An Act to approve with modifications certain proposed amendments to the Federal Rules of Criminal Procedure, to disapprove other such proposed amendments, and for other related purposes.
PL 95-78 (H.R.5864), enacted 07/30/1977

PUBLIC LAW 95-78—JULY 30, 1977 
91 STAT. 319 
Public Law 95-78 
95th Congress 
An Act 
To approve with modifications certain proposed amendments to the Federal 
Rules of Criminal Procedure, to disapprove other such proposed amendments, 
and for other related purposes. 
Be it enacted 'by the Senate and House of Representatives 
of the 
United States of America 
in Congress a^semhled^ That notwithstand-
ing the first section of the Act entitled "An Act to delay the effective 
date of certain proposed amendments to the Federal Rules of Criminal 
Procedure and certain other rules promulgated by the United States 
Supreme Court" (Public Law 94-349, approved July 8, 1976) the 
amendments to rules 6(e), 23, 24, 40.1, and 41(c) (2) of the Eules of 
Criminal Procedure for the United States district courts which are 
embraced by the order entered by the United States Supreme Court 
on April 26,1976, shall take effect only as provided in this Act. 
SEC. 2. (a) The amendment proposed by the Supreme Court to 
subdivision (e) of rule 6 of such Rules of Criminal Prbcedure is 
approved in a modified form as follows: Such subdivision (e) is 
amended to read as follows: 
"(e) 
SECRECY OF PROCEEDINGS AND DISCLOSURE.— 
"(1) GENERAL RULE.—A grand juror, an interpreter, a stenog-
rapher, an operator of a recording device, a typist who transcribes 
recorded testimony, an attorney for the Government, or any per-
son to whom disclosure is made under paragraph (2) (A) (ii) of 
this subdivision shall not disclose matters occurring before the 
grand jury, except as otherwise provided for in these rules. No 
obligation of secrecy may be imposed on any person except in 
accordance with this rule. A knowing violation of rule 6 may be 
punished as a contempt of court. 
"(2) 
EXCEPTIONS.— 
"(A) Disclosure otherwise prohibited by this rule of mat-
ters occurring before the grand jury, other than its delibera-
'\ 
tions and the vote of any grand juror, may be made to— 
"(i) an attorney for the government for use in the 
performance of such attorney's duty; and 
"(ii) such government personnel as are deemed neces-
sary by an attorney for the government to assist an 
attorney for the government in the performance of such 
attorney's duty to enforce Federal criminal law. 
"(B) Any person to whom matters are disclosed under 
subparagraph (A) (ii) of this paragraph shall not utilize 
that grand jury material for any purpose other than assisting 
the attorney for the government in the performance of such 
attorney's duty to enforce Federal criminal law. An attorney 
for the government shall promptly provide the district court, 
before which was impaneled the grand jury whose material 
has been so disclosed, with the names of the persons to whom 
such disclosure has been made. 
"(C) Disclosure otherwise prohibited by this rule of mat-
ters occurring before the grand jury may also be made— 
July 30, 1977 
[H.R. 5864] 
Federal Rules of 
Criminal 
Procedure, 
proposed 
amendments. 
18 u s e 3771 
note. 
28 u s e 2071 
note. 
18 u s e app. 
18 u s e app. 
29-19'4 0 
91 STAT. 320 
PUBLIC LAW 95-78—JULY 30, 1977 
"(i) when so directed by a court preliminarily to or 
in connection with a judicial proceeding; or 
"(ii) when permitted by a court at the request of the 
defendant, upon a showing that grounds may exist for 
a motion to dismiss the indictment because of matters 
occurring before the grand jury. 
"(3) SEALED INDICTMENTS.—The Federal magistrate to whom 
an indictment is returned may direct that the indictment be kept 
secret until the defendant is in custody or has been released pend-
ing trial. Thereupon the clerk shall seal the indictment and no 
- 
person shall disclose the return of the indictment except when 
necessary for the issuance and execution of a warrant or 
summons.". 
" 
(b) The amendments proposed by the Supreme Court to subdivi-
18 use app. 
sions (b) and (c) of rule 23 of such Rules of Criminal Procedure are 
approved. 
(c) The amendment proposed by the Supreme Court to rule 24 of 
. 
. 
such Rules of Criminal Procedure is disapproved and shall not take 
effect. 
(d) The amendment proposed by the Supreme Court to such Rules 
of Criminal Procedure, adding a new rule designated as rule 40.1, 
is disapproved and shall not take effect. 
(e) The amendment proposed by the Supreme Court to subdivision 
(c) of rule 41 of such Rules of Criminal Procedure is approved in a 
modified form as follows: Such subdivision (c) of the Federal Rules 
of Criminal Procedure is amended— 
(1) by striking out 
"(c) 
ISSUANCE AND CONTENTS.—A warrant shall" and inserting in 
lieu thereof the following: 
"(c) ISSUANCE AND CONTENTS.— 
"(1) WARRANT UPON 
AFFIDAVIT.—A warrant 
other than 
a 
warrant upon oral testimony under paragraph (2) of this 
subdivision shall"; and 
(2) by adding at the end the following: 
"(2) WARRANT UPON ORAL TESTIMONY.— 
" ( A ) 
GENERAL RULE.—If the circumstances make it rea-
i; 
sonable to dispense with a written affidavit, a Federal magis-
trate may issue a warrant based upon sworn oral testimony 
:<; 
communicated by telephone or other appropriate means. 
" ( B ) 
APPLICATION.—The person who is requesting the 
warrant shall prepare a document to be known as a duplicate 
original warrant and shall read such duplicate original war-
rant, verbatim, to the Federal magistrate. The Federal 
magistrate shall enter, verbatim, what is so read to such 
o;; i 
magistrate on a document to be known as the oi'iginal warrant. 
'•<•.;•: 
The Federal magistrate may direct that the warrant be 
modified. 
"(C) ISSUANCE.—If the Federal magistrate is satisfied that 
the circumstances are such as to make it reasonable to dispense 
j: r 
with a written affidavit and that grounds for the application 
exist or that there is probable cause to believe that they exist, 
? 
the Federal magistrate shall order the issuance of a warrant 
by directing the person requesting the warrant to sign the 
Federal magistrate's name on the duplicate original warrant. 
The Federal magistrate shall immediately sign the original 
warrant and enter on the face of the original warrant the 
exact time when the warrant was ordered to be issued. The 
PUBLIC LAW 95-78—JULY 30, 1977 
91 STAT. 321 
finding of probable cause for a warrant upon oral testimony 
may be based on the same kind of evidence as is sufficient for 
a warrant upon affidavit. 
" ( D ) 
RECORDING AND CERTIFICATION OF TESTIMONY.—^Wben 
a caller informs the Federal magistrate that the purpose of 
the call is to request a warrant, the Federal magistrate shall 
immediately place under oath each person whose testimony 
forms a basis of the application and each person applying 
for that warrant. If a voice recording device is available, the 
Federal magistrate shall record by means of such device all of 
the call after the caller informs the Federal magistrate that 
the purpose of the call is to request a warrant. Otherwise a 
stenographic or longhand verbatim record shall be made. If 
a voice recording device is used or a stenographic record 
made, the Federal magistrate shall have the record tran-
scribed, shall certify the accuracy of the transcription, and 
shall file a copy of the original record and the transcription 
with the court. If a longhand verbatim record is made, the 
Federal magistrate shall file a signed copy with the court. 
" ( E ) CONTENTS.—^The contents of a warrant upon oral 
testimony shall be the same as the contents of a warrant upon 
affidavit. 
" ( F ) 
ADDITIONAL RULE FOR EXECUTION.—The person 
who 
executes the warrant shall enter the exact time of execution on 
the face of the duplicate original warrant. 
"(G) 
MOTION TO SUPPRESS PRECLUDED,—Absent a finding of 
bad faith, evidence obtained pursuant to a warrant issued 
under this paragraph is not subject to a motion to suppress 
on the ground that the circumstances were not such as to 
make it reasonable to dispense with a written affidavit.". 
SEC. 3. Section 1446 of title 28 of the United States Code is amended 
as follows: 
(a) Subsection (c) is amended to read as follows: 
"(c) (1) A petition for removal of a criminal prosecution shall be Removal petition, 
filed not later than thirty days after the arraignment in the State court, 
or at any time before trial, whichever is earlier, except that for good 
cause shown the United States district court may enter an order 
granting the petitioner leave to file the petition at a later time. 
"(2) A petition for removal of a criminal prosecution shall include 
all grounds for such removal. A failure to state grounds which exist at 
the time of the filing of the petition shall constitute a waiver of such 
grounds, and a second petition may be filed only on grounds not 
existing at the time of the original petition. For good cause shown, the 
United States district court may grant relief from the limitations of 
this paragraph. 
"(3) The filing of a petition for removal of a criminal prosecution 
shall not prevent the State court in which such prosecution is pending 
from proceeding further, except that a judgment of conviction shall 
not be entered unless the petition is first denied. 
"(4) The United States district court to which such petition is 
directed shall examine the petition promptly. If it clearly appears on 
the face of the petition and any exhibits annexed thereto that the 
petition for removal should not be granted, the court shall make an 
order for its summary dismissal. 
" (5) If the United States district court does not order the summary Hearing. 
dismissal of such petition, it shall order an evidentiary hearing to be 
held promptly and after such hearing shall make such disposition of 
91 STAT. 322 
PUBLIC LAW 95-78—JULY 30, 1977 
the petition as justice shall require. If the United States district court 
determines that such petition shall be granted, it shall so notify the 
State court in which prosecution is pending, which shall proceed no 
further.". 
(b) Subsection (e) is amended by striking out "such petition" and 
inserting "such petition for the removal of a civil action" in lieu 
thereof. 
Effective dates. 
SEC. 4. (a) The first section of this Act shall take effect on the date 
18 use 3771 
of the enactment of this Act. 
note. 
(b) Sections 2 and 3 of this Act shall take effect October 1, 1977. 
Approved July 30, 1977. 
LEGISLATIVE HISTORY: 
HOUSE REPORT No. 95-195 (Comm. on the Judiciary). 
SENATE REPORT No. 95-354 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD, Vol. .123 (1977): 
Apr. 19, considered and passed House. 
July 25, considered and passed Senate, amended. 
July 27, House concurred in Senate amendment.