

pending trial). If the defendant is to be released because

of the likelihood of a reduced sentence under

§ 3143(b)(1)(B)(iv), “the judicial officer shall order the detention terminated at the expiration of the likely reduced

sentence.”

If any victims of the offense are present, they must be

given the opportunity “to be reasonably heard” regarding

the release of the defendant. 18 U.S.C. § 3771(a)(4).

2. Detention is mandatory for persons appealing from a

sentence to a term of imprisonment for a crime of violence, an offense punishable by life imprisonment or

death, or a drug offense for which the maximum term of

imprisonment is ten years or more. 18 U.S.C. § 3143(b)(2).

Release may be authorized, however, in “exceptional

cases.” See 18 U.S.C. § 3145(c).

C. Government appeal of sentence

1. After sentence of imprisonment: If the defendant does

not appeal and the government appeals a sentence pursuant to 18 U.S.C. § 3742(b), release pending appeal may

not be granted. 18 U.S.C. § 3143(c)(1).

2. After sentence not including imprisonment: If the government appeals pursuant to 18 U.S.C. § 3742(b) from a

nonprison sentence, the government should move for a

redetermination of the defendant’s status. Release or detention is to be determined in accordance with 18 U.S.C.

§ 3142 (governing release or detention pending trial). 18

 

lanzich, 771 F.2d 292, 299 (7th Cir. 1985); United States v. Powell, 761 F.2d 1227,

1232–34 (8th Cir. 1985) (en banc), cert. denied, 106 S. Ct. 1947 (1986).
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122 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

U.S.C. § 3143(c)(2); see supra section 1.03: Release or detention pending trial. Place the reasons for the determination on the record. If any victims of the offense are in

the courtroom, they must be given the opportunity “to be

reasonably heard” regarding the release of the defendant. 18 U.S.C. § 3771(a)(4).

3. Note that, except for a sentence imposed by a magistrate

judge, the government’s appeal must be approved personally by the Attorney General, the Solicitor General, or a

deputy solicitor general designated by the Solicitor General. 18 U.S.C. § 3742(b) and (g).

D. Burden of proof

“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.” Fed. R. Crim. P. 46(c). The rules of

evidence do not apply. Fed. R. Evid. 1101(d)(3). A testimonial

hearing may be required. If there are any victims of the offense, they must be provided notice of such a hearing and allowed to attend, and be given an opportunity “to be reasonably heard.” 18 U.S.C. § 3771(a)(2)–(4).

E. Written order required

If the defendant is detained or conditions of release are imposed, the reasons must be stated in writing or on the record.

Fed. R. App. P. 9(b). If the defendant is released over the

government’s objection, reasons should be placed on the record to facilitate appellate review.

Other FJC sources

David N. Adair, Jr., The Bail Reform Act of 1984, at 36–43 (3d ed.

2006)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 123

3.01 Death penalty procedures

18 U.S.C. §§ 3591–3595; 21 U.S.C. § 848(e)–(q)

[Note: The Crime Victims’ Rights Act, 18 U.S.C. § 3771(e), specifies that when the victim of a crime is deceased, “the representatives of the crime victim’s estate, family members, or any other

persons appointed as suitable by the court, may assume the

crime victim’s rights. Those rights include notification of and attendance at “any public court proceeding . . . involving the

crime,” and the opportunity to be “reasonably heard” at any

such proceeding “involving release, plea, [or] sentencing.”

§ 3771(a)(2)–(4). The court may want to consult with the prosecution about who will assume the victim’s rights, especially if

there are a large number of persons who want to do so.]

This section provides an outline of procedures for imposing the

death penalty authorized in various federal statutes. Capital

cases can raise complex issues, and a number of problems may

arise. This outline is offered to provide basic guidance for consideration.

1

 

1. Judges may want to look at appellate court decisions that have examined

various aspects of 18 U.S.C. §§ 3591–3595. See, e.g., Jones v. United States, 119 S.

Ct. 2090 (1999), aff’g 132 F.3d 232 (5th Cir. 1998); United States v. Sampson, 486

F.3d 13 (1st Cir. 2007) (affirmed); United States v. Fulks, 454 F.3d 410 (4th Cir.

2006) (affirmed); United States v. Paul, 217 F.3d 989 (8th Cir. 2000) (affirmed);

United States v. Battle, 173 F.3d 1343 (11th Cir. 1999) (affirmed); United States

v. Webster, 162 F.3d 308 (5th Cir. 1998) (affirmed); United States v. McVeigh,

153 F.3d 1166 (10th Cir. 1998) (affirmed). It may also be useful to examine decisions on death penalty procedures under 21 U.S.C. § 848. See United States v.

Tipton, 90 F.3d 861 (4th Cir. 1996) (affirmed); United States v. McCullah, 76 F.3d

1087 (10th Cir. 1996) (remanded); United States v. Flores, 63 F.3d 1342 (5th Cir.

1995) (affirmed); United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), vacated in part, 193 F.3d 1297 (1999).

The Federal Judicial Center has prepared a “Resource Guide for Managing

Capital Cases, Volume I: Federal Death Penalty Trials,” by Molly Treadway

Johnson and Laurel L. Hooper. The guide contains information on many more

aspects of handling a capital case than can be covered here, is available on the

Center’s website (www.fjc.gov), and is periodically updated. The website also

includes a large collection of orders and other selected case materials from

judges who have handled capital cases. Additional resource materials are added

as they become available. See “Resources for Managing Federal Death Penalty

Trials” in the FJC Resource Catalog at http://cwn.fjc.dcn/library/

fjc_catalog.nsf. The Center also issued a series of Chambers to Chambers in 1995
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Effective Sept. 13, 1994, the Federal Death Penalty Act of 1994

established procedures for imposing any death penalty under

federal law (except for prosecutions under the Uniform Code of

Military Justice). See 18 U.S.C. §§ 3591–3595. These provisions

largely duplicate, but did not originally replace,

2 the authorization and procedure for imposing the death penalty for certain

drug-related killings in 21 U.S.C. § 848(e). However, effective

March 9, 2006, the procedural sections in § 848(g)–(r) were deleted, and capital offenses under § 848(e) will now be prosecuted

under §§ 3591–3595. The information provided in this outline

applies to capital cases under both statutes unless noted otherwise.

The killing in the course of a drug-related offense under 21

U.S.C. § 848(e) appears to be a separate offense that must be

charged and proved, not merely an aggravating factor to be considered in sentencing on the underlying drug offense.

3 When the

death penalty is sought for an offense under 18 U.S.C. § 3591,

the court should determine whether the relevant activity is a

separate offense—or an element of the offense—that must be

charged and proved.

A. Pretrial

1. Pursuant to 18 U.S.C. § 3005, when a defendant has been

indicted for a capital offense, the court “shall promptly,

4

 

and 1996 that discussed legal and practical issues unique to capital cases. The

series drew upon the experiences of district court judges who have handled

death penalty cases under section 848; the first issue includes the names of

judges who have tried capital cases and may be contacted.

2. Nothing in the Federal Death Penalty Act of 1994 specifically repealed or

superseded any part of section 848, and there are some differences in the statutes’ procedures and requirements.

3. Subsection (e) was added to 21 U.S.C. § 848 by the Anti-Drug Abuse Act

of 1988, Pub. L. No. 10-690, § 7001(a), 102 Stat. 4181, 4387–88. The catch line of

§ 7001(a) was “Elements of Offense.” Moreover, other subsections refer to being

found guilty of or pleading guilty to “an offense under subsection (e).” 21 U.S.C.

§ 848(i)(1), (j), (n).

4. The Judicial Conference of the United States recommends that the court

appoint qualified counsel “at the outset” of a capital case, rather than waiting

for the government to provide written notice that it intends to seek the death

penalty. See Recommendation 1(b) in Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation, May

1998 (prepared by the Subcommittee on Federal Death Penalty Cases, Committee on Defendant Services and adopted by the Judicial Conference September

15, 1998). See also In re Sterling-Suarez, 306 F.3d 1170, 1173 (1st Cir. 2002)
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upon defendant’s request,” assign two counsel to the defendant, “of whom at least one shall be learned in the law

applicable to capital cases.”5

2. The government must provide written notice to the court

and the defendant that it will seek the death penalty, and

it must identify which statutory and nonstatutory aggravating factors it intends to prove at “a reasonable time”

before trial or acceptance by the court of a guilty plea.

6 18

U.S.C. § 3593(a); 21 U.S.C. § 848(h)(1).

 

(“learned counsel is to be appointed reasonably soon after the indictment and

prior to the time that submissions are to be made to persuade the Attorney

General not to seek the death penalty”); United States v. Boone, 245 F.3d 352,

359 (4th Cir. 2001) (right to two counsel “becomes available upon indictment

for a capital crime and not upon the later decision by the government to seek or

not to seek the death penalty”). Cf. United States v. Waggoner, 339 F.3d 915, 917

(9th Cir. 2003) (agreeing in dicta that right commences “promptly upon the defendant’s request after the defendant is indicted for a capital crime”).

5. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995),

for a discussion of whether more than two attorneys may be appointed under

§ 3005. See also McCullah, 76 F.3d at 1098 (no abuse of discretion to refuse to

appoint additional counsel where district court found that two were adequate).

For a discussion of compensation of counsel, investigators, and expert witnesses, see Chambers to Chambers, vol. 10, no. 1. Note that 21 U.S.C.

§ 848(q)(10) was amended by the Antiterrorism and Effective Death Penalty Act

of 1996 (effective April 24, 1996) to limit attorney’s fees and costs for other services. In cases not affected by the Act, compensation for appointed counsel is

not limited by Criminal Justice Act maximums. Effective March 9, 2006, § 848(q)

has effectively been replaced by new 18 U.S.C. § 3599 (“Counsel for financially

unable defendants”).

6. For § 848(e) offenses prior to March 9, 2006, the government must identify and prove one aggravating factor from § 848(n)(1) plus at least one factor

from § 848(n)(2)–(12). Section 3591 contains three groups of offenses for which

death is authorized, and each group has a separate list of aggravating factors

from which the government must identify and prove at least one. Additional

factors from any list may be used, but only the one is required to impose the

death penalty. See § 3593(e). The Fourth and Tenth Circuits have held that allowing the jury to find duplicative aggravating factors is prohibited and would

require a new penalty phase. See Tipton, 90 F.3d at 898–901 (but affirming sentence because error was harmless in this case); McCullah, 76 F.3d at 1111–12

(remanded: prosecution submitted both § 841(n)(1)(C) and § 841(n)(1)(D),

which substantially overlap, and a nonstatutory aggravating factor that overlapped § 841(n)(1)(C)). See also United States v. McCullah, 87 F.3d 1136, 1137–

38 (10th Cir. 1996) (upon denial of rehearing and rehearing en banc, clarifying

that overlapping aggravating factors are improper if supported by same underlying conduct, thus distinguishing Flores, infra). But cf. Flores, 63 F.3d at 1372–

73 (defendant’s conduct supported finding of both n(1)(A) (intentionally killed
Section 3.01: Death penalty procedures

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3. At least three days before commencement of trial, the defendant must receive a copy of the indictment and a list

of the names and addresses of venire members and witnesses, unless the court finds by a preponderance of the

evidence that providing the list may endanger any person. 18 U.S.C. § 3432.

4. Arrange for a jury venire large enough to accommodate

additional peremptory challenges (twenty for each side,

see Fed. R. Crim. P. 24(b)(1)), the length of time required

for trial and penalty phases, and the likelihood that alternate jurors will be needed.

7

5. Consider having venire members complete a juror questionnaire, and consider providing attorneys with the responses prior to jury selection.

6. After familiarizing the venire members with jury service,

explain the two-stage decision process. Following is a suggested explanation.

Before we continue with the jury selection process, I

will explain to you how a capital case proceeds. Potentially this case has two stages. The first requires

the jury to consider whether or not the government

has proved the charges brought against the defendant, __________, beyond a reasonable doubt. In

this stage of the proceeding, the jury shall not consider any possible punishment that might be imposed.

If, at the conclusion of the first stage, the jury reports that it does not find the defendant,

__________, guilty of the capital charge, then the

jury’s responsibilities are at an end. This is so regardless of how the jury finds as to any other charges be-

 

the victim) and n(1)(C) (intentionally engaged in conduct intending that the

victim be killed) factors—defendant personally participated in the killings and

hired others to help). The Fourth and Tenth Circuits rejected the claim that allowing the government to introduce nonstatutory aggravating factors violated

separation of powers principles.

7. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995),

for discussion of this issue and of the juror questionnaire mentioned in the next

paragraph.
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cause the court decides the punishment for noncapital crimes.

If the jury reports that it finds the defendant,

________, guilty of the capital charge, then we proceed to a second stage: a sentencing hearing, at

which the jury considers whether the death penalty

should be imposed.

8

Now, during the sentencing hearing, the government has the opportunity to introduce evidence of

aggravating factors that might make the conduct alleged in the capital count so serious as to merit imposition of the death penalty. The defendant has the

opportunity to present mitigating factors about the

crime or about himself [herself] that might suggest

that the death penalty is not appropriate in this case.

No aggravating factor may be considered by the

jury unless all jurors agree on that factor unanimously. Nor can the jury find in favor of the death

penalty unless it also unanimously agrees that the

unanimously-agreed-upon aggravating factors sufficiently outweigh any mitigating factors that one or

more jurors believe exist.

Even if no one on the jury finds that any mitigating factors exist, the jury cannot find in favor of the

death penalty unless everyone on the jury finds that

the aggravating factors that the jurors have unanimously found to exist are sufficiently serious to justify

a death sentence. Even if the jury unanimously makes

such findings, it is not required under law to find in

favor of the death penalty; that is a matter for the

jury to decide.

[For § 3591 offenses, add:] If a jury does not unanimously find in favor of the death penalty, it may consider whether a sentence of life imprisonment without

 

8. The term “recommend,” used in the statutes, should be avoided as potentially misleading. See Caldwell v. Mississippi, 472 U.S. 320 (1985). The court

is without authority to reject the recommendation. See 18 U.S.C. § 3594; 21

U.S.C. § 848(l).
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the possibility of release should be imposed, a decision that must also be unanimous.

9

If a jury unanimously finds in favor of the death

penalty, this court is required to sentence the defendant to death. [For § 3591 offenses, add:] If a jury

unanimously finds in favor of a sentence of life imprisonment without the possibility of release, the

court is required to impose that sentence.

7. During voir dire, question the venire members as to their

views on the death penalty.

10 It is recommended that this

be done by questioning individual venire members at

side-bar. A juror may not be excused for cause simply because the juror voices “general objections to the death

penalty or express[es] conscientious or religious scruples

against its infliction.”11 “The standard is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a jurorin accordance with his instructions and his oath.’”12 Excuse the juror for cause if

the juror answers yes to either of the following questions:

(a) Would you never find, under any circumstances,

in favor of the death penalty under the law as I

will explain it?13

(b)If the defendant is found guilty of conduct that is

a capital offense, beyond a reasonable doubt,

 

9. The option of a jury-imposed sentence of life without release is not available under § 848. Section 3593(e) allows the jury to “recommend” such a sentence, and under § 3594 “the court shall sentence defendant accordingly.” See

also infra note 21.

10. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995),

for a discussion of jury selection, including “death-qualifying” the jury. See also

United States v. McVeigh, 153 F.3d 1166, 1205–11 (10th Cir. 1998) (discussing

voir dire issues regarding “death-qualifying” and pretrial publicity); United

States v. Tipton, 90 F.3d 861, 870–81 (4th Cir. 1996) (affirming district court’s

method of voir dire and the dismissal for cause of some jurors who opposed the

death penalty); United States v. Flores, 63 F.3d 1342, 1353–56 (5th Cir. 1995)

(same).

11. Witherspoon v. Illinois, 391 U.S. 510, 521–22 (1968).

12. Wainwright v. Witt, 469 U.S. 412, 424 (1985), quoting Adams v. Texas,

448 U.S. 38, 45 (1980). See also Lockhart v. McCree, 476 U.S. 162 (1986) (allowing

a juror who could not perform in the penalty phase to be excluded from the

guilt/innocence phase).

13. See Witherspoon, 391 U.S. 510.
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would you always find in favor of the death penalty?14

Note that the harmless error analysis does not apply to

Witherspoon violations.

15

8. When the jury retires to consider its verdict, do not discharge the alternate jurors.

16 Instruct the alternates to

avoid discussing the case with anyone. If an alternate juror replaces a juror after deliberations have begun, instruct the jury to begin its deliberations anew. Fed. R.

Crim. P. 24(c)(3).

B. After verdict or plea

1. No presentence report should be prepared. 18 U.S.C.

§ 3593(c); 21 U.S.C. § 848(j).

2. Unless the defendant moves for a hearing without a jury

and the government consents, the hearing must be before a jury.

(a) If the defendant was convicted after a jury trial, the

hearing should be before the jury that determined

guilt, unless such jury has been discharged for good

cause.

(b) If the defendant was convicted upon a plea or after a

bench trial, a jury and alternates should be impaneled in accordance with Fed. R. Crim. P. 24(c).

18 U.S.C. § 3593(b); 21 U.S.C. § 848(i)(1).

3. Instruct the jury about the purpose of the hearing.

17

(a) Inform the jurors that they will be required to make

specific findings about possible aggravating circumstances, that any or all of them may make a finding

 

14. See Morgan v. Illinois, 504 U.S. 179 (1992).

15. Gray v. Mississippi, 481 U.S. 648 (1987).

16. Fed. R. Crim. P. 24(c)(3) gives district courts the discretion to retain alternate jurors when the jury retires. Note that §§ 3593(b) and 848(i) do not allow a jury of fewer than twelve members unless the parties stipulate to a lesser

hearing before the conclusion of the sentencing hearing. See Chambers to

Chambers, vol. 10, no. 1 (Federal Judicial Center 1995), for a discussion of retaining the alternate jurors.

17. Samples of jury instructions that have been used in death penalty cases

are available from the Federal Judicial Center’s Information Services Office.
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130 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

regarding any mitigating circumstances,

18 and that if

certain findings are made, they will be required to decide whether the defendant should be sentenced to

death (or, if the offense is under § 3591, to life imprisonment without the possibility ofrelease).

(b) Instruct the jurors that, in considering whether a sentence of death is justified, they shall not consider the

race, color, religious beliefs, national origin, or sex of

the defendant or of any victim; that the jury is not to

recommend a sentence of death unless it has concluded that it would recommend a sentence of death

for the crime in question no matter what the race,

color,religious beliefs, national origin, or sex of the defendant or of any victim may be; and that each of the

jurors will be required to certify that he or she has not

been influenced by such factors. 18 U.S.C. § 3593(f);

21 U.S.C. § 848(o)(1).

4. Proceed with the hearing in the manner set forth in 18

U.S.C. § 3593(c) or 21 U.S.C. § 848(j). Note that

(a) the government may seek to prove only those aggravating factors of which it gave notice;

(b) the rules of evidence do not apply, but information

may be excluded if its probative value is outweighed

(§ 3593(c)) or “substantially outweighed” (§ 848(j)) by

the danger of unfair prejudice, confusion of the issues, or misleading the jury;

19

 

18. Under §§ 3593(d) and 848(k), specific findings about mitigating factors

are not required. However, both sections state that such findings “may be made

by one or more members of the jury,” and the Eleventh Circuit held that

“[s]ection 848(k) requires that the jury be instructed that it has the option to return written findings of mitigating factors.” United States v. Chandler, 996 F.2d

1073, 1087 (11th Cir. 1993), vacated in part, 193 F.3d 1297 (1999). The court also

noted that under § 848(q)(3)(B), the reviewing court is to consider whether such

findings, or any failure to find a mitigating factor, are supported by the record,

but held that this section requires only “that if the jury exercises its option, we

must review those findings.” 996 F.2d at 1087. There is no similar provision regarding appellate review of mitigating circumstances in § 3595(c)(2). Nevertheless, it is recommended that the trial judge require such findings.

19. See, e.g., United States v. McVeigh, 153 F.3d 1166, 1211–16 (10th Cir.

1998) (discussing standards for admission of mitigating evidence).
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(c) the trial transcript and exhibits may be used, particularly if a new jury has been impaneled for the sentencing stage;

(d) the order of argument is prescribed by the statute;

and

(e) the representative(s) of any victim must be provided

an opportunity “to be reasonably heard” during the

sentencing hearing. 18 U.S.C. § 3771(a)(4) and (e).

5. Instruct the jury and provide it with a form for findings

relative to sentencing. (See the suggested form for sentencing findings at the end of this section.

20

) Be sure to

cover the following points:

(a) The jury should first consider the aggravating factors

that the government has sought to establish.

(b) The aggravating factors must be proved beyond a

reasonable doubt, and the jury can find that an aggravating factor exists only by unanimous vote. If the

jury is not unanimous in finding that an aggravating

factor has been proved, it must treat it as not proved.

21

 

20. Sample jury instructions and forms are available from the Federal Judicial Center’s website (www.fjc.gov). Follow the links for the “Resource Guide for

Managing Capital Cases, Volume I: Federal Death Penalty Trials.”

21. This outline and the accompanying form are based on the understanding that, if the jurors disagree about the findings required for a death

sentence, a sentence other than death will be imposed. 18 U.S.C. § 3594; 21

U.S.C. § 848(l). For § 3591 offenses, the jury is specifically instructed that it may

choose a sentence of life imprisonment without release or a lesser sentence.

However, there is no similar choice for the jury in § 848, and no requirement

that the jurors be told the consequences of failure to unanimously agree on a

sentence of death. See Chandler, 996 F.2d at 1089 (“district court is not required

to instruct the jury on the consequences of the jury’s inability to reach a

unanimous verdict”).

The Supreme Court held that when a defendant’s future dangerousness is

an issue and the only alternative sentence to death is life with no possibility of

parole, due process entitles the defendant to tell the jury that the defendant will

never be released from prison. Simmons v. South Carolina, 114 S. Ct. 2187,

2196–201 (1994). The Court later held that such an instruction should have been

given where the prosecution introduced evidence of the defendant’s future

dangerousness, even though the prosecutor did not specifically argue future

dangerousness as a reason to impose the death penalty. Kelly v. South Carolina,

534 U.S. 246, 252–57 (2002). Cf. United States v. Stitt, 250 F.3d 878, 888–92 (4th

Cir. 2001) (distinguishing Simmons because, although government used defendant’s future dangerousness as an aggravating factor, there was still possibility
Section 3.01: Death penalty procedures

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(c) For the jurors even to consider the death penalty, they

must

(i) for § 3591 offenses: answer yes to the required

§ 3592(b), (c), or (d) question (question 1 on the

suggested form);

(ii) for § 848(e) offenses (committed before March 9,

2006): answer yes to the § 848(n)(1) question

(question 1 on the suggested form) and to at

least one of the § 848(n)(2)–(12) questions

(question 2 on the suggested form).

(d) If the jury’s findings about aggravating factors permit

consideration of a death sentence, the jury should

then consider the defendant’s evidence of mitigating

factors.

(e) A mitigating factor should be taken as true if it has

been established by a preponderance of the evidence. Distinguish between the reasonable doubt

and preponderance tests.

(f) The jurors should discuss the evidence about mitigating factors but are not required to reach a unanimous

decision. A finding of a mitigating factor may be made

by one or more jurors, and any member of the jury

who finds the existence of a mitigating factor by a

preponderance of the evidence may consider such a

factor established, regardless of whether any other juror agrees.

(g) In considering whether the death penalty should be

imposed, each juror should consider only those aggravating factors that have been found to exist beyond a reasonable doubt by unanimous vote, but

each juror should consider any mitigating factors that

have been proved by a preponderance of the evidence to his or her own satisfaction.

(h) The jury should then:

(i) for § 3591 offenses:

 

of departure under the guidelines to less than a life sentence); United States v.

Flores, 63 F.3d 1342, 1368–69 (5th Cir. 1995) (affirmed: same, and government

focused on danger defendant “would pose while still in prison,” not after release). See also O’Dell v. Netherland, 521 U.S. 151, 159–67 (1997) (declining to

apply Simmons retroactively).
Section 3.01: Death penalty procedures

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(a) consider whether the aggravating factor(s)

sufficiently outweigh the mitigating factor(s)

to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor(s) alone are sufficient to justify a sentence of death;

(bi) determine whether the defendant should

be sentenced to death, to life imprisonment

without possibility of release, or some other

sentence, a decision that must be unanimous.

22

(ii) for § 848(e) offenses (committed before March 9,

2006):

determine—based on consideration of

whether the aggravating factors sufficiently

outweigh any mitigating factors, or in the absence of mitigating factors, whether the aggravating factors alone are sufficient to justify

a sentence of death—whether the death penalty should be imposed. The jury may find in

favor of the death penalty only by unanimous vote.

(i) Regardless of its findings about aggravating and mitigating factors, the jury is never required to find in favor of a death sentence.

23

(j) The jury shall not consider the race, color,religious beliefs, national origin, or sex of the defendant or any

victim in considering whether a sentence of death is

justified, and must not impose a death sentence unless it would do so no matter what the race, color,religious beliefs, national origin, or sex of the defendant or

of any victim. The jurors must sign a certificate to this

effect when a death sentence is returned. 18 U.S.C.

§ 3593(f); 21 U.S.C. § 848(o)(1).

 

22. Although § 3593(e) states that the jury may unanimously recommend

“some other lesser sentence,” § 3594 implies that the court may still impose a

sentence of life without release. See also Jones v. United States, 119 S. Ct. 2090,

2098–100 (1999) (indicating that “otherwise” clause of § 3594 leaves sentencing

determination to court if jury cannot agree unanimously on a sentence).

23. This is explicitly stated in § 848(k) and is implicit in § 3593(e), given the

jury’s authorization to choose a lesser sanction.
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6. Consider retaining the alternates after the jury retires.

Fed. R. Crim. P. 24(c)(3). (Note that, although Fed. R.

Crim. P. 23(b) permits a court to accept a verdict from

eleven jurors if a juror is excused after the jury retires,

§§ 3593(b) and 848(i)(2) allow sentencing findings to be

accepted from fewer than twelve jurors only if the parties

agree to a lesser number before the jury retires.)

7. If the jury finds in favor of a death sentence, the court

must impose such a sentence. Otherwise:

(a) For § 3591 offenses: If the jury unanimously finds in

favor of life imprisonment without the possibility of

release, the court must impose that sentence; otherwise, the court shall impose any other sentence

authorized by law. See 18 U.S.C. § 3594.

(b) For § 848(e) offenses (committed before March 9, 2006):

The court may impose any other sentence authorized

by law. 21 U.S.C. § 848(l).
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Suggested form for sentencing findings

1. Do you find unanimously that the government has proved,

beyond a reasonable doubt, that the defendant [insert government’s claim under § 3592(b), (c), or (d), or § 848(n)(1)(A),

(B), (C), or (D)]?

24

Yes ❏ No ❏

IF THE ANSWER TO QUESTION 1 IS “NO,” STOP HERE. ALL

JURORS SHOULD SIGN AT THE END OF THE FORM.

2. [For § 848(e) offenses (committed before March 9, 2006) only:]

Do you find unanimously that the government has proved,

beyond a reasonable doubt, that the defendant [insert government’s claim under § 848(n)(2)–(12)]?

Yes ❏ No ❏

[Repeat the above for as many separate factors under (n)(2)–

(12) as the government alleges.]

IF THE ANSWER TO QUESTION 2 IS [OR TO QUESTIONS 2

THROUGH ARE ALL] “NO,” STOP HERE. ALL JURORS

SHOULD SIGN AT THE END OF THE FORM.

3. Do you find unanimously that the government has proved,

beyond a reasonable doubt, that the defendant [insert government’s claim of other aggravating factor]?

Yes ❏ No ❏

 

24. One of the aggravating factors listed in 21 U.S.C. § 848(n)(1) must be

found if the death penalty is to be imposed. It is hard to imagine a conviction

under § 848(e) that does not subsume a factor under (n)(1). Nevertheless, the

statute requires that the existence of an (n)(1) factor be considered at the penalty stage. It appears that subsection (n)(1) was drafted in contemplation of application to a wider range of criminal conduct than § 848(e) encompasses. For

the Supreme Court’s treatment of a similar statute, see Lowenfield v. Phelps,

484 U.S. 231 (1988). See also United States v. McCullah, 76 F.3d 1087, 1109–10

(10th Cir. 1996) (recognizing this aspect of § 848(e) but finding it meets requirements of Lowenfield); United States v. Flores, 63 F.3d 1342, 1369–72 (5th

Cir. 1995) (same); United States v. Chandler, 996 F.2d 1073, 1092–93 (11th Cir.

1993) (same), vacated in part, 193 F.3d 1297 (1999). Note that the Fourth and

Tenth Circuits have held it is error to find duplicative (n)(1) factors. See supra

note 6.
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136 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

[Repeat the above for as many additional aggravating factors

as the government alleges.]

4. Do any jurors find that the defendant has proved, by a preponderance of the evidence, that [insert the defendant’s

claim of mitigating factor]?

Yes ❏ No ❏

[Repeat the above for as many separate mitigating factors as

the defendant alleges.]

5. Do you find unanimously that the aggravating factor(s) to

which you have provided a unanimous “yes” answer above

sufficiently outweigh(s) the mitigating factor(s) to justify a

sentence of death, or in the absence of a mitigating factor,

that the aggravating factor(s) alone is (are) sufficient to justify a sentence of death, and that the defendant should be

sentenced to death?

Yes ❏ No ❏

IF THE ANSWER TO QUESTION 5 IS “NO” AND A § 3591

OFFENSE IS INVOLVED, ASK:

Do you find unanimously that the defendant should be sentenced to life imprisonment without possibility of release?

Yes ❏ No ❏

Each of the undersigned jurors hereby certifies that:

1. in reaching my decisions about the sentence in this case, I

did not consider the race, color, religious beliefs, national

origin, or sex of either the defendant, [defendant’s

name], or the victim, [victim’s name]; and
Section 3.01: Death penalty procedures

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2. I would have made the same decision about the sentence

for this crime no matter what the race, color, religious beliefs, national origin, and sex of the defendant, [defendant’s name], and the victim, [victim’s name].

(Foreperson)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 139

4.01 Sentencing procedure

Fed. R. Crim. P. 32; 18 U.S.C. § 3553(a)

Following United States v. Booker, 125 S. Ct. 738 (2005), the Sentencing Guidelines are to be treated as advisory rather than

mandatory. However, the guidelines must still be “considered”

and are one of the factors in 18 U.S.C. § 3553(a) that must be

taken into account when imposing a sentence. In post-Booker

sentencing, most circuits have held that the sentencing calculation should begin with an accurate determination, as before, of

the applicable sentencing range under the guidelines, and the

consideration of any departures consistent with the policy

statements and guideline commentary (see 18 U.S.C.

§ 3553(a)(4) and (5)). Then the other factors of § 3553(a) should

be considered in arriving at the final sentence. This section will

continue to reflect sentencing procedure with the guidelines, as

well as the changes required by Booker.

Note that any reference in this section to a “departure”

means, as before, a departure from the calculated guideline

range that is consistent with applicable policy statements and

guideline commentary. A “non-guidelines sentence” (sometimes

called a “variance”) refers to a sentence that is outside of the advisory guideline range based on the application of other

§ 3553(a) factors, as authorized by Booker.

Introductory note

Effective December 1, 2002 Fed. R. Crim. P. 32 was substantially

amended. Along with textual additions and revisions, the sections were completely renumbered. For this edition of the

Benchbook, the former section numbers appear in brackets following the current designations.

Rule 32(e)(2) [formerly 32(b)(6)(A)] requires that the presentence report be disclosed to the defendant, defense counsel, and

the attorney for the government not less than thirty-five days

before the sentencing hearing, unless this period is waived by

the defendant.

1 The parties then have fourteen days to provide

 

1. Note that the presentence report shall not include any diagnostic opinions that if disclosed may disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information

that may result in harm to the defendant or others if disclosed. Fed. R. Crim. P.
Section 4.01: Sentencing procedure

140 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

the probation officer with written objections to the presentence

report. Many courts have adopted other procedures designed to

ensure that disagreements about factual and legal issues material to sentencing are identified in advance of the sentencing

hearing. This section of the Benchbook is based on the assumption that such procedures are in place. Note that the sentencing

hearing does not have to proceed in a particular order—the following outline is only a guide and need not be followed precisely.

If the defendant had previously consented to plead guilty

before a magistrate judge, state on the record that, based on the

information provided by the defendant at the plea hearing and

contained in the presentence report, you accept the defendant’s

guilty plea. See supra section 1.13: Referrals to magistrate judges

(criminal matters), at note 1.

Outline

1. If you are contemplating a departure from the advisory

guideline range on a ground not identified as such either in

the presentence report or in a prehearing submission, you

must provide “reasonable notice” to the parties and identify

the departure grounds. Fed. R. Crim. P. 32(h). It may be advisable to also provide notice of previously unidentified

grounds that may support a non-guidelines sentence.

2

2. Verify that the defendant and the defendant’s counsel have

read and discussed the presentence report, including any revisions that may have been made after the initial disclosure.

Fed. R. Crim. P. 32(i)(1)(A) [formerly 32(c)(3)(A)].

 

32(d)(3) [formerly 32(b)(5)]. The probation officer’s final recommendation as to

sentence, previously withheld, may now be disclosed pursuant to local rule or

at the court’s discretion. Fed. R. Crim. P. 32(e)(3).

2. The circuits are split on whether Rule 32(h) requires notice that a court is

considering a post-Booker non-guidelines sentence. Compare United States v.

Mejia-Huerta, 480 F.3d 713, 722 (5th Cir. 2007) (notice is not required), United

States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006) (same), United States v.

Vampire Nation, 451 F.3d 189, 195–97 (3d Cir. 2006) (same), United States v.

Walker, 447 F.3d 999, 1006–07 (7th Cir. 2006) (same), and United States v. Long

Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005) (same), with United States v. Atencio, 476 F.3d 1099, 1104 (10th Cir. 2007) (notice is required), United States v.

Cousins, 469 F.3d 572, 579–80 (6th Cir. 2006) (same), United States v. Anati, 457

F.3d 233, 236–38 (2d Cir. 2006) (same), United States v. Evans-Martinez, 448

F.3d 1163, 1167–68 (9th Cir. 2006) (same), and United States v. Davenport, 445

F.3d 366, 371 (4th Cir. 2006) (same).
Section 4.01: Sentencing procedure

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3. If information has been withheld from the report pursuant to

Fed. R. Crim. P. 32(d)(3) [formerly 32(b)(5)], and the written

summary required by Fed. R. Crim. P. 32(i)(1)(B) [formerly

32(c)(3)(A)] has not yet been provided, summarize in camera

the withheld information if it will be relied on in determining

the sentence. Give the parties a reasonable opportunity to

comment on the information.

4. Place in the record under seal any information that was

summarized and not disclosed to the defendant and counsel.

Specify that counsel are not to be permitted access.

5. Establish what issues are in dispute.

6. If the defendant entered a plea subject to the court’s later

decision whether to accept a plea agreement under Fed. R.

Crim. P. 11(c)(1)(A) [formerly 11(e)(1)(A)] (dismissal of other

charges) or 11(c)(1)(C) [formerly 11(e)(1)(C)] (binding agreement on sentence), make the decision. In some cases, you

may find it necessary to defer this step until disputed issues

have been resolved.

(a) If the decision is to accept the plea agreement, inform the

defendant that the plea agreement is accepted and that

the judgment and sentence will be consistent with it. See

Fed. R. Crim. P. 11(c)(4) [formerly 11(e)(3)]. Make any

statement for the record that is deemed appropriate

about the reasons for accepting the plea agreement. See

U.S.S.G. § 6B1.2, p.s.

(b) If the decision is to reject the plea agreement, advise the

defendant that the court does not accept the plea agreement and afford the defendant an opportunity to withdraw the plea. Advise the defendant personally that if he

or she persists in the guilty plea, the disposition of the

case may be less favorable than that contemplated by the

plea agreement. This must be done on the record and in

open court, or in camera for good cause. See Fed. R. Crim.

P. 11(c)(5) [formerly 11(e)(4)].

7. Receive any exhibits and hear any testimony that may be

needed to resolve factual disputes. The decision to hold an

evidentiary hearing is in the discretion of the court. See Fed.

R. Crim. P. 32(i)(2) [formerly 32(c)(1)].

8. If counsel or the defendant alleges any factual inaccuracy in

the presentence report, the court must “rule on the dispute
Section 4.01: Sentencing procedure

142 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

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.” Fed. R. Crim. P.

32(i)(3)(B) [formerly 32(c)(1)]. For issues that are not in dispute, the court may accept the presentence report as its findings of fact. Fed. R. Crim. P. 32(i)(3)(A) [formerly

32(b)(6)(D)].

3

Even if controverted matters will not affect sentencing, it is

important to resolve the issues and attach findings, because

the Bureau of Prisons will base custody decisions on the presentence report. Notations in the margin or excerpts from the

reporter’s transcript may be adequate.

4

9. Rule on any legal issues relevant to the determination of the

sentence. In resolving disputes about particular guidelines or

statutory factors, the court should refer to the factors described therein and make specific findings on each factor.

10. Announce your conclusions as to the appropriate offense

level and criminal history category. Give the lawyers an opportunity to respond (without repeating previously expressed objections). If you have not yet decided whether to

accept a plea agreement under Fed. R. Crim. P. 11(c)(1)(A)

[formerly 11(e)(1)(A)] (dismissal of other charges), you may

wish to determine the offense level both under the plea

agreement and on the assumption that the defendant

pleaded to all counts.

11. If the advisory guideline sentence includes a departure

(a) explain the reasons for the departure;

5

 

3. Note that Rule 32(i)(3)(A) and (B) make it clear that courts should not

adopt the conclusions in the presentence report with regard to disputed issues,

as some circuits have allowed. Courts should resolve disputed issues of fact and

guideline application by making specific findings independent of the conclusions of the presentence report. When a guideline adjustment depends on the

resolution of disputed underlying facts, courts should make findings on those

facts rather than simply find that the adjustment applies.

4. But see United States v. Cortez, 841 F.2d 456 (2d Cir.) (transcript of hearing must be appended), cert. denied, 486 U.S. 1058 (1988).

5. Courts are advised to provide detailed reasons for any departure, with

specific references to guidelines or statutory provisions that authorize departure. Note that in the written order of judgment, the reasons must be “stated

with specificity” pursuant to amended 18 U.S.C. § 3553(c) (effective April 30,

2003). See also Oct. 27, 2003, amendments to the United States Sentencing
Section 4.01: Sentencing procedure

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 143

(b) explain the reasons for the extent of the departure;

6 and

(c) ensure that the parties have had reasonable notice and

opportunity to be heard.

12. If a request for departure is denied, state that

(a) departure is authorized in this case, but I choose not to

depart because I believe departure is not warranted under the circumstances here; or

(b) departure is not authorized under these facts; or

(c) even if departure were authorized under the facts of this

case, I would exercise my discretion not to depart.

13. Discuss the court’s consideration of the sentencing factors in

18 U.S.C. § 3553(a) as they pertain to the sentence to be imposed. If a non-guidelines sentence may be imposed, explain

why a sentence outside of the advisory guideline range may

be warranted. If either party requested a non-guidelines sentence, explain why you will grant or deny the request and directly address the arguments made by each party.

14. Inform the defendant and counsel if you have received any

additional materials concerning sentencing (such as letters of

recommendation or requests for departure). Considering

motions for downward departure based on substantial assistance to the government sometimes may be more appropriate in chambers.

15. Recognize the defendant’s counsel for remarks on behalf of

the defendant. Fed. R. Crim. P. 32(i)(4)(A)(i) [formerly

32(c)(3)(B)].

 

Guidelines at USSG § 5K2.0(e), p.s. (“If the court departs from the applicable

guideline range, it shall state, pursuant to 18 U.S.C. § 3553(c), its specific reasons for departure in open court at the time of sentencing and . . . shall state

those reasons with specificity in the written judgment and commitment order.”); USSG § 4A1.3(c), p.s. (requiring “written specification of basis for departure” based on criminal history); USSG § 6B1.2(b)(2) and (c)(2), p.s. (court

should only accept recommended or specified sentence in plea agreement that

includes a departure if the reasons for the departure “are specifically set forth in

writing in the statement of reasons or the judgment and commitment order”).

6. Some circuits have merely required that the extent of departure be

“reasonable”; others have required more detailed calculations that analogize to

guidelines factors. In any event, courts should first clearly establish the offense

level and criminal history category from which a departure will be made.
Section 4.01: Sentencing procedure

144 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

16. You must address the defendant personally and give the defendant an opportunity to speak on his or her own behalf.

Fed. R. Crim. P. 32(i)(4)(A)(ii) [formerly 32 (c)(3)(C)].

17. Recognize the attorney for the government for any remarks

on behalf of the government. Fed. R. Crim. P. 32(i)(4)(A)(iii)

[formerly 32 (c)(3)(D)].

18. If sentence is to be imposed for a crime that involved any victims, address each victim who is present and determine

whether the victim or other authorized person wishes to be

“reasonably heard” in relation to the sentence. See also 18

U.S.C. § 3771(a)(4) (superseding Fed. R. Crim. P. 32(i)(4)(B)

[formerly 32(c)(3)(E)]).

7

19. If restitution is an issue, determine the appropriate amount

and how and when it is to be paid.

8 Resolve any factual or legal disputes and state that you have considered the factors in

18 U.S.C. § 3664(f)(2) (or § 3664(a)(2) if the defendant’s offense occurred before April 24, 1996). 18 U.S.C. §§ 3663–

3664; U.S.S.G. § 5E1.1.

20. Determine whether to impose a fine and, if so, in what

amount. See 18 U.S.C. § 3572(a); U.S.S.G. § 5E1.2.

9

 

7. If the offense involved a crime of violence or sexual abuse, Rule

32(i)(4)(B) requires that the court “permit the victim to speak or submit any information about the sentence.” Although the rule appears to be effectively superseded by § 3771(a)(4), it is possible that it could be interpreted as providing

different or stronger rights for a victim than the statute provides.

8. Note that some circuits have held that restitution must be determined at

the time of sentencing, not at a later date. See, e.g., United States v. Porter, 41

F.3d 68 (2d Cir. 1994); United States v. Ramilo, 986 F.2d 333 (9th Cir. 1993);

United States v. Prendergast, 979 F.2d 1289 (8th Cir. 1992); United States v. Sasnett, 925 F.2d 392 (11th Cir. 1991). Several circuits have also held that the district court may not delegate to a probation officer the authority to set the specific terms of payment, including the ultimate amount of restitution and the

size and schedule of any installment payments. The probation officer may

make recommendations, but the court must make the final decision. See, e.g.,

United States v. Graham, 72 F.3d 352 (3d Cir. 1995), cert. denied, 116 S. Ct. 1286

(1996); United States v. Mohammad, 53 F.3d 1426 (7th Cir. 1995); United States

v. Johnson, 48 F.3d 806 (4th Cir. 1995); United States v. Porter, 41 F.3d 68 (2d

Cir. 1994); United States v. Albro, 32 F.3d 173 (5th Cir. 1994). Effective April 24,

1996, 18 U.S.C. § 3572(d)(2) states that “the length of time over which scheduled

[restitution] payments will be made shall be set by the court.”

9. 8 U.S.C. § 3572(d)(2), noted above, also applies to fines.
Section 4.01: Sentencing procedure

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 145

21. If forfeiture is an issue, include the final order of forfeiture as

part of the sentence. Fed. R. Crim. P. 32(k)(2) [formerly

32(d)(2)].

22. Explain that you will now state the sentence, but that the attorneys will have a final chance to make legal objections before the sentence is imposed.

10

23. State the sentence.

24. State the reasons for the sentence.

(a) The statement must include the “specific reason for the

imposition of a sentence different from” the advisory

guideline range. 18 U.S.C. § 3553(c)(2).

11

(b) If the sentence includes a prison term within the guidelines, and the lower and upper limits of the guideline

range of imprisonment are more than twenty-four

months apart, the statement must include the reasons for

selecting a particular point within the guideline range. 18

U.S.C. § 3553(c)(1).

(c) If restitution is not ordered, or only partial restitution is

ordered, the statement must also include the reasons for

that decision. 18 U.S.C. § 3553(c).

12

 

10. Fed. R. Crim. P. 35 no longer authorizes the court to correct an illegal

sentence or to reduce a sentence as a matter of discretion. Once a sentence is

imposed, changing it appears to be beyond the sentencing court’s power, except that the court has seven days in which to correct obvious technical errors

under Rule 35(a) [formerly 35(c)]. The procedure recommended here is intended to ensure that the sentencing court hears every possible objection before losing jurisdiction to change the sentence.

However, under some circumstances, such as a lengthy sentence imposed

on a defendant who has demonstrated violent tendencies, the court may prefer

to wait until all arguments have been heard and it has explained its reasons before announcing the final sentence.

11. Because the language of the statute requires an explanation for any sentence outside of the range calculated under the Sentencing Guidelines, it appears to cover both guideline departures and non-guidelines sentences. Be sure

to distinguish between departures and non-guidelines sentences (or “variances”) to facilitate appellate review and data collection.

12. Note that, effective Sept. 13, 1994, restitution is mandatory under 18

U.S.C. §§ 2248 and 2259 for some sexual abuse offenses, and under §§ 2264 and

2327 for domestic violence and telemarketing fraud, unless the court specifically finds that the defendant cannot pay any amount. Effective April 24, 1996,

restitution is also mandatory under § 3663A for specified violent and other

crimes.
Section 4.01: Sentencing procedure

146 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

25. Ask both counsel whether they know of any reason, other

than reasons already argued, why the sentence should not

be imposed as stated.

26. Order the sentence imposed as stated, or amend the sentence (and, if necessary, the statement of reasons) and then

order it imposed.

27. If the defendant was convicted after a trial:

(a) Advise the defendant of the right to appeal, including

any right to appeal the sentence.

13

(b) After conviction by guilty plea, advise the defendant:

You can appeal your conviction if you believe that

your guilty plea was somehow unlawful or involuntary, or if there is some other fundamental defect in

the proceedings that was not waived by your guilty

plea.

(c) If the defendant has not waived the right to appeal, advise

the defendant:

You also have a statutory right to appeal your sentence

under certain circumstances, particularly if you think

the sentence is contrary to law.]

(d) If there is a waiver of the right to appeal, advise the defendant:

Under some circumstances, a defendant also has the

right to appeal the sentence. However, a defendant

may waive that right as part of a plea agreement, and

you have entered into a plea agreement which waives

some or all of your rights to appeal the sentence itself. Such waivers are generally enforceable, but if you

believe the waiver itself is not valid, you can present

that theory to the appellate court.

14

 

13. In misdemeanor and petty offense trials, magistrate judges must notify

defendants of their right to appeal. Fed. R. Crim. P. 58(c)(4). Note also that an

appeal from a judgment of conviction or sentence by a magistrate judge is to

the district court. Fed. R. Crim. P. 58(g)(2)(B).

14. The specific terms of the waiver should have been reviewed with the defendant during the plea colloquy. If they were not, review them here to ensure

that the defendant’s waiver is knowing and voluntary. Even if there was a thorough discussion at the plea hearing, it may be advisable to quickly summarize

the relevant terms of the agreement and confirm that the defendant is being

sentenced in accordance with those terms.
Section 4.01: Sentencing procedure

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In either case, inform the defendant of the right to apply for

leave to appeal in forma pauperis and that the clerk of court

will prepare and file a notice of appeal upon the defendant’s

request. See Fed. R. Crim. P. 32(j)(1)(C) and (2) [formerly

32(c)(5)]. Also advise the defendant that, with few exceptions, any notice of appeal must be filed within ten days of

the entry of judgment. See Fed. R. App. P. 4(b).

28. If the defendant has been sentenced to a term of imprisonment and was at liberty pending sentencing, consider

whether the defendant should now be released or detained

(see supra section 2.11: Release or detention pending sentence or appeal). Then order the defendant remanded to the

custody of the marshal or to report for service of sentence in

the future, or order that the defendant be released pending

appeal. If the defendant is not immediately taken into custody, remind the defendant that the release conditions previously established continue to apply. Impose any additional

conditions that are appropriate. Point out that failure to report for service of sentence is a criminal offense under 18

U.S.C. § 3146(a)(2).

29. Verify that the parties have copies of the presentence report,

or order that they be furnished with an amended copy reflecting corrections and resolutions of disputed issues at the

sentencing hearing. Order that a complete, corrected copy be

prepared for the Bureau of Prisons and the U.S. Sentencing

Commission. Order that any other copies of the presentence

report shall remain confidential according to the practice of

your court. Direct that, if an appeal is taken, counsel on appeal are to be permitted access to the report. If you accepted

sentencing recommendations from the probation office that

were not disclosed to counsel, specify that counsel on appeal

are not to be permitted access to the recommendation section.

30. “[A] transcription or other appropriate public record of the

court’s statement of reasons, together with the order of

judgment and commitment,” must be provided to the probation office, to the Sentencing Commission, and, if the sentence includes a prison term, to the Bureau of Prisons. 18

U.S.C. § 3553(c). Under 28 U.S.C. § 994(w)(1), as amended

March 9, 2006, courts must send to the Sentencing Commis-
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148 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

sion a report containing several documents, including AO

Form 245B (Judgment in a Criminal Case), which includes the

statement of reasons and satisfies the requirements of

§ 3553(c).

15 If there was a departure or other non-guidelines

sentence, include in the written order of judgment and commitment the specific reasons for sentencing outside of the

advisory guideline range.

16

Entry of judgment

A judgment of the conviction should promptly be prepared on

the form required by the Sentencing Commission and issued by

the Judicial Conference of the United States, Form AO 245B,

“Judgment in a Criminal Case” (as amended June 2005)

17 Include a copy of the final order of forfeiture, if any.

 

15. As you did with the statement of reasons, be sure to distinguish in the

written order between departures and non-guidelines sentences (or “variances”) to facilitate appellate review and data collection.

16. 18 U.S.C. § 3553(c)(2), as amended April 30, 2003, by the PROTECT Act.

The Judicial Conference of the United States has designated the statement of

reasons as “the mechanism by which courts comply with the requirements of

the Prosecutorial Remedies and Other Tools to End the Exploitation of Children

Today Act of 2003 or ‘PROTECT Act’ to report reasons for sentences to the

United States Sentencing Commission.” (See “Preliminary Report, Judicial Conference Actions” Sept. 23, 2003.)

17. Pursuant to the authority granted in 28 U.S.C. § 994(w)(1), on May 15,

2006, the Sentencing Commission approved Form AO 245B (or 245C for an

amended judgment) as the format courts must use to submit sentencing information. As amended March 9, 2006, § 994(w)(1) states:

The Chief Judge of each district shall ensure that, within 30 days following entry

of judgment in every criminal case, the sentencing court submits to the Commission, in a format approved and required by the Commission, a written report of the sentence, the offense for which it is imposed, the age, race, sex of the

offender, and information regarding factors made relevant by the guidelines.

The report shall also include—

(A) the judgment and commitment order;

(B) the written statement of reasons for the sentence imposed (which

shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved

by the United States Sentencing Commission);

(C) any plea agreement;

(D) the indictment or other charging document;

(E) the presentence report; and

(F) any other information as the Commission finds appropriate.
Section 4.01: Sentencing procedure

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Administrative and research documentation

Order that copies of the charging documents, plea agreement (if

any), written proffer or stipulation of facts or law, presentence

report, and judgment of conviction (with statement of reasons),

and any other information required under 28 U.S.C. § 994(w)(1)

be sent to the U.S. Sentencing Commission.

Other FJC sources

Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues (2002)

James B. Eaglin, Sentencing Federal Offenders for Crimes Committed Before November 1, 1987 (1991)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 151

4.02 Revocation of probation or 

supervised release

Fed. R. Crim. P. 32.1; 18 U.S.C. §§ 3565 and 3583

Introduction

Whenever a probationer or a person on supervised release fails

to abide by the conditions of supervision or is arrested for another offense, a revocation hearing may be ordered. Revocation

is mandatory if a probationer or supervised releasee possesses a

firearm (including a destructive device) or a controlled substance, or refuses to comply with required drug testing.

1 See 18

U.S.C. §§ 3565(b), 3583(g). Revocation is also mandatory under

the Sentencing Guidelines for conduct that constitutes certain

serious offenses. See U.S.S.G. §§ 7B1.1 and 7B1.3, p.s. (Nov.

1990).

Because the proceeding may result in incarceration, particular attention must be given to ensuring that the probationer or

releasee receives substantive and procedural due process. The

revocation procedure may be initiated by the court or at the request of the probation office or the office of the U.S. attorney. An

Order to Show Cause why probation or supervised release should

not be revoked is effective for this purpose.

Fed. R. Crim. P. 32.1 was substantially revised and reorganized by the December 1, 2002, amendments. New subsection (a)

now requires an initial appearance before a magistrate judge,

whether the person is held in custody or appears in response to a

summons. The Advisory Committee Notes state that, if the initial

appearance would not be unnecessarily delayed, it may be combined with the preliminary hearing. Under Rule 32.1(a), the procedures applied at the initial appearance differ depending on

whether the district where the person appears is or is not the district where the alleged violation occurred or is one that has jurisdiction to hold the revocation hearing.

[Note: At the time this publication went to press, it was unclear whether, at the revocation hearing, the rights accorded by

 

1. The mandatory drug testing and revocation for refusal to comply provisions became effective September 13, 1994. The ex post facto prohibition may

prevent their application to defendants who committed their offenses before

that date.
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the Crime Victims’ Rights Act, 18 U.S.C. § 3771, should be accorded to a victim of the conduct that caused the violation of

probation orrelease. If the conduct constituted a federal offense,

the CVRA may apply whether or not there is a separate prosecution.

2 Or, if the revocation hearing is considered a “public court

proceeding . . . involving the crime or . . . any release . . . of the

accused,” the CVRA may apply. If it is determined that the CVRA

applies, ensure that any victims receive the required notice of

the hearing and the right to attend, as well as the opportunity “to

be reasonably heard” at any proceeding involving sentencing or

release.]

Preliminary hearing

If the probationer or releasee is in custody, Fed. R. Crim. P.

32.1(b)(1) [formerly 32.1(a)(1)] requires a preliminary probable

cause hearing before a district judge or magistrate judge. A probable cause hearing is not required if the probationer or releasee

is arrested after the issuance of an Order to Show Cause and

brought before the court for an immediate revocation hearing

without being held in custody, or if he or she appears voluntarily

in response to an Order to Show Cause or other notice. Fed. R.

Crim. P. 32.1 and Advisory Committee Notes (1979).

Suggested procedure at the revocation hearing3

A. Establish for the record that the probationer or releasee, defense counsel, a U.S. attorney, and a probation officer are

present.

 

2. Under § 3771(e), crime victim is defined as “a person directly and proximately harmed as a result of the commission of a Federal offense.” The rights to

notification and attendance apply to any public court proceeding “involving

the crime,” § 3771(a)(1) & (2), and the right to be heard at such a proceeding

applies if it “involv[es] release, plea, [or] sentencing,” § 3771(a)(4). No provision

of the CVRA limits its application to an offense that is prosecuted.

3. Note that under the Federal Courts Administration Act of 1992, a magistrate judge may revoke, modify, or reinstate probation and modify, revoke, or

terminate supervised release if any magistrate judge imposed the probation or

supervised release. 18 U.S.C. § 3401(d), (h) (effective Jan. 1, 1993).

Also under the Act, a district judge may designate a magistrate judge to

conduct hearings to modify, revoke, or terminate supervised release; to submit

proposed findings of fact; and to recommend a disposition. 18 U.S.C. § 3401(i)

(effective Jan. 1, 1993).
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B. Advise the probationer or releasee of the alleged violations

by reading or summarizing the revocation motion. If the alleged violation is of a kind that makes revocation mandatory

under 18 U.S.C. § 3565(b) or § 3583(g) (possession of a firearm, destructive device, or controlled substance, orrefusal to

comply with a drug test

4

), or under U.S.S.G. § 7B1.3(a)(1),

p.s., include advice to that effect.

C. Ascertain whether the alleged violations are admitted or denied by the probationer orreleasee.

1. If the violations are admitted:

(a) Ask the U.S. attorney to present the factual basis

showing the violations of the terms of supervision.

(b) Permit the probationer or releasee, his or her counsel,

the U.S. attorney, and the probation officer to be

heard concerning whether supervision should be revoked.

2. If the violations are denied:

(a) Receive evidence presented by the U.S. attorney and

the probationer orreleasee.

(b) The revocation hearing is not a formal trial and the

Federal Rules of Evidence need not apply. Fed. R.

Evid. 1101(d)(3).

5

(c) Proof beyond a reasonable doubt is not required. To

revoke probation, the court must be “reasonably satisfied” that the probationer has not met the conditions of probation. United States v. Francischine, 512

F.2d 827 (5th Cir.), cert. denied, 423 U.S. 931 (1975).

Revocation of supervised release requires a preponderance of the evidence. 18 U.S.C. § 3583(e)(3).

 

4. The statutory provisions for mandatory revocation for refusal to comply

with drug testing and, for supervised releasees, possession of a firearm, were

enacted September 13, 1994. Ex post facto considerations may prohibit their

application to defendants whose original offenses were committed before that

date.

5. But note that Fed. R. Crim. P. 32.1(c), effective December 1, 1993, requires the production of witness statements pursuant to the terms of Fed. R.

Crim. P. 26.2.
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D. Sentencing options

[Note: In a hearing to determine whether to modify or revoke

probation or supervised release, the defendant must be

given “an opportunity to make a statement and present information in mitigation.” See Fed. R. Crim. P. 32.1(b)(2)(E)

and (c)(1) (effective December 1, 2005).

6

]

1. If a determination is made not to revoke probation or supervised release:

(a) The original term of probation or supervised release

may be extended up to the maximum term of probation or supervised release that could have been imposed originally. 18 U.S.C. §§ 3564(d), 3565(a)(1),

3583(e)(2); U.S.S.G. § 7B1.3(a)(2).

(b) Conditions of probation or supervised release may be

modified or added. 18 U.S.C. §§ 3563(c), 3565(a)(1),

3583(e)(2); U.S.S.G. § 7B1.3(a)(2).

2. If a determination is made to revoke probation:

(a) Resentence the defendant under the provisions of 18

U.S.C. §§ 3551–3559 if the defendant is subject to 18

U.S.C. § 3565(a)(2), as amended Sept. 13, 1994.

7 The

court must also consider the provisions of U.S.S.G.

§ 7B1.3–1.4, p.s. Otherwise, impose any other sentence that was available under the sentencing provisions “at the time of the initial sentencing.”8 18 U.S.C.

§ 3565(a)(2) (before September 13, 1994, amendment). For defendants initially sentenced under the

 

6. This change was added to Rule 32.1 after several circuits held that defendants have, or should as a matter of practice be given, the right of allocution

when probation or supervised release is revoked or modified.

7. Ex post facto considerations may require the use of prior law if the defendant committed the original offense before September 13, 1994.

8. Because of ex post facto considerations, this earlier version of

§ 3565(a)(2) may be required if the defendant committed the original offense

before September 13, 1994. The Third, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits have held that “any other sentence that was available . . . at the

time of the initial sentencing” means the guideline range applicable to the

original offense of conviction. Note that some of the sentences in the “Revocation Table,” U.S.S.G. § 7B1.4, p.s., may exceed the maximum sentences allowed

under this interpretation. See also Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues § VII.A.1 (Federal Judicial Center 2002).
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Sentencing Guidelines, consider the provisions of

U.S.S.G. § 7B1.3–1.4, p.s.

(b) If probation is revoked for possession of drugs or firearms or for refusal of required drug testing, sentence

the defendant to a term of imprisonment.

9 18 U.S.C.

§ 3565(b) (effective Sept. 13, 1994).

(c) [Pre-Guidelines law:] Order, with or without modification, the execution of a sentence previously suspended (the sentence cannot be increased but may

be reduced). 18 U.S.C. § 3653.

3. If a determination is made to revoke supervised release:

(a) Require the person to serve in prison10 all or part of the

term of supervised release without credit for time previously served on post-release supervision, except

that the person may not be required to serve more

than five years in prison if the person was convicted of

a Class A felony, more than three years in prison if

convicted of a Class B felony, more than two years in

prison if convicted of a Class C or D felony, or more

than one year in any other case. 18 U.S.C.

§ 3583(e)(3). For defendants initially sentenced under the Sentencing Guidelines, consider the provisions of U.S.S.G. § 7B1.3–1.4, p.s.

(b) Require the person to serve a term of imprisonment

when revocation is for possession of drugs or firearms

or for refusal of required drug testing. 18 U.S.C.

 

9. This amendment to § 3565 removed the requirement to “sentence the

defendant to not less than one-third of the original sentence.” The Supreme

Court resolved a circuit split by ruling that “original sentence” meant the original guideline range, not the term of probation. Thus, defendants sentenced before the 1994 amendment could not be sentenced after revocation to more than

the original guideline maximum. United States v. Granderson, 114 S. Ct. 1259,

1263–69 (1994). Ex post facto considerations may limit the length of the sentence that may be imposed in some circuits for defendants who committed

their original offenses before September 13, 1994.

10. Home confinement may also be imposed as an alternative to incarceration. See 18 U.S.C. § 3583(e)(4); U.S.S.G. § 5F1.2.
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§§ 3583(g) (as amended Sept. 13, 1994) and 3583(e)

(before September 13, 1994, amendment).

11

(c) If the term of imprisonment imposed is less than the

statutorily authorized maximum, determine whether

to reimpose a term of supervised release. The length

of the reimposed term may not exceed the term of supervised release authorized by statute for the original

offense, less the term of imprisonment imposed upon

revocation of release. 18 U.S.C. § 3583(h) (added

Sept. 13, 1994); 18 U.S.C. § 3583(e)(3) (for offenses

committed before Sept. 13, 1994).

12

E. Judgment or order

Enter the appropriate order or judgment. Note that for sentences imposed pursuant to U.S.S.G. § 7B1, p.s., the court

should include “the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). For a sentence outside the

range resulting from the application of § 7B1, it may be advisable to follow § 3553(c)(2) and state “with specificity in the

written order of judgment and commitment” the reasons “for

the imposition of a sentence different from” the recommended range.

Other FJC sources

Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues (2002)

 

11. Before September 13, 1994, § 3583 required such defendants “to serve

in prison not less than one-third of the term of supervised release” and only

applied to revocation for drug possession.

12. Before § 3583(h) was added, § 3583(e) did not specifically authorize reimposition of supervised release after revocation. The circuits disagreed about

whether reimposition was allowed and whether § 3583(h) could be applied retroactively. However, the Supreme Court resolved that split by holding that reimposition was authorized under § 3583(e)(3) for offenses committed before

enactment of § 3583(h). Johnson v. United States, 120 S. Ct. 1795, 1800–07

(2000).
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 157

5.01 Handling a disruptive defendant

Fed. R. Crim. P. 43(c)[formerly 43(b)(3)]

A defendant who was initially present at trial, or who had

pleaded guilty or nolo contendere, waives the right to be present

. . . 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. . . . Ifthe defendant waives the rightto be present, the

trial may proceed to completion, including the verdict’s return

and sentencing, during the defendant’s absence.

Fed. R. Crim. P. 43(c)(1)(C) and (2) [formerly 43(b)(3)].

The Supreme Court held that a disruptive defendant, after appropriate warning, may be removed from the courtroom. Illinois

v. Allen, 397 U.S. 337 (1970). (The Court also stated that a defendant may be cited for contempt or, “as a last resort,” allowed to

remain in the courtroom bound and gagged, but those options

are not discussed here.)

When the court is faced with a disruptive defendant:

1. The court should warn the defendant that continuation

of the disruptive conduct will lead to removal of the defendant from the courtroom.

1

2. If the disruptive conduct continues, the court should determine whether it warrants removal of the defendant.

2

3. At the beginning of each session, the court should advise

the defendant that he or she may return to the courtroom

if the defendant assures the court that there will be no

further disturbances.

 

1. One circuit held that, in a multidefendant case, “[n]otice to one defendant is notice to all present in the courtroom for purposes of Rule 43.” United

States v. West, 877 F.2d 281, 287 (4th Cir.), cert. denied, 493 U.S. 959 (1989). Cf.

United States v. Beasley, 72 F.3d 1518, 1530 (11th Cir. 1996) (although district

court may not have personally warned defendant that he might be removed, it

was sufficient that court warned defense counsel in presence of defendant).

2. Whether the conduct is serious enough to warrant the defendant’s removal is generally in the discretion of the trial judge. Rule 43(c)(1)(C) simply

states that it must be “conduct that justifies removal from the courtroom,” and

the Supreme Court described it as conduct that is “so disorderly, disruptive,

and disrespectful of the court that [defendant’s] trial cannot be carried on with

him in the courtroom,” Illinois v. Allen, 397 U.S. 337, 343 (1970).
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4. The court should consider ways to allow the defendant to

communicate with his or her attorney to keep apprised of

the progress of the trial. The court may consider making

arrangements to allow the defendant to hear or see the

proceedings via electronic means, if available.

5. The court should consider any other factors required by

circuit law.

3

If the defendant is appearing pro se and standby counsel is

present, the court should first warn the defendant that pro se

status will be denied and that standby counsel will take over if

there is further disruption. If pro se status is denied and standby

counsel takes over, the defendant may be removed from the

courtroom for any further disruption.

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 72–74 (5th ed. 2001)

 

3. For example, the Eleventh Circuit requires courts to consider the potential prejudice to the defense of the defendant’s absence in addition to the adequacy of the warning and degree of misconduct. See Foster v. Wainwright, 686

F.2d 1382, 1388 (11th Cir. 1982), cert. denied, 459 U.S. 1213 (1983).
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 159

5.02 Grants of immunity

18 U.S.C. § 6002, 6003; 21 U.S.C. § 884; 28 C.F.R. § 0.175.

The cited statutes provide for the entry of an order requiring an

individual to give testimony or provide other information at any

proceeding before or ancillary to a court of the United States or a

grand jury of the United States after the court ensures compliance with the requirements of 18 U.S.C. §§ 6002, 6003, and 28

C.F.R. § 0.175, or, in the case of testimony or information concerning controlled substances, compliance with 21 U.S.C. § 884

and 28 C.F.R. § 0.175.

Procedure

A. Review the motion of the U.S. attorney to satisfy yourself that

1. the motion is made with the approval of the Attorney

General, the Deputy Attorney General, or any designated

assistant attorney general of the United States Department of Justice;

2. the motion asserts that the testimony or other information from the individual may be necessary to the public

interest; and

3. the motion asserts that the individual has refused or is

likely to refuse to testify or provide other information on

the basis of the privilege against self-incrimination.

B. If the above requirements have been met, enter an order reflecting the court’s satisfaction that the prerequisites have

been met and ordering, pursuant to 18 U.S.C. § 6003 or 21

U.S.C. § 884, that

1. the person shall give testimony or provide other information as to all matters about which the person may be interrogated before the court or the grand jury, testimony

that he or she has refused to give or to provide on the basis of the privilege against self-incrimination;

2. the order shall become effective only if, after the date of

the order, the person refuses to testify or provide other information on the basis of his or her privilege against selfincrimination;
Section 5.02: Grants of immunity

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3. no testimony or other information compelled from the

person under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the person in any criminal case

except in a prosecution for perjury, for giving a false

statement, or for otherwise failing to comply with the order; and

4. the motion and order are to be sealed, if appropriate.

C. Cause the (sealed) motion and order to be delivered to the

clerk of court.

Other FJC sources

Pattern Criminal Jury Instructions 32 (1987)

Manual for Complex Litigation, Fourth 228 n.683 (2004)

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 128–29 (5th ed. 2001)
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5.03 Invoking the Fifth Amendment

The case law on this subject varies from circuit to circuit. The

suggested procedure may be varied to conform with the law of

the circuit, the practice of the district, and the preferences of the

individual judge.

A. If a witness refuses to answer a proper question and invokes

the Fifth Amendment privilege to justify that refusal, the trial

court must determine whether the privilege has been properly claimed. The Fifth Amendment privilege extends to

1. answers that would support a conviction of the witness for

violating a federal or state criminal statute; or

2. answers that would furnish a link in the chain of evidence

needed to prosecute the witness for violating a federal or

state criminal statute.

B. The following suggested procedure may be used when a witness claims the Fifth Amendment privilege:

1. Excuse the jury.

2. Explain to the witness the nature of the Fifth Amendment

privilege. Ask the witness if he or she wishes to consult

counsel. Consider the appointment of counsel.

3. Have the question repeated to the witness, and ask the

witness if he or she stillrefuses to answer the question.

4. If the witness still refuses on the ground of the Fifth

Amendment, the court should determine whether the

claim of the privilege is appropriate. Be careful not to interrogate the witness about the claim in such a way as to

force the witness to surrender the privilege in order to

claim it.

5. If the witness makes a prima facie showing of the validity

of his or her claim, the party seeking the answer then has

the burden to demonstrate that the answer could not

possibly tend to incriminate the witness.

6. Sustain the Fifth Amendment claim if you find that the

witness has reasonable cause to believe that answering

the particular question might tend to incriminate him or

her. The criterion to be applied in making this determina-
Section 5.03: Invoking the Fifth Amendment

162 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

tion is the possibility of prosecution, not the likelihood of

prosecution.

As the Supreme Court found in Hoffman v. United States,

341 U.S. 479, 486 (1951):

To sustain the privilege it need only be evident from the

implication of the question, in the setting in which it is

asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The

trial judge in appraising the claim must be governed as

much by his personal perception of the peculiarities of

the case as by the facts actually in evidence.

7. The witness may not assert a blanket claim of the privilege as to all questions. For each question, the witness

must assert or not assert the privilege. Out of the jury’s

presence, the court must rule as to each question whether

the witness’s claim of privilege is sustained or overruled.

The court may sustain a blanket assertion of the privilege

only if it concludes, after inquiry, that the witness could

legitimately refuse to answer allrelevant questions.

Other FJC sources

Manual for Complex Litigation, Fourth 101, 228, 525 (2004)

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 118–30 (5th ed. 2001)
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5.04 Handling the recalcitrant witness

Fed. R. Crim. P. 42

The case law on this subject varies from circuit to circuit. The

suggested procedure may be varied to conform with the law of

the circuit, the practice of the district, and the preferences of the

individual judge.

Refusal by a witness during trial or before a grand jury to answer a proper question, after having been ordered to do so by the

court, constitutes contempt of court, and the witness may be

subject to both civil and criminal contempt sanctions. See 18

U.S.C.§ 401(3); 28 U.S.C. § 1826(a).

A. Recalcitrant witness during trial

When a witness refuses to answer a proper question during

trial, consider the following procedure:

1. Excuse the jury.

2. Determine the reason for the refusal. (If the witness

claims the Fifth Amendment privilege, see supra section

5.03: Invoking the Fifth Amendment.)

3. If no valid Fifth Amendment claim or other good cause is

shown, advise the witness

(a) that the jury will be recalled and that the witness will

be ordered to answer the question.

(b) that if the witness persists in refusing to answer, he or

she will be cited for civil contempt, and if found guilty,

will be confined until he or she answers the question

or until the trial ends. Advise the witness that he or

she may be fined in addition to being confined.

(c) that if the witness has not answered the question before the trial ends, he or she may then be cited for

criminal contempt and, if found guilty, fined or imprisoned; that if the witness is found guilty of criminal

contempt at a bench trial, he or she may be imprisoned for as much as six months; and that if a jury finds

the witness guilty of criminal contempt, he or she may

be imprisoned for as long as the judge in his or her

discretion determines. (If the witness is currently
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164 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

serving another sentence, advise the witness that if

he or she is confined for civil or criminal contempt, the

confinement will be in addition to the sentence already being served.)

4. The jury should then be recalled, the question re-asked,

and the witness ordered to answer.

5. If the witness refuses to answer, counsel should be permitted to examine the witness concerning other subject

matter about which the witness is willing to testify.

6. After the witness has been examined

(a) direct him or her to remain in court until the next recess; or

(b) excuse the jury so that a time can be set for a hearing

to determine if the witness should be found in civil

contempt.

[Note: The witness should be given a reasonable time to

prepare for the hearing, but this time depends on the

need for prompt action. If the trial is expected to be short,

set an early hearing so that effective pressure to testify

can be exerted on the witness before the trial ends. If the

trial is expected to be lengthy, the hearing need not be

held so promptly. (If, but only if, there is need for immediate action, the witness can be held in summary criminal

contempt under Fed. R. Crim. P. 42(b) [formerly 42(a)]

and committed at once for criminal contempt that occurred in the presence of the court. If committed for

criminal contempt, the witness should be committed for a

stated period of time but should be advised that the court

would reconsider that sentence if the witness decided to

testify during the trial. See, e.g., United States v. Wilson,

421 U.S. 309 (1975) (summary contempt under Rule 42(a)

appropriate for already imprisoned witnesses who refused to testify despite grant of immunity).

1

) Advise the

witness that he or she may be represented by an attorney

at the hearing on the civil contempt citation and that if

 

1. Note that Wilson applies only to witnesses during a criminal trial. Witnesses before a grand jury should be given notice and a hearing under Rule

42(b). See Harris v. United States, 382 U.S. 162 (1965).
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the witness cannot afford an attorney, one will be appointed.]

7. If, at the hearing, the witness fails to show good cause

why he or she should not be compelled to answer the

question that the court ordered the witness to answer, he

or she should be found in civil contempt and remanded

into the marshal’s custody. Advise the witness that he or

she may purge himself or herself of contempt and secure

release by answering the question.

8. Direct the marshal to return the witness to the courtroom

before court convenes the next day. At that time ask the

witness if he or she is prepared to answer the question

which was asked of him or her. If the witness is not prepared to answer, again remand the witness into the marshal’s custody. Advise the witness to notify the marshal at

once if he or she decides to answer the question, so that

the witness can be returned to court and permitted to

purge himself or herself of contempt.

9. If the witness has not purged himself or herself of contempt by the time the trial ends, have him or her brought

back into court.

10. Pursuant to the procedure outlined in Fed. R. Crim. P.

42(a) [formerly 42(b)], advise the witness that he or she is

being cited for criminal contempt for refusing to obey the

court’s order.

11. Set the matter down for hearing at a certain place and

time to determine if the witness is guilty of criminal contempt. (Bear in mind that the maximum prison sentence

that can be imposed after a bench trial is six months. For a

prison sentence of more than six months, there must be a

jury trial.)

12. Advise the witness that he or she has a right to be represented by counsel at that hearing and that if the witness

cannot afford counsel, the court will appoint an attorney.

13. Release the witness from custody. Bail may be set to ensure the witness’s appearance at the hearing.

B. Recalcitrant witness before grand jury

When a witness refuses to answer a proper question before a

grand jury, consider the following procedure:
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1. Have the witness appear before the court out of the presence of the grand jury.

2. Determine the reason for the refusal. (If the witness

claims the Fifth Amendment privilege, see supra section

5.03: Invoking the Fifth Amendment.)

3. If no valid Fifth Amendment claim or other good cause is

shown, advise the witness

(a) that he or she will be returned to the presence of the

grand jury and that the court is ordering the witness to

answer the question that he or she had previously refused to answer.

(b) that if the witness persists in refusing, he or she will be

cited for civil contempt and, if found guilty, may be

confined for the term of the grand jury, including extensions, or for a period of eighteen months, or until

the witness answers the question, whichever occurs

first. Advise the witness that he or she may be fined in

addition to being confined.

(c) that if the witness has not answered the question before the term of the grand jury and its extensions expire, or after eighteen months have passed, whichever occurs first, the witness will be released from custody but may then be cited for criminal contempt, and

if found guilty, may be fined orimprisoned; that if the

witness is found guilty of criminal contempt at a

bench trial, he or she may be imprisoned for as much

as six months; and that if a jury finds the witness

guilty of criminal contempt, he or she may be imprisoned for as long as the judge in his or her discretion

determines. (If the witness is currently serving another sentence, advise him or her that the confinement for criminal contempt would be in addition to

the sentence currently being served.)

4. Return the witness to the grand jury room.

2

5. If the witness persists in refusing to answer the question

before the grand jury, have him or her brought before the

 

2. This step may be unnecessary if the witness declares during the court

proceeding that he or she will persist in refusing and that another opportunity

to answer would be pointless.
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court and at that time advise the witness that he or she is

being cited for civil contempt. Do not summarily adjudge

the witness to be in contempt pursuant to Fed. R. Crim. P.

42(b) [formerly 42(a)]. Rather, advise the witness when

and where a hearing will be held on the civil contempt citation. Advise the witness that he or she may be represented by counsel at that hearing and that if the witness

cannot afford counsel, the court will appoint an attorney.

6. If the evidence warrants, adjudge the witness to be in civil

contempt and order him or her committed for the term of

the grand jury and its extensions, for eighteen months, or

until he or she answers the question, whichever occurs

first. 28 U.S.C. § 1826(a).

7. Advise the witness that he or she will be released as soon

as he or she has purged himself or herself of contempt by

answering the question and that the witness should advise the marshal at once if he or she decides to answer the

question.

8. If the witness has not purged himself or herself of civil

contempt before the term of the grand jury and its extensions expire or eighteen months have passed, whichever

occurs first, the witness may be cited for criminal contempt pursuant to Fed. R. Crim. P. 42(a) [formerly 42(b)].

9. If you decide to cite the witness for criminal contempt,

advise the witness when and where the hearing will be

held to determine if he or she should be punished for

criminal contempt. (Bear in mind that the maximum

prison sentence that can be imposed after a bench trial is

six months. For a prison sentence of more than six

months, there must be a jury trial.)

10. Advise the witness that he or she has a right to be represented by counsel at the hearing and that if the witness

cannot afford counsel, the court will appoint an attorney.

11. Release the witness from custody. If necessary, set bail to

ensure that the witness appears at the hearing on the

criminal contempt citation.
Section 5.04: Handling the recalcitrant witness

168 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 67–72 (5th ed. 2001)

Manual for Complex Litigation, Fourth 20 (2004)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 169

5.05 Criminal defendant’s motion for 

mistrial

Fed. R. Crim. P. 26.3

General guidelines

When a criminal defendant moves for a mistrial, the general rule

is that retrial is not barred by double jeopardy concerns. See

United States v. Scott, 437 U.S. 82, 93–94 (1978). However, there is

one important exception to this rule: Retrial is barred if the motion was provoked by intentional government misconduct.

Only where the governmental conduct in question is intended to

“goad” the defendant into moving for a mistrial may a defendant

raise the bar of double jeopardy to a second trial after having

successfully aborted the first on his own motion.

Oregon v. Kennedy, 456 U.S. 667, 676 (1982).

The court must find that the intent of the government was to deliberately provoke a mistrial, not merely that the conduct was

harassing orin bad faith.

Prosecutorial conduct that might be viewed as harassment or

overreaching, even if sufficient to justify a mistrial on defendant’s

motion, . . . does not bar retrial absent intent on the part of the

prosecutor to subvert the protections afforded by the Double

Jeopardy Clause.

Id. at 675–76.

Note that mistake or carelessness is not sufficient to support

a double jeopardy claim. See, e.g., United States v. Johnson, 55

F.3d 976, 978 (4th Cir. 1995); United States v. Powell, 982 F.2d

1422, 1429 (10th Cir. 1992), cert. denied, 508 U.S. 917 (1993). Nor

is “[n]egligence, even if gross.” United States v. Huang, 960 F.2d

1128, 1133 (2d Cir. 1992). Even a deliberate improper act that

causes a mistrial does not prevent retrial if it was not intended to

provoke a mistrial. United States v. White, 914 F.2d 747, 752 (6th

Cir. 1990) (although prosecutor deliberately attempted to elicit

from witness evidence that court had ruled inadmissible, court

found that conduct was motivated by “prosecutorial inexperience”).

If the defendant moves for a mistrial with jeopardy attached

on the specific ground of prosecutorial misconduct, the court
Section 5.05: Criminal defendant’s motion for mistrial

170 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

should not deny a mistrial on that ground and then declare a

mistrial without prejudice over the defendant’s objection unless

the defendant consents or there is “manifest necessity” for a

mistrial. See Weston v. Kernan, 50 F.3d 633, 636–38 (9th Cir.), cert.

denied, 116 S. Ct. 351 (1995). See also Corey v. District Court of

Vermont, Unit #1, Rutland Circuit, 917 F.2d 88, 90–92 (2d Cir.

1990) (retrial prohibited where the defendant consented to mistrial only if jeopardy attached but court declared mistrial without

prejudice).

Before a court may order a mistrial, Fed. R. Crim. P. 26.3 requires it to “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.”

Multidefendant cases

If only one or some of the defendants in a multidefendant case

move successfully for mistrial, the court should give the other defendants an opportunity to object. Unless the nonmoving defendants join the motion or acquiesce to the decision,

1 the court

should sever their cases or must find that there are grounds to

declare a mistrial for those defendants, too. See, e.g., White, 914

F.2d at 753–55 (conviction must be vacated on double jeopardy

grounds where the defendant did not have sufficient opportunity to object to other defendant’s mistrial motion at initial trial,

the record did not indicate he joined the motion or otherwise

consented to mistrial, and “there was no manifest necessity for

declaring a mistrial in regard to him”).

Courts should be particularly careful in multidefendant

cases where some defendants would agree to a mistrial with

prejudice but would object to mistrial without prejudice. See,

e.g., United States v. Huang, 960 F.2d 1128, 1134–36 (2d Cir. 1992)

(where all four defendants moved for mistrial, but two specifically moved for mistrial with prejudice and objected to granting

of mistrial without prejudice, double jeopardy prevented retrial

because there was no manifest necessity to declare mistrial

rather than sever the cases and proceed with original trial for

them).

 

1. If the defendant has a reasonable opportunity to object to the granting of

a mistrial but does not, consent to the mistrial may be implied. See, e.g., United

States v. DiPietro, 936 F.2d 6, 10–11 (1st Cir. 1991).
Section 5.05: Criminal defendant’s motion for mistrial

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 171

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 161–64 (5th ed. 2001)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 173

6.01 Trial outline—civil

1. Have the case called for trial.

2. Jury is selected (see infra section 6.03: Jury selection—civil).

3. Give preliminary instructions to the jury (see infra section

6.05: Preliminary jury instructions—civil case).

4. Ascertain whether any party wishes to invoke the rule to exclude from the courtroom witnesses scheduled to testify in

the case.

5. Plaintiff’s counsel makes an opening statement.

6. Defense counsel makes an opening statement (unless permitted to reserve).

7. Plaintiff’s counsel calls witnesses for the plaintiff.

8. Plaintiff rests.

9. Hear appropriate motions.

10. Defense counsel makes an opening statement if he or she

has been permitted to reserve.

11. Defense counsel calls witnesses for the defense.

12. Defense rests.

13. Counsel callrebuttal witnesses.

14. Plaintiff rests on its entire case.

15. Defense rests on its entire case.

16. Consider appropriate motions.

17. Out of the hearing of the jury, rule on counsel’s requests for

instructions and inform counsel as to the substance of the

court’s charge. Fed. R. Civ. P. 51(b).

18. Counsel give closing arguments.

19. Charge the jury (see infra section 6.06: General instructions to

jury at end of civil case). Fed. R. Civ. P. 51.

20. Rule on objections to the charge and make any additional

appropriate charge.

21. Instruct the jury to go to the jury room and commence its deliberations.

22. Determine which exhibits are to be sent to the jury room.
Section 6.01: Trial outline—civil

174 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

23. Have the clerk give the exhibits and the verdict forms to the

jury.

24. Recess court during the jury deliberations.

25. Before responding to any communications from the jury,

consult with counsel on the record (see infra section 6.06:

General instructions to jury at end of civil case).

26. If the jury fails to arrive at a verdict before the conclusion of

the first day’s deliberations, provide for the jurors’ overnight

sequestration or permit them to separate after instructing

them as to their conduct and fixing the time for theirreturn to

resume deliberations. Provide for safekeeping of exhibits.

27. If the jurors report that they cannot agree on a verdict, determine by questioning whether they are hopelessly deadlocked. Do not inquire as to the numerical split of the jury. If

you are convinced that the jury is hopelessly deadlocked, declare a mistrial. If you are not so convinced, direct the jurors to

resume their deliberations.

28. When the jury has agreed on a verdict, reconvene court and

take the verdict (see infra section 6.07: Verdict—civil).

29. Poll the jury on the request of either party.

30. Thank and discharge the jury.

31. Enter judgment upon the verdict. Fed. R. Civ. P. 58.

32. Fix a time for post-trial motions.

33. Adjourn orrecess court.

Other FJC sources

Civil Litigation Management Manual 86–90 (Judicial Conference

of the United States 2001)

Manual for Complex Litigation, Fourth 131–66 (2004)

William W Schwarzer and Alan Hirsch, The Elements of Case

Management: A Pocket Guide for Judges (2d ed. 2006)

Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial (2001)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 175

6.02 Findings of fact and conclusions

of law in civil cases and motions

Fed. R. Civ. P. 41, 52, and 65(d)

A. When required

1. Fed. R. Civ. P. 52(a)

(a) In all cases tried without a jury or with an advisory jury,

“the court shall find the facts specially and state separately its conclusions of law thereon.”

(b) In granting or refusing interlocutory injunctions, “the

court shall similarly set forth the findings of fact and

conclusions of law which constitute the grounds of its

action.”

Note that this is in addition to the requirements of Fed. R.

Civ. P. 65(d), which requires that “[e]very order granting

an injunction and every restraining order shall set forth

the reasons for its issuance; shall be specific in terms;

shall describe in reasonable detail, and not by reference

to the complaint or other document, the act or acts sought

to be restrained.”

2. Fed. R. Civ. P. 52(c)—Judgment on Partial Findings

“If during a trial without a jury a party has been fully

heard with respect to an issue and the court finds against

the party on that issue, the court may enter judgment as a

matter of law against that party [on that issue]. . . . Such

judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.”

3. Fed. R. Civ. P. 41(a)(2)—Voluntary Dismissal

Plaintiff’s motion for voluntary dismissal shall not be

granted “save upon order of the court and upon such

terms and conditions as the court deems proper.”

B. When notrequired

1. On any motions (other than under Fed. R. Civ. P. 52(c)).

(a) Fed. R. Civ. P. 52(a) states that findings of fact and

conclusions of law “are unnecessary on decisions of

motions under Rules 12 or 56 or any other motion except as provided in subdivision (c) of this rule.”
Section 6.02: Findings of fact and conclusions of law in civil motions

176 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

(b) Fed. R. Civ. P. 12 covers instances when defenses and

objections to the pleadings are made and how they

are presented—by pleading or motion. Fed. R. Civ. P.

12(c) pertains to a motion for judgment on the pleadings and refers to Fed. R. Civ. P. 56, which covers

summary judgment.

(c) The exemption of motions, particularly those under

Fed. R. Civ. P. 12 and 56, from the requirement of

making findings and conclusions means that most

motions that are filed can be disposed of by simply

stating “granted” or “denied.”

[Note: Some circuits prefer findings and conclusions on

dispositive motions, particularly on motions for summary

judgment, and may vacate and remand orders if the district court fails to provide any reasoning on the record for

its decision. Judges should be aware that circuit law may

require, or strongly urge, detailed findings on some motions.

1

]

C. Form and substance

1. No particular format is required if an opinion or memorandum is filed.

“It will be sufficient if the findings of fact and conclusions

of law . . . appear in an opinion or memorandum of decision filed by the court.” Fed. R. Civ. P. 52(a). A memorandum that contains only a list of findings and conclusions

is adequate. The findings and conclusions need not be

listed separately in an opinion.

2. From the bench

“It will be sufficient if the findings of fact and conclusions

of law are stated orally and recorded in open court following the close of the evidence . . . .” Fed. R. Civ. P. 52(a). It

is always quicker and sometimes just as easy to make the

findings and conclusions from the bench at the end of the

 

1. See, e.g., Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355 (4th Cir.

1994); Pasquino v. Prather, 13 F.3d 1049 (7th Cir. 1994); Thomas v. N.A. Chase

Manhattan Bank, 994 F.2d 236, 241 n.6 (5th Cir. 1993); Telectronics Pacing Sys.

v. Ventritex, Inc., 982 F.2d 1520, 1526–27 (Fed. Cir. 1992); United States v.

Woods, 885 F.2d 352 (6th Cir. 1989); Clay v. Equifax, Inc., 762 F.2d 952 (11th Cir.

1985).
Section 6.02: Findings of fact and conclusions of law in civil motions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 177

case as it is to take the matter under submission. Be sure

that they are put in the record.

3. Requested findings and conclusions submitted by counsel

Specifically adopting or denying the requested findings

and conclusions submitted by counsel is not necessary,

as it is in some state courts. Some courts of appeals look

with a jaundiced eye on district court findings or conclusions that follow counsel’s requests verbatim.

4. Stipulations

Stipulations by counsel as to the facts are always helpful.

Unlike requests, they should be used verbatim. Of

course, counsel cannot stipulate as to the applicable law;

they can only suggest.

5. Length and style of opinion

The length and style of the opinion are left to the individual judge, but from the viewpoint of an appellate court,

there are certain basic elements that should be included:

(a) Jurisdiction. This is elementary, but sometimes overlooked. The statutory basis should be stated.

(b) The issues. It is helpful if the issues are stated at the

beginning of the opinion.

(c) Credibility findings. These are the exclusive province of

the district court. They should be clearly stated. If you

do not believe a witness, say so.

(d) The facts. If you have a transcript, refer to the pages

that contain the evidence on which you rely. If there is

no transcript and your opinion is based on your trial

notes, say so. Some appellate courts forget that district court judges do not always have the benefit of a

written record.

(e) The law. There are three basic situations that you will

face:

(i) the law is well settled;

(ii) the law is unsettled; or

(iii) there is no applicable law—the case is one of first

impression.
Section 6.02: Findings of fact and conclusions of law in civil motions

178 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

The first situation poses no problem; the second

and third may create a fear-of-reversal syndrome. Do

not worry about whether you may be reversed. No

judge has been impeached for having been reversed.

Get on with the opinion and do the best you can. The

court of appeals orthe Supreme Court is going to have

the last word anyhow.

Be sure that someone checks the subsequent history of the cases. It is not a sin to be overruled except

forrelying on a case that was overruled.

Other FJC sources

Manual for Complex Litigation, Fourth 165 (2004)

Civil Litigation Management Manual 89–90 (Judicial Conference

of the United States 2001)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 179

6.03 Jury selection—civil

The Benchbook Committee recognizes that there is no uniform

recommended procedure for selecting jurors to serve in criminal

or civil cases and that trial judges will develop the patterns or

procedures most appropriate for their districts and their courts.

Section 6.04, infra, however, provides an outline of standard voir

dire questions for civil cases. For a sample juror questionnaire,

see Sample Forms 42 and 43 at pages 358–60 of the Civil Litigation Management Manual (Judicial Conference of the United

States 2001) (updating and replacing the Manual for Litigation

Management and Cost and Delay Reduction (Federal Judicial Center 1992)).

The 1982 Federal Judicial Center publication Jury Selection

Procedures in United States District Courts, by Gordon Bermant,

contains a detailed discussion of several different methods of

jury selection. Copies are available on request. See also the section on jury selection and composition (pp. 580–82) in Judge William W Schwarzer’s article “Reforming Jury Trials” in volume 132

of Federal Rules Decisions (1990).

Judges should be aware of the cases, beginning with Batson

v. Kentucky, 476 U.S. 79 (1986), that prohibit peremptory challenges based on race. In Edmonson v. Leesville Concrete Co., 500

U.S. 614 (1991), the Supreme Court extended Batson to prohibit

private litigants in civil cases from using peremptory challenges

to exclude jurors on account of race. Peremptory strikes on the

basis of gender are also prohibited. J.E.B. v. Alabama ex rel. T.B.,

114 S. Ct. 1419 (1994).

The Supreme Court has left it to the trial courts to develop

rules of procedure and evidence for implementing these decisions. It has, however, set out a three-step inquiry for resolving a

Batson challenge (see Purkett v. Elem, 115 S. Ct. 1769, 1770–71

(1995):

1. The opponent of a peremptory challenge must make out

a prima facie case of discrimination based on the totality

of the relevant facts.

1

 

1. “[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” The defendant does not have to show that it was
Section 6.03: Jury selection—civil

180 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

2. The burden of production then shifts to the proponent of

the strike to come forward with a nondiscriminatory (i.e.,

race- and gender-neutral) explanation of the strike.

3. The trial court must then decide whether the opponent of

the strike has proved purposeful discrimination.

The Benchbook Committee suggests that judges

• conduct the above inquiry on the record but outside of

the venire’s hearing, to avoid “tainting” the venire by discussions of race, gender, or other characteristics of potential jurors; and

• use a method of jury selection which requires litigants to

exercise challenges at sidebar or otherwise outside of the

venire’s hearing and in which no venire members are

dismissed until all of the challenges have been exercised.

See Jury Selection Procedures in United States District

Courts,supra.

These procedures should ensure that prospective jurors are

never aware of Batson discussions or arguments about challenges, and therefore can draw no adverse inferences by being

temporarily dismissed from the venire and then recalled.

Other FJC sources

Civil Litigation Management Manual 83–84 (Judicial Conference

of the United States 2001)

Manual for Complex Litigation, Fourth 150–52 (2004)

For a summary of procedures that courts developed for criminal

cases in the first two years after Batson, see Bench Comment,

1988, nos. 3 & 4

For a discussion of voir dire practices in light of Batson, see

Chambers to Chambers, vol. 5, no. 2 (1987)

 

“more likely than not” that discrimination occurred. Johnson v. California, 125

S. Ct. 2410, 2417 (2005).
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 181

6.04 Standard voir dire questions—

civil

Fed. R. Civ. P. 47(a) provides that the court “may permit the parties or their attorneys to conduct the examination of prospective

jurors or may itself conduct the examination.” The following outline for an initial in-depth voir dire examination of the entire

panel by the court assumes that

1. if there are affirmative responses to any questions, follow-up questions will be addressed to the juror(s) (at

sidebar, if such questions concern private or potentially

embarrassing matters); and

2. the court and counsel have been furnished with the

name, address, age, and occupation of each prospective

juror.

If the court conducts the entire examination, it should require counsel to submit proposed voir dire questions before trial

to permit the court to incorporate additional questions at the appropriate places in this outline.

Outline

A. Have the jury panel sworn.

B. Explain to the jury panel that the purpose of the voir dire examination is

1. to enable the court to determine whether any prospective

juror should be excused for cause;

2. to enable counsel for the parties to exercise their individual judgment with respect to peremptory challenges—

that is, challenges for which counsel need not give a reason.

C. Indicate that the case is expected to take days to try, and

ask if this fact presents a special problem to any member of

the panel.

D. Briefly describe the case that is about to be tried.

E. Ask if any member of the panel has heard or read anything

about the case.
Section 6.04: Standard voir dire questions—civil

182 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

F. Introduce counsel (or have counsel introduce themselves)

and ask if any member of the panel or his or her immediate

family knows or has had any business dealings with any of

the counsel or their law firms.

G. Introduce the parties (or have counsel introduce parties) and

ask if any member of the panel or his or herimmediate family

1. is personally acquainted with,

2. is related to,

3. has had business dealings with,

4. is currently or was formerly employed by,

5. has had any other relationship or business connection

with, or

6. is a stockholder of any party in the case.

H. Introduce or identify by name, address, and occupation all

prospective witnesses (or have counsel do so). Ask if any

member of the panel knows any of the prospective witnesses.

I. Ask prospective jurors:

1. Have you ever served as a juror in a criminal or civil

case or as a member of a grand jury in either a federal

or state court?

2. Have you or has anyone in your immediate family ever

participated in a lawsuit as a party or in any other capacity?

3. If you are selected to sit on this case, will you be able

to render a verdict solely on the evidence presented at

the trial and in the context of the law as I will give it

to you in my instructions, disregarding any other

ideas, notions, or beliefs about the law that you may

have encountered in reaching your verdict?

4. Is there any member of the panel who has any special

disability or problem that would make serving as a

member of the jury difficult or impossible?

5. [At this point, if the court is conducting the entire examination, ask those questions submitted by counsel

that you feel should be propounded. If the questions

elicit affirmative responses, ask appropriate follow-up

questions.]
Section 6.04: Standard voir dire questions—civil

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 183

6. Having heard the questions put to you by the court,

does any other reason suggest itself to you as to why

you could not sit on this jury and render a fair verdict

based on the evidence presented to you and in the

context of the court’s instructions to you on the law?

J. 1. If appropriate, permit counsel to conduct additional direct voir dire examination, subject to such time and subject matter limitations as the court deems proper; or

2. Direct counsel to come to the bench, and consult with

them as to whether any additional questions should have

been asked or whether any were overlooked.

Other FJC sources

Civil Litigation Management Manual 83–84 (Judicial Conference

of the United States 2001)

Manual for Complex Litigation, Fourth 151–52 (2004)

Gordon Bermant, Jury Selection Procedures in United States District Courts (1982)

For additional judicial colloquy with the venire, including admonitions and general instructions, see Civil Litigation Management Manual (Judicial Conference of the United States

2001), Sample Form 46, at 379.

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 185

6.05 Preliminary jury instructions —

civil case

These suggested instructions are designed to be given following

the swearing of the jury. They are general and may require modification in light of the nature of the particular case. They are intended to give the jury, briefly and in understandable language,

information to make the trial more meaningful. Other instructions, such as explanations of depositions, interrogatories, and

the hearsay rule, may be given at appropriate points during the

trial.

Preliminary instructions

Members of the jury: Now that you have been sworn, I will give

you some preliminary instructions to guide you in your participation in the trial.

Duty of the jury

It will be your duty to find from the evidence what the facts are.

You and you alone will be the judges of the facts. You will then

have to apply to those facts the law as the court will give it to

you. You must follow that law whether you agree with it or not.

Nothing the court may say or do during the course of the

trial is intended to indicate, or should be taken by you as indicating, what your verdict should be.

Evidence

The evidence from which you will find the facts will consist of the

testimony of witnesses, documents and other things received

into the record as exhibits, and any facts that the lawyers agree

to or stipulate to or that the court may instruct you to find.

Certain things are not evidence and must not be considered

by you. I will list them for you now.

1. Statements, arguments, and questions by lawyers are not

evidence.

2. Objections to questions are not evidence. Lawyers have

an obligation to their clients to make objections when

they believe evidence being offered is improper under the

rules of evidence. You should not be influenced by the
Section 6.05: Preliminary jury instructions—civil case

186 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

objection or by the court’s ruling on it. If the objection is

sustained, ignore the question. If it is overruled, treat the

answer like any other. If you are instructed that some

item of evidence is received for a limited purpose only,

you must follow that instruction.

3. Testimony that the court has excluded or told you to disregard is not evidence and must not be considered.

4. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are

to decide the case solely on the evidence presented here

in the courtroom.

There are two kinds of evidence: direct and circumstantial.

Direct evidence is direct proof of a fact, such as testimony of an

eyewitness. Circumstantial evidence is proof of facts from which

you may infer or conclude that other facts exist. I will give you

further instructions on these as well as other matters at the end

of the case, but keep in mind that you may consider both kinds

of evidence.

It will be up to you to decide which witnesses to believe,

which witnesses not to believe, and how much of any witness’s

testimony to accept or reject. I will give you some guidelines for

determining the credibility of witnesses at the end of the case.

Burden of proof

This is a civil case. The plaintiff has the burden of proving his

[her] case by what is called the preponderance of the evidence.

That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what

the plaintiff claims is more likely true than not. To put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite sides of the scales, the plaintiff would have to

make the scales tip somewhat on his [her] side. If the plaintiff

fails to meet this burden, the verdict must be for the defendant.

Those of you who have sat on criminal cases will have heard

of proof beyond a reasonable doubt. That requirement does not

apply to a civil case; therefore, you should put it out of your

mind.
Section 6.05: Preliminary jury instructions—civil case

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 187

Summary of applicable law

[Note: A summary of the elements may not be appropriate in

some cases.]

In this case, the plaintiff claims that ___________; the defendant claims that ___________. I will give you detailed instructions on the law at the end of the case, and those instructions

will control your deliberations and decision. But in order to help

you follow the evidence, I will now give you a brief summary of

the elements which the plaintiff must prove to make his [her]

case: [here summarize the elements].

Conduct of the jury

Now, a few words about your conduct as jurors.

First, I instruct you that during the trial you are not to discuss the case with anyone or permit anyone to discuss it with

you. Until you retire to the jury room at the end of the case to

deliberate on your verdict, you simply are not to talk about this

case.

1

Second, do not read or listen to anything touching on this

case in any way. If anyone tries to talk to you about it, bring it to

the court’s attention promptly.

Third, do not try to do any research or make any investigation about the case on your own.

Finally, do not form any opinion until all the evidence is in.

Keep an open mind until you start your deliberations at the end

of the case.

[If the court decides to allow note taking, add:]

If you want to take notes during the course of the trial, you

may do so. However, it is difficult to take detailed notes and pay

attention to what the witnesses are saying at the same time. If

you do take notes, be sure that your note taking does not interfere with your listening to and considering all of the evidence.

Also, if you do take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with

 

1. Judges may wish to advise jurors that this prohibition includes any form

of communication over the Internet, such as e-mail, instant messaging, websites, and blogs; the use of cell phones for text messaging or video and audio recording; and the use of any other recording or transmitting device.
Section 6.05: Preliminary jury instructions—civil case

188 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

you at the end of the day—be sure to leave them in the jury

room.

If you choose not to take notes, remember that it is your own

individual responsibility to listen carefully to the evidence. You

cannot give this responsibility to someone who is taking notes.

We depend on the judgment of all members of the jury; you all

must remember the evidence in this case.

2

Course of the trial

The trial will now begin. First, each side may make an opening

statement. An opening statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered

to help you follow the evidence.

Next, the plaintiff will present his [her] witnesses, and the

defendant may cross-examine them. Then the defendant will

present his [her] witnesses, and the plaintiff may cross-examine

them.

After all the evidence is in, the parties will present their closing arguments to summarize and interpret the evidence for you,

and the court will give you instructions on the law.

[Note: Some judges may wish to give some instructions before

closing arguments. See Fed. R. Civ. P. 51(b)(3).]

You will then retire to deliberate on your verdict.

Other FJC sources

Civil Litigation Management Manual 87, 365, 374–75, 380 (Judicial Conference of the United States 2001)

Manual for Complex Litigation, Fourth 154–56 (2004)

 

2. For another sample instruction on note taking, see Civil Litigation Management Manual 374–75 (Judicial Conference of the United States 2001).
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 189

6.06 General instructions to jury at

end of civil case

Introductory note

Fed. R. Civ. P. 51 outlines the procedure for the submission and

consideration of requests by the parties for specific jury instructions. Itrequires

1. that the court inform counsel before closing arguments of

its proposed instructions and its proposed action upon

the instructions requested by counsel; and

2. that the court give counsel adequate opportunity outside

the hearing of the jury to object to the court’s instructions.

There is no prescribed method for the court to settle on its final set of instructions. Some courts hold an on-the-record charge

conference with counsel during trial. At that conference, the tendered instructions are discussed and are accepted, rejected, or

modified by the court.

Other courts, without holding a charge conference, prepare a

set of proposed instructions from those tendered by counsel.

These courts then give a copy of the proposed instructions to all

counsel and permit counsel to take exception to the instructions.

Thereafter, the court may revise its instructions if convinced by

counsel in their objections that the instructions should be modified.

Still other courts require counsel to confer during trial and to

agree, to the extent that they can, on the instructions that should

be given. The court then considers only those instructions upon

which the parties cannot agree.

The court may, of course, give an instruction to the jury that

neither party has tendered.

While the court is free to ignore tendered instructions and to

instruct the jury sua sponte, the usual practice is for the court to

formulate the final instructions with the assistance of counsel

and principally from the instructions counsel tendered.

Local practice varies as to whether a written copy of the instructions is given to the jury for use during its deliberations.

Many courts always give the jury a written copy of the instructions. Some courts have the instructions recorded as they are

given in court and permit the jury to play them back in the jury
Section 6.06: General instructions to jury at end of civil case

190 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

room. Some courts do neither but willrepeat some or all of the instructions in response to a request from the jury.

Outline of instructions

Instructions delivered at the end of a case consist of three parts:

Instructions on general rules that define and control the jury’s

duties; statement of rules of law that the jury must apply; and

rules and guidelines forjury deliberation and return of verdict.

A. General rules

1. Outline the duty of the jury

(a) to find facts from admitted evidence;

(b) to apply law as given by the court to the facts as found

by the jury; and

(c) to decide the case on the evidence and the law regardless of personal opinions and without bias, prejudice,

or sympathy.

2. Discuss the burden of proof in civil trials and explain how

it differs from the burden of proof in criminal trials.

3. Indicate the evidence to be considered:

(a) sworn testimony of witnesses;

(b) exhibits;

(c) stipulations; and

(d) facts judicially noticed.

4. Indicate what is not evidence:

(a) arguments and statements of counsel;

(b) questions to witnesses;

(c) evidence excluded by rulings of the court.

B. Delineate with precision and with specific consideration of

the law of your circuit each claim and defense of the parties

that is to be submitted to the jury for their consideration.

C. Jury procedure

1. Selection and duty of the foreperson.

2. Process of jury deliberation:

(a) rational discussion of the evidence by all jurors for the

purpose ofreaching a unanimous verdict;
Section 6.06: General instructions to jury at end of civil case

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 191

(b) each juror to decide the case for himself or herself in

the context of the evidence and the law, with proper

consideration of other jurors’ views;

(c) jurors may reconsider their views if persuaded by rational discussion but not solely for the sake of reaching a unanimous verdict.

3. Absent a stipulation, the verdict must be unanimous on

the issue submitted (Fed. R. Civ. P. 48).

4. Explain the verdict form, if used.

1

5. Jury communications with the court during deliberations

must be in writing and signed by the foreperson.

6. The jury must not disclose how it stands numerically or

otherwise on the issues submitted.

D. Consider providing the jury with a written copy or transcript

of the jury instructions.

Other FJC sources

Civil Litigation Management Manual 87–88, 365, 383 (Judicial

Conference of the United States 2001)

Manual for Complex Litigation, Fourth 156–59 (2004)

 

1. Consider whether to use a special verdict (Fed. R. Civ. P. 49). It can be a

useful device to reduce the risk of having to retry the entire case.

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 193

6.07 Verdict—civil

A. Reception of an unsealed verdict

1. Upon announcement by the jury that it has reached a

verdict, have all interested parties convene in open court

to receive the verdict.

2. When court is convened, announce that the jury is ready

to return its verdict(s), and instruct the deputy marshal

(or bailiff) to have the jurors enter and assume their seats

in the jury box.

3. If not already known, inquire of the jury who speaks as its

foreperson.

4. Ask the foreperson if the jury has unanimously agreed

upon its verdict(s). [Note: If the response is anything

other than an unqualified yes, the jury should be returned without further inquiry to continue its deliberations.]

5. Instruct the foreperson to hand the verdict form(s) to the

clerk to be delivered to you for inspection before publication.

6. Inspect the verdict(s) to ensure regularity of form. [Note:

If the verdict form(s) is (are) not properly completed, take

appropriate corrective action before publication.]

7. Explain to the jurors that their verdict(s) will nowbe “published”—that is, read aloud in open court.

8. Instruct the jury to pay close attention as the verdict(s) is

(are) published; and explain that, following publication,

the jury may be “polled”—that each juror may be asked,

individually, whether the verdict(s) as published constituted his or herindividual verdict(s) in allrespects.

9. Publish the verdict(s) by reading it (them) aloud (or by

having the clerk do so).

10. Upon request of any party, poll the jury by asking (or by

having the clerk ask) each individual juror, by name or

number, whether the verdict(s) as published constituted

his or herindividual verdict(s) in allrespects.
Section 6.07: Verdict—civil

194 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

11. If polling verifies unanimity, direct the clerk to file and record the verdict(s), and discharge the jurors with appropriate instructions concerning their future service, if any.

12. If polling results in any doubt as to unanimity, or if there

are inconsistent answers to a special verdict, make no further inquiry and have no further discussions with the

jury; rather, confer privately with counsel and determine

whether the jury should be returned for further deliberations or a mistrial should be declared.

B. Reception of a sealed verdict

[Note: On some occasions an indispensable party may not be

available to receive a verdict when the jury reaches agreement. In such cases a sealed verdict may be delivered to the

clerk for subsequent “reception” and publication in open

court when the jury, the judge, and all necessary parties are

present.]

1. Upon announcement by the jury that it has reached a

verdict, have all interested and available parties convene

in open court and on the record.

2. When court is thus convened, announce that the jury is

ready to return its verdict(s), and explain that a sealed

verdict will be taken in accordance with the following procedure:

(a) Instruct the deputy marshal (or bailiff) to usher the

jurors into the courtroom to assume their seats in the

jury box.

(b) If not already known, inquire of the jury who speaks

as its foreperson.

(c) Ask the foreperson if the jury has unanimously agreed

on its verdict. [Note: If the response is anything other

than an unqualified yes, the jury should be returned

without further inquiry to continue its deliberations.]

(d) Explain to the jury that a sealed verdict will be taken,

and further explain why that procedure has become

necessary in the case.

(e) Poll the jury on the record.

(f) Direct the clerk to hand a suitable envelope to the

foreperson. Instruct the foreperson to place the verNOTE

In the event the 

jury will not be

present at the 

opening of the 

verdict, it is recommended that

each juror sign the

verdict form(s).
Section 6.07: Verdict—civil

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 195

dict form(s) in the envelope, to seal the envelope, and

to hand it to the clerk for safekeeping.

(g) Recess the proceedings, instructing the jury and all interested parties to return at a fixed time for the opening and formal reception of the verdict. Instruct that,

in the interim, no member of the jury should have any

conversation with any other person, including any

other juror, concerning the verdict or any other aspect

of the case.

(h) When court is again convened for reception of the

verdict, have the clerk hand the sealed envelope to

the jury foreperson.

(i) Instruct the foreperson to open the envelope and

verify that the contents consist of the jury’s verdict

form(s) without modification or alteration of any

kind.

(j) Follow the steps or procedures outlined in paragraphs

A.5 through A.12 supra.

Other sources on polling the jury

Wright & Miller, Federal Practice and Procedure, Civil, § 2504

(1998)

Moore’s Federal Practice ¶ 49.07 (3d ed.) (1997)

Humphries v. District of Columbia, 174 U.S. 190 (1899)

Castleberry v. NRM Corp., 470 F.2d 1113 (10th Cir. 1972)

Other FJC sources

Manual for Complex Litigation, Fourth 160–63 (2004)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 197

6.08 Referrals to magistrate judges

(civil matters)

Fed. R. Civ. P. 72 and 73; 28 U.S.C. § 636

Listed below are duties in civil matters that may be referred to

magistrate judges. Most districts have local rules or standing orders governing referrals to magistrate judges.

For a more comprehensive listing of the duties magistrate

judges may perform, see the Inventory of United States Magistrate

Judge Duties (December 1999).

1 This inventory is available on request from the Magistrate Judges Division of the Administrative

Office of the U.S. Courts and also appears in Chapter 3, “Jurisdiction,” of the Legal Manual for United States Magistrate Judges,

published by the Administrative Office.

A magistrate judge may conduct:

1. All phases of a civil case, with the written consent of the

parties.

2 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 73. Appeal is

to the court of appeals, as in any other civil case. 28 U.S.C.

§ 636(c)(3); Fed. R. Civ. P. 73(c). See generally supra section 6.01: Trial outline—civil.

3

 

1. The Administrative Office also provides an on-line web page that summarizes more recent decisions and articles relating to the duties and authority

of magistrate judges at http://jnet.ao.dcn/Judges/Magistrate_Judges/ Authority/Decisions.html.

2. The Supreme Court recently held that lack of written or express consent

might not deprive the magistrate judge of jurisdiction—implied consent was

sufficient in a case in which, after being informed of the right to trial before a

district judge, a party voluntarily appeared before a magistrate judge and tried

the case to conclusion. Roell v. Withrow, 123 S. Ct. 1696, 1700–04 (2003) (“although the specific referral procedures in 28 U.S.C. § 636(c)(2) and Federal Rule

of Civil Procedure 73(b) are by no means just advisory, the text and structure of

the section as a whole suggest that a defect in the referral to a full-time magistrate judge under § 636(c)(2) does not eliminate that magistrate judge’s ‘civil jurisdiction’ under § 636(c)(1) so long as the parties have in fact voluntarily consented”). However, the Benchbook Committee believes that Roell is an unusual

case and strongly recommends that written consent be obtained before proceeding.

3. For an illustrative consent form and order of reference to a magistrate

judge, see Civil Litigation Management Manual (Judicial Conference of the

United States 2001), Sample Forms 50–53, at 388–94.
Section 6.08: Referrals to magistrate judges (civil matters)

198 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

2. Pretrial matters:

(a) A magistrate judge may conduct a Rule 16 pretrial

conference and hear and determine nondispositive

pretrial matters, such as discovery disputes and requests for bifurcation or consolidation. Upon timely

objection by a party, a district court shall consider

such objections and modify or set aside any portion of

the magistrate judge’s order found to be clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.

R. Civ. P. 72(a).

(b) A magistrate judge may hear and submit to the district court proposed findings of fact and recommended determinations of dispositive pretrial matters, such as summary judgment motions. A district

court must make a de novo determination of those

portions of proposed findings and recommendations

to which the parties object. 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b).

See generally supra section 6.01: Trial outline—civil.

3. Voir dire, if the parties consent. 28 U.S.C. § 636(c)(1);

Stockler v. Garratt, 974 F.2d 730 (6th Cir. 1992); Olympia

Hotels Corp. v. Johnson Wax Development Corp., 908 F.2d

1363 (7th Cir. 1990). See supra section 6.04: Standard voir

dire questions—civil.

4. “[A]dditional duties [that] are not inconsistent with the

Constitution and laws of the United States.” 28 U.S.C.

§ 636(b)(3). For examples of additional duties and case

law on § 636(b)(3), see the Inventory of United States Magistrate Judge Duties at 112–40.

Other FJC sources

Civil Litigation Management Manual 119–22 (Judicial Conference of the United States 2001)

Manual for Complex Litigation, Fourth 117 (2004)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 199

7.01 Contempt—criminal

Fed. R. Crim. P. 42; 18 U.S.C. § 401

Background

The purpose, procedure, and penalty for criminal contempt differ from those for civil contempt. It is essential that the trial judge

make clear on the record whether the proceeding is for civil or

criminal contempt.

The purpose of criminal contempt is to punish a person for a

past act of contempt. Criminal contempt has the characteristics

of a crime, and the contemnor is cloaked with the safeguards of

one accused of a crime. The purpose of civil contempt is to compel someone to do or not do a certain act.

Case law makes clear that the contempt power is one to be

exercised with the greatest restraint and that, in exercising that

power, a court should exert only the power needed to achieve the

desired end.

Controlling statute and rule

The controlling statute for criminal contempt is 18 U.S.C. § 401. It

provides as follows:

A court of the United States shall have power to punish by fine or

imprisonment, at its discretion, such contempt of its authority,

and none other, as—

(1) Misbehavior of any person in its presence or so near

thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process,

order, rule, decree, or command.

The applicable rule of procedure is Fed. R. Crim. P. 42. That

rule, as amended December 1, 2002, provides as follows:

(a) Disposition After Notice. Any person who commits

criminal contempt may be punished for that contempt

after prosecution on notice.

(1) Notice. The court must give the person notice in

open court, in an order to show cause, or in an arrest

order. The notice must:
Section 7.01: Contempt—criminal

200 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare

a defense; and

(C) state the essential facts constituting the charged

criminal contempt and describe it as such.

(2) Appointing a Prosecutor. The court mustrequestthat

the contempt be prosecuted by an attorney for the

government, unless the interest of justice requires

the appointment of another attorney. If the government declines the request, the court must appoint

another attorney to prosecute the attempt.

(3) Trial and Disposition. A person being prosecuted for

criminal contempt is entitled to a jury trial in any

case in which federal law so provides and must be

released or detained as Rule 46 provides. If the

criminal contempt involves disrespect toward or

criticism of a judge, that judge is disqualified from

presiding at the contempt trial or hearing unless the

defendant consents. Upon a finding or verdict of

guilty, the court must impose the punishment.

(b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than a magistrate

judge) may summarily punish a person who commits

criminal contempt in its presence if the judge saw or

heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided

in 28 U.S.C. § 636(e). The contempt order must recite the

facts, be signed by the judge, and be filed with the clerk.

Criminal contempt procedures

Fed. R. Crim. P. 42 prescribes two different procedures, depending on whether the judge personally observes the contemptuous

conduct and whether immediate action is required.

Procedure when contemptuous conduct is personally

observed by the judge and immediate action is required

When you see or hear contemptuous conduct, you may but are

not compelled to proceed under Fed. R. Crim. P. 42(b).

This summary procedure is appropriate only when immediate action is needed. It is reserved for conduct that actually disrupts or obstructs court proceedings and for situations in which
Section 7.01: Contempt—criminal

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 201

immediate action is necessary to restore the court’s authority.

The conduct must be more flagrant than mere disrespect to the

judge or an affront to the judge’s sense of dignity.

1

If the conduct (such as shouting in the courtroom) does interfere with court proceedings, proceed as follows:

1. First, warn the person that if a repetition occurs, he or she

may be removed from the courtroom or may be found in

criminal contempt.

2. If marshals are not already in the courtroom, summon

them, so that they will be present if the disruptive conduct is repeated.

3. If the offender repeats the disruptive conduct, order him

or herremoved from the courtroom.

4. If the conduct is so disruptive that removing the offender

is inadequate to reestablish the authority and dignity of

the court, follow the Fed. R. Crim. P. 42(b) procedure.

[Note: In summary proceedings under Rule 42(b), the

court may impose a sentence that does not exceed the

punishment authorized for a petty offense, i.e., imprisonment of no more than six months or a fine of no more

than $5,000 if the contemnor is an individual, $10,000 if

the contemnor is an organization. If more severe punishment seems appropriate, the court must proceed by notice under Rule 42(a) and accord the contemnor the right

to a jury trial. (Contempt fines exceeding the petty offense limit on organizations have been imposed without

the right to a jury trial. See Muniz v. Hoffman, 422 U.S. 454

(1975); United States v. Twentieth Century Fox Film Corp.,

882 F.2d 656 (2d Cir. 1989), cert. denied, 110 S. Ct. 722

(1990); United States v. Troxler Hosiery Co., 681 F.2d 934

(4th Cir. 1982). These cases, however, did not involve

summary proceedings under Rule 42(a) (now 42(b)).]

5. Before proceeding, be sure that an adequate number of

marshals are in the courtroom.

 

1. Summary procedure may also be appropriate when an already imprisoned witness refuses to testify during a criminal trial despite a grant of immunity. See United States v. Wilson, 421 U.S. 309 (1975). See also supra section 5.04:

Handling the recalcitrant witness.
Section 7.01: Contempt—criminal

202 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

6. Retire the jury. Have the offender brought before you.

(The offender is not entitled to counsel in a summary proceeding.)

7. Advise the offender that you intend to find him or her in

criminal contempt for obstructing the administration of

justice by reason of [here describe the conduct].

8. Ask the offender if he or she would care to say anything in

mitigation.

9. After hearing the offender out, impose sentence in words

to this effect:

I find you in criminal contempt for so conducting

yourself in this courtroom that you obstructed the

administration of justice. The conduct for which I find

you in criminal contempt was [here describe the conduct observed by you]. I sentence you to ____ hour(s)

[day(s)] in jail [or I fine you $____] for that conduct.

[In criminal contempt you cannot both imprison and

fine.] The serving of this sentence shall commence at

once [or shall commence at the conclusion of this

trial].

(a) No sentencing guideline has been prescribed for contempt because of the variety of behaviors covered.

See U.S.S.G. § 2J1.1, Application Note. In the absence

of a guideline, the court is to “impose an appropriate

sentence, having due regard for the purposes set

forth in [18 U.S.C. § 3553(a)(2),] . . . for the relationship of the sentence imposed to sentences prescribed

by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of

the Sentencing Commission.” 18 U.S.C. § 3553(b).

(b) It is possible for the court to find a person in summary

criminal contempt but to defer commencement of the

sentence until the trial ends. In this case, however, using the Fed. R. Crim. P. 42(a) procedure rather than

the summary procedure of 42(b) is probably best.

10. You must prepare, sign, and file an order of contempt.

This order is intended to permit informed appellate review. The order must contain all that you saw or heard

that obstructed the proceedings and by reason of which
Section 7.01: Contempt—criminal

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 203

you found the defendant in contempt. Remember, for

your action to be sustained on appeal, the conduct described in your order must constitute an obstruction to

the administration of justice. Be sure, therefore, that the

order fully and accurately recites all of the obstructive

conduct that you saw or heard. The order of contempt

must contain your certification that the described conduct was seen or heard by you and was committed in your

presence. The form of the order of contempt may be as

follows:

In conformity with Rule 42(b), Federal Rules of

Criminal Procedure, I hereby certify that the following was committed in my presence and was

seen or heard by me: [Here insert a detailed recital

of the acts constituting the contemptuous conduct.]

Because of the foregoing conduct, which obstructed and disrupted the court in its administration of justice, I sentenced [name of contemnor] to

hours/days in jail, the said jail sentence to

commence [at once/at the conclusion of the trial]

[or I fined [name of contemnor] $ ].

11. You must date and sign the order of contempt and file it

without delay.

Procedure when contemptuous conduct is not personally

observed by the judge or when the conduct is observed by

the judge but requires no immediate action

If you become aware of conduct that is within the contemplation

of 18 U.S.C. § 401 but did not occur in your presence, orif you observed contemptuous conduct but it did not actually disrupt

court proceedings, you must proceed under Fed. R. Crim. P.

42(a), which requires that the contempt be prosecuted by notice

rather than summarily.

Under Fed. R. Crim. P. 42(a):

1. The notice may be given

(a) orally by you in open court in the defendant’s presence; or

(b) by an order to show cause; or

(c) by an order of arrest.
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2. If giving oral notice to the defendant in open court is not

possible, you should ask the U.S. attorney to prepare for

your signature an order to show cause directed to the defendant and ordering the defendant to show cause why

he or she should not be found in criminal contempt because of the offending conduct.

3. The notice, whether oral or written, must set down a definite time and place for the hearing and must describe the

conduct constituting the charged contempt and describe

it as being criminal contempt. You must accord the defendant a reasonable period in which to engage an attorney and prepare a defense.

Remember that under the rule, another judge must

conduct the trial if the contemptuous conduct involved

criticism of or disrespect for you, unless the defendant

expressly waives the right to trial by another judge.

4. Because a person found guilty of criminal contempt may

be imprisoned, the defendant has a right to counsel. If

the defendant cannot afford counsel, you must appoint

an attorney for him or her.

5. The defendant has a right to a jury trial unless, before

trial, you, on your own motion or on the government’s motion, limit the maximum sentence that you will impose to

the maximum authorized for a petty offense, that is, imprisonment for six months or a fine of $5,000 (for an

individual; the fine limit on organizations for petty

offenses is $10,000 (but see Muniz v. Hoffman, 422 U.S.

454 (1975); United States v. Twentieth Century Fox Film

Corp., 882 F.2d 656 (2d Cir. 1989), cert. denied, 110 S. Ct.

722 (1990); United States v. Troxler Hosiery Co., 681 F.2d

934 (4th Cir. 1982), allowing contempt fines on organizations in excess of those authorized for petty offenses,

without the right to a jury trial).

6. At trial, whether a bench or jury trial, remember that defendant is being tried for a crime and is entitled to all the

protections to which anyone accused of a crime is entitled. The defendant has a right to testify and to call witnesses on his or her own behalf but cannot be compelled

to testify. The defendant is to be found guilty only if his or

her guilt is proven beyond a reasonable doubt.
Section 7.01: Contempt—criminal

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 205

7. If found guilty, the defendant should be sentenced in the

same manner as any defendant convicted of a crime. You

may wish to order a presentence report and to set down

the sentencing for a later date.

8. If the defendant has been afforded the right to a jury

trial, there is no statutory maximum to the fine or imprisonment that may be imposed. However, you may not impose both imprisonment and a fine. Because of the variety of behaviors covered, no sentencing guideline has

been prescribed for contempt. See U.S.S.G. § 2J1.1, Application Note. In the absence of a guideline, the court is to

“impose an appropriate sentence, having due regard for

the purposes set forth in [18 U.S.C. § 3553(a)(2),] . . . for

the relationship of the sentence imposed to sentences

prescribed by guidelines applicable to similar offenses

and offenders, and to the applicable policy statements of

the Sentencing Commission.” 18 U.S.C. § 3553(b)(2).

Other FJC sources 

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 51–67 (5th ed. 2001)

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 207

7.02 Contempt—civil

Fed. R. Crim. P. 42; 18 U.S.C. § 401

Background

The purpose, procedure, and penalty for civil contempt differ

from those for criminal contempt. It is essential that the trial

judge make clear on the record whether the proceeding is for civil

or criminal contempt.

The purpose of criminal contempt is to punish a person for a

past act of contempt. Criminal contempt has the characteristics

of a crime, and the contemnor is cloaked with the safeguards of

one accused of a crime. The primary purpose of civil contempt is

to compel someone to do or not do a certain act.

Case law makes clear that the contempt power is one to be

exercised with the greatest restraint and that, in exercising that

power, a court should exert only the power needed to achieve the

desired end.

Civil contempt serves one or both of the following purposes:

1. to coerce the contemnorinto complying in the future with

a court order; or

2. to compensate the complainant for damages resulting

from the contemnor’s past noncompliance.

Controlling statute and rule

The only statute applying directly to civil contempt is 28 U.S.C.

§ 1826(a), which applies only to recalcitrant witnesses (see supra

section 5.04: Handling the recalcitrant witness). However, 18

U.S.C. § 401(3) does have some application to civil contempt, as

follows:

A court of the United States shall have power to punish by

fine or imprisonment, at its discretion, such contempt of its

authority, and none other, as—

. . . .

(3) Disobedience or resistance to its lawful writ, process, order,

rule, decree, or command.

There is no civil rule comparable to Fed. R. Crim. P. 42. In a

civil contempt proceeding, you should follow the procedure outNOTE

If you are dealing

with a recalcitrant

witness, see supra

section 5.04: Handling the recalcitrant witness.
Section 7.02: Contempt—civil

208 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

lined in Fed. R. Crim. P. 42(a) to the extent that it applies, as follows:

(a) Disposition After Notice. Any person who commits criminal

contempt may be punished for that contempt after prosecution

on notice.

(1) Notice. The court must give the person notice in open

court, in an order to show cause, or in an arrest order.

The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a

defense; and

(C) state the essential facts constituting the charged

criminal contempt and describe it as such.

(2) Appointing a Prosecutor. The court mustrequest that the

contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the

request, the court must appoint another attorney to

prosecute the attempt.

(3) Trial and Disposition. A person being prosecuted for

criminal contempt is entitled to a jury trial in any case in

which federal law so provides and must be released or

detained as Rule 46 provides. If the criminal contempt

involves disrespect toward or criticism of a judge, that

judge is disqualified from presiding at the contempt trial

or hearing unless the defendant consents. Upon a finding

or verdict of guilty, the court must impose the punishment.

Civil contempt procedure

The contempt will normally come before you on the petition of a

civil litigant seeking the imposition of sanctions by reason of another party’s failure to comply with a court order.

When one party petitions to have another found in civil contempt, you should proceed as follows:

1. Set down a time and place for a hearing on the petition.

The respondent must be accorded a reasonable period in

which to engage an attorney and prepare a defense.

2. Because a person found in civil contempt may be imprisoned, the respondent has a right to counsel. If the re-
Section 7.02: Contempt—civil

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 209

spondent desires an attorney but cannot afford one, you

must appoint counsel for him or her unless waived (see

supra section 1.02: Assignment of counsel or pro se representation).

3. The respondent in a civil contempt proceeding has no

right to a jury trial, because the respondent, if imprisoned, can secure immediate release by complying with

the court’s order.

4. The hearing is to be by way of the live testimony of witnesses, not by way of affidavit. Note that the Federal

Rules of Evidence apply to contempt proceedings. See

Fed. R. Evid. 1101(b).

5. The respondent is to be found in civil contempt only if his

or her contempt is established by clear and convincing

evidence. In contrast with the procedure for criminal contempt, the respondent’s guilt need not be proved beyond

a reasonable doubt.

6. If the respondent is found guilty of civil contempt, you

have wide discretion in fashioning a remedy.

(a) You may imprison the contemnor until he or she

purges himself or herself of contempt by complying

with the court’s order, you may impose a prospective

conditional fine (such as a certain monetary amount

per day) until the contemnor complies with the court’s

order, or you may both incarcerate the contemnor and

impose a conditional fine. (There is no statutory ceiling on a conditional fine. You must, however, weigh

the financial circumstances of the contemnor in fixing

a conditional fine.)

(b) You may in addition impose a fine on the contemnor

to be paid to the aggrieved party, to reimburse the

party for damages suffered because of the contemnor’s conduct. This fine may not, however, exceed the

actual damages suffered by the aggrieved party. It

may, under certain circumstances, include an award

to the aggrieved party of the attorney’s fees and costs

in bringing the contempt proceeding.

7. If you incarcerate the contemnor or impose a conditional

fine, advise the contemnor that he or she may purge himself or herself of contempt by complying with the court’s
Section 7.02: Contempt—civil

210 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

order and that, upon complying, the contemnor will be released from jail and his or her fine, if one was imposed,

will stop accumulating.

8. Prepare, sign, and file an Order in Civil Contempt, setting

forth your findings of fact, your conclusions of law, and

the precise sanctions you have imposed.

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal

Trials 51–56 (5th ed. 2001)
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 211

7.03 Injunctions

Fed. R. Civ. P. 65

I. Temporary restraining orders

A. Background

Considering an application for a temporary restraining order

(TRO) is, by definition, an emergency proceeding of such urgency that relief may be granted ex parte. At the outset, the court

should be satisfied that there is truly an emergency and decline

to consider the application if there is not. The court should also

verify that it has jurisdiction over the matter.

Note that whether or not the TRO is granted, Fed. R. Civ. P.

52(a) requires the court to “set forth the findings of fact and conclusions of law which constitute the grounds for its action. . . . It

will be sufficient if the findings of fact and conclusions of law are

stated orally and recorded in open court following the close of the

evidence or appear in an opinion or memorandum of decision

filed by the court.”

B. TRO without notice

Fed. R. Civ. P. 65(b) permits granting a TRO without written or

oral notice to the adverse party or the party’s attorney1 only if

1. there are specific facts, shown by affidavit or verified

complaint, clearly indicating that immediate and irreparable injury willresult to the applicant before the adverse

party or his or her attorney can be heard in opposition;

and

2. there is a written certification of the attorney’s attempts,

if any, to give notice, and an explanation of why notice

should not be required.

Other factors the court may consider are

1. probability of success on the merits;

 

1. The advisory committee notes stress that “informal notice, which may be

communicated to the attorney rather than the adverse party, is to be preferred

to no notice at all.” Note to 1966 amendment to Fed. R. Crim. P. 65(b).
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212 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

2. balance of harm to other interested parties if the TRO is

issued against the harm to the applicant if relief is denied; and

3. the public interest.

C. TRO with notice

1. If notice is given, the standards governing issuance of a

preliminary injunction are applicable.

2. The petition may be treated like one for a preliminary injunction if there is notice and a hearing, and adequate

opportunity is provided for developing legal and factual

issues. The court should, however, consider the applicability of Fed. R. Civ. P. 6(d) (requiring five days’ notice before hearing on motion, but granting court discretion to

modify the time period).

3. If there is notice but no hearing, or a hearing that does not

permit adequate opportunity for the development of legal and factual issues, no preliminary injunction may issue.

D. Contents of order

Fed. R. Civ. P. 65(b) provides that if the TRO is granted without

notice, the order shall

1. be endorsed with the date and hour of the issuance;

2. be filed forthwith in the clerk’s office and entered on the

record;

3. define the injury and state why it is irreparable and why

the order was granted without notice; and

4. expire by its terms within such time after entry as the

court fixes (but no more than ten days), unless within the

time fixed by the court good cause is shown to extend the

order for a like period, or unless the party against whom

the order is directed consents to a longer period.

These requirements, particularly with regard to a restraining order’s duration, should be applied to a TRO even when notice has

been given. In addition, Fed. R. Civ. P. 65(d) provides that every

restraining order shall
Section 7.03: Injunctions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 213

1. set forth the reasons forits issuance;

2. be specific in terms;

3. describe in reasonable detail, and not by reference to the

complaint or other documents, the act or acts to be restrained2

; and

4. bind only the parties to the action; the parties’ officers,

agents, servants, employees, and attorneys; and persons

in active concert or participation with the parties who receive actual notice of the order.

E. Motion for dissolution after notice

On two days’ notice to the party that obtained the TRO without

notice, or on such shorter notice as the court may prescribe, the

adverse party may appear and contest a TRO that was issued

without notice. Fed. R. Civ. P. 65(b).

F. Security

A TRO may not be issued unless the applicant gives such security

as the court fixes. This security requirement does not apply to

the United States. Fed. R. Civ. P. 65(c).

G. The hearing record

The hearing on an application for a TRO, including pleadings

and evidence taken, becomes a part of the record in the later injunction hearing and need not be repeated.

Whether or not the TRO is granted, Fed. R. Civ. P. 52(a) requires the court to “set forth the findings of fact and conclusions

of law which constitute the grounds forits action. . . . It will be sufficient if the findings of fact and conclusions of law are stated

orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed

by the court.”

 

2. Care should be taken to ensure that the terms of the order are clear and

specific. As one court phrased it, “a court must craft its orders so that those who

seek to obey may know precisely what the court intends to forbid.” American

Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1411 (11th Cir. 1998).
Section 7.03: Injunctions

214 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

II. Preliminary injunctions 

A. Notice and hearing

A preliminary injunction may not be issued without notice. Fed.

R. Civ. P. 65(a)(1). The rule does not specify the form of notice or

how much notice is required. However, Fed. R. Civ. P. 6(d) requires that notice of a hearing, and affidavits that support a motion, be provided “not later than 5 days before the time specified

for the hearing” unless the court provides otherwise. For shorter

time periods, and for the form of notice, general considerations

of due process and fairness should be applied.

Generally, some kind of hearing will be held, although the

form of the hearing will depend upon the record before the court.

For example, if there is no disputed issue of fact, the determination of whether to issue the injunction may be made on the papers alone, with or without oral argument. Even if there is a disputed issue of fact, a witness’s direct testimony may be presented by way of affidavit and the witness may be subject to

cross-examination.

B. Burden of proof

The moving party has the burden of demonstrating entitlement

to relief. Rule 65 does not specify the requirements for a preliminary injunction, and they vary from circuit to circuit, but the

courts generally consider

1. the likelihood that the moving party will suffer irreparable injury in the absence of a preliminary injunction;

2. the moving party’s likelihood of success on the merits;

3. the balance of hardships between the parties (and any

relevant non-parties); and

4. the effect on public policy of granting or denying the preliminary injunction.

Absent extraordinary circumstances, a preliminary injunction

will not be issued where an adequate remedy at law exists, that

is, where the moving party could be compensated by money

damages. An exception to this general rule exists when it is

shown that a money judgment will go unsatisfied absent equitable relief, such as when the target of the injunction is insolvent or

is likely to transfer or dissipate assets to avoid payment.
Section 7.03: Injunctions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 215

C. Preparing for the hearing

Because a decision must be reached quickly and the time to prepare for the hearing may be brief, it may help the parties and the

court if some matters are addressed before the hearing. The

court may, for example,

1. narrow the legal scope of the hearing by eliminating

claims, defenses, and counterclaims that do not relate directly to the decision of whether to issue a preliminary injunction;

2. narrow the factual scope of the hearing by directing the

parties to submit statements of undisputed facts or requests for admission;

3. direct counsel to identify any witnesses in advance, along

with the substance of their testimony and the exhibits

they will sponsor;

4. require that direct testimony be offered in the form of

adopted narrative statements, exchanged in advance,

which will be subject to motions to strike, to crossexamination, and to redirect at the hearing if issues of

credibility are presented;

5. direct counsel to exchange proposed exhibits in advance,

give notice that objections may be treated as waived if not

made in writing in advance of the hearing, and resolve

objections to foundation before the hearing;

6. direct counsel to present stipulated summaries or extracts

of any deposition testimony to be used in lieu of lengthy

readings of transcripts; and

7. direct counsel to submit briefs in advance of the hearing,

along with proposed findings of fact and conclusions of

law.

If the court determines that no substantial factual disputes exist,

consider holding the hearing only on the affidavits.

D. Advancing trial on the merits

At any time before or during the hearing on the motion, trial on

the merits may be advanced and consolidated with the preliminary injunction motion, on motion or by the court sua sponte.
Section 7.03: Injunctions

216 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Fed. R. Civ. P. 65(a)(2). It should be done on notice and might be

appropriate when, for example, expedited discovery has produced virtually all of the discovery that would be produced for

trial on the merits. Adequate notice must be provided to allow

sufficient preparation for trial, and the court should consider

whether the case is sufficiently urgent to give it preference over

others. Note that the rule provides that consolidation shall “save

to the parties any rights they may have to trial by jury.”

Whether or not consolidation is ordered, “any evidence received upon an application for a preliminary injunction which

would be admissible upon the trial on the merits becomes part of

the record on the trial and need not be repeated upon the trial.”

Fed. R. Civ. P. 65(a)(2). However, the court’s findings of fact and

conclusions of law made in connection with the motion for preliminary injunction are not binding at the trial and the decision

on the merits.

E. Decision and findings

As with a TRO, see supra section I.D, Rule 65(d) sets out the form

and scope of the order granting an injunction (or restraining order) and notes, inter alia, that such orders shall

1. set forth the reasons for issuance (which should, of

course, include a finding of no adequate remedy at law);

and

2. describe in reasonable detail and not by reference to

other documents the acts to be restrained or compelled.

Thus, such an order should adequately inform the reader

of the acts that are enjoined or compelled.

In addition, Fed. R. Civ. P. 52(a) states that “in granting or refusing interlocutory injunctions, the court shall . . . set forth the findings of fact and conclusions of law which constitute the grounds

for its action. . . . It will be sufficient if the findings of fact and

conclusions of law are stated orally and recorded in open court

following the close of the evidence or appear in an opinion or

memorandum of decision filed by the court.”

Note that a preliminary injunction is binding “only upon the

parties to the action, their officers, agents, servants, employees,

and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order of personal service or otherwise.” Fed. R. Civ. P. 65(d).
Section 7.03: Injunctions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 217

F. Security

As with a temporary restraining order, a preliminary injunction

generally may not be issued unless the applicant posts security

in an amount deemed appropriate by the court in its discretion,

although a nominal amount may be required. Fed. R. Civ. P.

65(c). The court may also dispense with security when, for example, the movant has adequate resources to pay damages for a

wrongfully issued injunction. If nominal or no security is ordered,

the court should explain its reasons. The rule provides that no

security shall be required of the government or its officers or

agencies.

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 219

7.04 Grand jury selection and

instructions

Fed. R. Crim. P. 6; 18 U.S.C. §§ 3321, 3331–3333

Procedure

The Jury Act, 28 U.S.C. § 1863(b)(7), states that the district jury

plans required by that section may provide that the names of

persons summoned for possible grand jury service be kept confidential. In addition, the Judicial Conference of the United

States recommended at its session in September 1981 “that the

district courts reexamine their jury selection plans . . . to consider

whether the names of grand jurors should be excluded from

public records.” Report of the Proceedings of the Judicial Conference of the United States 39–40 (1981). The jury plans of many of

the district courts now provide, therefore, that the names of

grand jurors be kept confidential. Accordingly, the grand jury

must be selected in closed session with only necessary court personnel and attorneys for the government in attendance so that

the jurors’ names will not be revealed in open court. Fed. R. Crim.

P. 6(d) and (e)(5).

The grand jury consists of not less than sixteen (a quorum)

and not more than twenty-three persons. 18 U.S.C. § 3321; Fed.

R. Crim. P. 6(a)(1). Alternate grand jurors may be selected. Fed.

R. Crim. P. 6(a)(2). After twenty-three persons have been selected as regular members of the grand jury, the usual practice in

some districts is to call four to six alternates, who are sworn and

instructed with the regular members. These alternates are then

excused with the explanation that they will be subject to call, in

the order in which they were selected, if it subsequently becomes necessary to excuse one of the regular members and replace that person with an alternate (to facilitate the assemblage

of a quorum during the remaining life of the grand jury).

To accommodate the selection of alternates and the possibility of a few excusals for cause, the panel summoned to the courtroom for grand jury selection should consist of thirty to thirty-five

persons.

A regular grand jury may serve up to eighteen months, followed by one extension, if that is determined to be in the public

interest, for up to six months. Fed. R. Crim. P. 6(g). The usual
Section 7.04: Grand jury selection and instructions

220 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

term varies from district to district. Special grand juries formed

pursuant to 18 U.S.C. §§ 3331–3333 may serve, with extensions,

up to thirty-six months, and they have the added power of making certain reports under § 3333.

Opening statement to the venire panel

It is a pleasure to welcome you on behalf of the judges of the

United States District Court for _____________, as potential

members of the grand jury for the period _________ through

________.

Although my welcoming remarks are intended for all, only

twenty-three of you, plus ____ alternates, will be selected to

form this new grand jury. Also, although your term will be for

the next ____ months, you will sit as a jury from time to time

only when called on by the Office of the U.S. Attorney. I cannot

tell you in advance how much time will be involved, but normally

you can expect to be called an average of ___ days a month during your term of office.

Federal law requires that we select the grand jury from a

pool of persons chosen at random from a fair cross section of

the district in which the grand jury is convened. At this time, you

are the pool of persons from which that selection is to be made.

The grand jury is involved with criminal matters. It does not

concern itself with civil matters. Generally speaking, a criminal

matter is one in which the government seeks to enforce a criminal law. By contrast, a civil matter is a court proceeding in which

one party seeks to recover money damages or other relief from

another party. The trial jury in a criminal matter listens to the

evidence offered by the prosecution and defense during trial and

renders a verdict of guilty or not guilty. The functions of a grand

jury are quite different from those of a trial jury. A grand jury

does not determine guilt or innocence. Its sole function is to decide, after hearing the government’s evidence and usually without hearing evidence from the defense, whether a person should

be indicted and stand trial for a federal crime.

Since the grand jury performs such an important role in protecting rights guaranteed by the Constitution, you should view it

as a real privilege and honor to have an opportunity to serve.

We will now proceed with the selection of the grand jury. As

the first step in the process, I am going to ask the clerk to call

you forward in groups of ___ [usually 12] persons at a time so
Section 7.04: Grand jury selection and instructions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 221

that I might ask each of you a few questions concerning your

possible service as members of the grand jury.

Voir dire examination of the panel

1. Please state your name, occupation, and employer.

[This information may aid you later in choosing and designating a foreperson and deputy foreperson pursuant to Fed.

R. Crim. P. 6(c).]

2. Have any of you ever had, or are any of you currently having,

any experience with a grand jury or with other aspects of the

criminal justice system—as a witness, a victim, or an indicted

person, for example—which might now make it difficult for

you to serve impartially if you are selected?

3. Do any of you have any other reason why you cannot or

should not serve on the grand jury?

[Excuse any members of the panel whose responses to the

voir dire questions dictate that they should be excused for

cause.]

Selection and oath

1. Have the clerk call at random the names of twenty-three to

twenty-nine persons from the remaining members of the

panel. The first twenty-three shall constitute the regular

members of the grand jury, and the others (one to six) shall

constitute the alternates. After the grand jury and alternates

have been chosen, excuse the remaining members of the

panel.

2. Designate and appoint a foreperson and deputy foreperson

under Fed. R. Crim. P. 6(c).

3. Have the clerk administer the oath:

Do each of you solemnly swear [affirm] to diligently inquire into and make true presentment or indictment of

all such matters and things touching your present grand

jury service that are given to you in charge or otherwise

come to your knowledge; to keep secret the counsel of

the United States, your fellows, and yourselves; and not

to present or indict any person through hatred, malice,

or ill will, nor to leave any person unpresented or unindicted through fear, favor, or affection or for any reward
Section 7.04: Grand jury selection and instructions

222 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

or hope or promise thereof, but in all your presentments

and indictments to present the truth, the whole truth,

and nothing but the truth to the best of your skill and

understanding? If so, answer “I do.”

Grand jury charge1

Give the court’s charge or instructions to the grand jury (including the alternates):

LADIES AND GENTLEMEN:

1. Now that you have been empaneled and sworn as a

grand jury, it is the court’s responsibility to instruct you

as to the law which should govern your actions and your

deliberations as grand jurors.

2. The framers of our Federal Constitution deemed the

grand jury so important for the administration of justice,

they included it in the Bill of Rights. The Fifth Amendment to the United States Constitution provides in part

that no person shall be held to answer for a capital or

otherwise infamous crime without action by a grand jury.

An infamous crime is a serious crime which may be punished by imprisonment for more than one year. The purpose of the grand jury is to determine whether there is

sufficient evidence to justify a formal accusation against a

person—that is, to determine if there is “probable cause”

to believe the person committed a crime. If law enforcement officials were not required to submit to an impartial

grand jury proof of guilt as to a proposed charge against

a person suspected of having committed a crime, they

would be free to arrest a suspect and bring that suspect

to trial no matter how little evidence existed to support

the charge.

3. The grand jury is an independent body and does not belong to any branch of the government. As members of

the grand jury, you, in a very real sense, stand between

the government and the person being investigated by the

 

1. This grand jury charge was written by the Benchbook Committee of the

Federal Judicial Center and the Court Administration and Case Management

Committee of the Judicial Conference of the United States. It was approved in

2005 as a replacement for each group’s earlier grand jury charge.
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ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 223

government. A federal grand jury must never be made an

instrument of private prejudice, vengeance, or malice. It

is your duty to see to it that indictments are returned

only against those who you find probable cause to believe are guilty and to see to it that the innocent are not

compelled to go to trial.

4. A member of the grand jury who is related by blood or

marriage to a person under investigation, or who knows

that person well enough to have a biased state of mind

as to that person, or is biased for any reason, should not

participate in the investigation of that person or in the

return of the indictment. This does not mean that if you

have an opinion you should not participate in the investigation. However, it does mean that if you have a fixed

opinion before you hear any evidence, either on a basis of

friendship or ill will or some other similar motivation, you

should not participate in that investigation and in voting

on the indictment.

5. Sixteen of the twenty-three members of the grand jury

constitute a quorum and must be present for the transaction of any business. If fewer than this number are present, even for a moment, the proceedings of the grand

jury must stop.

LIMITATION ON THE POWERS OF THE GRAND JURY

6. Although as grand jurors, you have extensive powers,

they are limited in several important respects.

7. You can only investigate conduct which violates federal

criminal laws. Criminal activity which violates state law is

outside your inquiry. Sometimes, though, the same conduct violates both federal and state law, and this you

may properly consider.

8. There is also a geographic limitation on the scope of your

inquiries in the exercise of your power. You may inquire

only to federal offenses committed in this district.

9. You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should

or should not be a federal law designating certain activity

as criminal. That is to be determined by Congress and

not by you.
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224 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

10. Furthermore, when deciding whether or not to indict,

you should not consider punishment in the event of

conviction.

THE GRAND JURY’S TASKS AND PROCEDURES

11.The cases which you will hear will come before you in

various ways. Frequently, suspects are arrested during or

shortly after the commission of an alleged crime, and

they are taken before a magistrate judge, who then holds

a preliminary hearing to determine whether there is

probable cause to believe that the person has committed

a crime. If the magistrate judge finds such probable

cause, he or she will direct that the person be held for the

action of the grand jury so that you can independently

consider whether there should be an indictment.

12.Other cases will be brought before you by a government

attorney—the U.S. attorney or an assistant U.S. attorney—before an arrest but after an investigation has been

conducted by a governmental agency, such as the Federal

Bureau of Investigation, the Treasury Department, the

Drug Enforcement Administration, Postal Authorities, or

other federal law enforcement officials.

13. Since the government attorney has the duty of prosecuting persons charged with the commission of federal

crimes, the government attorney will present the matters

which the government desires to have you consider. The

government will point out to you the laws which it believes have been violated, and will subpoena for testimony before you such witnesses as the government attorney may consider important and necessary and also

any other witnesses that you may request or direct be

called before you.

14.If during the course of your hearings, a different crime

other than the one you are investigating surfaces, you

have the right to pursue this new crime. Although you

can subpoena new witnesses and documents, you have

no power to employ investigators or to expend federal

funds for investigative purposes. If the government attorney refuses to assist you or if you believe he or she is not

acting impartially, you may take it up with me or any
Section 7.04: Grand jury selection and instructions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 225

judge of this court. You may use this power even over the

active opposition of the government’s attorneys, if you

believe it is necessary to do so in the interest of justice.

EVIDENCE

15.The evidence you will consider will normally consist of

oral testimony of witnesses and written documents. Each

witness will appear before you separately. When the witness first appears before you, the grand jury foreperson

will administer to the witness an oath or affirmation to

testify truthfully. After this has been accomplished, the

witness may be questioned. Ordinarily, the government

attorney questions the witness first. Next, the foreperson

may question the witness, and then any other members

of the grand jury may ask questions. In the event a witness does not speak or understand the English language,

an interpreter may be brought into the grand jury room

to assist in the questioning.

16.Witnesses should be treated courteously and questions

put to them in an orderly fashion. If you have any doubt

whether it is proper to ask a particular question, ask the

government attorney for advice. If necessary, a ruling

may be obtained from the court.

17. You alone decide how many witnesses you want to hear.

You can subpoena witnesses from anywhere in the country, directing the government attorney to issue necessary

subpoenas. However, persons should not ordinarily be

subjected to disruption of their daily lives, harassed, annoyed, or inconvenienced, nor should public funds be expended to bring in witnesses unless you believe they can

provide meaningful evidence which will assist you in your

investigation.

18. Every witness has certain rights when appearing before a

grand jury. Witnesses have the right to refuse to answer

any question if the answer would tend to incriminate

them and the right to know that anything they say may

be used against them. The grand jury should hold no

prejudice against a witness who exercises the right

against compulsory self-incrimination, and this can play

no part in the return of any indictment.
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226 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

19.Although witnesses are not permitted to have a lawyer

present with them in the grand jury room, the law permits witnesses to confer with their lawyer outside of the

grand jury room. Since an appearance before a grand jury

may present complex legal problems requiring the assistance of a lawyer, you also can not hold it against a witness if a witness chooses to exercise this right and leaves

the grand jury room to confer with an attorney.

20.Ordinarily, neither the person being investigated by the

government nor any witnesses on behalf of that person

will testify before the grand jury. Upon his or her request,

preferably in writing, you may afford that person an opportunity to appear before you. Because the appearance

of the person being investigated before you may raise

complicated legal problems, you should seek the government attorney’s advice and, if necessary, the court’s

ruling before his or her appearance is permitted. Before

that person testifies, he or she must be advised of his or

her rights and required to sign a formal waiver. You

should be completely satisfied that the person being investigated understands what he or she is doing. You are

not required to summon witnesses which that person

may wish to have examined unless probable cause for an

indictment may be explained away by their testimony.

21.The determination of whether a witness is telling the

truth is something that you must decide. Neither the

court nor the prosecutors nor any officers of the court

may make this determination for you.

As you listen to witnesses presented to you in the grand

jury room and hear their testimony, remember that you

are the judge of each witness’s credibility. You may believe the witness’s testimony, or you may not believe it, in

whole or in part. Determining the credibility of a witness

involves a question of fact, not a question of law. It is for

you to decide whether you believe the person’s testimony. You may consider in that regard whether the witnesses are personally interested in the outcome of the investigation, whether their testimony has been corroborated or supported by other witnesses or circumstances,

what opportunity they have had for observing or acquir-
Section 7.04: Grand jury selection and instructions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 227

ing knowledge concerning the matters about which they

testify, the reasonableness or probability of the testimony

they relate to you, and their manner and demeanor in

testifying before you.

22.Hearsay is testimony as to facts not known by the witness of the witness’s own personal knowledge but which

have been told or related to the witness by persons other

than the person being investigated. Hearsay testimony, if

deemed by you to be persuasive, may in itself provide a

basis for returning an indictment. You must be satisfied

only that there is evidence against the accused showing

probable cause, even if such evidence is composed of

hearsay testimony that might or might not be admissible

in evidence at a trial.

23. Frequently, charges are made against more than one person. It will be your duty to examine the evidence as it relates to each person, and to make your finding as to each

person. In other words, where charges are made against

more than one person, you may indict all of the persons

or only those persons who you believe properly deserve

indictment. 

DELIBERATION AND VOTE

24.After you have heard all the evidence you wish to hear in

a particular matter, you will then proceed to deliberate as

to whether the person being investigated should be indicted. No one other than your own members or an interpreter necessary to assist a juror who is hearing or

speech impaired is to be present while you are deliberating or voting.

25.To return an indictment charging an individual with an

offense, it is not necessary that you find that individual

guilty beyond a reasonable doubt. You are not a trial

jury, and your task is not to decide the guilt or innocence

of the person charged. Your task is to determine whether

the government’s evidence as presented to you is sufficient to cause you to conclude that there is probable

cause to believe that the person being investigated committed the offense charged. To put it another way, you

should vote to indict where the evidence presented to you
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228 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

is sufficiently strong to warrant a reasonable person’s belief that the person being investigated is probably guilty

of the offense charged.

26. Each juror has the right to express his or her view of the

matter under consideration. Only after all grand jurors

have been given full opportunity to be heard will a vote

be taken. You may decide after deliberation among yourselves that further evidence should be considered before

a vote is taken. In such case you may direct the government attorney to subpoena the additional documents or

witnesses you desire to consider.

27.When you have decided to vote, the foreperson shall designate a juror as secretary, who will keep a record of the

vote, which shall be filed with the clerk of court. The record does not include the names of the jurors but only

the number of those voting for the indictment. Remember, at least sixteen jurors must be present at all times,

and at least twelve members must vote in favor of an indictment before one may be returned.

28.If twelve or more members of the grand jury, after deliberation, believe that an indictment is warranted, then you

will request the government attorney to prepare the formal written indictment if one has not already been prepared and presented to you. The indictment will set forth

the date and place of the alleged offense, will assert the

circumstances making the alleged conduct criminal, and

will identify the criminal statute violated. The foreperson

will sign the indictment as a true bill in the space followed by the word “foreperson.” It is the duty of the

foreperson to sign every indictment, whether the foreperson voted for or against. If less than twelve members of

the grand jury vote in favor of an indictment which has

been submitted to you for your consideration, the foreperson will endorse the indictment “Not a True Bill” and

return it to the court and the court will impound it.

29.Indictments which have been signed as a true bill will be

presented to a judge [or a magistrate judge] in open

court by your foreperson at the conclusion of each deliberative session of the grand jury. In the absence of the

foreperson, a deputy foreperson may act in place of the
Section 7.04: Grand jury selection and instructions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 229

foreperson and perform all functions and duties of the

foreperson.

INDEPENDENCE OF THE GRAND JURY

30.It is extremely important for you to realize that under the

United States Constitution, the grand jury is independent

of the United States attorney and is not an arm or agent

of the Federal Bureau of Investigation, the Drug Enforcement Administration, the Internal Revenue Service,

or any governmental agency charged with prosecuting a

crime. Simply put, as I have already told you, the grand

jury is an independent body and does not belong to any

branch of the government.

31.However, as a practical matter, you must work closely

with the government attorneys. They will provide you

with important service in helping you to find your way

when confronted with complex legal matters. It is entirely

proper that you should receive this assistance. If past experience is any indication of what to expect in the future,

then you can expect candor, honesty, and good faith in

matters presented by the government attorneys. However, ultimately, you must depend on your own independent judgment, never becoming an arm of the United

States Attorney’s Office. The government attorneys are

prosecutors. You are not. If the facts suggest that you

should not indict, then you should not do so, even in the

face of the opposition or statements of the government

attorney. You would violate your oath if you merely “rubber-stamped” indictments brought before you by the

government representatives.

32.Just as you must maintain your independence in your

dealings with the government attorneys, so should your

dealings with the court be on a formal basis. If you

should have a question for the court or desire to make a

presentment or return an indictment to the court, you

will assemble in the courtroom for these purposes.

Moreover, each juror is directed to report immediately to

the court any attempt by any person who under any pretense whatsoever addresses or contacts him or her for

the purpose of or with the intent to gain any information
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230 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

of any kind concerning the proceedings of the grand jury,

or to influence a juror in any manner or for any purpose.

THE OBLIGATION OF SECRECY

33. Your proceedings are secret and must remain secret permanently unless and until the court decrees otherwise.

You cannot relate to your family, to the news or television

reporters, or to anyone that which transpired in the

grand jury room. There are several important reasons for

this requirement. A premature disclosure of grand jury

action may frustrate the ends of justice by giving an opportunity to the person being investigated to escape and

become a fugitive or to destroy evidence. Also, if the testimony of a witness is disclosed, the witness may be subject to intimidation, retaliation, bodily injury, or other

tampering before testifying at trial. Thirdly, the requirement of secrecy protects an innocent person who may

have come under investigation but has been cleared by

the actions of the grand jury. In the eyes of some, investigation by a grand jury alone carries with it a suggestion

of guilt. Thus great injury can be done to a person’s good

name even though the person is not indicted. And fourth,

the secrecy requirement helps to protect the members of

the grand jury themselves from improper contacts by

those under investigation. For all these reasons, therefore, the secrecy requirement is of the utmost importance

and must be regarded by you as an absolute duty. If you

violate your oath of secrecy, you may be subject to

punishment.

34.To ensure the secrecy of grand jury proceedings, the law

provides that only authorized persons may be in the

grand jury room while evidence is being presented. Only

the members of the grand jury, the government attorney,

the witness under examination, the court reporter, and

an interpreter, if required, may be present.

35.If an indictment should ultimately be voted, the presence

of unauthorized persons in the grand jury room could invalidate it. Particularly remember that no person other

than the grand jury members themselves or an interpreter

necessary to assist a juror who is hearing or speech im-
Section 7.04: Grand jury selection and instructions

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 231

paired may be present in the grand jury room while the

jurors are deliberating and voting. Although you may disclose matters which occur before the grand jury to attorneys for the government for use by such attorneys in the

performance of their duties, you may not disclose the

contents of your deliberations and the vote of any juror

even to a government attorney.

CONCLUSION

36.The importance of the service you will perform is demonstrated by the very comprehensive and important oath

which you took a short while ago. It is an oath rooted in

history, and thousands of your forebears have taken similar oaths. Therefore, as good citizens, you should be

proud to have been selected to assist in the administration of the American system of justice.

37.The government attorney will now accompany you and

will assist you in getting organized, after which you may

proceed with the business to come before you.

38.The United States marshal and deputy United States

marshals will attend you and be subject to your appropriate orders.

39. You may now retire.

[Note: It is suggested that grand jurors be provided either with a

written copy of the charge or with the Handbook for Federal Grand

Jurors (Judicial Conference of the United States and Administrative Office of the U.S. Courts 1986).]

[The remainder of the charge should be given only if the grand

jury is a special grand jury being impaneled pursuant to 18

U.S.C. §§ 3331–3334.]

ADDITIONAL POWERS OF A SPECIAL GRAND JURY

As stated to you earlier, you are being impaneled as a special

grand jury, as distinguished from a regular grand jury.

A regular grand jury is subject to two important restrictions:

(1) its term or life is limited to a period of eighteen months, and

(2) it can indict someone, on a finding of probable cause, or
Section 7.04: Grand jury selection and instructions

232 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

vote not to indict, but that is the extent of the action it can take;

it cannot issue a report concerning its findings.

You, as a special grand jury, will be governed by a different

set of rules or laws. First, while your term of service is also fixed

at eighteen months (unless a majority of the jury sooner determines that your work has been completed), that term may be extended by the court for up to eighteen additional months. Second, unlike a regular grand jury, you are authorized under certain conditions at the end of your term to submit to the court, if

a majority of you so desire, a report concerning your findings as

to certain matters.

Specifically, the United States Code, title 18, section 3333,

provides as follows:

(a) A special grand jury impaneled by any district court,

with the concurrence of a majority of its members,

may, upon completion of its original term, or each extension thereof, submit to the court a report—

(1) concerning noncriminal misconduct, malfeasance,

or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or

(2) regarding organized crime conditions in the district.

The U.S. attorney will explain to you in more detail your powers

and duties under this law. As you approach the end of your

term, the court will give you additional instructions if you request, or answer any questions you might have.
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 233

7.05 Foreign extradition proceedings

18 U.S.C. §§ 3181–3196

A. Ascertain

1. the identity of the detainee as the individual being demanded by a foreign nation; and

2. whether the detainee is represented by counsel (see supra section 1.02: Assignment of counsel or pro se representation). 18 U.S.C. § 3006A(b).

B. Inform the detainee

1. of the charge or charges upon which extradition is sought

and by which foreign nation;

2. of the right to a public extradition hearing, 18 U.S.C.

§ 3189;

3. under what circumstances the United States will pay the

costs for subpoenaing material witnesses for the detainee’s defense to extradition, 18 U.S.C. § 3191;

4. that at the hearing it will be determined:

(a) whether the detainee is charged with a crime or crimes

for which there is a treaty or convention for extradition

between the United States and the demanding country, 18 U.S.C. §§ 3181, 3184; see also Collins v. Loisel,

259 U.S. 309 (1922);

(b) whether the warrants and documents demanding the

prisoner’s surrender are properly and legally authenticated, 18 U.S.C. § 3190; and

(c) whether the commission of the crime alleged is established by probable cause such as would justify commitment for trial if the offense had been committed in

the United States, 18 U.S.C. § 3184.

C. Obtain a waiver of hearing, hold the hearing, or grant a continuance if necessary (see supra section 1.03: Release or detention pending trial).

D. If a hearing is held, determine whether the detainee is extraditable.

E. If the detainee is found extraditable:

1. Commit the detainee to jail under surrender to the

demanding nation, unless “special circumstances”

NOTE

The Federal Rules of

Criminal Procedure are 

not applicable to extradition proceedings.

Fed. R. Crim. P.

1(a)(5)(A).
Section 7.05: Foreign extradition proceedings

234 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

justify his or her release on bail. Wright v. Henkel, 190

U.S. 40 (1903); Hu Yau-Leung v. Soscia, 649 F.2d 914

(2d Cir.), cert. denied, 454 U.S. 971 (1981).

2. Notify the Secretary of State by filing a certified copy

of your findings and a transcript of the proceedings.

F. If the detainee is found not extraditable, notify the Secretary

of State by filing an appropriate report certifying to that effect.
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 235

7.06 Naturalization proceedings

8 U.S.C. §§ 1421, 1443–1448

The Immigration Act of 1990 changed the naturalization process

from a judicial proceeding to an administrative proceeding. Following is a brief outline of current naturalization practice. Note

that the role of the district court has been curtailed.

Procedure

1. The applicant for naturalization commences the proceeding

by filing an application for naturalization with the Attorney

General.

2. An employee of the Immigration and Naturalization Service

(INS) examines the applicant and determines whether to

grant or deny the application. The INS employee may invoke

the aid of a district court in subpoenaing the attendance and

testimony of witnesses and the production of books, papers,

and documents. 8 U.S.C. § 1446(b), (d).

3. If the INS denies the application, the applicant may request

a hearing before an immigration officer. 8 U.S.C. § 1447(a).

4. If the immigration officer denies the application, the applicant may seek de novo review in the federal district court.

8 U.S.C. § 1421(c).

5. If the INS fails to make a determination on the application

within 120 days of the applicant’s interview, the applicant

may apply to a district court for a naturalization hearing. The

court may determine the matter or remand the matter to the

INS with appropriate instructions. 8 U.S.C. § 1447(b).

6. If an application is approved, a district court with jurisdiction

under 8 U.S.C. § 1421(b) may administer the oath of allegiance.

Oath of Allegiance

The following oath is designed for use with groups of applicants

and includes various alternatives to bearing arms.

Do you solemnly swear [affirm] to support the Constitution of the United States; to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign
Section 7.06: Naturalization proceedings

236 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

prince, potentate, state, or sovereignty of which you have

previously been a citizen or subject; to support and defend the Constitution and the laws of the United States

against all enemies, foreign and domestic; to bear true

faith and allegiance to the same; and to bear arms on

behalf of the United States when required by law [or to

perform noncombatant service in the Armed Forces of

the United States when required by law, or to perform

work of national importance under civilian direction

when required by law]? Do you take this obligation freely

without any mental reservation or purpose of evasion?

8 U.S.C. § 1448(a).

[Note: If the applicant refuses to bear arms or do noncombatant

service in the armed forces, ascertain whether there is “clear and

convincing evidence” that the refusal is based on “religious

training and belief.” 8 U.S.C. § 1448(a).]

An individual may be granted an expedited judicial oath

administration ceremony upon demonstrating sufficient cause.

In determining whether to grant an expedited judicial oath administration ceremony, a court shall consider special circumstances (such as serious illness of the applicant or a member of

the applicant’s immediate family, permanent disability sufficiently incapacitating as to prevent the applicant’s personal appearance at the scheduled ceremony, developmental disability

or advanced age, or exigent circumstances relating to travel or

employment).

8 U.S.C. § 1448(c).

If the applicant possesses any hereditary title or orders of

nobility in any foreign state, he or she must expressly renounce

such title or orders of nobility in open court. 8 U.S.C. § 1448(b).

Address (or designate some member of the community to

address, or invite some of the newly naturalized citizens to address) the naturalized citizens on the general topic of the meaning of U.S. citizenship and the importance of each citizen’s participation in the workings of a democracy. 36 U.S.C. § 154.
ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 237

7.07 Excluding the public from court

proceedings

A. Closing of the courtroom is appropriate upon the court’s own

motion

1. in proceedings other than an actual trial, for the court to

receive testimony from or about grand jury proceedings,

argument using such testimony, or discussions of such

testimony;

2. when the court receives testimony or argument on grand

jury evidence or other sensitive information that is the

subject matter of the closure motion;

3. when the court determines it is necessary to protect a

child witness from “substantial psychological harm” or

when it would “result in the child’s inability to effectively

communicate,” 18 U.S.C. § 3509(e);

4. when the law requires closure to protect some phase of a

juvenile delinquency proceeding (18 U.S.C. § 5038).

B. The steps in closing trial or pretrial proceedings upon motion

by a party areas follows:

1. Notice of motion

Ensure that interested parties, including the media, are

given notice and an opportunity to defend against the

motion in court. If public notice was given of a scheduled

hearing, further notice is not necessarily required. If the

motion is ex parte or at an unusual time, the court should

delay the hearing until interested parties have been notified.

2. The hearing

The burden is on the movant seeking closure to show

(a) that an overriding interest is likely to be prejudiced if

closure is not granted. Such interests include

(i) the defendant’s right to a fair trial; and

(ii) the government’s interest in inhibiting disclosure of sensitive information (the court may, sua

sponte, close the hearing to receive the preliminary information or proffer);
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238 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

(b) that alternatives to closure cannot adequately protect

the overriding interest the movant is seeking to protect; and

(c) that closure will probably be effective in protecting

against the perceived danger.

3. Decision by the court

(a) In a pretrial proceeding, when the moving party asserts that the defendant’s right to a fair trial will be

prejudiced if hearings are conducted publicly, the

court should consider

(i) the nature and extent of the publicity to date;

(ii) the size of the jury pool;

(iii) the ease of a change of venue;

(iv) the ability to cure any harm through voir dire;

(v) whether the public already has the information;

and

(vi) the impact of further publicity on the publicity

that has already occurred.

(b) In deciding whether alternatives to closure can adequately protect the overriding interest that the

movant seeks to protect, the court should consider the

following alternatives:

(i) granting a continuance;

(ii) granting severance;

(iii) changing the venue;

(iv) changing the venire;

(v) engaging in further voir dire questioning;

(vi) permitting additional peremptory challenges;

(vii) sequestering the jury; and

(viii)instructing the jury.

4. Findings and order

(a) If the court decides to order closure

(i) it must make findings that

(a) without closure, there is a substantial probability that the defendant’s right to a fair trial

would be impaired;
Section 7.07: Excluding the public from court proceedings

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 239

(b) steps less drastic than closure would be ineffective in preserving the defendant’s right to

a fair trial; and

(c) closure would achieve the desired goal of protecting the defendant’s right to a fair trial.

(ii) the closure must be as narrow as possible;

(iii) the findings must be on the record; and

(iv) the findings must be adequate to support an order of closure.

(b) The order must

(i) be no broader than is necessary to protect the interest asserted by the moving party; and

(ii) be tailored to ensure that proceedings that are

closed encompass no more than is actually necessary to protect the interest asserted by the

moving party.

(c) Determine whether the order itself should be sealed.

Other FJC sources

Recent Developments Regarding Standards and Procedures for Barring the Public from the Courtroom During a Criminal Trial,

Bench Comment 1984, no. 2

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 241

7.08 Oaths

Affirmation in lieu of oath

Any person who has conscientious scruples about taking an oath

may be allowed to make an affirmation. See, e.g., Fed. R. Civ. P.

43(d) (changed to 43(b) effective December 1, 2007); Fed. R.

Crim. P. 1(b)(6). Substitute the word “affirm” for the words “solemnly swear” at the beginning of the oath and delete the words

“so help me God” at the end. (If appropriate, courts may wish to

substitute “this I do affirm under the pain and penalties of perjury” for “so help me God” at the end.)

Sample oaths

The following are suggested oaths for several situations. A statutory cite after an oath indicates that the oath is taken directly

from the statute.

If the person taking an oath or making an affirmation does

not understand English, the oath or affirmation should be in a

language he or she understands.

Oath to attorneys

(admission to practice before the court)

I, _______________, do solemnly swear [or affirm] that to the

best of my knowledge and ability I will support and defend the

Constitution of the United States against all enemies, foreign and

domestic, and that I will bear true faith and allegiance to the

same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will demean myself as an

attorney, proctor, and solicitor of this court uprightly and according to law, so help me God.

Oath to clerks and deputies

(to be made by each clerk of court and all deputies before they

assume their duties)

I, _______________, having been appointed _______________,

do solemnly swear [or affirm] that I will truly and faithfully enter

and record all orders, decrees, judgments, and proceedings of

such court, and will faithfully and impartially discharge all other
Section 7.08: Oaths

242 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

duties of my office according to the best of my abilities and understanding. So help me God.

[28 U.S.C. § 951]

Oath to crier (bailiff)

(may be administered in those districts that employ a temporary

court crier)

Do you solemnly swear [or affirm] that you will faithfully, impartially, and to the best of your ability discharge the duties of crier

[bailiff] of this court, to which office you have been appointed,

and will strictly obey all orders of the court and your superiors as

crier [bailiff] during the session now being held, so help you

God?

Oath to crier (bailiff) to conduct jury to view place

Do you solemnly swear [or affirm] that you will, together with the

United States Marshal, keep these jurors together and permit no

one to talk to them, aside from the guides, nor talk to them

yourself regarding the case under consideration, until discharged

by the court, so help you God?

Oath to guides to conduct jury to view place

Do each of you solemnly swear [or affirm] that you will guide

these jurors on an inspection of the ___________ involved in this

action and that you will permit no one to talk to them, nor talk

to them yourselves, regarding the case under consideration, except as instructed by the court, so help you God?

Oath to crier (bailiff) to keep jury during adjournment

Do you solemnly swear [or affirm] that you will keep the jurors

composing this panel together until the next meeting of this

court, and during all other adjournments of the court during the

trial of this case; that you will permit no person to speak or

communicate with them, nor do so yourself, on any subject connected with the trial; and that you will return them to court at the

next meeting thereof, so help you God?
Section 7.08: Oaths

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 243

Oath to crier (bailiff) and marshal after cause is submitted

Do you solemnly swear [or affirm] that you will keep these jurors

together in some private and convenient place and not permit any

person to speak to or communicate with them, nor do so yourself unless by order of the court, nor ask whether they have agreed

on a verdict, and that you will return them to court when they

have so agreed, or when ordered by the court, so help you God?

Oath to defendant

(as to his or her financial ability to employ counsel)

Do you solemnly swear [or affirm] that all of the statements you

are about to make relative to your financial ability to employ

counsel will be the truth, the whole truth, and nothing but the

truth, so help you God?

Oath for deposition

Do you solemnly swear [or affirm] that all the testimony you are

about to give in the matter now in hearing will be the truth, the

whole truth, and nothing but the truth, so help you God?

Oath to grand jury foreperson and deputy foreperson

Do you, as foreperson and deputy foreperson of this grand jury,

solemnly swear [or affirm] that you will diligently inquire into

and make true presentment or indictment of all public offenses

against the United States committed or triable within this district

of which you shall have or can obtain legal evidence; that you will

keep your own counsel and that of your fellows and of the United

States and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, or anything which you or any other grand juror

may have voted on in any matter before you; that you shall present or indict no person through malice, hatred, or ill will, nor

leave any person unpresented or unindicted through fear, favor,

or affection, or for any reward or for the promise or hope

thereof; and that in all your presentments or indictments you

shall present the truth, the whole truth, and nothing but the truth

to the best of your skill and understanding, so help you God?
Section 7.08: Oaths

244 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Oath to other grand jurors

Do each of you solemnly swear [or affirm] that you shall diligently inquire into and make true presentment or indictment of

all such matters and things touching your present grand jury service that are given to you in charge or that otherwise come to your

knowledge; that you shall keep secret the counsel of the United

States, your fellows, and yourselves; that you shall not present or

indict any person through hatred, malice, or ill will, or leave any

person unpresented or unindicted through fear, favor, or affection or for any reward or for the hope or promise thereof; and

that in all your presentments and indictments you shall present

the truth, the whole truth, and nothing but the truth to the best of

your skill and understanding, so help you God?

or

Do each of you solemnly swear [or affirm] that you will well and

truly observe on your part the same oath that your foreperson

and deputy foreperson have now taken before you on their part,

so help you God?

Oath to venirepersons

(to be administered at juror qualification or voir dire)

Do you solemnly swear [or affirm] that you will truthfully answer

all questions that shall be asked of you regarding your qualifications as a juror in the case now called for trial, so help you God?

Oath to interpreter

(The interpreter’s duties include interpreting the oath to the

witness, the verbatim questions of the court and counsel, and

the answers thereto.)

Do you solemnly swear [or affirm] that you will justly, truly,

fairly, and impartially act as an interpreter in the case now before

the court, so help you God?

[Note: In addition to the initial oath, the Tenth Circuit has stated

that “before the verdict is announced, [the court] should inquire

. . . whether the interpreter abided by her oath to act strictly as

an interpreter and not to participate in the deliberations. Ideally,

the judge should then question the jurors to the same effect.”

United States v. Dempsey, 830 F.2d 1084, 1092 (10th Cir. 1987).]
Section 7.08: Oaths

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 245

Oath to interpreter for a deaf juror1

Do you solemnly swear [or affirm] that you will accurately interpret from the English language into the sign language understood

by the juror, who is deaf, and from that language as used by the

juror into the English language; that, while you are present in the

jury room during the jury’s deliberations, your communications

with that juror and the other jurors will be limited to translating

for the deaf juror what the other jurors say and for the others

what the deaf juror says, so that you will not express any of your

own ideas, opinions, or observations or otherwise participate

yourself in the jury’s deliberations; and that you will keep secret

all that you hear in the jury room and will not discuss with anyone the testimony or merits of the case unless ordered differently

by the court or authorized by the deaf juror after the trial is finished to disclose anything he or she said during the deliberations,

so help you God?

Oath to jurors in civil cases (including condemnation cases)

Do each of you solemnly swear [or affirm] that you will well and

truly try the matters in issue now on trial and render a true verdict

according to the law and the evidence, so help you God?

Oath to jurors in criminal cases

(This oath may also be administered to alternate jurors by substituting for the first line: “Do you, as an alternate juror.”)

Do each of you solemnly swear [or affirm] that you will well and

truly try and a true deliverance make, in the case now on trial, and

render a true verdict according to the law and the evidence, so

help you God?

Oath to master

Do you solemnly swear [or affirm] that you will well and truly

hear and determine the facts and true findings according to the

evidence, so help you God?

 

1. This sample oath is based on one given to an interpreter in New York v.

Green, 561 N.Y.S. 2d 130 (N.Y. County Ct. 1990). It is provided as one example

of the form for such an oath.
Section 7.08: Oaths

246 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Oath to reporter or stenographer

(for grand jury proceedings, to be administered by the grand jury

foreperson)

Do you solemnly swear [or affirm] that you will well and truly

take and record the evidence about to be presented to this grand

jury; that you will translate such testimony as required; and that

you will keep secret all information you receive as reported at

these grand jury proceedings, except on order of the court, so

help you God?

Oath to witness

Do you solemnly swear [or affirm] that all the testimony you are

about to give in the case now before the court will be the truth,

the whole truth, and nothing but the truth, so help you God?

Oath of allegiance

(naturalization proceedings)

I, _________________, do solemnly swear [or affirm] to support

the Constitution of the United States, to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign

prince, potentate, state, or sovereignty of which or to whom I

have previously been a subject or citizen; to support and defend

the Constitution and the laws of the United States against all

enemies, foreign and domestic, and to bear true faith and allegiance to the same; and to bear arms on behalf of the United

States when required by law [or to perform noncombatant service

in the Armed Forces of the United States when required by law]

[or to perform work of national importance under civilian direction when required by law], so help me God.

[8 U.S.C. § 1448(a)]

[Note: If the petitioner refuses to bear arms, ascertain whether

there is “clear and convincing evidence” that the refusal is based

on “religious training and belief.” If so, the petitioner should be

required to take the remainder of the oath, including at least one

of the alternatives to bearing arms. 8 U.S.C. § 1448(a).]
Section 7.08: Oaths

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 247

Oath to justices, judges, and magistrate judges

I, ___________________, do solemnly swear [or affirm] that I

will administer justice without respect to persons, and do equal

right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon

me as ___________ under the Constitution and laws of the

United States. So help me God.

[28 U.S.C. § 453]

Oath to public officials

(given to all individuals, except the President, who are “elected

or appointed to an office of honor or profit in the civil service or

uniformed services,” 5 U.S.C. § 3331)

I, _____________________, do solemnly swear [or affirm] that I

will support and defend the Constitution of the United States

against all enemies, foreign and domestic; that I will bear true

faith and allegiance to the same; that I take this obligation freely,

without any mental reservation or purpose of evasion; and that I

will well and faithfully discharge the duties of the office on which

I am about to enter. So help me God.

[5 U.S.C. § 3331]
Section 7.08: Oaths

248 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Table of authorities

The following is a brief compilation of authorities with respect to

taking an oath or making an affirmation.

affirmation—

in lieu of oath Fed. R. Civ. P. 43(d)

[43(b) effective December 1,

2007]

Fed. R. Crim. P. 1(b)(6)

bankruptcy—

authority to administer 11 U.S.C. § 343

clerks and deputies—

oath of office 28 U.S.C. § 951

authority to administer oaths 28 U.S.C. § 953

deposition—

taken before an officer or other

person so appointed

Fed. R. Civ. P. 28(a)

grand jury foreperson—

authority to administer oaths Fed. R. Crim. P. 6(c)

interpreter—to take oath Fed. R. Evid. 604

interrogatories—

to answer under oath Fed. R. Civ. P. 33(b)(1)

[33(b)(3) effective

December 1, 2007]

jurors, alternate—

to take same oath as regular

jurors

Fed. R. Crim. P. 24(c)(2)

justices and judges—

oath of office 28 U.S.C. § 453

authority to administer oaths 28 U.S.C. § 459
Section 7.08: Oaths

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 249

magistrate judge—

oath of office 28 U.S.C. § 631(g)

authority to administer oaths 28 U.S.C. § 636(a)(2)

master—

may administer oath Fed. R. Civ. P. 53(c)(1)

naturalization proceedings—

oath of allegiance 8 U.S.C. § 1448(a)

perjury 18 U.S.C. §§ 1621 and 1623

public officer—

oath of office 5 U.S.C. § 3331

authority to administer 5 U.S.C. § 2903

reporter—

to take oath 28 U.S.C. § 753(a)

waiver of oath Wilcoxon v. United States,

231 F.2d 384 (10th Cir.

1956)

witness—

required to take oath Fed. R. Evid. 60

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 251

Appendix: FJC publications

The Federal Judicial Center publishes numerous manuals, reference works, monographs, and research reports on criminal litigation and the sentencing process, civil litigation, case management, the history of the federal court system, and federal judicial

administration. The Center sends selected publications to new

circuit and district judges upon their nomination and to new

bankruptcy and magistrate judges upon their appointment.

Listed below are publications sent to new district judges.

The Center also has a wide collection of media programs, including Center-produced audio and video programs and commercially produced instructional programs. Many judges find

particularly helpful the audio recordings of presentations at

Center seminars and workshops. The Center also publishes a series of monographs on substantive legal topics, to help judges

who may not have much previous experience in those fields. The

monograph series includes titles on patent, copyright, securities,

and business bankruptcy law.

All Center publications and media programs can be found

and ordered through the Resource Catalog on the Center’s site

on the judiciary’s intranet at http://cwn.fjc.dcn. Most publications can also be downloaded from the site, and a growing number of media programs are available in streaming audio and

video formats.

Selected publications sent to new district judges (by topic)

Civil litigation and case management

Awarding Attorneys’ Fees and Managing Fee Litigation, Second Edition

2005 (162 pp.)

This monograph explains the doctrinal and case-management

aspects of fee awards. It analyzes the law of attorneys’ fee awards

under fee-shifting statutes, the common fund doctrine and its

offspring, and the substantial benefit doctrine, and it addresses

an issue of special significance to bankruptcy courts—the propriety of sua sponte review of fee petitions. It also presents a selection of case-management strategies, based on interviews with

judges, attorneys, U.S. trustees, and others.
Appendix: FJC publications

252 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Civil Litigation Management Manual

2001 (463 pp.)

This manual provides trial judges with a guide to managing civil

cases. It sets out a wide array of case-management techniques,

beginning with case filing and concluding with steps for streamlining trials, and it discusses a number of special topics, including pro se and high-visibility cases, the role of staff, and automation that supports case management. The manual, which was

produced in response to the Civil Justice Reform Act of 1990, is

based on the experiences of federal district and magistrate

judges and reflects techniques they have developed. It was prepared under the direction of the Judicial Conference Committee

on Court Administration and Case Management, with substantial contributions from the Administrative Office of the U.S.

Courts and the Federal Judicial Center, and was approved by the

Judicial Conference in March 2001.

The Elements of Case Management: A Pocket Guide for Judges, Second Edition

2006 (22 pp.)

This is a primer for judges on techniques and methods of case

management.

Guide to Judicial Management of Casesin ADR

2001 (193 pp.)

This publication offers guidance to federal trial and bankruptcy

courts on when and how to refer appropriate cases to ADR and

how to manage cases referred to ADR. The purpose of the book is

not to advocate ADR use, but to present various approaches that

judges and parties may choose to follow when considering and

using ADR. The book identifies areas where there may be disagreement, describing advantages and disadvantages of various

approaches. The book also alerts readers to emerging trends or

what are perceived by many as preferred approaches.

Managing Class Action Litigation: A Pocket Guide for Judges

2005 (29 pp.)

This guide is designed to help federal judges manage the increased number of class actions expected as a result of the Class

Action Fairness Act of 2005. As called for in that legislation, the

guide is part of a continuing effort of the federal judiciary to
Appendix: FJC publications

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 253

identify “best practices” for managing class actions and ensuring

that class action settlements primarily benefit class members.

Manual for Complex Litigation, Fourth Edition

2004 (798 pp.)

This manual describes approaches that trial judges have found

useful in managing complex cases. This edition updates the

treatment of electronic discovery and other aspects of pretrial

management and describes major changes in the substantive

and procedural law affecting case management in mass tort,

class action, intellectual property, employment discrimination,

and other types of litigation. A new chapter deals with managing

scientific evidence.

Criminal litigation and sentencing

The Bail Reform Act of 1984, Third Edition

2006 (78 pp.)

This monograph provides a summary of appellate court decisions that interpret provisions of The Bail Reform Act of 1984 on

issues of release and detention. The third edition primarily addresses areas that have been changed by statute or case law

since the second edition, and cites more recent cases that discuss

the substantive issues through June 1, 2006. In addition, the

monograph covers practical considerations regarding conditional

release, release orders, detention hearings, and waiver. It also includes new material on how the Crime Victims’ Rights Act of 2004

affects proceedings under The Bail Reform Act.

Manual on Recurring Problemsin Criminal Trials, Fifth Edition

2001 (178 pp.)

The fifth edition of the late Judge Donald S. Voorhees’s guide to

the law governing many of the procedural matters that arise in

criminal trials includes cases decided during the Supreme

Court’s 2000–2001 Term and U.S. Court of Appeals cases reported through 212 F.3d 306. Among the topics covered are juryrelated problems, evidentiary issues, civil and criminal contempt, the Fifth Amendment, confessions, and severance of defendants.
Appendix: FJC publications

254 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

Ethics and Codes of Conduct

Maintaining the Public Trust: Ethicsfor Federal Judicial Law Clerks

2002 (24 pp.)

The Federal Judicial Center, in cooperation with the Judicial Conference Committee on Codes of Conduct and the Administrative

Office of the U.S. Courts, prepared this pamphlet to help new law

clerks understand their ethical obligations. The pamphlet covers

confidentiality; conflicts of interest; outside legal activities; dealings with prospective employers; outside professional, social,

and community activities; receipt of gifts and honoraria; and political activity. It includes an ethics checklist that clerks should fill

out upon starting work and review with theirjudges.

Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

2002 (86 pp.)

This monograph offers a synthesis and analysis of the case law

under 28 U.S.C. §§ 455 and 144 to assist judges in ruling on

recusal. After providing a history of section 455, the monograph

identifies the core principles and recurring issues in the voluminous case law and examines, in representative cases, how the

courts of appeals have applied these principles. The monograph

also covers the application of section 144 and section 47, and

goes into detail on issues such as timeliness of motions, recusal

in bench trials, standing, and the Rule of Necessity.

Federal judicial administration

Deskbook for Chief Judges of U.S. District Courts, Third Edition

2003 (138 pp.)

A detailed reference for chief judges of federal district courts, the

Deskbook describes the position of chief judges within the system of federal judicial administration as well as their specific

roles and responsibilities with respect to national and regional

bodies of judicial administration; other judges, officers, and employees of the district court; various functions of the court; and

external groups such as the bar, the media, and the public. It includes citations to statutory requirements and Judicial Conference and Administrative Office policies.
Appendix: FJC publications

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 255

A New Judge’s Introduction to Federal Judicial Administration

2003 (20 pp.)

This brief pamphlet describes the major agencies that administer the federal courts on the national, regional, and local levels

and summarizes their primary functions. It covers, for example,

the circuit judicial councils, the circuit conferences, the Judicial

Conference of the United States and its committees, the Administrative Office of the U.S. Courts, and the Federal Judicial Center.

General references

Benchbook for U.S. District Court Judges, Fifth Edition

2007

An ongoing compilation of information that federal district

judges have found useful for immediate bench or chambers reference, the Benchbook contains sections on such topics as assignment of counsel, taking guilty pleas, sentencing procedure,

standard voir dire questions, and contempt proceedings. It is

prepared under the guidance of experienced district judges and

is produced in loose-leaf format for easy supplementation.

Conducting Job Interviews: A Guide for Federal Judges

1999 (29 pp.)

This guide describes an interviewing process that is simple, effective, and fair and gives examples of questions to help determine whether job candidates have the knowledge, skills, and

abilities necessary for the position. The guide may be helpful to

judges as they select law clerks, and to chief judges and other

judges who are in the process of selecting unit executives.

Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial

and Trial

2001 (358 pp.)

This publication is the result of a joint project between the Federal Judicial Center and the National Institute for Trial Advocacy.

It describes the substantive and procedural considerations that

may arise when lawyers bring electronic equipment to the courtroom or use court-provided equipment for displaying or playing

evidentiary exhibits orillustrative aids during trial. It draws upon

the expertise of judges who work in courtrooms equipped with
Appendix: FJC publications

256 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

technology, law professors who teach trial advocacy and evidence, and practitioners who have trial experience using technology in civil and criminal cases. It comes with a CD-ROM that

contains the entire text of the book for easy searching, reference,

or excerpting, and includes examples of the kinds of exhibits that

may raise objections as to transitions, animations, color, sound,

and special effects.

A Guide to the Preservation of Federal Judges’ Papers

1996 (83 pp.)

This publication discusses the importance of federal judges’ papers as a documentary record of judges’ careers and the work of

the federal courts. It describes how students of the federal courts

use judges’ papers and offers guidelines forjudges’ selection of a

repository to house a collection. The guide also offers recommendations for the management of documents in chambers.

Judicial Writing Manual

1991 (41 pp.)

(3 copies, including 2 forlaw clerks)

The Center prepared this manual to help judges organize opinions and improve their opinion writing. Drawing on interviews

with twenty-four experienced judges, and guided by a board of

editors comprising judges, law professors, and writers, the manual offers advice on writing tailored to the needs of the federal

judiciary.

Law Clerk Handbook, Second Edition

2007 (137 pp.)

This handbook provides an overview of chambers operations

and the work of the federal courts. It replaces the Chambers

Handbook for Judges' Law Clerks and Secretaries (1994).

Managing Discovery of Electronic Information: A Pocket Guide for

Judges

2007 (26 pp.)

This pocket guide helps federal judges manage the discovery of

electronically stored information (ESI). It covers issues unique to

the discovery of ESI, including its scope, the allocation of costs,

the form of production, the waiver of privilege and work product

protection, and the preservation of data and spoliation.
Appendix: FJC publications

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 257

Reference Manual on Scientific Evidence, Second Edition

2000 (638 pp.)

This reference manual was produced to assist judges in managing expert evidence in cases involving issues of science or technology. It contains articles analyzing the Supreme Court’s decisions on admissibility of expert evidence and describing techniques for managing expert evidence. It also contains an overview of scientific methods and reference guides on statistics,

multiple regression, survey research, estimation of economic loss

in damage awards, epidemiology, toxicology, medical testimony,

DNA evidence, and engineering practice and methods.

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 259

Index

ACQUITTAL

by reason of insanity, competency after, 57, 61

motion for judgment of, 87, 88,

113–14

ADMISSIONS

delinquency proceedings

determining awareness of

consequences of admission,

51

taking admission or denial, 52

voluntariness of admission,

51, 52

revocation of probation or supervised release, 153

AFFIRMATION, FORM, 241

ALIENS

naturalization proceedings, 235

oath, 235–36, 246

ALLEGIANCE, OATH, 235–36, 246

ANONYMOUS JURIES

jury selection, criminal, 95–96

APPEAL

notice of right at sentencing, 146

waiver of right, 77–78, 146

APPEARANCES

criminal proceedings, defendant’s initial appearance, 1–3

delinquency proceedings, 46

offenses committed in another

district, 15–17

ARRAIGNMENT

adult offenders, 29–30

by magistrate judge, 68

Crime Victims’ Rights Act, 29

juveniles, 49–53

offenses committed in another

district, 15

pleas, 34

video teleconference, 29

ARREST

bench warrants, arrest for failure 

to appear, 23

ARREST OF JUDGMENT

motion for, 116

ASSIGNMENT OF COUNSEL

see RIGHT TO COUNSEL

ATTORNEYS

assignment of counsel

see RIGHT TO COUNSEL

oath, 241

standby counsel for pro se defendant, 7

see also JOINT

REPRESENTATION OF

CODEFENDANTS

BAIL

see SETTING BAIL

BAILIFFS, OATH, 242, 243

BATSON CHALLENGES, 93–94,

179–80

BENCH WARRANTS

arrest for failure to appear in

another district, 23

BONDS, SURETY

bail, 10–12

preliminary injunction, 217

temporary restraining orders,

213

BURDEN OF PROOF

contempt, 199

grant of immunity, 164

invoking the Fifth Amendment,

161–62

jury instructions

capital cases, 126–28

civil proceedings, 185, 189

criminal proceedings, 101–04,

105–08

revocation of probation or supervised release, 151–56
Index

260 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

CAPITAL OFFENSES

indictments, waiver precluded,

25

see also DEATH PENALTY

PROCEDURES

CITIZENSHIP

naturalization proceedings, 235–

36

oath, 235–36, 246

CIVIL CASES

findings of fact and conclusions

of law, 175–78

generally, 173–98

jury instructions

end of case, 189–91

preliminary, 185–88

jury selection, 179–80

referrals to magistrate judges,

197–98

trial outline, 173–74

verdict, 193–95

voir dire questions, 181–83

CLERKS OF COURT

oath, 241–42

CLOSED HEARINGS, MOTIONS

decision by court, 237, 238

delinquency proceedings, 45

findings and order, 238–39

hearing, 237–38

notice of motion, 237

sealed order, 239

COMMITMENT TO ANOTHER

DISTRICT

arrest for failure to appear, 19

Crime Victims’ Rights Act, 19,

21, 22, 23

hearings, 21

probationer or supervised releasee, 22

removal proceedings, 19

setting bail, 21

COMPETENCY

defendants

arraignment, 30

joint representation of codefendants, 32

mental competency, 57

after acquittal for insanity,

61–62

bearing on sentence, 62–

64

to be sentenced, 62

civil commitment, 64–65

to commit crime charged,

60–61

to plead guilty, 59–60

to stand trial, 57–59

waiver of indictment, 25–27

waiver of jury trial, 35–36

juveniles, 50, 64

delinquency proceedings, 51

CONCLUSIONS OF LAW AND

FINDINGS OF FACT

civil proceedings

conclusions and findings

made from bench, 176–77

conclusions not required,

175–76

conclusions required, 175

dispositive motions, 176

form and substance, 176–78

adopting conclusions and

findings submitted by

counsel, 177

from bench, 176–77

if opinion or memorandum filed, 176

length and style of opinion, 177–78

preliminary injunction,

216

stipulations, 177

temporary restraining order, 212–13

judgment on partial findings,

175

magistrate judges, proposed

findings, 198

stipulations, 177

voluntary dismissal, 175
Index

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 261

criminal proceedings

form, 91

plea taking

defendant, 80

organization, 85

release or detention pending

trial, 12–14

sentencing, 141–48

waiver of jury trial, 38

when required, 91

delinquency proceedings, 51

magistrate judge, referral of

criminal matters to, 67–70

CONFIDENTIALITY

closed hearings, 237–39

grand jury, 230–31

CONFLICTS OF INTEREST

see JOINT REPRESENTATION

OF CODEFENDANTS

CONTEMPT

civil contempt

background, 207

burden of proof, 209

controlling statute and rule,

207

procedure, 208–10

recalcitrant witnesses, 163–67

right to counsel, 208–09

right to trial, 209

criminal contempt

background, 199

behavior not observed by

court, 203–05

behavior personally observed

by court, 200–03

controlling statute and rule,

199

disposition upon notice and

hearing, 199–200

procedures, 200

recalcitrant witnesses, 163–67

right to counsel, 204

right to trial, 200, 204–05

summary disposition, 200

CORPORATIONS

see ORGANIZATIONS

COUNSEL

see RIGHT TO COUNSEL

CRIERS (BAILIFFS)

oath, 242, 243

CRIME VICTIMS’ RIGHTS ACT

arraignment, 29

assignment of counsel, 5

criminal trial, 87

death penalty, 123, 131

initial appearance, 1

joint representation of codefendants, 31

jury selection, 93

mental competency of defendant, 57, 64

motions, trial and post-trial, 113

offense committed in another

district, 15

pleas

defendant, 29, 72, 80, 81

organization, 83, 85

release or detention pending

sentence or appeal, 119, 121,

122

release or detention pending

trial, 9, 10

removal proceedings (commitment to another district), 19,

21, 22, 23

revocation of probation or supervised release, 151–52

sentencing, 144

speedy trial, 41, 43, 44

verdict, criminal, 109, 110

voir dire, 97

waiver of indictment, 25, 27

waiver of jury trial, 35

CRIMINAL CASES

findings of fact and conclusions

of law, 91

end of case, 105–07

preliminary, 101–04
Index

262 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

CRIMINAL CASES (continued)

jury instructions

jury selection, 93–96

mistrial, motion for, 169–70

plea taking

defendant, 71–81

organization, 83–85

pretrial, 1–70

release or detention pending

sentence or appeal, 119–22

revocation of probation or supervised release, 151–56

sentencing

death penalty, 123–37

generally, 139–49

see also SENTENCING

special trial problems, 157–70

trial and post-trial motions, 113–

16

trial outline, 87–89

verdict, 109–11

voir dire questions, 97–99

DEATH PENALTY PROCEDURES

after verdict or plea, 129–34

aggravating factors, 125, 131–

32

exhibits, use of, 130

generally, 123–37

hearing, 130–31

jury

discharging alternates,

129, 134

excusing jurors, 128

impaneling, 126

instructions to, 129–31

sentencing form for, 135–

36

verdict, 134

mitigating factors, 132–33

sentencing, 134

form, 135–36

trial transcript, use of, 130

before and during trial, 124–29

appointment of counsel, 124–

25

jurors

alternates, 129, 134

excusing for cause, 128

explanation of decision

process to, 126–28

selection, 128

voir dire, 128–29

notice of intent to seek death

penalty, 125

Crime Victims’ Rights Act, 123,

131

form for sentencing findings,

135–36

DEFENDANTS

allocution at sentencing, 62, 144,

154

appearances, initial, 1–2

arraignment, 29–30

bail

see RELEASE OR DETENTION

capital cases

see DEATH PENALTY

PROCEDURES

commitment to another district,

19–23

competency

see COMPETENCY

conflicts of interest

see JOINT REPRESENTATION

OF CODEFENDANTS

counsel, assignment of, 5–7

criminal contempt, 199–205

disruptive behavior, 157–58

exclusion or removal from

courtroom, 157–58

extradition, 233–34

indictment, waiver of, 25–27

initial appearance, 1–2

joint representation of codefendants, 31–34

juveniles

see DELINQUENCY

PROCEEDINGS

mental competency, 57–65
Index

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 263

motions

for mistrial, 169–70

trial and post-trial, 113–16

oath, 72

form, 243

offense committed in another

district, 15–17

pleas

defendants, 71–81

organizations, 83–85

see also PLEAS

pro se representation, 5–7

probation

see REVOCATION OF

PROBATION OR

SUPERVISED RELEASE

release or detention

see RELEASE OR DETENTION

removal proceedings, 19–23

right to counsel

see RIGHT TO COUNSEL

right to trial, 78

sentencing, 139–49

setting bail

see SETTING BAIL

Speedy Trial Act, 41–44

supervised release

see REVOCATION OF

PROBATION OR

SUPERVISED RELEASE

waiver of counsel, 6–7

waiver of jury trial

generally, 35–38

preliminary questions of defendant, 36–37

DELINQUENCY PROCEEDINGS

admissions

determining awareness of

consequences of admissions, 51

taking admission or denial, 52

voluntariness of admission,

51–52

arraignment of juvenile, 49

calendar of events, 55

closed hearings, 45

competency of juveniles

generally, 64

to make admission, 50

detention prior to disposition,

53

disposition

hearing, 54

judgment following hearing,

54

observation and study, 55

options of court, 53–54

sentence, 54

timing of hearing, 54

under Federal Juvenile Delinquency Act, 47

electing to proceed as adult or

juvenile, 47

findings, 52

hearing, 54

indictment, 46

information, 46

jurisdiction of court, 45

Juvenile Delinquency Act, 47

juvenile records, 53

mental competency, 64

preliminary procedures, 45

proceeding as adult

mandatory, 49

motion by Attorney General,

48

record of proceedings

findings for the record, 52–53

juvenile records, 53

rights of adults, 46

rights of juveniles, 46

sentence, 54

time limits

calendar of events, 55

hearings, 54

trial by jury, 46, 51

DEPARTURES

see SENTENCING

DEPOSITIONS 

oath, 243
Index

264 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

DEPUTY CLERKS OF COURT

oath, 241–42

DETENTION

see RELEASE OR DETENTION

DISRUPTIVE DEFENDANT

exclusion or removal from

courtroom, 157–58

pro se defendant, 158

DRUG OFFENDERS, SENTENCING

see SENTENCING

EVIDENCE

burden of proof, jury instructions

civil proceedings, 185–86

criminal proceedings, 101–02

grand jury

oral testimony of witnesses

and written documents,

225–26

hearsay testimony, 227

EXCLUDING PUBLIC FROM

COURT PROCEEDINGS

burden of proof, 237–38

closure upon court’s motion,

237

decision by court, 238

findings and order, 238–39

hearing, 237

EXTRADITION

magistrate judge role, 70

procedure, 233–34

FIFTH AMENDMENT

procedure when invoked by

witness, 161–62

recalcitrant witnesses, invalid

claim, 163–67

FINDINGS OF FACT

see CONCLUSIONS OF LAW

AND FINDINGS OF FACT

FINES

civil contempt, 209

criminal contempt, 201–05

sentencing, 144

FORFEITURE

final order, 145, 148

preliminary order after guilty

plea, 81

FOREIGN EXTRADITION

PROCEEDINGS, PROCEDURE,

233–34

FOREIGN NATIONALS, RIGHT TO

CONSULAR NOTIFICATION

after arrest, 1

removal proceedings (commitment to another district), 20

FORMS

oaths

see OATHS

waiver of indictment, 25–27

waiver of jury trial, 35–38, 39

GRAND JURY

alternates, 219

charge to jury, 222–32

closed hearings, 230–31

deliberations, 227–29

evidence

grants of immunity, 159

oral testimony of witnesses

and written documents,

225–27

foreperson

appointment, 221

duties, 225, 228

oath, 243

hearsay testimony, 227

independence, 222–23, 229–30

length of term, 219–20

nature and duties, 222–25

number of members, 219

oath, 221–22, 244

opening statement to, 220

panel, 219

powers, limitation on, 223–24

preliminary matters, 219–22

procedures, 224–25, 227–29

quorum, 219, 223

secrecy, 230–31
Index

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 265

selection

generally, 219–32

and oath, 221–22

special grand jury, 220, 231–32

tasks and procedures, 224–25

term, 219–20

U.S. attorney, role of, 224, 229

voir dire, 221

voting, 227–29

witnesses, 225–27

assistance of counsel, 226

grants of immunity, 159

questioning, 225

recalcitrant witnesses, 165–67

GRANTS OF IMMUNITY

procedure, 159–60

relevant statutes, 159

sealed order, 160

GUILTY PLEAS

mental competency, 59–60

offenses committed in another

district, 16

preliminary order of forfeiture,

81

taking plea

defendants, 71–81

organizations, 83–85

see also PLEAS

HEARINGS

arraignment, 29–30

closed, 45, 237–39

commitment to another district,

16

contempt

civil, 208–09

criminal, 204

recalcitrant witness, 163

death penalty cases, 130

extradition proceedings, 233–34

identity, 21

juveniles, 45–48, 56

mental competency, 57–59

offense committed in another

district, 20

plea, 72, 83

preliminary injunctions, 214

release or detention pending

sentence or appeal, 120

release or detention pending

trial, 9

revocation of probation or supervised release, 151

temporary restraining order, 212

waiver of indictment, 25

waiver of jury trial, 36

waiver of right to counsel, 6

HEARSAY TESTIMONY,

before grand jury, 227

IMMIGRATION

naturalization proceedings, 235–

36

IMMUNITY, GRANTS OF

procedures, 159–60

relevant statutes, 159

INDICTMENTS

delinquency proceedings, 49

finding and order, 27

right to counsel, 25–26

Speedy Trial Act, time limit for

filing indictment, 42

waiver, 25–27

offense committed in another

district, 16

INFORMATION

delinquency proceedings, 49

Speedy Trial Act, time limit for

filing, 42

INITIAL APPEARANCE

Crime Victims’ Rights Act, 1

in criminal proceedings, 1–3

offenses committed in another

district, 15

video teleconference, 1

INJUNCTIONS, 211–17

see also PRELIMINARY

INJUNCTIONS and

TEMPORARY RESTRAINING

ORDERS
Index

266 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

INSANITY

mental competency in criminal

matters, 57–65

notification of defense, 61

INSTRUCTIONS

see JURY INSTRUCTIONS

INTERPRETERS

appointment of certified interpreters, 1, 5, 9, 15, 19, 25, 29,

32, 36, 46, 72, 225

in grand jury room, 230

interpreter for deaf juror, 245

oath, 244, 245

INVOKING THE FIFTH

AMENDMENT

procedures, 161–62

recalcitrant witnesses, 163

JOINT REPRESENTATION OF

CODEFENDANTS

competency, determining, 32

Crime Victims’ Rights Act, 31

disadvantages, 33

hearing, 31

pretrial, 31–34

sentencing, 34

trial, 34

waiver, 34

JUDGES, OATH, 247

JUDGMENTS

arrest of judgment motion, 116

civil verdicts, 193–95

revocation of probation, 154–55

revocation of supervised release,

156

sentencing, entry of, 148

JURISDICTION

delinquency proceedings, 45

offense committed in another

district, 15

removal proceedings, 22

venue

see VENUE

JURORS

alternate jurors, 88, 126, 129, 134

grand jurors

see GRAND JURY

oath, 243, 245

see also JURY SELECTION and

VOIR DIRE

JURY INSTRUCTIONS

civil proceedings

burden of proof, 186, 190

conduct of jury, 187

course of trial, 188

deadlocked jury, 89, 174

deliberation, 190–91

duty of jury, 185, 190

evidence, 185–86, 190

general instructions to jury at

end of case, 189–91

law of circuit, 190

note taking, 187–88

preliminary instructions,

185–88

settling upon court’s instructions to jury, 189–90

summary of applicable law,

187

transcript of, 91

verdict, 191

criminal proceedings

applicable law, summary of,

103, 107

burden of proof, 102, 106

conduct of jury, 103

course of trial, 104

deadlocked jury, 89, 174

deliberations, 107

duty of jury, 101, 106

evidence, 101–02, 106

foreperson, selection and

duty, 107

general instructions at end of

case, 105–08

jury procedure, 107

note taking, 103

preliminary instructions,

101–04

rules for criminal cases, 102
Index

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 267

settling upon court’s instructions to jury, 105

verdict, 107

written copy or transcript,

105, 107

JURY SELECTION

alternate jurors, 88, 126, 129, 134

Batson challenges, 93–94, 179–

80

civil proceedings, 179–80

peremptory challenges, 179

Crime Victims’ Rights Act, 93

criminal proceedings, 93–96

anonymous juries, 95–96

peremptory challenges, 93

voir dire

civil proceedings, 181–83

criminal proceedings, 97–99

JURY TRIAL

communications during deliberation, 88, 174

trial outline

civil, 173–74

criminal, 87–90

waiver, 35–39

form, 38

hearing, 36

JUSTICES AND JUDGES, OATH,

247

JUVENILE DELINQUENCY ACT

closed hearings, 45

delinquency proceedings

see DELINQUENCY

PROCEEDINGS

disposition under, 47

MAGISTRATE JUDGES

oath, 247

referring civil matters to, 197–98

referring criminal matters to,

67–70

MASTERS, OATH, 245

MENTAL COMPETENCY,

CRIMINAL MATTERS, 57–65

acquittal by reason of insanity,

61–62

bearing on sentence, 62–64

to be sentenced, 62

civil commitment, 64–65

to commit the crime charged,

60–61

Crime Victims’ Rights Act, 57, 64

to plead guilty, 59–60

to stand trial, 57–59

MINORS, DELINQUENCY

PROCEEDINGS

see DELINQUENCY

PROCEEDINGS

MOTIONS

civil

dispositive motions, 176

findings of fact and conclusions of law, 175–78

judgment on partial findings,

175

preliminary injunction, 214–

17

temporary restraining order,

211–13

voluntary dismissal, 175

criminal

acquittal, 113

arrest of judgment, 116

closed hearings, 237–39

Crime Victims’ Rights Act,

113

grant of immunity, 159–60

mistrial, 169–71

new trial, 114–15

NATURALIZATION PROCEEDINGS

oath, 235–36, 246

procedure, 235–36

NEW TRIAL, MOTION FOR, 114–15

NOLO CONTENDERE

court’s discretion in accepting

plea, 79

offenses committed in another

district, 16

taking plea

defendants, 72–80

organizations, 83–85
Index

268 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

NOTICE

closed hearings, motion to exclude public, 237–39

preliminary injunction, 214

sentencing, right to appeal, 146–

47

temporary restraining order,

211–12

OATHS

affirmation in lieu of, 241

allegiance, 246

attorneys, 241

clerks and deputies, 241

criers (bailiffs), 242

defendants, 243

depositions, 243

grand jury, 244

foreperson, 243

guides, 242

interpreters, 244

for deaf jurors, 245

jurors, 245

justices and judges, 247

magistrate judges, 247

masters, 245

public officials, 247

reporters, 246

stenographers, 246

table of authorities, 248–49

venirepersons, 244

witnesses, 246

OFFENSE COMMITTED IN

ANOTHER DISTRICT

consent colloquy, 15–16

Crime Victims’ Rights Act, 15

preliminary procedure, 15

OPINIONS

findings of fact and conclusions

of law

civil cases, 175–78

criminal cases, 91

ORDERS

closed hearings, 238–39

commitment to another district

(order of removal), 21, 23

contempt proceedings, 202–03,

210

grants of immunity, 159–60

preliminary injunction, 216

revocation of supervision, 156

temporary restraining order,

212–13

waiver of indictment, 25–27

ORGANIZATIONS

pleas of guilty or nolo contendere, 83–85

right to counsel, 84

PEREMPTORY CHALLENGES

Batson challenges, 93–94, 183–

84

civil, 183–84

criminal, 93–94

death penalty, additional challenges, 126

PLEAS

arraignment, 29–30

Crime Victims’ Rights Act, 29,

72, 80, 81, 83, 85

forfeiture, preliminary order, 81

guilty or nolo contendere, 71–81,

83–85

accepting or rejecting a plea,

80

Alford plea, 79

competence of defendant to

plead, 59–60, 73

maximum penalty, 75–76, 84

nature of charges, 79

nolo contendere, 79, 85

offenses committed in another district, 15–17

organizations, 83–85

plea agreements, 73–74, 77–

80, 85

deferring acceptance of, 71

possible consequences of

plea, 75–76

preliminary questions, 73

presentence report, 80–81,

139–42, 147
Index

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 269

release or detention pending

sentencing, 81

restitution, 76, 84

right to counsel, 72

Sentencing Guidelines effect,

76–77

special assessment, 76

stipulations, 74

supervised release, 76

voluntariness of plea and plea

agreement, 73–75

waiver of appeal, 77–78

not guilty plea, 78

POLLING THE JURY

see VERDICTS

POST-TRIAL MOTIONS

acquittal, 113–14

arrest of judgment, 116

new trial, 114–16

PRELIMINARY HEARINGS

during removal proceeding, 21,

22

informing defendant of right to,

2, 20

juvenile defendant, 46

revocation of probation or supervised release proceeding,

152

see also HEARINGS

PRELIMINARY INJUNCTIONS

advance with trial on the merits,

215–16

burden of proof, 214

decision and findings, 216

hearing, 214

notice, 14

order, 175

prehearing, 215

security, 217

PRESENTENCE INVESTIGATION

REPORTS, 71, 81, 139–42, 147

PRESUMPTION OF INNOCENCE,

102, 106

PRETRIAL INVESTIGATIONS

see JOINT REPRESENTATION

OF CODEFENDANTS

PROBATION

see REVOCATION OF

PROBATION OR SUPERVISED

RELEASE

PRO SE REPRESENTATION

defendant’s waiver colloquy, 6–7

right to self-representation, 5–7

standby counsel, 7

RECALCITRANT WITNESSES

before grand jury, 165–67

during trial, 163–65

hearing, 164–65, 167

sanctions, 163, 167

RECORD OF PROCEEDINGS

civil cases and motions, 175–76

criminal cases and motions, 91

delinquency proceedings, 52–53

preliminary injunction, 217

temporary restraining order, 213

RELEASE OR DETENTION

pending appeal

Crime Victims’ Rights Act,

121, 122

by defendant, 120–21

by government, 121–22

pending sentence, 81, 119–20

Crime Victims’ Rights Act,

119

pending trial, 9–14

Crime Victims’ Rights Act, 9,

10

see also SETTING BAIL

REMOVAL PROCEEDINGS

see COMMITMENT TO

ANOTHER DISTRICT

REPORTERS

oath, 246

RETRIAL

motion for new trial, 114–16

Speedy Trial Act, 43
Index

270 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

REVOCATION OF PROBATION OR

SUPERVISED RELEASE

admissions, 153

allocution, 154

Crime Victims’ Rights Act, 151–

52

denial of alleged violations, 153

judgment or order, 156

mandatory revocation, 151, 153,

155

pre-Guidelines probation, 155

preliminary hearing, 152

reimposition of supervised release, 156

role of magistrate judge, 69–70,

152

sentencing options, 154–56

standard of proof, 153

RIGHT TO APPEAL

sentence, notice of, 77–78, 146–

47

waiver of, 77–78, 146

RIGHT TO COUNSEL

arraignment, 30

assignment of counsel or pro se 

representation, 5–7

commitment to another district,

20

contempt proceedings, 202, 204,

208–09

Crime Victims’ Rights Act, 5

delinquency proceedings, 46

financial affidavit, 5

initial appearance, 1

joint representation of codefendants, 31–32, 34

juveniles, 46

offense committed in another

district, 16

organizations, 84

recalcitrant witness, 164–65, 167

taking pleas of guilty or nolo

contendere, 72

waiver of, 6–7

waiver of indictment, 25–26

RIGHT TO TRIAL

contempt proceedings, 200–01,

204, 208–09

juveniles, 46

organizations, 84

taking pleas of guilty or nolo

contendere, 78

waiver of, 35–38

SECURITY

preliminary injunction, 217

temporary restraining order, 213

SELF-INCRIMINATION

invoking Fifth Amendment, 161–

62

recalcitrant witness, 163, 166

SENTENCING

allocution by defendant, 144,

154

contempt

civil, 209

criminal, 201–02, 204–05

recalcitrant witnesses, 163–67

Crime Victims’ Rights Act, 144

non-guidelines sentence (variance), 139, 140, 143, 145, 148

sentencing procedure

allocution, 144

appeal of sentence

notice, 146–47

waiver, 77–78, 146

departure, 139, 142–43

entry of judgment, 148

evidentiary hearing, 141

factual disputes, 141–42

fine, 144

forfeiture, 145, 148

hearing, 140

joint representation of codefendants, 34

judgment, entry, 148

mental competency, 62–63

notice

departure, 140

right to appeal, 147

plea agreement, 141, 146
Index

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 271

presentence reports, 80, 85,

139–41

copies of, 147

information not revealed

to defendant, 141

release or detention after imposition of sentence, 119–

22, 147

restitution, 144–45

statement of reasons, 146,

148

transcript or written record,

147

victim statement, 144

juvenile cases

disposition, 53–54

sentence, 54

misdemeanors, magistrate judge

authority, 68

pre-Guideline Sentencing revocation of probation, 155

revocation of probation, 154–55

revocation of supervised release,

155–56

SETTING BAIL

bail inquiry, 10–12

commitment to another district,

21

delinquency proceedings, 46

findings, 13, 14

initial appearance by defendant,

2

magistrate judge role, 68

preliminary questions, 9

pretrial detention, 14

release or detention

after imposition of sentence,

119–20

pending appeal, 120–22

pending sentencing, 81

removal proceedings, 21

secured or surety bond, 11

setting conditions, 12–13

temporary detention, 13–14

SPEEDY TRIAL

basic time limits, 42

indictment or information, 42

retrial, 43

trial, 42–43

commencement limitations, 43

Crime Victims’ Rights Act, 41,

43, 44

dismissal

excludable periods, 43–44

failure to comply with time 

limits, 41

waiver by defendant, 41–42

STENOGRAPHERS, OATH, 246

STIPULATIONS, FINDINGS OF

FACT, CIVIL CASE, 177

SUPERVISED RELEASE

see REVOCATION OF

PROBATION OR SUPERVISED

RELEASE

TEMPORARY RESTRAINING

ORDER

contents of order, 212–13

controlling rule, 211

expiration, 212

findings of fact and conclusions

of law, 211

granting without notice, 211–12

hearing record, 213

motion for dissolution after notice, 213

notice, 211–12

requirements for granting, 211–

12

security, 213

TIME LIMITS

arrest of judgment motion, 116

delinquency proceedings

calendar of events, 55–56

hearings, 54

judgment of acquittal motion,

113

naturalization proceedings, 235
Index

272 ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007)

TIME LIMITS (continued)

new trial motion, 114–15

speedy trial, 42–43

TRIAL

civil

findings of fact and conclusions of law, 175–78

jury instructions, 185–88,

189–91

jury selection, 179–80, 181–83

outline, 173–74

verdict, 193–95

criminal

Crime Victims’ Rights Act, 87

disruptive defendants, 157–58

Fifth Amendment claims,

161–62

findings of fact and conclusions of law, 91

grants of immunity, 159–60

jury instructions, 101–04,

105–07

jury selection, 93–96, 97–99

capital cases, 126–29

outline, 87–89

recalcitrant witnesses, 163–67

trial and post-trial motions,

113–16

verdict, 109–11

mental competency to stand,

57–59

mistrial motion by criminal defendant, 169–70

new trial, motion for, 114–16

Speedy Trial Act, 42–43

TRIAL BY JURY

delinquency proceedings, 46

waiver of right, 35–38

form, 38

TRIAL OUTLINE

civil cases, 173–74

criminal cases, 87–89

VENUE

jurisdiction

see JURISDICTION

offense committed in another

district, 16–17

removal proceedings, 19, 22

VERDICTS

civil proceedings

polling jury, 174, 193–94

sealed verdicts, 194–95

unsealed verdicts, 193–94

criminal proceedings

Crime Victims’ Rights Act,

109, 110

polling jury, 89, 110, 111

sealed verdicts, 110–11

unsealed verdicts, 109–10

jury instructions

civil proceedings, 185–88,

189–91

criminal proceedings, 101–04,

105–07

VOIR DIRE

anonymous jury, 95–96

by magistrate judge, 69, 198

capital cases, 128–29

Crime Victims’ Rights Act, 97

grand jury, 221

oath, 244

standard questions

civil proceedings, 182–83

criminal proceedings, 98–99

WAIVERS

defendant’s waiver of counsel,

6–7

foreign extradition proceedings,

waiver of hearing, 233

indictment, 16, 25–27

Crime Victims’ Rights Act, 25,

27

jury trial, 35–38

Crime Victims’ Rights Act, 35

form, 38

of oath, 249

of right of appeal, 77–78

of right to separate counsel, 34

speedy trial, 41–42
Index

ʙeɴcʜʙook foʀ u.s. dɪstʀɪct couʀt judɢes (Sept. 2007) 273

WARRANTS

bench warrants, arrest for failure 

to appear, 23

foreign extradition proceedings,

233

WITNESSES

delinquency proceedings, 46–47

Fifth Amendment, invoking,

161–62

grand jury, 225–27

grants of immunity, 159–60

hearsay testimony, grand jury,

227

invoking Fifth Amendment, 161–

62

oath, 246

recalcitrant witnesses, 163–67