b'\x0cTable of Contents\nForeword ..................................................................................................................................... 5\nAbout the Legal Information Institute ........................................................................................ 6\nKeep This E-book Free: Donate ................................................................................................. 6\nAbout CALI eLangdell Press ...................................................................................................... 7\nCopyright and Disclaimer Notices .............................................................................................. 8\nFederal Rules of Criminal Procedure .......................................................................................... 9\nTITLE I. APPLICABILITY ..................................................................................................... 10\nRule 1. Scope; Definitions .................................................................................................... 10\nRule 2. Interpretation ............................................................................................................ 14\nTITLE II. PRELIMINARY PROCEEDINGS .......................................................................... 16\nRule 3. The Complaint .......................................................................................................... 16\nRule 4. Arrest Warrant or Summons on a Complaint ........................................................... 17\nRule 4.1 Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means\n............................................................................................................................................... 24\nRule 5. Initial Appearance .................................................................................................... 27\nRule 5.1 Preliminary Hearing ............................................................................................... 37\nTITLE III. THE GRAND JURY, THE INDICTMENT, AND THE INFORMATION .......... 43\nRule 6. The Grand Jury ......................................................................................................... 43\nRule 7. The Indictment and the Information ......................................................................... 67\nRule 8. Joinder of Offenses or Defendants ........................................................................... 72\nRule 9. Arrest Warrant or Summons on an Indictment or Information ................................ 73\nTITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL ....................................... 78\nRule 10. Arraignment............................................................................................................ 78\nRule 11. Pleas (effective December 1, 2013) ....................................................................... 81\nRule 12. Pleadings and Pretrial Motions............................................................................. 112\nRule 12.1 Notice of an Alibi Defense ................................................................................. 124\nRule 12.2 Notice of an Insanity Defense; Mental Examination ......................................... 128\nRule 12.3 Notice of a Public-Authority Defense ................................................................ 139\nRule 12.4 Disclosure Statement .......................................................................................... 141\nRule 13. Joint Trial of Separate Cases ................................................................................ 143\nRule 14. Relief from Prejudicial Joinder ............................................................................ 143\nRule 15. Depositions ........................................................................................................... 144\nRule 16. Discovery and Inspection (effective December 1, 2013) ..................................... 153\nRule 17. Subpoena .............................................................................................................. 177\nRule 17.1 Pretrial Conference ............................................................................................. 181\nTITLE V. VENUE .................................................................................................................. 183\nRule 18. Place of Prosecution and Trial.............................................................................. 183\nRule 19. [Reserved] ............................................................................................................ 187\nRule 20. Transfer for Plea and Sentence ............................................................................. 187\nRule 21. Transfer for Trial .................................................................................................. 190\nRule 22. [Transferred] ......................................................................................................... 193\nTITLE VI. TRIAL .................................................................................................................. 194\nRule 23. Jury or Nonjury Trial ............................................................................................ 194\nRule 24. Trial Jurors ........................................................................................................... 198\n2\n\n\x0cRule 25. Judge\'s Disability.................................................................................................. 201\nRule 26. Taking Testimony................................................................................................. 203\nRule 26.1 Foreign Law Determination ............................................................................... 204\nRule 26.2 Producing a Witness\'s Statement........................................................................ 206\nRule 26.3 Mistrial ............................................................................................................... 210\nRule 27. Proving an Official Record................................................................................... 210\nRule 28. Interpreters............................................................................................................ 213\nRule 29. Motion for a Judgment of Acquittal ..................................................................... 214\nRule 29.1 Closing Argument .............................................................................................. 218\nRule 30. Jury Instructions ................................................................................................... 219\nRule 31. Jury Verdict .......................................................................................................... 221\nTITLE VII. POST-CONVICTION PROCEDURES .............................................................. 224\nRule 32. Sentencing and Judgment ..................................................................................... 224\nRule 32.1 Revoking or Modifying Probation or Supervised Release ................................. 252\nRule 32.2 Criminal Forfeiture ............................................................................................. 259\nRule 33. New Trial .............................................................................................................. 273\nRule 34. Arresting Judgment .............................................................................................. 275\nRule 35. Correcting or Reducing a Sentence ...................................................................... 277\nRule 36. Clerical Error ........................................................................................................ 287\nRule 37. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal... 287\nRule 38. Staying a Sentence or a Disability ........................................................................ 289\nRule 39. [Reserved] ............................................................................................................ 293\nTITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS .................................. 294\nRule 40. Arrest for Failing to Appear in Another District or for Violating Conditions of\nRelease Set in Another District ........................................................................................... 294\nRule 41. Search and Seizure ............................................................................................... 302\nRule 42. Criminal Contempt ............................................................................................... 326\nTITLE IX. GENERAL PROVISIONS ................................................................................... 330\nRule 43. Defendant\'s Presence ............................................................................................ 330\nRule 49. Serving and Filing Papers..................................................................................... 335\nRule 44. Right to and Appointment of Counsel.................................................................. 338\nRule 45. Computing and Extending Time .......................................................................... 345\nRule 46. Release from Custody; Supervising Detention .................................................... 353\nRule 47. Motions and Supporting Affidavits ...................................................................... 359\nRule 48. Dismissal .............................................................................................................. 360\nRule 49.1 Privacy Protection For Filings Made with the Court ......................................... 361\nRule 50. Prompt Disposition ............................................................................................... 364\nRule 51. Preserving Claimed Error ..................................................................................... 367\nRule 52. Harmless and Plain Error ..................................................................................... 368\nRule 53. Courtroom Photographing and Broadcasting Prohibited ..................................... 369\nRule 54. [Transferred] 1 ...................................................................................................... 370\nRule 55. Records ................................................................................................................. 370\nRule 56. When Court Is Open ............................................................................................. 372\nRule 57. District Court Rules .............................................................................................. 373\nRule 58. Petty Offenses and Other Misdemeanors ............................................................. 375\nRule 59. Matters Before a Magistrate Judge ....................................................................... 382\n3\n\n\x0cRule 60. Victim\'s Rights ..................................................................................................... 384\nRule 61. Title ...................................................................................................................... 386\n\n4\n\n\x0cForeword\nThe Legal Information Institute at the Cornell Law School (LII) and Center for\nComputer-Assisted Legal Instruction (CALI) are longtime allies with oft-overlapping values.\nChief among them is the shared belief that primary law belongs to the public: not to states,\ngovernments, or corporations; but to you.\nLII embodies this philosophy, having started the free law movement on the Internet in\n1992. Still the most respected free legal information website, LII hosts the premier online versions\nof several federal rules collections. CALI, through its eLangdell Press, is unlocking the legal\ncasebook by publishing open, flexible, and free e-books for legal education. 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This material is covered by a Creative Commons license, viewable at:\nhttp://creativecommons.org/licenses/by-nc-sa/2.5/\nIn brief, the terms of that license are that you may copy, distribute, and display this work,\nor make derivative works, so long as\na) you give the LII and CALI credit;\nb) you do not use this work for commercial purposes; and\nc) you distribute any works derived from this one under the same licensing terms as this.\nPotential commercial users/licensors should contact us at: lii@lii.law.cornell.edu\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered trademarks owned by the\nCenter for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of LII,\nall rights reserved. The LII, CALI, and Cornell Law School graphical logos are trademarks of their\nrespective organizations and may not be used without permission.\nShould you create derivative works based on the text of this book or other Creative\nCommons materials therein, you may not use this book\xe2\x80\x99s cover art and the aforementioned logos,\nor any derivative thereof, to imply endorsement or otherwise without written permission from LII\nand CALI.\n\n8\n\n\x0cFederal Rules of Criminal Procedure\n(As amended to December 1, 2014)\nHistorical Note\nThe original Federal Rules of Criminal Procedure were adopted by order of the Supreme\nCourt on Dec. 26, 1944, transmitted to Congress by the Attorney General on Jan. 3, 1945, and\nbecame effective on Mar. 21, 1946.\nThe Rules have been amended Dec. 27, 1948, eff. Jan. 1, 1949; Dec. 27, 1948, eff. Oct. 20,\n1949; Apr. 12, 1954, eff. July 1, 1954; Apr. 9, 1956, eff. July 8, 1956; Feb. 28, 1966, eff. July 1,\n1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 24, 1972, eff. Oct. 1,\n1972; Nov. 20, 1972, eff. July 1, 1975, pursuant to Pub. L. 93\xe2\x80\x93595; Mar. 18, 1974, eff. July 1,\n1974; Apr. 22, 1974, eff. in part Aug. 1, 1975, and Dec. 1, 1975, pursuant to Pub. L. 93\xe2\x80\x93361 and\nPub. L. 94\xe2\x80\x9364; Dec. 12, 1975, Pub. L. 94\xe2\x80\x93149, \xc2\xa75, 89 Stat. 806; Apr. 26, 1976, eff. in part Aug. 1,\n1976, and Oct. 1, 1977, pursuant to Pub. L. 94\xe2\x80\x93349 and Pub. L. 95\xe2\x80\x9378; Apr. 30, 1979, eff. in part\nAug. 1, 1979, and Dec. 1, 1980, pursuant to Pub. L. 96\xe2\x80\x9342; Apr. 28, 1982, eff. Aug. 1, 1982; Oct.\n12, 1982, Pub. L. 97\xe2\x80\x93291, \xc2\xa73, 96 Stat. 1249; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, Pub.\nL. 98\xe2\x80\x93473, title II, \xc2\xa7\xc2\xa7209, 215, 404, 98 Stat. 1986, 2014, 2067; Oct. 30, 1984, Pub. L. 98\xe2\x80\x93596,\n\xc2\xa711(a), (b), 98 Stat. 3138; Apr. 29, 1985, eff. Aug. 1, 1985; Oct. 27, 1986, Pub. L. 99\xe2\x80\x93570, title I,\n\xc2\xa71009(a), 100 Stat. 3207\xe2\x80\x938; Nov. 10, 1986, Pub. L. 99\xe2\x80\x93646, \xc2\xa7\xc2\xa712(b), 24, 25(a), 54(a), 100 Stat.\n3594, 3597, 3607; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988,\nPub. L. 100\xe2\x80\x93690, title VI, \xc2\xa76483, title VII, \xc2\xa7\xc2\xa77076, 7089(c), 102 Stat. 4382, 4406, 4409; Apr. 25,\n1989, eff. Dec. 1, 1989; May 1, 1990, eff. Dec. 1, 1990; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22,\n1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Sept. 13, 1994, Pub. L. 103\xe2\x80\x93322, title\nXXIII, \xc2\xa7230101(b), title XXXIII, \xc2\xa7330003(h), 108 Stat. 2078, 2141; Apr. 27, 1995, eff. Dec. 1,\n1995; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1996, Pub. L. 104\xe2\x80\x93132, title II, \xc2\xa7207(a), 110 Stat.\n1236; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 1999, eff. Dec. 1,\n1999; Apr. 17, 2000, eff. Dec. 1, 2000; Oct. 26, 2001, Pub. L. 107\xe2\x80\x9356, title II, \xc2\xa7\xc2\xa7203(a), 219, 115\nStat. 278, 291; Apr. 29, 2002, eff. Dec. 1, 2002; Nov. 2, 2002, Pub. L. 107\xe2\x80\x93273, div. C, title I,\n\xc2\xa711019(b), 116 Stat. 1825; Nov. 25, 2002, Pub. L. 107\xe2\x80\x93296, title VIII, \xc2\xa7895, 116 Stat. 2256; Apr.\n30, 2003, Pub. L. 108\xe2\x80\x9321, title VI, \xc2\xa7610(b), 117 Stat. 692; Apr. 26, 2004, eff. Dec. 1, 2004; Pub. L.\n108\xe2\x80\x93458, title VI, \xc2\xa76501(a), Dec. 17, 2004, 118 Stat. 3760; Apr. 25, 2005, eff. Dec. 1, 2005; Apr.\n12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 23, 2008, eff. Dec. 1, 2008; Mar.\n26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011; Apr.\n16, 2013, eff. Dec. 1, 2013; Apr. 25, 2013, eff. Dec. 1, 2014.\n\n9\n\n\x0cTITLE I. APPLICABILITY\nRule 1. Scope; Definitions\n(a) Scope.\n(1) In General. These rules govern the procedure in all criminal proceedings in the United\nStates district courts, the United States courts of appeals, and the Supreme Court of the United\nStates.\n(2) State or Local Judicial Officer. When a rule so states, it applies to a proceeding before a\nstate or local judicial officer.\n(3) Territorial Courts. These rules also govern the procedure in all criminal proceedings in\nthe following courts:\n(A) the district court of Guam;\n(B) the district court for the Northern Mariana Islands, except as otherwise provided by\nlaw; and\n(C) the district court of the Virgin Islands, except that the prosecution of offenses in that\ncourt must be by indictment or information as otherwise provided by law.\n(4) Removed Proceedings. Although these rules govern all proceedings after removal from\na state court, state law governs a dismissal by the prosecution.\n(5) Excluded Proceedings. Proceedings not governed by these rules include:\n(A) the extradition and rendition of a fugitive;\n(B) a civil property forfeiture for violating a federal statute;\n(C) the collection of a fine or penalty;\n(D) a proceeding under a statute governing juvenile delinquency to the extent the\nprocedure is inconsistent with the statute, unless Rule 20(d) provides otherwise;\n(E) a dispute between seamen under 22 U.S.C. \xc2\xa7\xc2\xa7256 \xe2\x80\x93258; and\n(F) a proceeding against a witness in a foreign country under 28 U.S.C. \xc2\xa71784.\n(b) Definitions. The following definitions apply to these rules:\n(1) \xe2\x80\x9cAttorney for the government\xe2\x80\x9d means:\n(A) the Attorney General or an authorized assistant;\n(B) a United States attorney or an authorized assistant;\n(C) when applicable to cases arising under Guam law, the Guam Attorney General or other\nperson whom Guam law authorizes to act in the matter; and\n(D) any other attorney authorized by law to conduct proceedings under these rules as a\nprosecutor.\n(2) \xe2\x80\x9cCourt\xe2\x80\x9d means a federal judge performing functions authorized by law.\n(3) \xe2\x80\x9cFederal judge\xe2\x80\x9d means:\n(A) a justice or judge of the United States as these terms are defined in 28 U.S.C. \xc2\xa7451;\n(B) a magistrate judge; and\n(C) a judge confirmed by the United States Senate and empowered by statute in any\ncommonwealth, territory, or possession to perform a function to which a particular rule relates.\n(4) \xe2\x80\x9cJudge\xe2\x80\x9d means a federal judge or a state or local judicial officer.\n(5) \xe2\x80\x9cMagistrate judge\xe2\x80\x9d means a United States magistrate judge as defined in 28 U.S.C.\n\xc2\xa7\xc2\xa7631 \xe2\x80\x93639.\n(6) \xe2\x80\x9cOath\xe2\x80\x9d includes an affirmation.\n(7) \xe2\x80\x9cOrganization\xe2\x80\x9d is defined in 18 U.S.C. \xc2\xa718.\n10\n\n\x0c(8) \xe2\x80\x9cPetty offense\xe2\x80\x9d is defined in 18 U.S.C. \xc2\xa719.\n(9) \xe2\x80\x9cState\xe2\x80\x9d includes the District of Columbia, and any commonwealth, territory, or\npossession of the United States.\n(10) \xe2\x80\x9cState or local judicial officer\xe2\x80\x9d means:\n(A) a state or local officer authorized to act under 18 U.S.C. \xc2\xa73041; and\n(B) a judicial officer empowered by statute in the District of Columbia or in any\ncommonwealth, territory, or possession to perform a function to which a particular rule relates.\n(11) "Telephone" means any technology for transmitting live electronic voice\ncommunication.\n(12) \xe2\x80\x9cVictim\xe2\x80\x9d means a \xe2\x80\x9ccrime victim\xe2\x80\x9d as defined in 18 U.S.C. \xc2\xa73771 (e).\n(c) Authority of a Justice or Judge of the United States. When these rules authorize a\nmagistrate judge to act, any other federal judge may also act.\nNotes\n(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22,\n1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008; Apr. 26,\n2011, eff. Dec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. These rules are prescribed under the authority of two acts of Congress, namely: the Act\nof June 29, 1940, c. 445, 18 U.S.C. 687 (Proceedings in criminal cases prior to and including\nverdict; power of Supreme Court to prescribe rules), and the Act of November 21, 1941, c. 492, 18\nU.S.C. 689 (Proceedings to punish for criminal contempt of court; application to sections 687 and\n688).\n2. The courts of the United States covered by the rules are enumerated in Rule 54(a). In\naddition to Federal courts in the continental United States they include district courts in Alaska,\nHawaii, Puerto Rico and the Virgin Islands. In the Canal Zone only the rules governing\nproceedings after verdict, finding or plea of guilty are applicable.\n3. While the rules apply to proceedings before commissioners when acting as committing\nmagistrates, they do not govern when a commissioner acts as a trial magistrate for the trial of petty\noffenses committed on Federal reservations. That procedure is governed by rules adopted by order\npromulgated by the Supreme Court on January 6, 1941 ( 311 U.S. 733), pursuant to the Act of\nOctober 9, 1940, c. 785, secs. 1\xe2\x80\x935. See 18 U.S.C. 576 \xe2\x80\x93576d [now 3401, 3402] (relating to trial of\npetty offenses on Federal reservations by United States commissioners).\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nThe rule is amended to make clear that the rules are applicable to courts of the United\nStates and, where the rule so provides, to proceedings before United States magistrates and state or\nlocal judicial officers.\nPrimarily these rules are intended to govern proceedings in criminal cases triable in the\nUnited States District Court. Special rules have been promulgated, pursuant to the authority set\nforth in 28 U.S.C. \xc2\xa7636 (c), for the trial of \xe2\x80\x9cminor offenses\xe2\x80\x9d before United States magistrates. (See\nRules of Procedure for the Trial of Minor Offenses Before United States Magistrates (January 27,\n1971).)\n11\n\n\x0cHowever, there is inevitably some overlap between the two sets of rules. The Rules of\nCriminal Procedure for the United States District Courts deal with preliminary, supplementary,\nand special proceedings which will often be conducted before United States magistrates. This is\ntrue, for example, with regard to rule 3\xe2\x80\x94The Complaint; rule 4\xe2\x80\x94Arrest Warrant or Summons\nUpon Complaint; rule 5\xe2\x80\x94Initial Appearance Before the Magistrate; and rule 5.1\xe2\x80\x94Preliminary\nExamination. It is also true, for example, of supplementary and special proceedings such as rule\n40\xe2\x80\x94Commitment to Another District, Removal; rule 41\xe2\x80\x94Search and Seizure; and rule\n46\xe2\x80\x94Release from Custody. Other of these rules, where applicable, also apply to proceedings\nbefore United States magistrates. See Rules of Procedure for the Trial of Minor Offenses Before\nUnited States Magistrates, rule 1\xe2\x80\x94Scope:\nThese rules govern the procedure and practice for the trial of minor offenses (including\npetty offenses) before United States magistrates under Title 18, U.S.C. \xc2\xa73401, and for appeals in\nsuch cases to judges of the district courts. To the extent that pretrial and trial procedure and\npractice are not specifically covered by these rules, the Federal Rules of Criminal Procedure apply\nas to minor offenses other than petty offenses. All other proceedings in criminal matters, other than\npetty offenses, before United States magistrates are governed by the Federal Rules of Criminal\nProcedure.\nState and local judicial officers are governed by these rules, but only when the rule\nspecifically so provides. This is the case of rule 3\xe2\x80\x94The Complaint; rule 4\xe2\x80\x94Arrest Warrant or\nSummons Upon Complaint; and rule 5\xe2\x80\x94Initial Appearance Before the Magistrate. These rules\nconfer authority upon the \xe2\x80\x9cmagistrate,\xe2\x80\x9d a term which is defined in new rule 54 as follows:\n\xe2\x80\x9cMagistrate\xe2\x80\x9d includes a United States magistrate as defined in 28 U.S.C. \xc2\xa7\xc2\xa7631 \xe2\x80\x93639, a\njudge of the United States, another judge or judicial officer specifically empowered by statute in\nforce in any territory or possession, the commonwealth of Puerto Rico, or the District of Columbia,\nto perform a function to which a particular rule relates, and a state or local judicial officer,\nauthorized by 18 U.S.C. \xc2\xa73041 to perform the functions prescribed in rules 3, 4, and 5.\nRule 41 provides that a search warrant may be issued by \xe2\x80\x9ca judge of a state court of record\xe2\x80\x9d\nand thus confers that authority upon appropriate state judicial officers.\nThe scope of rules 1 and 54 is discussed in C. Wright, Federal Practice and Procedure:\nCriminal \xc2\xa7\xc2\xa721, 871\xe2\x80\x93874 (1969, Supp. 1971), and 8 and 8A J. Moore, Federal Practice chapters 1\nand 54 (2d ed. Cipes 1970, Supp. 1971).\nNotes of Advisory Committee on Rules\xe2\x80\x941982 Amendment\nThe amendment corrects an erroneous cross reference, from Rule 54(c) to Rule 54(a), and\nreplaces the word \xe2\x80\x9cdefined\xe2\x80\x9d with the more appropriate word \xe2\x80\x9cprovided.\xe2\x80\x9d\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nRule 1 is entirely revised and expanded to incorporate Rule 54, which deals with the\n12\n\n\x0capplication of the rules. Consistent with the title of the existing rule, the Committee believed that a\nstatement of the scope of the rules should be placed at the beginning to show readers which\nproceedings are governed by these rules. The Committee also revised the rule to incorporate the\ndefinitions found in Rule 54(c) as a new Rule 1(b).\nRule 1(a) contains language from Rule 54(b). But language in current Rule 54(b)(2)\xe2\x80\x93(4)\nhas been deleted for several reasons: First, Rule 54(b)(2) refers to a venue statute that governs an\noffense committed on the high seas or somewhere outside the jurisdiction of a particular district; it\nis unnecessary and has been deleted because once venue has been established, the Rules of\nCriminal Procedure automatically apply. Second, Rule 54(b)(3) currently deals with peace bonds;\nthat provision is inconsistent with the governing statute and has therefore been deleted. Finally,\nRule 54(b)(4) references proceedings conducted before United States Magistrate Judges, a topic\nnow covered in Rule 58.\nRule 1(a)(5) consists of material currently located in Rule 54(b)(5), with the exception of\nthe references to the navigation laws and to fishery offenses. Those provisions were considered\nobsolete. But if those proceedings were to arise, they would be governed by the Rules of Criminal\nProcedure.\nRule 1(b) is composed of material currently located in Rule 54(c), with several exceptions.\nFirst, the reference to an \xe2\x80\x9cAct of Congress\xe2\x80\x9d has been deleted from the restyled rules; instead the\nrules use the self-explanatory term \xe2\x80\x9cfederal statute.\xe2\x80\x9d Second, the language concerning demurrers,\npleas in abatement, etc., has been deleted as being anachronistic. Third, the definitions of \xe2\x80\x9ccivil\naction\xe2\x80\x9d and \xe2\x80\x9cdistrict court\xe2\x80\x9d have been deleted. Fourth, the term \xe2\x80\x9cattorney for the government\xe2\x80\x9d has\nbeen expanded to include reference to those attorneys who may serve as special or independent\ncounsel under applicable federal statutes. The term \xe2\x80\x9cattorney for the government\xe2\x80\x9d contemplates an\nattorney of record in the case.\nFifth, the Committee added a definition for the term \xe2\x80\x9ccourt\xe2\x80\x9d in Rule 1(b)(2). Although that\nterm originally was almost always synonymous with the term \xe2\x80\x9cdistrict judge,\xe2\x80\x9d the term might be\nmisleading or unduly narrow because it may not cover the many functions performed by\nmagistrate judges. See generally 28 U.S.C. \xc2\xa7\xc2\xa7132, 636. Additionally, the term does not cover\ncircuit judges who may be authorized to hold a district court. See 28 U.S.C. \xc2\xa7291. The proposed\ndefinition continues the traditional view that \xe2\x80\x9ccourt\xe2\x80\x9d means district judge, but also reflects the\ncurrent understanding that magistrate judges act as the \xe2\x80\x9ccourt\xe2\x80\x9d in many proceedings. Finally, the\nCommittee intends that the term \xe2\x80\x9ccourt\xe2\x80\x9d be used principally to describe a judicial officer, except\nwhere a rule uses the term in a spatial sense, such as describing proceedings in \xe2\x80\x9copen court.\xe2\x80\x9d\nSixth, the term \xe2\x80\x9cJudge of the United States\xe2\x80\x9d has been replaced with the term \xe2\x80\x9cFederal\njudge.\xe2\x80\x9d That term includes Article III judges and magistrate judges and, as noted in Rule\n1(b)(3)(C), federal judges other than Article III judges who may be authorized by statute to\nperform a particular act specified in the Rules of Criminal Procedure. The term does not include\nlocal judges in the District of Columbia. Seventh, the definition of \xe2\x80\x9cLaw\xe2\x80\x9d has been deleted as\nbeing superfluous and possibly misleading because it suggests that administrative regulations are\nexcluded.\nEighth, the current rules include three definitions of \xe2\x80\x9cmagistrate judge.\xe2\x80\x9d The term used in\namended Rule 1(b)(5) is limited to United States magistrate judges. In the current rules the term\nmagistrate judge includes not only United States magistrate judges, but also district court judges,\ncourt of appeals judges, Supreme Court justices, and where authorized, state and local officers.\nThe Committee believed that the rules should reflect current practice, i.e., the wider and almost\nexclusive use of United States magistrate judges, especially in preliminary matters. The definition,\n13\n\n\x0chowever, is not intended to restrict the use of other federal judicial officers to perform those\nfunctions. Thus, Rule 1(c) has been added to make it clear that where the rules authorize a\nmagistrate judge to act, any other federal judge or justice may act.\nFinally, the term \xe2\x80\x9corganization\xe2\x80\x9d has been added to the list of definitions.\nThe remainder of the rule has been amended as part of the general restyling of the rules to\nmake them more easily understood. In addition to changes made to improve the clarity, the\nCommittee has changed language to make style and terminology consistent throughout the\nCriminal Rules. These changes are intended to be stylistic only.\nCommittee Notes on Rules\xe2\x80\x942008 Amendment\nSubdivision (b)(11). This amendment incorporates the definition of the term \xe2\x80\x9ccrime\nvictim\xe2\x80\x9d found in the Crime Victims\xe2\x80\x99 Rights Act, codified at 18 U.S.C. \xc2\xa73771 (e). It provides that\n\xe2\x80\x9cthe term \xe2\x80\x98crime victim\xe2\x80\x99 means a person directly and proximately harmed as a result of the\ncommission of a Federal offense or an offense in the District of Columbia.\xe2\x80\x9d\nUpon occasion, disputes may arise over the question whether a particular person is a\nvictim. Although the rule makes no special provision for such cases, the courts have the authority\nto do any necessary fact finding and make any necessary legal rulings.\nChanges Made to Proposed Amendment Released for Public Comment\nThe Committee revised the text of Rule 1(b)(11) in response to public comments by\ntransferring portions of the subdivision relating to who may assert the rights of a victim to Rule\n60(b)(2). The Committee Note was revised to reflect that change and to indicate that the Court has\nthe power to decide any dispute as to who is a victim.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivisions (b)(11) and (12). The added definition clarifies that the term \xe2\x80\x9ctelephone\xe2\x80\x9d\nincludes technologies enabling live voice conversations that have developed since the traditional\n\xe2\x80\x9cland line\xe2\x80\x9d telephone. Calls placed by cell phone or from a computer over the internet, for\nexample, would be included. The definition is limited to live communication in order to ensure\ncontemporaneous communication and excludes voice recordings. Live voice communication\nshould include services for the hearing impaired, or other contemporaneous translation, where\nnecessary.\nChanges Made to Proposed Amendment Released for Public Comment\nThe text was rephrased by the Committee to describe the telephone as a \xe2\x80\x9ctechnology for\ntransmitting live electronic voice communication\xe2\x80\x9d rather than a \xe2\x80\x9cform\xe2\x80\x9d of communication.\n\nRule 2. Interpretation\nThese rules are to be interpreted to provide for the just determination of every criminal\nproceeding, to secure simplicity in procedure and fairness in administration, and to eliminate\nunjustifiable expense and delay.\nNotes\n(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n14\n\n\x0cCompare Federal Rules of Civil Procedure [28 U.S.C., Appendix], Rule 1 (Scope of\nRules), last sentence: \xe2\x80\x9cThey [the Federal Rules of Civil Procedure ] shall be construed to secure the\njust, speedy, and inexpensive determination of every action.\xe2\x80\x9d\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 2 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic. No substantive change is intended.\nIn particular, Rule 2 has been amended to clarify the purpose of the Rules of Criminal\nProcedure. The words \xe2\x80\x9care intended\xe2\x80\x9d have been changed to read \xe2\x80\x9care to be interpreted.\xe2\x80\x9d The\nCommittee believed that that was the original intent of the drafters and more accurately reflects the\npurpose of the rules.\n\n15\n\n\x0cTITLE II. PRELIMINARY PROCEEDINGS\nRule 3. The Complaint\nThe complaint is a written statement of the essential facts constituting the offense charged.\nExcept as provided in Rule 4.1, it must be made under oath before a magistrate judge or, if none is\nreasonably available, before a state or local judicial officer.\nNotes\n(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29,\n2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThe rule generally states existing law and practice, 18 U.S.C. 591 [now 3041] (Arrest and\nremoval for trial); United States v. Simon (E.D.Pa.), 248 F. 980; United States v. Maresca\n(S.D.N.Y.), 266 F. 713, 719\xe2\x80\x93721. It eliminates, however, the requirement of conformity to State\nlaw as to the form and sufficiency of the complaint. See, also, rule 57(b).\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nThe amendment deletes the reference to \xe2\x80\x9ccommissioner or other officer empowered to\ncommit persons charged with offenses against the United States\xe2\x80\x9d and substitute therefor\n\xe2\x80\x9cmagistrate.\xe2\x80\x9d\nThe change is editorial in nature to conform the language of the rule to the recently enacted\nFederal Magistrates Act. The term \xe2\x80\x9cmagistrate\xe2\x80\x9d is defined in rule 54.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 3 is amended as part of the general restyling of the Criminal Rules to\nmake them more easily understood and to make style and terminology consistent throughout the\nrules. These changes are intended to be stylistic and no substantive change is intended, except as\ndescribed below.\nThe amendment makes one change in practice. Currently, Rule 3 requires the complaint to\nbe sworn before a \xe2\x80\x9cmagistrate judge,\xe2\x80\x9d which under current Rule 54 could include a state or local\njudicial officer. Revised Rule 1 no longer includes state and local officers in the definition of\nmagistrate judges for the purposes of these rules. Instead, the definition includes only United\nStates magistrate judges. Rule 3 requires that the complaint be made before a United States\nmagistrate judge or before a state or local officer. The revised rule does, however, make a change\n16\n\n\x0cto reflect prevailing practice and the outcome desired by the Committee\xe2\x80\x94that the procedure take\nplace before a federal judicial officer if one is reasonably available. As noted in Rule 1(c), where\nthe rules, such as Rule 3, authorize a magistrate judge to act, any other federal judge may act.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nUnder the amended rule, the complaint and supporting material may be submitted by\ntelephone or reliable electronic means; however, the rule requires that the judicial officer\nadminister the oath or affirmation in person or by telephone. The Committee concluded that the\nbenefits of making it easier to obtain judicial oversight of the arrest decision and the increasing\nreliability and accessibility to electronic communication warranted amendment of the rule. The\namendment makes clear that the submission of a complaint to a judicial officer need not be done in\nperson and may instead be made by telephone or other reliable electronic means. The successful\nexperiences with electronic applications under Rule 41, which permits electronic applications for\nsearch warrants, support a comparable process for arrests. The provisions in Rule 41 have been\ntransferred to new Rule 4.1, which governs applications by telephone or other electronic means\nunder Rules 3, 4, 9, and 41.\nChanges Made to Proposed Amendment Released for Public Comment\nNo changes were made in the amendment as published.\n\nRule 4. Arrest Warrant or Summons on a Complaint\n(a) Issuance. If the complaint or one or more affidavits filed with the complaint establish\nprobable cause to believe that an offense has been committed and that the defendant committed it,\nthe judge must issue an arrest warrant to an officer authorized to execute it. At the request of an\nattorney for the government, the judge must issue a summons, instead of a warrant, to a person\nauthorized to serve it. A judge may issue more than one warrant or summons on the same\ncomplaint. If a defendant fails to appear in response to a summons, a judge may, and upon request\nof an attorney for the government must, issue a warrant.\n(b) Form.\n(1) Warrant. A warrant must:\n(A) contain the defendant\'s name or, if it is unknown, a name or description by which the\ndefendant can be identified with reasonable certainty;\n(B) describe the offense charged in the complaint;\n(C) command that the defendant be arrested and brought without unnecessary delay before\na magistrate judge or, if none is reasonably available, before a state or local judicial officer; and\n(D) be signed by a judge.\n(2) Summons. A summons must be in the same form as a warrant except that it must require\nthe defendant to appear before a magistrate judge at a stated time and place.\n(c) Execution or Service, and Return.\n(1) By Whom. Only a marshal or other authorized officer may execute a warrant. Any\nperson authorized to serve a summons in a federal civil action may serve a summons.\n(2) Location. A warrant may be executed, or a summons served, within the jurisdiction of\nthe United States or anywhere else a federal statute authorizes an arrest.\n(3) Manner.\n(A) A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the\noriginal or a duplicate original warrant must show it to the defendant. If the officer does not\n17\n\n\x0cpossess the warrant, the officer must inform the defendant of the warrant\'s existence and of the\noffense charged and, at the defendant\'s request, must show the original or a duplicate original\nwarrant to the defendant as soon as possible.\n(B) A summons is served on an individual defendant:\n(i) by delivering a copy to the defendant personally; or\n(ii) by leaving a copy at the defendant\'s residence or usual place of abode with a person of\nsuitable age and discretion residing at that location and by mailing a copy to the defendant\'s last\nknown address.\n(C) A summons is served on an organization by delivering a copy to an officer, to a\nmanaging or general agent, or to another agent appointed or legally authorized to receive service of\nprocess. A copy must also be mailed to the organization\'s last known address within the district or\nto its principal place of business elsewhere in the United States.\n(4) Return\n(A) After executing a warrant, the officer must return it to the judge before whom the\ndefendant is brought in accordance with Rule 5. The officer may do so by reliable electronic\nmeans. At the request of an attorney for the government, an unexecuted warrant must be brought\nback to and canceled by a magistrate judge or, if none is reasonably available, by a state or local\njudicial officer.\n(B) The person to whom a summons was delivered for service must return it on or before\nthe return day.\n(C) At the request of an attorney for the government, a judge may deliver an unexecuted\nwarrant, an unserved summons, or a copy of the warrant or summons to the marshal or other\nauthorized person for execution or service.\n(d) Warrant by Telephone or Other Reliable Electronic Means. In accordance with Rule\n4.1, a magistrate judge may issue a warrant or summons based on information communicated by\ntelephone or other reliable electronic means.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22,\n1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x9364, \xc2\xa73(1)\xe2\x80\x93(3), July 31, 1975, 89 Stat. 370; Mar. 9, 1987, eff.\nAug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff.\nDec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. The rule states the existing law relating to warrants issued by\ncommissioner or other magistrate. United States Constitution, Amendment IV; 18 U.S.C. 591\n[now 3041] (Arrest and removal for trial).\n2. The provision for summons is new, although a summons has been customarily used\nagainst corporate defendants, 28 U.S.C. 377 [now 1651] (Power to issue writs); United States v.\nJohn Kelso Co., 86 F. 304 (N.D.Cal., 1898). See also, Albrecht v. United States, 273 U.S. 1, 8\n(1927). The use of the summons in criminal cases is sanctioned by many States, among them\nIndiana, Maryland, Massachusetts, New York, New Jersey, Ohio, and others. See A.L.I. Code of\nCriminal Procedure (1931), Commentaries to secs. 12, 13, and 14. The use of the summons is\npermitted in England by 11 & 12 Vict., c. 42, sec. 1 (1848). More general use of a summons in\nplace of a warrant was recommended by the National Commission on Law Observance and\n18\n\n\x0cEnforcement, Report on Criminal Procedure (1931) 47. The Uniform Arrest Act, proposed by the\nInterstate Commission on Crime, provides for a summons. Warner, 28 Va.L.R. 315. See also,\nMedalie, 4 Lawyers Guild, R. 1, 6.\n3. The provision for the issuance of additional warrants on the same complaint embodies\nthe practice heretofore followed in some districts. It is desirable from a practical standpoint, since\nwhen a complaint names several defendants, it may be preferable to issue a separate warrant as to\neach in order to facilitate service and return, especially if the defendants are apprehended at\ndifferent times and places. Berge, 42 Mich.L.R. 353, 356.\n4. Failure to respond to a summons is not a contempt of court, but is ground for issuing a\nwarrant.\nNote to Subdivision (b). Compare Rule 9(b) and forms of warrant and summons, Appendix\nof Forms.\nNote to Subdivision (c)(2). This rule and Rule 9(c)(1) modify the existing practice under\nwhich a warrant may be served only within the district in which it is issued. Mitchell v. Dexter, 244\nF. 926 (C.C.A. 1st, 1917); Palmer v. Thompson, 20 App. D.C. 273 (1902); but see In re Christian,\n82 F. 885 (C.C.W.D.Ark., 1897); 2 Op.Atty.Gen. 564. When a defendant is apprehended in a\ndistrict other than that in which the prosecution has been instituted, this change will eliminate\nsome of the steps that are at present followed: the issuance of a warrant in the district where the\nprosecution is pending; the return of the warrant non est inventus; the filing of a complaint on the\nbasis of the warrant and its return in the district in which the defendant is found; and the issuance\nof another warrant in the latter district. The warrant originally issued will have efficacy throughout\nthe United States and will constitute authority for arresting the defendant wherever found. Waite,\n27 Jour. of Am. Judicature Soc. 101, 103. The change will not modify or affect the rights of the\ndefendant as to removal. See Rule 40. The authority of the marshal to serve process is not limited\nto the district for which he is appointed, 28 U.S.C. 503 [now 569].\nNote to Subdivision (c)(3). 1. The provision that the arresting officer need not have the\nwarrant in his possession at the time of the arrest is rendered necessary by the fact that a fugitive\nmay be discovered and apprehended by any one of many officers. It is obviously impossible for a\nwarrant to be in the possession of every officer who is searching for a fugitive or who\nunexpectedly might find himself in a position to apprehend the fugitive. The rule sets forth the\ncustomary practice in such matters, which has the sanction of the courts. \xe2\x80\x9cIt would be a strong\nproposition in an ordinary felony case to say that a fugitive from justice for whom a capias or\nwarrant was outstanding could not be apprehended until the apprehending officer had physical\npossession of the capias or the warrant. If such were the law, criminals could circulate freely from\none end of the land to the other, because they could always keep ahead of an officer with the\nwarrant.\xe2\x80\x9d In re Kosopud (N.D. Ohio), 272 F. 330, 336. Waite, 27 Jour. of Am. Judicature Soc. 101,\n103. The rule, however, safeguards the defendant\'s rights in such case.\n2. Service of summons under the rule is substantially the same as in civil actions under\nFederal Rules of Civil Procedure, Rule 4(d)(1) [28 U.S.C., Appendix].\nNote to Subdivision (c)(4). Return of a warrant or summons to the commissioner or other\nofficer is provided by 18 U.S.C. 603 [now 4084] (Writs; copy as jailer\'s authority). The return of\nall \xe2\x80\x9ccopies of process\xe2\x80\x9d by the commissioner to the clerk of the court is provided by 18 U.S.C. 591\n[now 3041]; and see Rule 5(c), infra.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\n\n19\n\n\x0cIn Giordenello v. United States, 357 U.S. 480 (1958) it was held that to support the\nissuance of a warrant the complaint must contain in addition to a statement \xe2\x80\x9cof the essential facts\nconstituting the offense\xe2\x80\x9d (Rule 3) a statement of the facts relied upon by the complainant to\nestablish probable cause. The amendment permits the complainant to state the facts constituting\nprobable cause in a separate affidavit in lieu of spelling them out in the complaint. See also Jaben\nv. United States, 381 U.S. 214 (1965).\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nThroughout the rule the term \xe2\x80\x9cmagistrate\xe2\x80\x9d is substituted for the term \xe2\x80\x9ccommissioner.\xe2\x80\x9d\nMagistrate is defined in rule 54 to include a judge of the United States, a United States magistrate,\nand those state and local judicial officers specified in 18 U.S.C. \xc2\xa73041.\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nThe amendments are designed to achieve several objectives: (1) to make explicit the fact\nthat the determination of probable cause may be based upon hearsay evidence; (2) to make clear\nthat probable cause is a prerequisite to the issuance of a summons; and (3) to give priority to the\nissuance of a summons rather than a warrant.\nSubdivision (a) makes clear that the normal situation is to issue a summons.\nSubdivision (b) provides for the issuance of an arrest warrant in lieu of or in addition to the\nissuance of a summons.\nSubdivision (b)(1) restates the provision of the old rule mandating the issuance of a warrant\nwhen a defendant fails to appear in response to a summons.\nSubdivision (b)(2) provides for the issuance of an arrest warrant rather than a summons\nwhenever \xe2\x80\x9ca valid reason is shown\xe2\x80\x9d for the issuance of a warrant. The reason may be apparent\nfrom the face of the complaint or may be provided by the federal law enforcement officer or\nattorney for the government. See comparable provision in rule 9.\nSubdivision (b)(3) deals with the situation in which conditions change after a summons has\nissued. It affords the government an opportunity to demonstrate the need for an arrest warrant. This\nmay be done in the district in which the defendant is located if this is the convenient place to do so.\nSubdivision (c) provides that a warrant or summons may issue on the basis of hearsay\nevidence. What constitutes probable cause is left to be dealt with on a case-to-case basis, taking\naccount of the unlimited variations in source of information and in the opportunity of the informant\nto perceive accurately the factual data which he furnishes. See e.g., Giordenello v. United States,\n357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.\n1509, 12 L.Ed.2d 723 (1964); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d\n684 (1965); Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); McCray\nv. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Spinelli v. United States, 393 U.S.\n410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29\nL.Ed.2d 723 (1971); Note, The Informer\'s Tip as Probable Cause for Search or Arrest, 54 Cornell\nL.Rev. 958 (1969); C. Wright, Federal Practice and Procedure: Criminal \xc2\xa752 (1969, Supp. 1971);\n8 S.J. Moore, Federal Practice 4.03 (2d ed. Cipes 1970, Supp. 1971).\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\n\n20\n\n\x0cA. Amendments Proposed by the Supreme Court. Rule 4 of the Federal Rules of Criminal\nProcedure deals with arrest procedures when a criminal complaint has been filed. It provides in\npertinent part:\nIf it appears . . . that there is probable cause . . . a warrant for the arrest of the defendant\nshall issue to any officer authorized by law to execute it. Upon the request of the attorney for the\ngovernment a summons instead of a warrant shall issue. [emphasis added]\nThe Supreme Court\'s amendments make a basic change in Rule 4. As proposed to be\namended, Rule 4 gives priority to the issuance of a summons instead of an arrest warrant. In order\nfor the magistrate to issue an arrest warrant, the attorney for the government must show a \xe2\x80\x9cvalid\nreason.\xe2\x80\x9d\nB. Committee Action. The Committee agrees with and approves the basic change in Rule\n4. The decision to take a citizen into custody is a very important one with far-reaching\nconsequences. That decision ought to be made by a neutral official (a magistrate) rather than by an\ninterested party (the prosecutor).\nIt has been argued that undesirable consequences will result if this change is\nadopted\xe2\x80\x94including an increase in the number of fugitives and the introduction of substantial\ndelays in our system of criminal justice. [See testimony of Assistant Attorney General W. Vincent\nRakestraw in Hearings on Proposed Amendments to Federal Rules of Criminal Procedure Before\nthe Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 2d\nSess., Serial No. 61, at 41\xe2\x80\x9343 (1974) [hereinafter cited as \xe2\x80\x9cHearing I\xe2\x80\x9d].] The Committee has\ncarefully considered these arguments and finds them to be wanting. [The Advisory Committee on\nCriminal Rules has thoroughly analyzed the arguments raised by Mr. Rakestraw and convincingly\ndemonstrated that the undesirable consequences predicted will not necessarily result. See Hearings\non Proposed Amendments to Federal Rules on Proposed Amendments to Federal Rules of\nCriminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the\nJudiciary, 94th Congress, 1st Session, Serial No. 6, at 208\xe2\x80\x9309 (1975) [hereinafter cited \xe2\x80\x9cHearings\nII\xe2\x80\x9d].] The present rule permits the use of a summons in lieu of a warrant. The major difference\nbetween the present rule and the proposed rule is that the present rule vests the decision to issue a\nsummons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial\nofficer. Thus, the basic premise underlying the arguments against the proposed rule is the notion\nthat only the prosecutor can be trusted to act responsibly in deciding whether a summons or a\nwarrant shall issue.\nThe Committee rejects the notion that the federal judiciary cannot be trusted to exercise\ndiscretion wisely and in the public interest.\nThe Committee recast the language of Rule 4(b). No change in substance is intended. The\nphrase \xe2\x80\x9cvalid reason\xe2\x80\x9d was changed to \xe2\x80\x9cgood cause,\xe2\x80\x9d a phrase with which lawyers are more\nfamiliar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does\nnot in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it\nenlarge, limit or change in any way the law governing warrantless arrests.]\nThe Committee deleted two sentences from Rule 4(c). These sentences permitted a\nmagistrate to question the complainant and other witnesses under oath and required the magistrate\nto keep a record or summary of such a proceeding. The Committee does not intend this change to\ndiscontinue or discourage the practice of having the complainant appear personally or the practice\nof making a record or summary of such an appearance. Rather, the Committee intended to leave\nRule 4(c) neutral on this matter, neither encouraging nor discouraging these practices.\nThe Committee added a new section that provides that the determination of good cause for\n21\n\n\x0cthe issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress\nevidence. This provision does not apply when the issue is whether there was probable cause to\nbelieve an offense has been committed. This provision does not in any way expand or limit the\nso-called \xe2\x80\x9cexclusionary rule.\xe2\x80\x9d\nNotes of Conference Committee, House Report No. 94\xe2\x80\x93414; 1975 Amendment\nRule 4(e)(3) deals with the manner in which warrants and summonses may be served. The\nHouse version provides two methods for serving a summons: (1) personal service upon the\ndefendant, or (2) service by leaving it with someone of suitable age at the defendant\'s dwelling and\nby mailing it to the defendant\'s last known address. The Senate version provides three methods: (1)\npersonal service, (2) service by leaving it with someone of suitable age at the defendant\'s dwelling,\nor (3) service by mailing it to defendant\'s last known address.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 4 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic, except as noted below.\nThe first non-stylistic change is in Rule 4(a), which has been amended to provide an\nelement of discretion in those situations when the defendant fails to respond to a summons. Under\nthe current rule, the judge must in all cases issue an arrest warrant. The revised rule provides\ndiscretion to the judge to issue an arrest warrant if the attorney for the government does not request\nthat an arrest warrant be issued for a failure to appear.\nCurrent Rule 4(b), which refers to the fact that hearsay evidence may be used to support\nprobable cause, has been deleted. That language was added to the rule in 1974, apparently to\nreflect emerging federal case law. See Advisory Committee Note to 1974 Amendments to Rule 4\n(citing cases). A similar amendment was made to Rule 41 in 1972. In the intervening years,\nhowever, the case law has become perfectly clear on that proposition. Thus, the Committee\nbelieved that the reference to hearsay was no longer necessary. Furthermore, the limited reference\nto hearsay evidence was misleading to the extent that it might have suggested that other forms of\ninadmissible evidence could not be considered. For example, the rule made no reference to\nconsidering a defendant\'s prior criminal record, which clearly may be considered in deciding\nwhether probable cause exists. See, e.g., Brinegar v. United States, 338 U.S. 160 (1949) (officer\'s\nknowledge of defendant\'s prior criminal activity). Rather than address that issue, or any other\nsimilar issues, the Committee believed that the matter was best addressed in Rule 1101(d)(3),\n22\n\n\x0cFederal Rules of Evidence. That rule explicitly provides that the Federal Rules of Evidence do not\napply to \xe2\x80\x9cpreliminary examinations in criminal cases, . . . issuance of warrants for arrest, criminal\nsummonses, and search warrants.\xe2\x80\x9d The Advisory Committee Note accompanying that rule\nrecognizes that: \xe2\x80\x9cThe nature of the proceedings makes application of the formal rules of evidence\ninappropriate and impracticable.\xe2\x80\x9d The Committee did not intend to make any substantive changes\nin practice by deleting the reference to hearsay evidence.\nNew Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a\nsummons and includes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant\nrequire that the defendant be brought \xe2\x80\x9cwithout unnecessary delay\xe2\x80\x9d before a judge. The Committee\nbelieved that this was a more appropriate standard than the current requirement that the defendant\nbe brought before the \xe2\x80\x9cnearest available\xe2\x80\x9d magistrate judge. This new language accurately reflects\nthe thrust of the original rule, that time is of the essence and that the defendant should be brought\nwith dispatch before a judicial officer in the district. Second, the revised rule states a preference\nthat the defendant be brought before a federal judicial officer.\nRule 4(b)(2) has been amended to require that if a summons is issued, the defendant must\nappear before a magistrate judge. The current rule requires the appearance before a \xe2\x80\x9cmagistrate,\xe2\x80\x9d\nwhich could include a state or local judicial officer. This change is consistent with the preference\nfor requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1).\nRule 4(c) (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the\ntraditional rule recognizing the territorial limits for executing warrants. Rule 4(c)(2) includes new\nlanguage that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L.\nNo. 106\xe2\x80\x93523, 114 Stat. 2488) that permits arrests of certain military and Department of Defense\npersonnel overseas. See also 14 U.S.C. \xc2\xa789 (Coast Guard authority to effect arrests outside\nterritorial limits of United States). Second, current Rule 4(d)(3) provides that the arresting officer\nis only required to inform the defendant of the offense charged and that a warrant exists if the\nofficer does not have a copy of the warrant. As revised, Rule 4(c)(3)(A) explicitly requires the\narresting officer in all instances to inform the defendant of the offense charged and of the fact that\nan arrest warrant exists. The new rule continues the current provision that the arresting officer need\nnot have a copy of the warrant, but if the defendant requests to see it, the officer must show the\nwarrant to the defendant as soon as possible. The rule does not attempt to define any particular\ntime limits for showing the warrant to the defendant.\nThird, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the\nmanner of serving a summons on an organization. The Committee believed that Rule 4 was the\nmore appropriate location for general provisions addressing the mechanics of arrest warrants and\nsummonses. Revised Rule 9 liberally cross-references the basic provisions appearing in Rule 4.\nUnder the amended rule, in all cases in which a summons is being served on an organization, a\ncopy of the summons must be mailed to the organization.\nFourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an\nunexecuted warrant must be returned to the judicial officer or judge who issued it. As amended,\nRule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge\nbefore whom the defendant will appear under Rule 5. At the government\'s request, however, an\nunexecuted warrant must be canceled by a magistrate judge. The change recognizes the possibility\nthat at the time the warrant is returned, the issuing judicial officer may not be available.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\n\n23\n\n\x0cRule 4 is amended in three respects to make the arrest warrant process more efficient\nthrough the use of technology.\nSubdivision (c). First, Rule 4(c)(3)(A) authorizes a law enforcement officer to retain a\nduplicate original arrest warrant, consistent with the change to subdivision (d), which permits a\ncourt to issue an arrest warrant electronically rather than by physical delivery. The duplicate\noriginal warrant may be used in lieu of the original warrant signed by the magistrate judge to\nsatisfy the requirement that the defendant be shown the warrant at or soon after an arrest. Cf. Rule\n4.1(b)(5) (providing for a duplicate original search warrant).\nSecond, consistent with the amendment to Rule 41(f), Rule\n4(c)(4)(A) permits an officer to make a return of the arrest warrant electronically. Requiring an\nin-person return can be burdensome on law enforcement, particularly in large districts when the\nreturn can require a great deal of time and travel. In contrast, no interest of the accused is affected\nby allowing what is normally a ministerial act to be done electronically.\nSubdivision (d). Rule 4(d) provides that a magistrate judge may issue an arrest warrant or\nsummons based on information submitted electronically rather than in person. This change works\nin conjunction with the amendment to Rule 3, which permits a magistrate judge to consider a\ncriminal complaint and accompanying documents that are submitted electronically. Subdivision\n(d) also incorporates the procedures for applying for and issuing electronic warrants set forth in\nRule 4.1.\nChanges Made to Proposed Amendment Released for Public Comment\nNo changes were made in the amendment as published.\nAmendment by Public Law\n1975 \xe2\x80\x94Pub. L. 94\xe2\x80\x9364 struck out subds. (a), (b), and (c) and inserted in lieu new subds. (a)\nand (b); redesignated subd. (d) as (c); and redesignated subd. (e) as (d) and amended par. (3)\nthereof generally.\nApproval and Effective Date of Amendments Proposed April 22, 1974; Effective Date\nof 1975 Amendments\nSection 2 of Pub. L. 94\xe2\x80\x9364 provided that: \xe2\x80\x9cThe amendments proposed by the United States\nSupreme Court to the Federal Rules of Criminal Procedure [adding rules 12.1, 12.2 and 29.1 and\namending rules 4, 9, 11, 12, 15, 16, 17, 20, 32, and 43 of these rules] which are embraced in the\norder of that Court on April 22, 1974, are approved except as otherwise provided in this Act and\nshall take effect on December 1, 1975. Except with respect to the amendment to Rule 11, insofar as\nit adds Rule 11(e)(6), which shall take effect on August 1, 1975, the amendments made by section\n3 of this Act [to rules 4, 9, 11, 12, 12.1, 12.2, 15, 16, 17, 20, 32, and 43 of these rules] shall also\ntake effect on December 1, 1975.\xe2\x80\x9d\n\nRule 4.1 Complaint, Warrant, or Summons by Telephone or Other Reliable\nElectronic Means\n(a) In General. A magistrate judge may consider information communicated by telephone\nor other reliable electronic means when reviewing a complaint or deciding whether to issue a\nwarrant or summons.\n(b) Procedures. If a magistrate judge decides to proceed under this rule, the following\n24\n\n\x0cprocedures apply:\n(1) Taking Testimony Under Oath. The judge must place under oath \xe2\x80\x94 and may examine\n\xe2\x80\x94 the applicant and any person on whose testimony the application is based.\n(2) Creating a Record of the Testimony and Exhibits.\n(A) Testimony Limited to Attestation. If the applicant does no more than attest to the\ncontents of a written affidavit submitted by reliable electronic means, the judge must acknowledge\nthe attestation in writing on the affidavit.\n(B) Additional Testimony or Exhibits. If the judge considers additional testimony or\nexhibits, the judge must:\n(i) have the testimony recorded verbatim by an electronic recording device, by a court\nreporter, or in writing;\n(ii) have any recording or reporter\xe2\x80\x99s notes transcribed, have the transcription certified as\naccurate, and file it;\n(iii) sign any other written record, certify its accuracy, and file it; and\n(iv) make sure that the exhibits are filed.\n(3) Preparing a Proposed Duplicate Original of a Complaint, Warrant, or Summons. The\napplicant must prepare a proposed duplicate original of a complaint, warrant, or summons, and\nmust read or otherwise transmit its contents verbatim to the judge.\n(4) Preparing an Original Complaint, Warrant, or Summons. If the applicant reads the\ncontents of the proposed duplicate original, the judge must enter those contents into an original\ncomplaint, warrant, or summons. If the applicant transmits the contents by reliable electronic\nmeans, the transmission received by the judge may serve as the original.\n(5) Modification. The judge may modify the complaint, warrant, or summons. The judge\nmust then:\n(A) transmit the modified version to the applicant by reliable electronic means; or\n(B) file the modified original and direct the applicant to modify the proposed duplicate\noriginal accordingly.\n(6) Issuance. To issue the warrant or summons, the judge must:\n(A) sign the original documents;\n(B) enter the date and time of issuance on the warrant or summons; and\n(C) transmit the warrant or summons by reliable electronic means to the applicant or direct\nthe applicant to sign the judge\xe2\x80\x99s name and enter the date and time on the duplicate original.\n(c) Suppression Limited. Absent a finding of bad faith, evidence obtained from a warrant\nissued under this rule is not subject to suppression on the ground that issuing the warrant in this\nmanner was unreasonable under the circumstances.\nNotes\n(Added Apr. 26, 2011, eff. Dec. 1, 2011.)\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nNew Rule 4.1 brings together in one rule the procedures for using a telephone or other\nreliable electronic means for reviewing complaints and applying for and issuing warrants and\nsummonses. In drafting Rule 4.1, the Committee recognized that modern technological\ndevelopments have improved access to judicial officers, thereby reducing the necessity of\ngovernment action without prior judicial approval. Rule 4.1 prescribes uniform procedures and\n25\n\n\x0censures an accurate record.\nThe procedures that have governed search warrants \xe2\x80\x9cby telephonic or other means,\xe2\x80\x9d\nformerly in Rule 41(d)(3) and (e)(3), have been relocated to this rule, reordered for easier\napplication, and extended to arrest warrants, complaints, and summonses. Successful experience\nusing electronic applications for search warrants under Rule 41, combined with increased access to\nreliable electronic communication, support the extension of these procedures to arrest warrants,\ncomplaints, and summonses.\nWith one exception noted in the next paragraph, the new rule preserves the procedures\nformerly in Rule 41 without change. By using the term \xe2\x80\x9cmagistrate judge,\xe2\x80\x9d the rule continues to\nrequire, as did former Rule 41(d)(3) and (e)(3), that a federal judge (and not a state judge) handle\nelectronic applications, approvals, and issuances. The rule continues to require that the judge place\nan applicant under oath over the telephone, and permits the judge to examine the applicant, as Rule\n41 had provided. Rule 4.1(b) continues to require that when electronic means are used to issue the\nwarrant, the magistrate judge retain the original warrant. Minor changes in wording and\nreorganization of the language formerly in Rule 41 were made to aid in application of the rules,\nwith no intended change in meaning.\nThe only substantive change to the procedures formerly in Rule 41(d)(3) and (e)(3) appears\nin new Rule 4.1(b)(2)(A). Former Rule 41(d)(3)(B)(ii) required the magistrate judge to make a\nverbatim record of the entire conversation with the applicant. New Rule 4.1(b)(2)(A) provides that\nwhen a warrant application and affidavit are sent electronically to the magistrate judge and the\ntelephone conversation between the magistrate judge and affiant is limited to attesting to those\nwritten documents, a verbatim record of the entire conversation is no longer required. Rather, the\nmagistrate judge should simply acknowledge in writing the attestation on the affidavit. This may\nbe done, for example, by signing the jurat included on the Administrative Office of U.S. Courts\nform. Rule 4.1(b)(2)(B) carries forward the requirements formerly in Rule 41 to cases in which the\nmagistrate judge considers testimony or exhibits in addition to the affidavit. In addition, Rule\n4.1(b)(6) specifies that in order to issue a warrant or summons the magistrate judge must sign all of\nthe original documents and enter the date and time of issuance on the warrant or summons. This\nprocedure will create and maintain a complete record of the warrant application process.\nChanges Made to Proposed Amendment Released for Public Comment\nPublished subdivision (a) referred to the action of a magistrate judge as \xe2\x80\x9cdeciding whether\nto approve a complaint.\xe2\x80\x9d To accurately describe the judge\xe2\x80\x99s action, it was rephrased to refer to the\njudge \xe2\x80\x9creviewing a complaint.\xe2\x80\x9d\nSubdivisions (b)(2) and (3) were combined into subdivisions (b)(2)(A) and (B) to clarify\nthe procedures applicable when the applicant does no more than attest to the contents of a written\naffidavit and those applicable when additional testimony or exhibits are presented. The clauses in\nsubparagraph (B) were reordered and further divided into items (i) through (iv). Subsequent\nsubdivisions were renumbered because of the merger of (b)(2) and (3).\nIn subdivision (b)(5), language was added requiring the judge to file the modified original\nif the judge has directed an applicant to modify a duplicate original. This will ensure that a\ncomplete record is preserved. Additionally, the clauses in this subdivision were broken out into\nsubparagraphs (A) and (B).\nIn subdivision (b)(6), introductory language erroneously referring to a judge\xe2\x80\x99s approval of\na complaint was deleted, and the rule was revised to refer only to the steps necessary to issue a\nwarrant or summons, which are the actions taken by the judicial officer.\nIn subdivision (b)(6)(A), the requirement that the judge \xe2\x80\x9csign the original\xe2\x80\x9d was amended to\n26\n\n\x0crequire signing of \xe2\x80\x9cthe original documents.\xe2\x80\x9d This is broad enough to encompass signing a\nsummons, an arrest or search warrant, and the current practice of the judge signing the jurat on\ncomplaint forms. Depending on the nature of the case, it might also include many other kinds of\ndocuments, such as the jurat on affidavits, the certifications of written records supplementing the\ntransmitted affidavit, or papers that correct or modify affidavits or complaints.\nIn subdivision (b)(6)(B), the superfluous and anachronistic reference to the \xe2\x80\x9cface\xe2\x80\x9d of a\ndocument was deleted, and rephrasing clarified that the action is the entry of the date and time of\n\xe2\x80\x9cthe approval of a warrant or summons.\xe2\x80\x9d Additionally, subdivision (b)(6)(C) was modified to\nrequire that the judge must direct the applicant not only to sign the duplicate original with the\njudge\xe2\x80\x99s name, but also to note the date and time.\n\nRule 5. Initial Appearance\n(a) In General.\n(1) Appearance Upon an Arrest.\n(A) A person making an arrest within the United States must take the defendant without\nunnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c)\nprovides, unless a statute provides otherwise.\n(B) A person making an arrest outside the United States must take the defendant without\nunnecessary delay before a magistrate judge, unless a statute provides otherwise.\n(2) Exceptions.\n(A) An officer making an arrest under a warrant issued upon a complaint charging solely a\nviolation of 18 U.S.C. \xc2\xa71073 need not comply with this rule if:\n(i) the person arrested is transferred without unnecessary delay to the custody of\nappropriate state or local authorities in the district of arrest; and\n(ii) an attorney for the government moves promptly, in the district where the warrant was\nissued, to dismiss the complaint.\n(B) If a defendant is arrested for violating probation or supervised release, Rule 32.1\napplies.\n(C) If a defendant is arrested for failing to appear in another district, Rule 40 applies.\n(3) Appearance Upon a Summons. When a defendant appears in response to a summons\nunder Rule 4, a magistrate judge must proceed under Rule 5(d) or (e), as applicable.\n(b) Arrest Without a Warrant. If a defendant is arrested without a warrant, a complaint\nmeeting Rule 4(a)\'s requirement of probable cause must be promptly filed in the district where the\noffense was allegedly committed.\n(c) Place of Initial Appearance; Transfer to Another District.\n(1) Arrest in the District Where the Offense Was Allegedly Committed. If the defendant is\narrested in the district where the offense was allegedly committed:\n(A) the initial appearance must be in that district; and\n(B) if a magistrate judge is not reasonably available, the initial appearance may be before a\nstate or local judicial officer.\n(2) Arrest in a District Other Than Where the Offense Was Allegedly Committed. If the\ndefendant was arrested in a district other than where the offense was allegedly committed, the\ninitial appearance must be:\n(A) in the district of arrest; or\n(B) in an adjacent district if:\n27\n\n\x0c(i) the appearance can occur more promptly there; or\n(ii) the offense was allegedly committed there and the initial appearance will occur on the\nday of arrest.\n(3) Procedures in a District Other Than Where the Offense Was Allegedly Committed. If\nthe initial appearance occurs in a district other than where the offense was allegedly committed,\nthe following procedures apply:\n(A) the magistrate judge must inform the defendant about the provisions of Rule 20;\n(B) if the defendant was arrested without a warrant, the district court where the offense was\nallegedly committed must first issue a warrant before the magistrate judge transfers the defendant\nto that district;\n(C) the magistrate judge must conduct a preliminary hearing if required by Rule 5.1;\n(D) the magistrate judge must transfer the defendant to the district where the offense was\nallegedly committed if:\n(i) the government produces the warrant, a certified copy of the warrant, or a reliable\nelectronic form of either; and\n(ii) the judge finds that the defendant is the same person named in the indictment,\ninformation, or warrant; and\n(E) when a defendant is transferred and discharged, the clerk must promptly transmit the\npapers and any bail to the clerk in the district where the offense was allegedly committed.\n(4) Procedure for Persons Extradited to the United States. If the defendant is surrendered\nto the United States in accordance with a request for the defendant\xe2\x80\x99s extradition, the initial\nappearance must be in the district (or one of the districts) where the offense is charged.\n(d) Procedure in a Felony Case.\n(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant\nof the following:\n(A) the complaint against the defendant, and any affidavit filed with it;\n(B) the defendant\'s right to retain counsel or to request that counsel be appointed if the\ndefendant cannot obtain counsel;\n(C) the circumstances, if any, under which the defendant may secure pretrial release;\n(D) any right to a preliminary hearing; and\n(E) the defendant\'s right not to make a statement, and that any statement made may be used\nagainst the defendant; and\n(F) that a defendant who is not a United States citizen may request that an attorney for the\ngovernment or a federal law enforcement official notify a consular officer from the defendant\xe2\x80\x99s\ncountry of nationality that the defendant has been arrested \xe2\x80\x94 but that even without the defendant\xe2\x80\x99s\nrequest, a treaty or other international agreement may require consular notification.\n(2) Consulting with Counsel. The judge must allow the defendant reasonable opportunity\nto consult with counsel.\n(3) Detention or Release. The judge must detain or release the defendant as provided by\nstatute or these rules.\n(4) Plea. A defendant may be asked to plead only under Rule 10.\n(e) Procedure in a Misdemeanor Case. If the defendant is charged with a misdemeanor\nonly, the judge must inform the defendant in accordance with Rule 58(b)(2).\n(f) Video Teleconferencing. Video teleconferencing may be used to conduct an appearance\nunder this rule if the defendant consents.\nNotes\n28\n\n\x0c(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28,\n1982, eff. Aug. 1, 1982; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7209(a), Oct. 12, 1984, 98 Stat. 1986; Mar. 9,\n1987, eff. Aug. 1, 1987; May 1, 1990, eff. Dec. 1, 1990; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27,\n1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006; Jun. 30,\n2011, eff. Dec. 1, 2012; Apr. 25, 2014, eff. Dec. 1, 2014.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. The time within which a prisoner must be brought before a\ncommitting magistrate is defined differently in different statutes. The rule supersedes all statutory\nprovisions on this point and fixes a single standard, i.e., \xe2\x80\x9cwithout unnecessary delay\xe2\x80\x9d, 18 U.S.C.\n[former] 593 (Operating illicit distillery; arrest; bail); sec. [former] 595 (Persons arrested taken\nbefore nearest officer for hearing); 5 U.S.C. 300a [now 18 U.S.C. 3052, 3107] (Division of\nInvestigation; authority of officers to serve warrants and make arrests); 16 U.S.C. 10 (Arrests by\nemployees of park service for violations of laws and regulations); sec. 706 (Migratory Bird Treaty\nAct; arrests; search warrants); D.C. Code (1940), Title 4, sec. 140 (Arrests without warrant); see,\nalso, 33 U.S.C. 436, 446, 452; 46 U.S.C. 708 [now 18 U.S.C. 2279 ]. What constitutes\n\xe2\x80\x9cunnecessary delay\xe2\x80\x9d, i.e., reasonable time within which the prisoner should be brought before a\ncommitting magistrate, must be determined in the light of all the facts and circumstances of the\ncase. The following authorities discuss the question what constitutes reasonable time for this\npurpose in various situations: Carroll v. Parry, 48 App.D.C. 453; Janus v. United States, 38 F.2d\n431 (C.C.A. 9th); Commonwealth v. Di Stasio, 294 Mass. 273; State v. Freeman, 86 N.C. 683;\nPeloquin v. Hibner, 231 Wis. 77; see, also, Warner, 28 Va.L.R. 315, 339\xe2\x80\x93341.\n2. The rule also states the prevailing state practice, A.L.I. Code of Criminal Procedure\n(1931), Commentaries to secs. 35, 36.\nNote to Subdivisions (b) and (c). 1. These rules prescribe a uniform procedure to be\nfollowed at preliminary hearings before a commissioner. They supersede the general provisions of\n18 U.S.C. 591 [now 3041] (Arrest and removal for trial). The procedure prescribed by the rules is\nthat generally prevailing. See Wood v. United States, 128 F.2d 265, 271\xe2\x80\x93272 (App. D.C.); A.L.I.\nCode of Criminal Procedure (1931), secs. 39\xe2\x80\x9360 and Commentaries thereto; Manual for United\nStates Commissioners, pp. 6\xe2\x80\x9310, published by Administrative Office of the United States Courts.\n2. Pleas before a commissioner are excluded, as a plea of guilty at this stage has no legal\nstatus or function except to serve as a waiver of preliminary examination. It has been held\ninadmissible in evidence at the trial, if the defendant was not represented by counsel when the plea\nwas entered. Wood v. United States, 128 F.2d 265 (App. D.C.) The rule expressly provides for a\nwaiver of examination, thereby eliminating any necessity for a provision as to plea.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe first change is designed to insure that under the revision made in Rule 4(a) the\ndefendant arrested on a warrant will receive the same information concerning the basis for the\nissuance of the warrant as would previously have been given him by the complaint itself.\nThe second change obligates the commissioner to inform the defendant of his right to\nrequest the assignment of counsel if he is unable to obtain counsel. Cf. the amendment to Rule 44,\nand the Advisory Committee\'s Note thereon.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\n29\n\n\x0cThere are a number of changes made in rule 5 which are designed to improve the editorial\nclarity of the rule; to conform the rule to the Federal Magistrates Act; and to deal explicitly in the\nrule with issues as to which the rule was silent and the law uncertain.\nThe principal editorial change is to deal separately with the initial appearance before the\nmagistrate and the preliminary examination. They are dealt with together in old rule 5. They are\nseparated in order to prevent confusion as to whether they constitute a single or two separate\nproceedings. Although the preliminary examination can be held at the time of the initial\nappearance, in practice this ordinarily does not occur. Usually counsel need time to prepare for the\npreliminary examination and as a consequence a separate date is typically set for the preliminary\nexamination.\nBecause federal magistrates are reasonably available to conduct initial appearances, the\nrule is drafted on the assumption that the initial appearance is before a federal magistrate. If\nexperience under the act indicates that there must be frequent appearances before state or local\njudicial officers it may be desirable to draft an additional rule, such as the following, detailing the\nprocedure for an initial appearance before a state or local judicial officer:\nInitial Appearance Before a State or Local Judicial Officer. If a United States magistrate is\nnot reasonably available under rule 5(a), the arrested person shall be brought before a state or local\njudicial officer authorized by 18 U.S.C. \xc2\xa73041, and such officer shall inform the person of the\nrights specified in rule 5(c) and shall authorize the release of the arrested person under the terms\nprovided for by these rules and by 18 U.S.C. \xc2\xa73146. The judicial officer shall immediately transmit\nany written order of release and any papers filed before him to the appropriate United States\nmagistrate of the district and order the arrested person to appear before such United States\nmagistrate within three days if not in custody or at the next regular hour of business of the United\nStates magistrate if the arrested person is retained in custody. Upon his appearance before the\nUnited States magistrate, the procedure shall be that prescribed in rule 5.\nSeveral changes are made to conform the language of the rule to the Federal Magistrates\nAct.\n(1) The term \xe2\x80\x9cmagistrate,\xe2\x80\x9d which is defined in new rule 54, is substituted for the term\n\xe2\x80\x9ccommissioner.\xe2\x80\x9d As defined, \xe2\x80\x9cmagistrate\xe2\x80\x9d includes those state and local judicial officers specified\nin 18 U.S.C. \xc2\xa73041, and thus the initial appearance may be before a state or local judicial officer\nwhen a federal magistrate is not reasonably available. This is made explicit in subdivision (a).\n(2) Subdivision (b) conforms the rule to the procedure prescribed in the Federal Magistrate\nAct when a defendant appears before a magistrate charged with a \xe2\x80\x9cminor offense\xe2\x80\x9d as defined in 18\nU.S.C. \xc2\xa73401(f):\n\xe2\x80\x9cmisdemeanors punishable under the laws of the United States, the penalty for which does\nnot exceed imprisonment for a period of one year, or a fine of not more than $1,000, or both,\nexcept that such term does not include . . . [specified exceptions].\xe2\x80\x9d\nIf the \xe2\x80\x9cminor offense\xe2\x80\x9d is tried before a United States magistrate, the procedure must be in\naccordance with the Rules of Procedure for the Trial of Minor Offenses Before United States\nMagistrates, (January 27, 1971).\n(3) Subdivision (d) makes clear that a defendant is not entitled to a preliminary\nexamination if he has been indicted by a grand jury prior to the date set for the preliminary\nexamination or, in appropriate cases, if any information is filed in the district court prior to that\ndate. See C. Wright, Federal Practice and Procedure: Criminal \xc2\xa780, pp. 137\xe2\x80\x93140 (1969, Supp.\n30\n\n\x0c1971). This is also provided in the Federal Magistrates Act, 18 U.S.C. \xc2\xa73060(e).\nRule 5 is also amended to deal with several issues not dealt with in old rule 5:\nSubdivision (a) is amended to make clear that a complaint, complying with the\nrequirements of rule 4(a), must be filed whenever a person has been arrested without a warrant.\nThis means that the complaint, or an affidavit or affidavits filed with the complaint, must show\nprobable cause. As provided in rule 4(a) the showing of probable cause \xe2\x80\x9cmay be based upon\nhearsay evidence in whole or in part.\xe2\x80\x9d\nSubdivision (c) provides that defendant should be notified of the general circumstances\nunder which he is entitled to pretrial release under the Bail Reform Act of 1966 (18 U.S.C.\n\xc2\xa7\xc2\xa73141\xe2\x80\x933152). Defendants often do not in fact have counsel at the initial appearance and thus,\nunless told by the magistrate, may be unaware of their right to pretrial release. See C. Wright,\nFederal Practice and Procedure: Criminal \xc2\xa778 N. 61 (1969).\nSubdivision (c) makes clear that a defendant who does not waive his right to trial before a\njudge of the district court is entitled to a preliminary examination to determine probable cause for\nany offense except a petty offense. It also, by necessary implication, makes clear that a defendant\nis not entitled to a preliminary examination if he consents to be tried on the issue of guilt or\ninnocence by the United States magistrate, even though the offense may be one not heretofore\ntriable by the United States commissioner and therefore one as to which the defendant had a right\nto a preliminary examination. The rationale is that the preliminary examination serves only to\njustify holding the defendant in custody or on bail during the period of time it takes to bind the\ndefendant over to the district court for trial. See State v. Solomon, 158 Wis. 146, 147 N.W. 640\n(1914). A similar conclusion is reached in the New York Proposed Criminal Procedure Law. See\nMcKinney\'s Session Law News, April 10, 1969, at p. A\xe2\x80\x93119.\nSubdivision (c) also contains time limits within which the preliminary examination must\nbe held. These are taken from 18 U.S.C. \xc2\xa73060. The provisions for the extension of the prescribed\ntime limits are the same as the provisions of 18 U.S.C. \xc2\xa73060 with two exceptions: The new\nlanguage allows delay consented to by the defendant only if there is \xe2\x80\x9ca showing of good cause,\ntaking into account the public interest in the prompt disposition of criminal cases.\xe2\x80\x9d This reflects\nthe view of the Advisory Committee that delay, whether prosecution or defense induced, ought to\nbe avoided whenever possible. The second difference between the new rule and 18 U.S.C. \xc2\xa73060 is\nthat the rule allows the decision to grant a continuance to be made by a United States magistrate as\nwell as by a judge of the United States. This reflects the view of the Advisory Committee that the\nUnited States magistrate should have sufficient judicial competence to make decisions such as that\ncontemplated in subdivision (c).\nNotes of Advisory Committee on Rules\xe2\x80\x941982 Amendment\nThe amendment of subdivision (b) reflects the recent amendment of 18 U.S.C. \xc2\xa73401(a),\nby the Federal Magistrate Act of 1979, to read: \xe2\x80\x9cWhen specially designated to exercise such\njurisdiction by the district court or courts he serves, any United States magistrate shall have\njurisdiction to try persons accused of, and sentence persons convicted of, misdemeanors\ncommitted within that judicial district.\xe2\x80\x9d\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\n31\n\n\x0cNotes of Advisory Committee on Rules\xe2\x80\x941990 Amendment\nRule 5(b) is amended to conform the rule to Rule 58.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nNotes of Advisory Committee on Rules\xe2\x80\x941995 Amendment\nThe amendment to Rule 5 is intended to address the interplay between the requirements for\na prompt appearance before a magistrate judge and the processing of persons arrested for the\noffense of unlawfully fleeing to avoid prosecution under 18 U.S.C. \xc2\xa71073, when no federal\nprosecution is intended. Title 18 U.S.C. \xc2\xa71073 provides in part:\nWhoever moves or travels in interstate or foreign commerce with intent . . . to avoid\nprosecution, or custody or confinement after conviction, under the laws of the place from which he\nflees . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both.\nViolations of this section may be prosecuted . . . only upon formal approval in writing by\nthe Attorney General, the Deputy Attorney General, the Associate Attorney General, or an\nAssistant Attorney General of the United States, which function of approving prosecutions may\nnot be delegated.\nIn enacting \xc2\xa71073, Congress apparently intended to provide assistance to state criminal\njustice authorities in an effort to apprehend and prosecute state offenders. It also appears that by\nrequiring permission of high ranking officials, Congress intended that prosecutions be limited in\nnumber. In fact, prosecutions under this section have been rare. The purpose of the statute is\nfulfilled when the person is apprehended and turned over to state or local authorities. In such cases\nthe requirement of Rule 5 that any person arrested under a federal warrant must be brought before\na federal magistrate judge becomes a largely meaningless exercise and a needless demand upon\nfederal judicial resources.\nIn addressing this problem, several options are available to federal authorities when no\nfederal prosecution is intended to ensue after the arrest. First, once federal authorities locate a\nfugitive, they may contact local law enforcement officials who make the arrest based upon the\nunderlying out-of-state warrant. In that instance, Rule 5 is not implicated and the United States\nAttorney in the district issuing the \xc2\xa71073 complaint and warrant can take action to dismiss both. In\na second scenario, the fugitive is arrested by federal authorities who, in compliance with Rule 5,\nbring the person before a federal magistrate judge. If local law enforcement officers are present,\nthey can take custody, once the United States Attorney informs the magistrate judge that there will\nbe no prosecution under \xc2\xa71073. Depending on the availability of state or local officers, there may\nbe some delay in the Rule 5 proceedings; any delays following release to local officials, however,\nwould not be a function of Rule 5. In a third situation, federal authorities arrest the fugitive but\nlocal law enforcement authorities are not present at the Rule 5 appearance. Depending on a variety\nof practices, the magistrate judge may calendar a removal hearing under Rule 40, or order that the\nperson be held in federal custody pending further action by the local authorities.\n32\n\n\x0cUnder the amendment, officers arresting a fugitive charged only with violating \xc2\xa71073 need\nnot bring the person before a magistrate judge under Rule 5(a) if there is no intent to actually\nprosecute the person under that charge. Two requirements, however, must be met. First, the\narrested fugitive must be transferred without unnecessary delay to the custody of state officials.\nSecond, steps must be taken in the appropriate district to dismiss the complaint alleging a violation\nof \xc2\xa71073. The rule continues to contemplate that persons arrested by federal officials are entitled to\nprompt handling of federal charges, if prosecution is intended, and prompt transfer to state custody\nif federal prosecution is not contemplated.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 5 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic, except as noted below.\nRule 5 has been completely revised to more clearly set out the procedures for initial\nappearances and to recognize that such appearances may be required at various stages of a criminal\nproceeding, for example, where a defendant has been arrested for violating the terms of probation.\nRule 5(a), which governs initial appearances by an arrested defendant before a magistrate\njudge, includes several changes. The first is a clarifying change; revised Rule 5(a)(1) provides that\na person making the arrest must bring the defendant \xe2\x80\x9cwithout unnecessary delay\xe2\x80\x9d before a\nmagistrate judge, instead of the current reference to \xe2\x80\x9cnearest available\xe2\x80\x9d magistrate judge. This\nlanguage parallels changes in Rule 4 and reflects the view that time is of the essence. The\nCommittee intends no change in practice. In using the term, the Committee recognizes that on\noccasion there may be necessary delay in presenting the defendant, for example, due to weather\nconditions or other natural causes. A second change is non-stylistic, and reflects the stated\npreference (as in other provisions throughout the rules) that the defendant be brought before a\nfederal judicial officer. Only if a magistrate judge is not available should the defendant be taken\nbefore a state or local officer.\nThe third sentence in current Rule 5(a), which states that a magistrate judge must proceed\nin accordance with the rule where a defendant is arrested without a warrant or given a summons,\nhas been deleted because it is unnecessary.\nRule 5(a)(1)(B) codifies the caselaw reflecting that the right to an initial appearance applies\nnot only when a person is arrested within the United States but also when an arrest occurs outside\nthe United States. See, e.g., United States v. Purvis, 768 F.2d 1237 (11th Cir. 1985); United States\nv. Yunis, 859 F.2d 953 (D.C. Cir. 1988). In these circumstances, the Committee believes\xe2\x80\x94and the\nrule so provides\xe2\x80\x94that the initial appearance should be before a federal magistrate judge rather\nthan a state or local judicial officer. Rule 5(a)(1)(B) has also been amended by adding the words,\n\xe2\x80\x9cunless a federal statute provides otherwise,\xe2\x80\x9d to reflect recent enactment of the Military\nExtraterritorial Jurisdiction Act (Pub. L. No. 106\xe2\x80\x93523, 114 Stat. 2488) that permits certain persons\noverseas to appear before a magistrate judge by telephonic communication.\nRule 5(a)(2)(A) consists of language currently located in Rule 5 that addresses the\nprocedure to be followed where a defendant has been arrested under a warrant issued on a\ncomplaint charging solely a violation of 18 U.S.C. \xc2\xa71073 (unlawful flight to avoid prosecution).\nRule 5(a)(2)(B) and 5(a)(2)(C) are new provisions. They are intended to make it clear that when a\ndefendant is arrested for violating probation or supervised release, or for failing to appear in\nanother district, Rules 32.1 or 40 apply. No change in practice is intended.\n33\n\n\x0cRule 5(a)(3) is new and fills a perceived gap in the rules. It recognizes that a defendant may\nbe subjected to an initial appearance under this rule if a summons was issued under Rule 4, instead\nof an arrest warrant. If the defendant is appearing pursuant to a summons in a felony case, Rule\n5(d) applies, and if the defendant is appearing in a misdemeanor case, Rule 5(e) applies.\nRule 5(b) carries forward the requirement in former Rule 5(a) that if the defendant is\narrested without a warrant, a complaint must be promptly filed.\nRule 5(c) is a new provision and sets out where an initial appearance is to take place. If the\ndefendant is arrested in the district where the offense was allegedly committed, under Rule 5(c)(1)\nthe defendant must be taken to a magistrate judge in that district. If no magistrate judge is\nreasonably available, a state or local judicial officer may conduct the initial appearance. On the\nother hand, if the defendant is arrested in a district other than the district where the offense was\nallegedly committed, Rule 5(c)(2) governs. In those instances, the defendant must be taken to a\nmagistrate judge within the district of arrest, unless the appearance can take place more promptly\nin an adjacent district. The Committee recognized that in some cases, the nearest magistrate judge\nmay actually be across a district\'s lines. The remainder of Rule 5(c)(2) includes material formerly\nlocated in Rule 40.\nRule 5(d), derived from current Rule 5(c), has been retitled to more clearly reflect the\nsubject of that subdivision and the procedure to be used if the defendant is charged with a felony.\nRule 5(d)(4) has been added to make clear that a defendant may only be called upon to enter a plea\nunder the provisions of Rule 10. That language is intended to reflect and reaffirm current practice.\nThe remaining portions of current Rule 5(c) have been moved to Rule 5.1, which deals with\npreliminary hearings in felony cases.\nThe major substantive change is in new Rule 5(f), which permits video teleconferencing\nfor an appearance under this rule if the defendant consents. This change reflects the growing\npractice among state courts to use video teleconferencing to conduct initial proceedings. A similar\namendment has been made to Rule 10 concerning arraignments.\nIn amending Rules 5, 10, and 43 (which generally requires the defendant\'s presence at all\nproceedings), the Committee carefully considered the argument that permitting a defendant to\nappear by video teleconferencing might be considered an erosion of an important element of the\njudicial process. Much can be lost when video teleconferencing occurs. First, the setting itself may\nnot promote the public\'s confidence in the integrity and solemnity of a federal criminal proceeding;\nthat is the view of some who have witnessed the use of such proceedings in some state\njurisdictions. While it is difficult to quantify the intangible benefits and impact of requiring a\ndefendant to be brought before a federal judicial officer in a federal courtroom, the Committee\nrealizes that something is lost when a defendant is not required to make a personal appearance. A\nrelated consideration is that the defendant may be located in a room that bears no resemblance\nwhatsoever to a judicial forum and the equipment may be inadequate for high-quality\ntransmissions. Second, using video teleconferencing can interfere with counsel\'s ability to meet\npersonally with his or her client at what, at least in that jurisdiction, might be an important\nappearance before a magistrate judge. Third, the defendant may miss an opportunity to meet with\nfamily or friends, and others who might be able to assist the defendant, especially in any attempts\nto obtain bail. Finally, the magistrate judge may miss an opportunity to accurately assess the\nphysical, emotional, and mental condition of a defendant\xe2\x80\x94a factor that may weigh on pretrial\ndecisions, such as release from detention.\nOn the other hand, the Committee considered that in some jurisdictions, the court systems\nface a high volume of criminal proceedings. In other jurisdictions, counsel may not be appointed\n34\n\n\x0cuntil after the initial appearance and thus there is no real problem with a defendant being able to\nconsult with counsel before or during that proceeding. The Committee was also persuaded to adopt\nthe amendment because in some jurisdictions delays may occur in travel time from one location to\nanother\xe2\x80\x94in some cases requiring either the magistrate judge or the participants to travel long\ndistances. In those instances, it is not unusual for a defense counsel to recognize the benefit of\nconducting a video teleconferenced proceeding, which will eliminate lengthy and sometimes\nexpensive travel or permit the initial appearance to be conducted much sooner. Finally, the\nCommittee was aware that in some jurisdictions, courtrooms now contain high quality technology\nfor conducting such procedures, and that some courts are already using video\nteleconferencing\xe2\x80\x94with the consent of the parties.\nThe Committee believed that, on balance and in appropriate circumstances, the court and\nthe defendant should have the option of using video teleconferencing, as long as the defendant\nconsents to that procedure. The question of when it would be appropriate for a defendant to\nconsent is not spelled out in the rule. That is left to the defendant and the court in each case.\nAlthough the rule does not specify any particular technical requirements regarding the system to\nbe used, if the equipment or technology is deficient, the public may lose confidence in the integrity\nand dignity of the proceedings.\nThe amendment does not require a court to adopt or use video teleconferencing. In\ndeciding whether to use such procedures, a court may wish to consider establishing clearly\narticulated standards and procedures. For example, the court would normally want to insure that\nthe location used for televising the video teleconferencing is conducive to the solemnity of a\nfederal criminal proceeding. That might require additional coordination, for example, with the\ndetention facility to insure that the room, furniture, and furnishings reflect the dignity associated\nwith a federal courtroom. Provision should also be made to insure that the judge, or a surrogate, is\nin a position to carefully assess the defendant\'s condition. And the court should also consider\nestablishing procedures for insuring that counsel and the defendant (and even the defendant\'s\nimmediate family) are provided an ample opportunity to confer in private.\nCommittee Notes on Rules\xe2\x80\x942006 Amendment\nSubdivisions (c)(3)(C) and (D). The amendment to Rule 5(c)(3)(C) parallels an\namendment to Rule 58(b)(2)(G), which in turn has been amended to remove a conflict between\nthat rule and Rule 5.1(a), concerning the right to a preliminary hearing.\nRule 5(c)(3)(D) has been amended to permit the magistrate judge to accept a warrant by\nreliable electronic means. Currently, the rule requires the government to produce the original\nwarrant, a certified copy of the warrant, or a facsimile copy of either of those documents. This\namendment parallels similar changes to Rules 32.1(a)(5)(B)(i) and 41. The reference to a facsimile\nversion of the warrant was removed because the Committee believed that the broader term\n\xe2\x80\x9celectronic form\xe2\x80\x9d includes facsimiles.\nThe amendment reflects a number of significant improvements in technology. First, more\ncourts are now equipped to receive filings by electronic means, and indeed, some courts encourage\nor require that certain documents be filed by electronic means. Second, the technology has\nadvanced to the state where such filings could be sent from, and received at, locations outside the\ncourthouse. Third, electronic media can now provide improved quality of transmission and\nsecurity measures. In short, in a particular case, using electronic media to transmit a document\nmight be just as reliable and efficient as using a facsimile.\n35\n\n\x0cThe term \xe2\x80\x9celectronic\xe2\x80\x9d is used to provide some flexibility to the rule and make allowance for\nfurther technological advances in transmitting data.\nThe rule requires that if electronic means are to be used to transmit a warrant to the\nmagistrate judge, that the means used be \xe2\x80\x9creliable.\xe2\x80\x9d While the rule does not further define that\nterm, the Committee envisions that a court or magistrate judge would make that determination as a\nlocal matter. In deciding whether a particular electronic means, or media, would be reliable, the\ncourt might consider first, the expected quality and clarity of the transmission. For example, is it\npossible to read the contents of the warrant in its entirety, as though it were the original or a clean\nphotocopy? Second, the court may consider whether security measures are available to insure that\nthe transmission is not compromised. In this regard, most courts are now equipped to require that\ncertain documents contain a digital signature, or some other similar system for restricting access.\nThird, the court may consider whether there are reliable means of preserving the document for\nlater use.\nChanges Made After Publication and Comment. The Committee made no changes in the\nRule and Committee Note as published. It considered and rejected the suggestion that the rule\nshould refer specifically to non-certified photocopies, believing it preferable to allow the\ndefinition of reliability to be resolved at the local level. The Committee Note provides examples of\nthe factors that would bear on reliability.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivision (c)(4). The amendment codifies the longstanding practice that persons who are\ncharged with criminal offenses in the United States and surrendered to the United States following\nextradition in a foreign country make their initial appearance in the jurisdiction that sought their\nextradition.\nThis rule is applicable even if the defendant arrives first in another district. The earlier\nstages of the extradition process have already fulfilled some of the functions of the initial\nappearance. During foreign extradition proceedings, the extradited person, assisted by counsel, is\nafforded an opportunity to review the charging document, U.S. arrest warrant, and supporting\nevidence. Rule 5(a)(1)(B) requires the person be taken before a magistrate judge without\nunnecessary delay. Consistent with this obligation, it is preferable not to delay an extradited\nperson\xe2\x80\x99s transportation to hold an initial appearance in the district of arrival, even if the person will\nbe present in that district for some time as a result of connecting flights or logistical difficulties.\nInterrupting an extradited defendant\xe2\x80\x99s transportation at this point can impair his or her ability to\nobtain and consult with trial counsel and to prepare his or her defense in the district where the\ncharges are pending.\nChanges Made After Publication and Comment. No changes were made in the amendment\nas published.\nCommittee Notes on Rules-2014 Amendment\nRule 5(d)(1)(F). Article 36 of the Vienna Convention on Consular Relations provides that\ndetained foreign nationals shall be advised that they may have the consulate of their home country\nnotified of their an-est and detention, and bilateral agreements with numerous countries require\nconsular notification whether or not the detained foreign national requests it. Article 36 requires\nconsular notification advice to be given "without delay," and arresting officers are primarily\n36\n\n\x0cresponsible for providing this advice.\nProviding this advice at the initial appearance is designed, not to relieve law enforcement\nofficers of that responsibility, but to provide additional assurance that U.S. treaty obligations are\nfulfilled, and to create a judicial record of that action. The Committee concluded that the most\neffective and efficient method of conveymg this information is to provide it to every defendant,\nwithout attempting to determine the defendant\'s citizenship.\nAt the time of this amendment, many questions remain unresolved by the courts\nconcerning Article 36, including whether it creates individual rights that may be invoked in a\njudicial proceeding and what, if any, remedy may exist for a violation of Article 36.\nSanchez-Llamas v. Oregon, 548\nU.S. 331 (2006). This amendment does not address those questions. More particularly, it\ndoes not create any such rights or remedies.\nChanges Made After Publication and Comment\nIn response to public comments the amendment was rephrased to state that the information\nregarding consular notification should be provided to all defendants who are arraigned. Although\nit is anticipated that ordinarily only defendants who are held in custody will ask the government to\nnotifY a consular official of their arrest, it is appropriate to provide this information to all\ndefendants at their initial appearance. The new phrasing also makes it clear that the advice should\nbe provided to every defendant, without any attempt to determine the defendant\'s citizenship. A\nconforming change was made to the Committee Note.\nAmendment by Public Law\n1984 \xe2\x80\x94Subd. (c). Pub. L. 98\xe2\x80\x93473 substituted \xe2\x80\x9cshall detain or conditionally release the\ndefendant\xe2\x80\x9d for \xe2\x80\x9cshall admit the defendant to bail\xe2\x80\x9d.\n\nRule 5.1 Preliminary Hearing\n(a) In General. If a defendant is charged with an offense other than a petty offense, a\nmagistrate judge must conduct a preliminary hearing unless:\n(1) the defendant waives the hearing;\n(2) the defendant is indicted;\n(3) the government files an information under Rule 7(b) charging the defendant with a\nfelony;\n(4) the government files an information charging the defendant with a misdemeanor; or\n(5) the defendant is charged with a misdemeanor and consents to trial before a magistrate\njudge.\n(b) Selecting a District. A defendant arrested in a district other than where the offense was\nallegedly committed may elect to have the preliminary hearing conducted in the district where the\nprosecution is pending.\n(c) Scheduling. The magistrate judge must hold the preliminary hearing within a\nreasonable time, but no later than 14 days after the initial appearance if the defendant is in custody\nand no later than 21 days if not in custody.\n(d) Extending the Time. With the defendant\'s consent and upon a showing of good\ncause\xe2\x80\x94taking into account the public interest in the prompt disposition of criminal cases\xe2\x80\x94a\nmagistrate judge may extend the time limits in Rule 5.1(c) one or more times. If the defendant does\nnot consent, the magistrate judge may extend the time limits only on a showing that extraordinary\n37\n\n\x0ccircumstances exist and justice requires the delay.\n(e) Hearing and Finding. At the preliminary hearing, the defendant may cross-examine\nadverse witnesses and may introduce evidence but may not object to evidence on the ground that it\nwas unlawfully acquired. If the magistrate judge finds probable cause to believe an offense has\nbeen committed and the defendant committed it, the magistrate judge must promptly require the\ndefendant to appear for further proceedings.\n(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an\noffense has been committed or the defendant committed it, the magistrate judge must dismiss the\ncomplaint and discharge the defendant. A discharge does not preclude the government from later\nprosecuting the defendant for the same offense.\n(g) Recording the Proceedings. The preliminary hearing must be recorded by a court\nreporter or by a suitable recording device. A recording of the proceeding may be made available to\nany party upon request. A copy of the recording and a transcript may be provided to any party upon\nrequest and upon any payment required by applicable Judicial Conference regulations.\n(h) Producing a Statement.\n(1) In General. Rule 26.2(a)\xe2\x80\x93(d) and (f) applies at any hearing under this rule, unless the\nmagistrate judge for good cause rules otherwise in a particular case.\n(2) Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to\ndeliver a statement to the moving party, the magistrate judge must not consider the testimony of a\nwitness whose statement is withheld.\nNotes\n(Added Apr. 24, 1972, eff. Oct. 1, 1972; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22,\n1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26,\n2009, eff. Dec. 1, 2009.)\nNotes of Advisory Committee on Rules\xe2\x80\x941972\nRule 5.1 is, for the most part, a clarification of old rule 5(c).\nUnder the new rule, the preliminary examination must be conducted before a \xe2\x80\x9cfederal\nmagistrate\xe2\x80\x9d as defined in rule 54. Giving state or local judicial officers authority to conduct a\npreliminary examination does not seem necessary. There are not likely to be situations in which a\n\xe2\x80\x9cfederal magistrate\xe2\x80\x9d is not \xe2\x80\x9creasonably available\xe2\x80\x9d to conduct the preliminary examination, which\nis usually not held until several days after the initial appearance provided for in rule 5.\nSubdivision (a) makes clear that a finding of probable cause may be based on \xe2\x80\x9chearsay\nevidence in whole or in part.\xe2\x80\x9d The propriety of relying upon hearsay at the preliminary\nexamination has been a matter of some uncertainty in the federal system. See C. Wright, Federal\nPractice and Procedure: Criminal \xc2\xa780 (1969, Supp. 1971); 8 J. Moore, Federal Practice 504[4] (2d\ned. Cipes 1970, Supp. 1971); Washington v. Clemmer, 339 F.2d 715, 719 (D.C. Cir. 1964);\nWashington v. Clemmer, 339 F.2d 725, 728 (D.C. Cir. 1964); Ross v. Sirica, 380 F.2d 557, 565\n(D.C. Cir. 1967); Howard v. United States, 389 F.2d 287, 292 (D.C. Cir. 1967); Weinberg and\nWeinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of\nSection 303 of the Federal Magistrates Act of 1968, 67 Mich.L.Rev. 1361, especially n. 92 at 1383\n(1969); D. Wright, The Rules of Evidence Applicable to Hearings in Probable Cause, 37 Conn.B.J.\n561 (1963); Comment, Preliminary Examination\xe2\x80\x94Evidence and Due Process, 15 Kan.L.Rev. 374,\n379\xe2\x80\x93381 (1967).\n38\n\n\x0cA grand jury indictment may properly be based upon hearsay evidence. Costello v. United\nStates, 350 U.S. 359 (1956); 8 J. Moore, Federal Practice 6.03[2] (2d ed. Cipes 1970, Supp. 1971).\nThis being so, there is practical advantage in making the evidentiary requirements for the\npreliminary examination as flexible as they are for the grand jury. Otherwise there will be\nincreased pressure upon United States Attorneys to abandon the preliminary examination in favor\nof the grand jury indictment. See C. Wright, Federal Practice and Procedure: Criminal \xc2\xa780 at p.\n143 (1969). New York State, which also utilizes both the preliminary examination and the grand\njury, has under consideration a new Code of Criminal Procedure which would allow the use of\nhearsay at the preliminary examination. See McKinney\'s Session Law News, April 10, 1969, pp.\nA119\xe2\x80\x93A120.\nFor the same reason, subdivision (a) also provides that the preliminary examination is not\nthe proper place to raise the issue of illegally obtained evidence. This is current law. In\nGiordenello v. United States, 357 U.S. 480, 484 (1958), the Supreme Court said:\n[T]he Commissioner here had no authority to adjudicate the admissibility at petitioner\'s\nlater trial of the heroin taken from his person. That issue was for the trial court. This is specifically\nrecognized by Rule 41(e) of the Criminal Rules, which provides that a defendant aggrieved by an\nunlawful search and seizure may \xe2\x80\x9c * move the district court * to suppress for use as evidence\nanything so obtained on the ground that *\xe2\x80\x9d the arrest warrant was defective on any of several\ngrounds.\nDicta in Costello v. United States, 350 U.S. 359, 363 \xe2\x80\x93364 (1956), and United States v.\nBlue, 384 U.S. 251, 255 (1966), also support the proposed rule. In United States ex rel. Almeida v.\nRundle, 383 F.2d 421, 424 (3d Cir. 1967), the court, in considering the adequacy of an indictment\nsaid:\nOn this score, it is settled law that (1) \xe2\x80\x9c[an] indictment returned by a legally constituted\nnonbiased grand jury, * is enough to call for a trial of the charge on the merits and satisfies the\nrequirements of the Fifth Amendment.\xe2\x80\x9d, Lawn v. United States, 355 U.S. 399, 349, 78 S.Ct. 311,\n317, 2 L.Ed.2d 321 (1958); (2) an indictment cannot be challenged \xe2\x80\x9con the ground that there was\ninadequate or incompetent evidence before the grand jury\xe2\x80\x9d, Costello v. United States, 350 U.S.\n359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); and (3) a prosecution is not abated, nor barred,\neven where \xe2\x80\x9ctainted evidence\xe2\x80\x9d has been submitted to a grand jury, United States v. Blue, 384 U.S.\n251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966).\nSee also C. Wright, Federal Practice and Procedure: Criminal \xc2\xa780 at 143 n. 5 (1969, Supp.\n1971) 8 J. Moore, Federal Practice 6.03[3] (2d ed. Cipes 1970, Supp. 1971). The Manual for\nUnited States Commissioners (Administrative Office of United States Courts, 1948) provides at\npp. 24\xe2\x80\x9325: \xe2\x80\x9cMotions for this purpose [to suppress illegally obtained evidence] may be made and\nheard only before a district judge. Commissioners are not empowered to consider or act upon such\nmotions.\xe2\x80\x9d\nIt has been urged that the rules of evidence at the preliminary examination should be those\napplicable at the trial because the purpose of the preliminary examination should be, not to review\nthe propriety of the arrest or prior detention, but rather to determine whether there is evidence\nsufficient to justify subjecting the defendant to the expense and inconvenience of trial. See\nWeinberg and Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An\nAnalysis of Section 303 of the Federal Magistrates Act of 1968, 67 Mich. L. Rev. 1361, 1396\xe2\x80\x93\n1399 (1969). The rule rejects this view for reasons largely of administrative necessity and the\nefficient administration of justice. The Congress has decided that a preliminary examination shall\nnot be required when there is a grand jury indictment ( 18 U.S.C. \xc2\xa73060). Increasing the procedural\n39\n\n\x0cand evidentiary requirements applicable to the preliminary examination will therefore add to the\nadministrative pressure to avoid the preliminary examination. Allowing objections to evidence on\nthe ground that evidence has been illegally obtained would require two determinations of\nadmissibility, one before the United States magistrate and one in the district court. The objective is\nto reduce, not increase, the number of preliminary motions.\nTo provide that a probable cause finding may be based upon hearsay does not preclude the\nmagistrate from requiring a showing that admissible evidence will be available at the time of trial.\nSee Comment, Criminal Procedure\xe2\x80\x94Grand Jury\xe2\x80\x94Validity of Indictment Based Solely on\nHearsay Questioned When Direct Testimony Is Readily Available, 43 N.Y.U. L. Rev. 578 (1968);\nUnited States v. Umans, 368 F.2d. 725 (2d Cir. 1966), cert. dismissed as improvidently granted\n389 U.S. 80 (1967); United States v. Andrews, 381 F.2d 377, 378 (2d Cir. 1967); United States v.\nMessina, 388 F.2d 393, 394 n. 1 (2d Cir. 1968); and United States v. Beltram. 388 F.2d 449 (2d\nCir. 1968); and United States v. Arcuri, 282 F.Supp. 347 (E.D.N.Y. 1968). The fact that a\ndefendant is not entitled to object to evidence alleged to have been illegally obtained does not\ndeprive him of an opportunity for a pretrial determination of the admissibility of evidence. He can\nraise such an objection prior to trial in accordance with the provisions of rule 12.\nSubdivision (b) makes it clear that the United States magistrate may not only discharge the\ndefendant but may also dismiss the complaint. Current federal law authorizes the magistrate to\ndischarge the defendant but he must await authorization from the United States Attorney before he\ncan close his records on the case by dismissing the complaint. Making dismissal of the complaint a\nseparate procedure accomplishes no worthwhile objective, and the new rule makes it clear that the\nmagistrate can both discharge the defendant and file the record with the clerk.\nSubdivision (b) also deals with the legal effect of a discharge of a defendant at a\npreliminary examination. This issue is not dealt with explicitly in the old rule. Existing federal case\nlaw is limited. What cases there are seem to support the right of the government to issue a new\ncomplaint and start over. See e.q., Collins v. Loisel, 262 U.S. 426 (1923); Morse v. United States,\n267 U.S. 80 (1925). State law is similar. See People v. Dillon, 197 N.Y. 254, 90 N.E. 820 (1910;\nTell v. Wolke, 21 Wis.2d 613, 124 N.W.2d 655 (1963). In the Tell case the Wisconsin court stated\nthe common rationale for allowing the prosecutor to issue a new complaint and start over:\nThe state has no appeal from errors of law committed by a magistrate upon preliminary\nexamination and the discharge on a preliminary would operate as an unchallengeable acquittal.\n* The only way an error of law committed on the preliminary examination prejudicial to the state\nmay be challenged or corrected is by a preliminary examination on a second complaint. (21 Wis.\n2d at 619\xe2\x80\x93620.)\nSubdivision (c) is based upon old rule 5(c) and upon the Federal Magistrates Act, 18\nU.S.C. \xc2\xa73060(f). It provides methods for making available to counsel the record of the preliminary\nexamination. See C. Wright, Federal Practice and Procedure: Criminal \xc2\xa782 (1969, Supp. 1971).\nThe new rule is designed to eliminate delay and expense occasioned by preparation of transcripts\nwhere listening to the tape recording would be sufficient. Ordinarily the recording should be made\navailable pursuant to subdivision (c)(1). A written transcript may be provided under subdivision\n(c)(2) at the discretion of the court, a discretion which must be exercised in accordance with Britt\nv. North Carolina, 404 U.S. 226, 30 L.Ed.2d 400, 405 (1971):\nA defendant who claims the right to a free transcript does not, under our cases, bear the\nburden of proving inadequate such alternatives as may be suggested by the State or conjured up by\na court in hindsight. In this case, however, petitioner has conceded that he had available an\ninformal alternative which appears to be substantially equivalent to a transcript. Accordingly, we\n40\n\n\x0ccannot conclude that the court below was in error in rejecting his claim.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x941998 Amendment\nThe addition of subdivision (d) mirrors similar amendments made in 1993 which extended\nthe scope of Rule 26.2 to Rules 32, 32.1, 46 and Rule 8 of the Rules Governing Proceedings under\n28 U.S.C. \xc2\xa72255. As indicated in the Committee Notes accompanying those amendments, the\nprimary reason for extending the coverage of Rule 26.2 rested heavily upon the compelling need\nfor accurate information affecting a witness\xe2\x80\x99 credibility. That need, the Committee believes,\nextends to a preliminary examination under this rule where both the prosecution and the defense\nhave high interests at stake.\nA witness\xe2\x80\x99 statement must be produced only after the witness has personally testified.\nChanges Made to Rule 5.1 After Publication (\xe2\x80\x9cGAP Report\xe2\x80\x9d). The Committee made no\nchanges to the published draft.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 5.1 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic, except as noted below.\nFirst, the title of the rule has been changed. Although the underlying statute, 18 U.S.C.\n\xc2\xa73060, uses the phrase preliminary examination, the Committee believes that the phrase\npreliminary hearing is more accurate. What happens at this proceeding is more than just an\nexamination; it includes an evidentiary hearing, argument, and a judicial ruling. Further, the phrase\npreliminary hearing predominates in actual usage.\nRule 5.1(a) is composed of the first sentence of the second paragraph of current Rule 5(c).\nRule 5.1(b) addresses the ability of a defendant to elect where a preliminary hearing will be held.\nThat provision is taken from current Rule 40(a).\nRule 5.1(c) and (d) include material currently located in Rule 5(c): scheduling and\nextending the time limits for the hearing. The Committee is aware that in most districts, magistrate\njudges perform these functions. That point is also reflected in the definition of \xe2\x80\x9ccourt\xe2\x80\x9d in Rule 1(b),\nwhich in turn recognizes that magistrate judges may be authorized to act.\nRule 5.1(d) contains a significant change in practice. The revised rule includes language\nthat expands the authority of a United States magistrate judge to grant a continuance for a\npreliminary hearing conducted under the rule. Currently, the rule authorizes a magistrate judge to\ngrant a continuance only in those cases in which the defendant has consented to the continuance. If\n41\n\n\x0cthe defendant does not consent, then the government must present the matter to a district judge,\nusually on the same day. The proposed amendment conflicts with 18 U.S.C. \xc2\xa73060, which tracks\nthe original language of the rule and permits only district judges to grant continuances when the\ndefendant objects. The Committee believes that this restriction is an anomaly and that it can lead to\nneedless consumption of judicial and other resources. Magistrate judges are routinely required to\nmake probable cause determinations and other difficult decisions regarding the defendant\'s liberty\ninterests, reflecting that the magistrate judge\'s role has developed toward a higher level of\nresponsibility for pre-indictment matters. The Committee believes that the change in the rule will\nprovide greater judicial economy and that it is entirely appropriate to seek this change to the rule\nthrough the Rules Enabling Act procedures. See 28 U.S.C. \xc2\xa72072(b). Under those procedures,\napproval by Congress of this rule change would supersede the parallel provisions in 18 U.S.C.\n\xc2\xa73060.\nRule 5.1(e), addressing the issue of probable cause, contains the language currently located\nin Rule 5.1(a), with the exception of the sentence, \xe2\x80\x9cThe finding of probable cause may be based\nupon hearsay evidence in whole or in part.\xe2\x80\x9d That language was included in the original\npromulgation of the rule in 1972. Similar language was added to Rule 4 in 1974. In the Committee\nNote on the 1974 amendment, the Advisory Committee explained that the language was included\nto make it clear that a finding of probable cause may be based upon hearsay, noting that there had\nbeen some uncertainty in the federal system about the propriety of relying upon hearsay at the\npreliminary hearing. See Advisory Committee Note to Rule 5.1 (citing cases and commentary).\nFederal law is now clear on that proposition. Thus, the Committee believed that the reference to\nhearsay was no longer necessary. Further, the Committee believed that the matter was best\naddressed in Rule 1101(d)(3), Federal Rules of Evidence. That rule explicitly states that the\nFederal Rules of Evidence do not apply to \xe2\x80\x9cpreliminary examinations in criminal cases, . . .\nissuance of warrants for arrest, criminal summonses, and search warrants.\xe2\x80\x9d The Advisory\nCommittee Note accompanying that rule recognizes that: \xe2\x80\x9cThe nature of the proceedings makes\napplication of the formal rules of evidence inappropriate and impracticable.\xe2\x80\x9d The Committee did\nnot intend to make any substantive changes in practice by deleting the reference to hearsay\nevidence.\nRule 5.1(f), which deals with the discharge of a defendant, consists of former Rule 5.1(b).\nRule 5.1(g) is a revised version of the material in current Rule 5.1(c). Instead of including\ndetailed information in the rule itself concerning records of preliminary hearings, the Committee\nopted simply to direct the reader to the applicable Judicial Conference regulations governing\nrecords. The Committee did not intend to make any substantive changes in the way in which those\nrecords are currently made available.\nFinally, although the rule speaks in terms of initial appearances being conducted before a\nmagistrate judge, Rule 1(c) makes clear that a district judge may perform any function in these\nrules that a magistrate judge may perform.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nThe times set in the former rule at 10 or 20 days have been revised to 14 or 21 days. See the\nCommittee Note to Rule 45(a).\n\n42\n\n\x0cTITLE III. THE GRAND JURY, THE INDICTMENT, AND THE\nINFORMATION\nRule 6. The Grand Jury\n(a) Summoning a Grand Jury.\n(1) In General. When the public interest so requires, the court must order that one or more\ngrand juries be summoned. A grand jury must have 16 to 23 members, and the court must order\nthat enough legally qualified persons be summoned to meet this requirement.\n(2) Alternate Jurors. When a grand jury is selected, the court may also select alternate\njurors. Alternate jurors must have the same qualifications and be selected in the same manner as\nany other juror. Alternate jurors replace jurors in the same sequence in which the alternates were\nselected. An alternate juror who replaces a juror is subject to the same challenges, takes the same\noath, and has the same authority as the other jurors.\n(b) Objection to the Grand Jury or to a Grand Juror.\n(1) Challenges. Either the government or a defendant may challenge the grand jury on the\nground that it was not lawfully drawn, summoned, or selected, and may challenge an individual\njuror on the ground that the juror is not legally qualified.\n(2) Motion to Dismiss an Indictment. A party may move to dismiss the indictment based on\nan objection to the grand jury or on an individual juror\'s lack of legal qualification, unless the court\nhas previously ruled on the same objection under Rule 6(b)(1). The motion to dismiss is governed\nby 28 U.S.C. \xc2\xa71867 (e). The court must not dismiss the indictment on the ground that a grand juror\nwas not legally qualified if the record shows that at least 12 qualified jurors concurred in the\nindictment.\n(c) Foreperson and Deputy Foreperson. The court will appoint one juror as the foreperson\nand another as the deputy foreperson. In the foreperson\'s absence, the deputy foreperson will act as\nthe foreperson. The foreperson may administer oaths and affirmations and will sign all\nindictments. The foreperson\xe2\x80\x94or another juror designated by the foreperson\xe2\x80\x94will record the\nnumber of jurors concurring in every indictment and will file the record with the clerk, but the\nrecord may not be made public unless the court so orders.\n(d) Who May Be Present.\n(1) While the Grand Jury Is in Session. The following persons may be present while the\ngrand jury is in session: attorneys for the government, the witness being questioned, interpreters\nwhen needed, and a court reporter or an operator of a recording device.\n(2) During Deliberations and Voting. No person other than the jurors, and any interpreter\nneeded to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury\nis deliberating or voting.\n(e) Recording and Disclosing the Proceedings.\n(1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all\nproceedings must be recorded by a court reporter or by a suitable recording device. But the validity\nof a prosecution is not affected by the unintentional failure to make a recording. Unless the court\norders otherwise, an attorney for the government will retain control of the recording, the reporter\'s\nnotes, and any transcript prepared from those notes.\n(2) Secrecy.\n(A) No obligation of secrecy may be imposed on any person except in accordance with\n43\n\n\x0cRule 6(e)(2)(B).\n(B) Unless these rules provide otherwise, the following persons must not disclose a matter\noccurring before the grand jury:\n(i) a grand juror;\n(ii) an interpreter;\n(iii) a court reporter;\n(iv) an operator of a recording device;\n(v) a person who transcribes recorded testimony;\n(vi) an attorney for the government; or\n(vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).\n(3) Exceptions.\n(A) Disclosure of a grand-jury matter\xe2\x80\x94other than the grand jury\'s deliberations or any\ngrand juror\'s vote\xe2\x80\x94may be made to:\n(i) an attorney for the government for use in performing that attorney\'s duty;\n(ii) any government personnel\xe2\x80\x94including those of a state, state subdivision, Indian tribe,\nor foreign government\xe2\x80\x94that an attorney for the government considers necessary to assist in\nperforming that attorney\'s duty to enforce federal criminal law; or\n(iii) a person authorized by 18 U.S.C. \xc2\xa73322.\n(B) A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that\ninformation only to assist an attorney for the government in performing that attorney\'s duty to\nenforce federal criminal law. An attorney for the government must promptly provide the court that\nimpaneled the grand jury with the names of all persons to whom a disclosure has been made, and\nmust certify that the attorney has advised those persons of their obligation of secrecy under this\nrule.\n(C) An attorney for the government may disclose any grand-jury matter to another federal\ngrand jury.\n(D) An attorney for the government may disclose any grand-jury matter involving foreign\nintelligence, counterintelligence (as defined in 50 U.S.C. \xc2\xa7401a3003), or foreign intelligence\ninformation (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence,\nprotective, immigration, national defense, or national security official to assist the official\nreceiving the information in the performance of that official\'s duties. An attorney for the\ngovernment may also disclose any grand-jury matter involving, within the United States or\nelsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of\ndomestic or international sabotage or terrorism, or clandestine intelligence gathering activities by\nan intelligence service or network of a foreign power or by its agent, to any appropriate federal,\nstate, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing\nor responding to such threat or activities.\n(i) Any official who receives information under Rule 6(e)(3)(D) may use the information\nonly as necessary in the conduct of that person\'s official duties subject to any limitations on the\nunauthorized disclosure of such information. Any state, state subdivision, Indian tribal, or foreign\ngovernment official who receives information under Rule 6(e)(3)(D) may use the information only\nin a manner consistent with any guidelines issued by the Attorney General and the Director of\nNational Intelligence.\n(ii) Within a reasonable time after disclosure is made underRule 6(e)(3)(D), an attorney for\nthe government must file, under seal, a notice with the court in the district where the grand jury\nconvened stating that such information was disclosed and the departments, agencies, or entities to\n44\n\n\x0cwhich the disclosure was made.\n(iii) As used in Rule 6(e)(3)(D), the term \xe2\x80\x9cforeign intelligence information\xe2\x80\x9d means:\n(a) information, whether or not it concerns a United States person, that relates to the ability\nof the United States to protect against\xe2\x80\x94\n\xe2\x80\xa2 actual or potential attack or other grave hostile acts of a foreign power or its agent;\n\xe2\x80\xa2 sabotage or international terrorism by a foreign power or its agent; or\n\xe2\x80\xa2 clandestine intelligence activities by an intelligence service or network of a foreign power\nor by its agent; or\n(b) information, whether or not it concerns a United States person, with respect to a foreign\npower or foreign territory that relates to\xe2\x80\x94\n\xe2\x80\xa2 the national defense or the security of the United States; or\n\xe2\x80\xa2 the conduct of the foreign affairs of the United States.\n(E) The court may authorize disclosure\xe2\x80\x94at a time, in a manner, and subject to any other\nconditions that it directs\xe2\x80\x94of a grand-jury matter:\n(i) preliminarily to or in connection with a judicial proceeding;\n(ii) at the request of a defendant who shows that a ground may exist to dismiss the\nindictment because of a matter that occurred before the grand jury;\n(iii) at the request of the government, when sought by a foreign court or prosecutor for use\nin an official criminal investigation;\n(iv) at the request of the government if it shows that the matter may disclose a violation of\nState, Indian tribal, or foreign criminal law, as long as the disclosure is to an appropriate state,\nstate-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that\nlaw; or\n(v) at the request of the government if it shows that the matter may disclose a violation of\nmilitary criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an\nappropriate military official for the purpose of enforcing that law.\n(F) A petition to disclose a grand-jury matter under Rule 6(e)(3)(E)(i) must be filed in the\ndistrict where the grand jury convened. Unless the hearing is ex parte\xe2\x80\x94as it may be when the\ngovernment is the petitioner\xe2\x80\x94the petitioner must serve the petition on, and the court must afford a\nreasonable opportunity to appear and be heard to:\n(i) an attorney for the government;\n(ii) the parties to the judicial proceeding; and\n(iii) any other person whom the court may designate.\n(G) If the petition to disclose arises out of a judicial proceeding in another district, the\npetitioned court must transfer the petition to the other court unless the petitioned court can\nreasonably determine whether disclosure is proper. If the petitioned court decides to transfer, it\nmust send to the transferee court the material sought to be disclosed, if feasible, and a written\nevaluation of the need for continued grand-jury secrecy. The transferee court must afford those\npersons identified in Rule 6(e)(3)(F) a reasonable opportunity to appear and be heard.\n(4) Sealed Indictment. The magistrate judge to whom an indictment is returned may direct\nthat the indictment be kept secret until the defendant is in custody or has been released pending\ntrial. The clerk must then seal the indictment, and no person may disclose the indictment\'s\nexistence except as necessary to issue or execute a warrant or summons.\n(5) Closed Hearing. Subject to any right to an open hearing in a contempt proceeding, the\ncourt must close any hearing to the extent necessary to prevent disclosure of a matter occurring\nbefore a grand jury.\n45\n\n\x0c(6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings\nmust be kept under seal to the extent and as long as necessary to prevent the unauthorized\ndisclosure of a matter occurring before a grand jury.\n(7) Contempt. A knowing violation of Rule 6, or of any guidelines jointly issued by the\nAttorney General and the Director of National Intelligence under Rule 6, may be punished as a\ncontempt of court.\n(f) Indictment and Return. A grand jury may indict only if at least 12 jurors concur. The\ngrand jury\xe2\x80\x94or its foreperson or deputy foreperson\xe2\x80\x94must return the indictment to a magistrate\njudge in open court. To avoid unnecessary cost or delay, the magistrate judge may take the return\nby video teleconference from the court where the grand jury sits. If a complaint or information is\npending against the defendant and 12 jurors do not concur in the indictment, the foreperson must\npromptly and in writing report the lack of concurrence to the magistrate judge.\n(g) Discharging the Grand Jury. A grand jury must serve until the court discharges it, but it\nmay serve more than 18 months only if the court, having determined that an extension is in the\npublic interest, extends the grand jury\'s service. An extension may be granted for no more than 6\nmonths, except as otherwise provided by statute.\n(h) Excusing a Juror. At any time, for good cause, the court may excuse a juror either\ntemporarily or permanently, and if permanently, the court may impanel an alternate juror in place\nof the excused juror.\n(i) \xe2\x80\x9cIndian Tribe\xe2\x80\x9d Defined. \xe2\x80\x9cIndian tribe\xe2\x80\x9d means an Indian tribe recognized by the\nSecretary of the Interior on a list published in the Federal Register under 25 U.S.C. \xc2\xa7479a\xe2\x80\x931.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 26 and\nJuly 8, 1976, eff. Aug. 1, 1976; Pub. L. 95\xe2\x80\x9378, \xc2\xa72(a), July 30, 1977, 91 Stat. 319; Apr. 30, 1979,\neff. Aug. 1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7215(f), Oct. 12, 1984,\n98 Stat. 2016; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff.\nDec. 1, 1993; Apr. 26, 1999, eff. Dec. 1, 1999; Pub. L. 107\xe2\x80\x9356, title II, \xc2\xa7203(a), Oct. 26, 2001, 115\nStat. 278; Apr. 29, 2002, eff. Dec. 1, 2002; Pub. L. 107\xe2\x80\x93296, title VIII, \xc2\xa7895, Nov. 25, 2002, 116\nStat. 2256; Pub. L. 108\xe2\x80\x93458, title VI, \xc2\xa76501(a), Dec. 17, 2004, 118 Stat. 3760; Apr. 12, 2006, eff.\nDec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 25, 2014, eff. Dec. 1, 2014.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. The first sentence of this rule vests in the court full discretion as\nto the number of grand juries to be summoned and as to the times when they should be convened.\nThis provision supersedes the existing law, which limits the authority of the court to summon more\nthan one grand jury at the same time. At present two grand juries may be convened simultaneously\nonly in a district which has a city or borough of at least 300,000 inhabitants, and three grand juries\nonly in the Southern District of New York, 28 U.S.C. [former] 421 (Grand juries; when, how and\nby whom summoned; length of service). This statute has been construed, however, as only limiting\nthe authority of the court to summon more than one grand jury for a single place of holding court,\nand as not circumscribing the power to convene simultaneously several grand juries at different\npoints within the same district, Morris v. United States, 128 F.2d 912 (C.C.A. 5th); United States v.\nPerlstein, 39 F.Supp. 965 (D.N.J.).\n2. The provision that the grand jury shall consist of not less than 16 and not more than 23\n46\n\n\x0cmembers continues existing law, 28 U.S.C. 419 [now 18 U.S.C. 3321 ] (Grand jurors; number\nwhen less than required number).\n3. The rule does not affect or deal with the method of summoning and selecting grand\njuries. Existing statutes on the subjects are not superseded. See 28 U.S.C. 411 \xe2\x80\x93426 [now 1861\xe2\x80\x93\n1870]. As these provisions of law relate to jurors for both criminal and civil cases, it seemed best\nnot to deal with this subject.\nNote to Subdivision (b)(1). Challenges to the array and to individual jurors, although rarely\ninvoked in connection with the selection of grand juries, are nevertheless permitted in the Federal\ncourts and are continued by this rule, United States v. Gale, 109 U.S. 65, 69\xe2\x80\x9370; Clawson v. United\nStates, 114 U.S. 477; Agnew v. United States, 165 U.S. 36, 44. It is not contemplated, however,\nthat defendants held for action of the grand jury shall receive notice of the time and place of the\nimpaneling of a grand jury, or that defendants in custody shall be brought to court to attend at the\nselection of the grand jury. Failure to challenge is not a waiver of any objection. The objection may\nstill be interposed by motion under Rule 6(b)(2).\nNote to Subdivision (b)(2). 1. The motion provided by this rule takes the place of a plea in\nabatement, or motion to quash. Crowley v. United States, 194 U.S. 461, 469\xe2\x80\x93474; United States v.\nGale, supra.\n2. The second sentence of the rule is a restatement of 18 U.S.C. [former] 554(a)\n(Indictments and presentments; objection on ground of unqualified juror barred where twelve\nqualified jurors concurred; record of number concurring), and introduces no change in existing\nlaw.\nNote to Subdivision (c). 1. This rule generally is a restatement of existing law, 18 U.S.C.\n[former] 554(a) and 28 U.S.C. [former] 420. Failure of the foreman to sign or endorse the\nindictment is an irregularity and is not fatal, Frisbie v. United States, 157 U.S. 160, 163\xe2\x80\x93165.\n2. The provision for the appointment of a deputy foreman is new. Its purpose is to facilitate\nthe transaction of business if the foreman is absent. Such a provision is found in the law of at least\none State, N.Y. Code Criminal Procedure, sec. 244.\nNote to Subdivision (d). This rule generally continues existing law. See 18 U.S.C. [former]\n556 (Indictments and presentments; defects of form); and 5 U.S.C. 310 [now 28 U.S.C. 515 (a)]\n(Conduct of legal proceedings).\nNote to Subdivision (e). 1. This rule continues the traditional practice of secrecy on the\nparty of members of the grand jury, except when the court permits a disclosure, Schmidt v. United\nStates, 115 F.2d 394 (C.C.A. 6th); United States v. American Medical Association, 26 F.Supp. 429\n(D.C.); Cf. Atwell v. United States, 162 F. 97 (C.C.A. 4th); and see 18 U.S.C. [former] 554(a)\n(Indictments and presentments; objection on ground of unqualified juror barred where twelve\nqualified jurors concurred; record of number concurring). Government attorneys are entitled to\ndisclosure of grand jury proceedings, other than the deliberations and the votes of the jurors,\ninasmuch as they may be present in the grand jury room during the presentation of evidence. The\nrule continues this practice.\n2. The rule does not impose any obligation of secrecy on witnesses. The existing practice\non this point varies among the districts. The seal of secrecy on witnesses seems an unnecessary\nhardship and may lead to injustice if a witness is not permitted to make a disclosure to counsel or to\nan associate.\n3. The last sentence authorizing the court to seal indictments continues present practice.\nNote to Subdivision (f). This rule continues existing law, 18 U.S.C. [former] 554\n(Indictments and presentments; by twelve grand jurors). The purpose of the last sentence is to\n47\n\n\x0cprovide means for a prompt release of a defendant if in custody, or exoneration of bail if he is on\nbail, in the event that the grand jury considers the case of a defendant held for its action and finds\nno indictment.\nNote to Subdivision (g). Under existing law a grand jury serves only during the term for\nwhich it is summoned, but the court may extend its period of service for as long as 18 months, 28\nU.S.C. [former] 421. During the extended period, however, a grand jury may conduct only\ninvestigations commenced during the original term. The rule continues the 18 months\xe2\x80\x99 maximum\nfor the period of service of a grand jury, but provides for such service as a matter of course, unless\nthe court terminates it at an earlier date. The matter is left in the discretion of the court, as it is\nunder existing law. The expiration of a term of court as a time limitation is elsewhere entirely\neliminated (Rule 45(c)) and specific time limitations are substituted therefor. This was previously\ndone by the Federal Rules of Civil Procedure for the civil side of the courts ( Federal Rules of Civil\nProcedure, Rule 6(c) [28 U.S.C., Appendix]). The elimination of the requirement that at an\nextended period the grand jury may continue only investigations previously commenced, will\nobviate such a controversy as was presented in United States v. Johnson, 319 U.S. 503.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nSubdivision (d).\xe2\x80\x94The amendment makes it clear that recording devices may be used to\ntake evidence at grand jury sessions.\nSubdivision (e).\xe2\x80\x94The amendment makes it clear that the operator of a recording device\nand a typist who transcribes recorded testimony are bound to the obligation of secrecy.\nSubdivision (f).\xe2\x80\x94A minor change conforms the language to what doubtless is the practice.\nThe need for a report to the court that no indictment has been found may be present even though\nthe defendant has not been \xe2\x80\x9cheld to answer.\xe2\x80\x9d If the defendant is in custody or has given bail, some\nofficial record should be made of the grand jury action so that the defendant can be released or his\nbail exonerated.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivision (b)(2) is amended to incorporate by express reference the provisions of the\nJury Selection and Service Act of 1968. That act provides in part:\nThe procedures prescribed by this section shall be the exclusive means by which a person\naccused of a Federal crime [or] the Attorney General of the United States * may challenge any\njury on the ground that such jury was not selected in conformity with the provisions of this title. [\n28 U.S.C. \xc2\xa71867 (c)]\nUnder rule 12(e) the judge shall decide the motion before trial or order it deferred until\nafter verdict. The authority which the judge has to delay his ruling until after verdict gives him an\noption which can be exercised to prevent the unnecessary delay of a trial in the event that a motion\nattacking a grand jury is made on the eve of the trial. In addition, rule 12(c) gives the judge\nauthority to fix the time at which pretrial motions must be made. Failure to make a pretrial motion\nat the appropriate time may constitute a waiver under rule 12(f).\nNotes of Advisory Committee on Rules\xe2\x80\x941976 Amendment\nUnder the proposed amendment to rule 6(f), an indictment may be returned to a federal\n48\n\n\x0cmagistrate. (\xe2\x80\x9cFederal magistrate\xe2\x80\x9d is defined in rule 54(c) as including a United States magistrate as\ndefined in 28 U.S.C. \xc2\xa7\xc2\xa7631 \xe2\x80\x93639 and a judge of the United States.) This change will foreclose the\npossibility of noncompliance with the Speedy Trial Act timetable because of the nonavailability of\na judge. Upon the effective date of certain provisions of the Speedy Trial Act of 1974, the timely\nreturn of indictments will become a matter of critical importance; for the year commencing July 1,\n1976, indictments must be returned within 60 days of arrest or summons, for the year following\nwithin 45 days, and thereafter within 30 days. 18 U.S.C. \xc2\xa7\xc2\xa73161(b) and (f), 3163(a). The problem\nis acute in a one-judge district where, if the judge is holding court in another part of the district, or\nis otherwise absent, the return of the indictment must await the later reappearance of the judge at\nthe place where the grand jury is sitting.\nA corresponding change has been made to that part of subdivision (f) which concerns the\nreporting of a \xe2\x80\x9cno bill,\xe2\x80\x9d and to that part of subdivision (e) which concerns keeping an indictment\nsecret.\nThe change in the third sentence of rule 6(f) is made so as to cover all situations in which\nby virtue of a pending complaint or information the defendant is in custody or released under some\nform of conditional release.\nNotes of Advisory Committee on Rules\xe2\x80\x941977 Amendment\nThe proposed definition of \xe2\x80\x9cattorneys for the government\xe2\x80\x9d in subdivision (e) is designed to\nfacilitate an increasing need, on the part of government attorneys, to make use of outside expertise\nin complex litigation. The phrase \xe2\x80\x9cother government personnel\xe2\x80\x9d includes, but is not limited to,\nemployees of administrative agencies and government departments.\nPresent subdivision (e) provides for disclosure \xe2\x80\x9cto the attorneys for the government for use\nin the performance of their duties.\xe2\x80\x9d This limitation is designed to further \xe2\x80\x9cthe long established\npolicy that maintains the secrecy of the grand jury in federal courts.\xe2\x80\x9d United States v. Procter and\nGamble Co., 356 U.S. 677 (1958).\nAs defined in rule 54(c), \xe2\x80\x9c \xe2\x80\x98Attorney for the government\xe2\x80\x99 means the Attorney General, an\nauthorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a\nUnited States Attorney and when applicable to cases arising under the laws of Guam *.\xe2\x80\x9d The\nlimited nature of this definition is pointed out in In re Grand Jury Proceedings, 309 F.2d 440 (3d\nCir. 1962) at 443:\nThe term attorneys for the government is restrictive in its application. * If it had been\nintended that the attorneys for the administrative agencies were to have free access to matters\noccurring before a grand jury, the rule would have so provided.\nThe proposed amendment reflects the fact that there is often government personnel\nassisting the Justice Department in grand jury proceedings. In In re Grand Jury Investigation of\nWilliam H. Pflaumer & Sons, Inc., 53 F.R.D. 464 (E.D.Pa. 1971), the opinion quoted the United\nStates Attorney:\nIt is absolutely necessary in grand jury investigations involving analysis of books and\nrecords, for the government attorneys to rely upon investigative personnel (from the government\nagencies) for assistance.\nSee also 8 J. Moore, Federal Practice 6.05 at 6\xe2\x80\x9328 (2d ed. Cipes, 1969):\nThe rule [6(e)] has presented a problem, however, with respect to attorneys and\nnonattorneys who are assisting in preparation of a case for the grand jury. * These assistants\noften cannot properly perform their work without having access to grand jury minutes.\n49\n\n\x0cAlthough case law is limited, the trend seems to be in the direction of allowing disclosure\nto government personnel who assist attorneys for the government in situations where their\nexpertise is required. This is subject to the qualification that the matters disclosed be used only for\nthe purposes of the grand jury investigation. The court may inquire as to the good faith of the\nassisting personnel, to ensure that access to material is not merely a subterfuge to gather evidence\nunattainable by means other than the grand jury. This approach was taken in In re Grand Jury\nInvestigation of William H. Pflaumer & Sons, Inc., 53 F.R.D. 464 (E.D.Pa. 1971); In re April 1956\nTerm Grand Jury, 239 F.2d 263 (7th Cir. 1956); United States v. Anzelimo, 319 F.Supp. 1106\n(D.C.La. 1970). Another case, Application of Kelly, 19 F.R.D. 269 (S.D.N.Y. 1956), assumed,\nwithout deciding, that assistance given the attorney for the government by IRS and FBI agents was\nauthorized.\nThe change at line 27 reflects the fact that under the Bail Reform Act of 1966 some persons\nwill be released without requiring bail. See 18 U.S.C. \xc2\xa7\xc2\xa73146, 3148.\nUnder the proposed amendment to rule 6(f), an indictment may be returned to a federal\nmagistrate. (\xe2\x80\x9cFederal magistrate\xe2\x80\x9d is defined in rule 54(c) as including a United States magistrate as\ndefined in 28 U.S.C. \xc2\xa7631 \xe2\x80\x93639 and a judge of the United States.) This change will foreclose the\npossibility of noncompliance with the Speedy Trial Act timetable because of the nonavailability of\na judge. Upon the effective date of certain provisions of the Speedy Trial Act of 1974, the timely\nreturn of indictments will become a matter of critical importance; for the year commencing July 1,\n1976, indictments must be returned within 60 days of arrest or summons, for the year following\nwithin 45 days, and thereafter within 30 days. 18 U.S.C. \xc2\xa7\xc2\xa73161(b) and (f), 3163(a). The problem\nis acute in a one-judge district where, if the judge is holding court in another part of the district, or\nis otherwise absent, the return of the indictment must await the later reappearance of the judge at\nthe place where the grand jury is sitting.\nA corresponding change has been made to that part of subdivision (f) which concerns the\nreporting of a \xe2\x80\x9cno bill,\xe2\x80\x9d and to that part of subdivision (e) which concerns keeping an indictment\nsecret.\nThe change in the third sentence of rule 6(f) is made so as to cover all situations in which\nby virtue of a pending complaint or information the defendant is in custody or released under some\nform of conditional release.\nNotes of Committee on the Judiciary, Senate Report No. 95\xe2\x80\x93354; 1977 Amendments\nProposed by the Supreme Court\nRule 6(e) currently provides that \xe2\x80\x9cdisclosure of matters occurring before the grand jury\nother than its deliberations and the vote of any juror may be made to the attorneys for the\ngovernment for use in the performance of their duties.\xe2\x80\x9d Rule 54(c) defines attorneys for the\ngovernment to mean \xe2\x80\x9cthe Attorney General, an authorized assistant to the Attorney General, a\nUnited States attorney, and an authorized assistant of the United States attorney, and when\napplicable to cases arising under the laws of Guam, means the Attorney General of Guam. . . .\xe2\x80\x9d\nThe Supreme Court proposal would change Rule 6(e) by adding the following new\nlanguage:\nFor purposes of this subdivision, \xe2\x80\x9cattorneys for the government\xe2\x80\x9d includes those\nenumerated in Rule 54(c); it also includes such other government personnel as are necessary to\nassist the attorneys for the government in the performance of their duties.\nIt would also make a series of changes in the rule designed to make its provisions\n50\n\n\x0cconsistent with other provisions in the Rules and the Bail Reform Act of 1966.\nThe Advisory Committee note states that the proposed amendment is intended \xe2\x80\x9cto facilitate\nan increasing need, on the part of Government attorneys to make use of outside expertise in\ncomplex litigation\xe2\x80\x9d. The note indicated that:\nAlthough case law is limited, the trend seems to be in the direction of allowing disclosure\nto Government personnel who assist attorneys for the Government in situations where their\nexpertise is required. This is subject to the qualification that the matter disclosed be used only for\nthe purposes of the grand jury investigation.\nIt is past history at this point that the Supreme Court proposal attracted substantial\ncriticism, which seemed to stem more from the lack of precision in defining, and consequent\nconfusion and uncertainty concerning, the intended scope of the proposed change than from a\nfundamental disagreement with the objective.\nAttorneys for the Government in the performance of their duties with a grand jury must\npossess the authority to utilize the services of other government employees. Federal crimes are\n\xe2\x80\x9cinvestigated\xe2\x80\x9d by the FBI, the IRS, or by Treasury agents and not by government prosecutors or\nthe citizens who sit on grand juries. Federal agents gather and present information relating to\ncriminal behavior to prosecutors who analyze and evaluate it and present it to grand juries. Often\nthe prosecutors need the assistance of the agents in evaluating evidence. Also, if further\ninvestigation is required during or after grand jury proceedings, or even during the course of\ncriminal trials, the Federal agents must do it. There is no reason for a barrier of secrecy to exist\nbetween the facets of the criminal justice system upon which we all depend to enforce the criminal\nlaws.\nThe parameters of the authority of an attorney for the government to disclose grand jury\ninformation in the course of performing his own duties is not defined by Rule 6. However, a\ncommonsense interpretation prevails, permitting \xe2\x80\x9cRepresentatives of other government agencies\nactively assisting United States attorneys in a grand jury investigation . . . access to grand jury\nmaterial in the performance of their duties.\xe2\x80\x9d Yet projected against this current practice, and the\nweight of case law, is the anomalous language of Rule 6(e) itself, which, in its present state of\nuncertainty, is spawning some judicial decisions highly restrictive of the use of government\nexperts that require the government to \xe2\x80\x9cshow the necessity (to the Court) for each particular\nperson\'s aid rather than showing merely a general necessity for assistance, expert or otherwise\xe2\x80\x9d\nand that make Rule 6(e) orders subject to interlocutory appeal.\nIn this state of uncertainty, the Committee believes it is timely to redraft subdivision (e) of\nRule 6 to make it clear.\nParagraph (1) as proposed by the Committee states the general rule that a grand jury, an\ninterpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded\ntestimony, an attorney for the government, or government personnel to whom disclosure is made\nunder paragraph (2)(A)(ii) shall not disclose matters occurring before the grand jury, except as\notherwise provided in these rules. It also expressly provides that a knowing violation of Rule 6\nmay be punished as a contempt of court. In addition, it carries forward the current provision that no\nobligation of secrecy may be imposed on any person except in accordance with this Rule.\nHaving stated the general rule of nondisclosure, paragraph (2) sets forth exemptions from\nnondisclosure. Subparagraph (A) of paragraph (2) provides that disclosure otherwise prohibited,\nother than the grand jury deliberations and the vote of any grand juror, may be made to an attorney\nfor the government for use in the performance of his duty and to such personnel as are deemed\nnecessary by an attorney for the government to assist an attorney for the government in the\n51\n\n\x0cperformance of such attorney\'s duty to enforce Federal criminal law. In order to facilitate\nresolution of subsequent claims of improper disclosure, subparagraph (B) further provides that the\nnames of government personnel designated to assist the attorney for the government shall be\npromptly provided to the district court and such personnel shall not utilize grand jury material for\nany purpose other than assisting the attorney for the government in the performance of such\nattorney\'s duty to enforce Federal criminal law. Although not expressly required by the rule, the\nCommittee contemplates that the names of such personnel will generally be furnished to the court\nbefore disclosure is made to them. Subparagraph (C) permits disclosure as directed by a court\npreliminarily to or in connection with a judicial proceeding or, at the request of the defendant,\nupon a showing that grounds may exist for dismissing the indictment because of matters occurring\nbefore the grand jury. Paragraph (3) carries forward the last sentence of current Rule 6(e) with the\ntechnical changes recommended by the Supreme Court.\nThe Rule as redrafted is designed to accommodate the belief on the one hand that Federal\nprosecutors should be able, without the time-consuming requirement of prior judicial\ninterposition, to make such disclosures of grand jury information to other government personnel as\nthey deem necessary to facilitate the performance of their duties relating to criminal law\nenforcement. On the other hand, the Rule seeks to allay the concerns of those who fear that such\nprosecutorial power will lead to misuse of the grand jury to enforce non-criminal Federal laws by\n(1) providing a clear prohibition, subject to the penalty of contempt and (2) requiring that a court\norder under paragraph (C) be obtained to authorize such a disclosure. There is, however, no intent\nto preclude the use of grand jury-developed evidence for civil law enforcement purposes. On the\ncontrary, there is no reason why such use is improper, assuming that the grand jury was utilized for\nthe legitimate purpose of a criminal investigation. Accordingly, the Committee believes and\nintends that the basis for a court\'s refusal to issue an order under paragraph (C) to enable the\ngovernment to disclose grand jury information in a non-criminal proceeding should be no more\nrestrictive than is the case today under prevailing court decisions. It is contemplated that the\njudicial hearing in connection with an application for a court order by the government under\nsubparagraph (3)(C)(i) should be ex parte so as to preserve, to the maximum extent possible, grand\njury secrecy.\nCongressional Modification of Proposed 1977 Amendment\nSection 2(a) of Pub. L. 95\xe2\x80\x9378 provided in part that the amendment proposed by the\nSupreme Court [in its order of Apr. 26, 1977] to subdivision (e) of rule 6 of the Federal Rules of\nCriminal Procedure [subd. (e) of this rule] is approved in a modified form.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nNote to Subdivision (e)(1). Proposed subdivision (e)(1) requires that all proceedings,\nexcept when the grand jury is deliberating or voting, be recorded. The existing rule does not\nrequire that grand jury proceedings be recorded. The provision in rule 6(d) that \xe2\x80\x9ca stenographer or\noperator of a recording device may be present while the grand jury is in session\xe2\x80\x9d has been taken to\nmean that recordation is permissive and not mandatory; see United States v. Aloisio, 440 F.2d 705\n(7th Cir. 1971), collecting the cases. However, the cases rather frequently state that recordation of\nthe proceedings is the better practice; see United States v. Aloisio, supra; United States v. Cramer,\n447 F.2d 210 (2d Cir. 1971), Schlinsky v. United States, 379 F.2d 735 (1st Cir. 1967); and some\n52\n\n\x0ccases require the district court, after a demand to exercise discretion as to whether the proceedings\nshould be recorded. United States v. Price, 474 F.2d 1223 (9th Cir. 1973); United States v.\nThoresen, 428 F.2d 654 (9th Cir. 1970). Some district courts have adopted a recording\nrequirement. See e.g. United States v. Aloisio, supra; United States v. Gramolini, 301 F.Supp. 39\n(D.R.I. 1969). Recording of grand jury proceedings is currently a requirement in a number of\nstates. See, e.g., Cal.Pen.Code \xc2\xa7\xc2\xa7938\xe2\x80\x93938.3; Iowa Code Ann. \xc2\xa7772.4; Ky.Rev.Stat.Ann. \xc2\xa728.460;\nand Ky.R.Crim.P. \xc2\xa75.16(2).\nThe assumption underlying the proposal is that the cost of such recording is justified by the\ncontribution made to the improved administration of criminal justice. See United States v.\nGramolini, supra, noting: \xe2\x80\x9cNor can it be claimed that the cost of recordation is prohibitive; in an\nelectronic age, the cost of recordation must be categorized as miniscule.\xe2\x80\x9d For a discussion of the\nsuccess of electronic recording in Alaska, see Reynolds, Alaska\'s Ten Years of Electronic\nReporting, 56 A.B.A.J. 1080 (1970).\nAmong the benefits to be derived from a recordation requirement are the following:\n(1) Ensuring that the defendant may impeach a prosecution witness on the basis of his prior\ninconsistent statements before the grand jury. As noted in the opinion of Oakes, J., in United States\nv. Cramer: \xe2\x80\x9cFirst since Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973\n(1966), a defendant has been entitled to examine the grand jury testimony of witnesses against\nhim. On this point, the Court was unanimous, holding that there was \xe2\x80\x98no justification\xe2\x80\x99 for the\nDistrict of Columbia Court of Appeals\xe2\x80\x99 \xe2\x80\x98relying upon [the] \xe2\x80\x9cassumption\xe2\x80\x9d \xe2\x80\x99 that \xe2\x80\x98no inconsistencies\nwould have come to light.\xe2\x80\x99 The Court\'s decision was based on the general proposition that \xe2\x80\x98[i]n our\nadversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to\nhave exclusive access to a storehouse of relevant facts.\xe2\x80\x99 In the case at bar the prosecution did have\nexclusive access to the grand jury testimony of the witness Sager, by virtue of being present, and\nthe defense had none\xe2\x80\x94to determine whether there were any inconsistencies with, say, his\nsubsequent testimony as to damaging admissions by the defendant and his attorney Richard\nThaler. The Government claims, and it is supported by the majority here, that there is no problem\nsince defendants were given the benefit of Sager\'s subsequent statements including these\nadmissions as Jencks Act materials. But assuming this to be true, it does not cure the basic\ninfirmity that the defense could not know whether the witness testified inconsistently before the\ngrand jury.\xe2\x80\x9d\n(2) Ensuring that the testimony received by the grand jury is trustworthy. In United States\nv. Cramer, Oakes, J., also observed: \xe2\x80\x9cThe recording of testimony is in a very real sense a\ncircumstantial guaranty of trustworthiness. Without the restraint of being subject to prosecution\nfor perjury, a restraint which is wholly meaningless or nonexistent if the testimony is unrecorded, a\nwitness may make baseless accusations founded on hearsay or false accusations, all resulting in the\nindictment of a fellow citizen for a crime.\xe2\x80\x9d\n(3) Restraining prosecutorial abuses before the grand jury. As noted in United States v.\nGramolini: \xe2\x80\x9cIn no way does recordation inhibit the grand jury\'s investigation. True, recordation\nrestrains certain prosecutorial practices which might, in its absence be used, but that is no reason\nnot to record. Indeed, a sophisticated prosecutor must acknowledge that there develops between a\ngrand jury and the prosecutor with whom the jury is closeted a rapport\xe2\x80\x94a dependency\nrelationship\xe2\x80\x94which can easily be turned into an instrument of influence on grand jury\ndeliberations. Recordation is the most effective restraint upon such potential abuses.\xe2\x80\x9d\n(4) Supporting the case made by the prosecution at trial. Oakes, J., observed in United\nStates v. Cramer: \xe2\x80\x9cThe benefits of having grand jury testimony recorded do not all inure to the\n53\n\n\x0cdefense. See, e.g., United States v. DeSisto, 329 F.2d 929, 934: (2nd Cir.), cert. denied, 377 U.S.\n979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964) (conviction sustained in part on basis of witnesses\'s\nprior sworn testimony before grand jury).\xe2\x80\x9d Fed.R.Evid. 801(d)(1)(A) excludes from the category\nof hearsay the prior inconsistent testimony of a witness given before a grand jury. United States v.\nMorgan, 555 F.2d 238 (9th Cir. 1977). See also United States v. Carlson, 547 F.2d 1346 (8th Cir.\n1976), admitting under Fed.R.Evid. 804 (b)(5) the grand jury testimony of a witness who refused\nto testify at trial because of threats by the defendant.\nCommentators have also supported a recording requirement. 8 Moore, Federal Practice\npar. 6.02[2][d] (2d ed. 1972) states: \xe2\x80\x9cFairness to the defendant would seem to compel a change in\nthe practice, particularly in view of the 1970 amendment to 18 USC \xc2\xa73500 making grand jury\ntestimony of government witnesses available at trial for purposes of impeachment. The\nrequirement of a record may also prove salutary in controlling overreaching or improper\nexamination of witnesses by the prosecutor.\xe2\x80\x9d Similarly, 1 Wright, Federal Practice and\nProcedure\xe2\x80\x94Criminal \xc2\xa7103 (1969), states that the present rule \xe2\x80\x9cought to be changed, either by\namendment or by judicial construction. The Supreme Court has emphasized the importance to the\ndefense of access to the transcript of the grand jury proceedings [citing Dennis ]. A defendant\ncannot have that advantage if the proceedings go unrecorded.\xe2\x80\x9d American Bar Association, Report\nof the Special Committee on Federal Rules of Procedure, 52 F.R.D. 87, 94\xe2\x80\x9395 (1971), renews the\ncommittee\'s 1965 recommendation \xe2\x80\x9cthat all accusatorial grand jury proceedings either be\ntranscribed by a reporter or recorded by electronic means.\xe2\x80\x9d\nUnder proposed subdivision (e)(1), if the failure to record is unintentional, the failure to\nrecord would not invalidate subsequent judicial proceedings. Under present law, the failure to\ncompel production of grand jury testimony where there is no record is not reversible error. See\nWyatt v. United States, 388 F.2d 395 (10th Cir. 1968).\nThe provision that the recording or reporter\'s notes or any transcript prepared therefrom are\nto remain in the custody or control (as where the notes are in the immediate possession of a\ncontract reporter employed by the Department of Justice) of the attorney for the government is in\naccord with present practice. It is specifically recognized, however, that the court in a particular\ncase may have reason to order otherwise.\nIt must be emphasized that the proposed changes in rule 6(e) deal only with the recording\nrequirement, and in no way expand the circumstances in which disclosure of the grand jury\nproceedings is permitted or required. \xe2\x80\x9cSecrecy of grand jury proceedings is not jeopardized by\nrecordation. The making of a record cannot be equated with disclosure of its contents, and\ndisclosure is controlled by other means.\xe2\x80\x9d United States v. Price, 474 F.2d 1223 (9th Cir. 1973).\nSpecifically, the proposed changes do not provide for copies of the grand jury minutes to\ndefendants as a matter of right, as is the case in some states. See, e.g., Cal.Pen.Code \xc2\xa7938.1; Iowa\nCode Ann. \xc2\xa7772.4. The matter of disclosure continues to be governed by other provisions, such as\nrule 16(a) (recorded statements of the defendant), 18 U.S.C. \xc2\xa73500 (statements of government\nwitnesses), and the unchanged portions of rule 6(e), and the cases interpreting these provisions.\nSee e.g., United States v. Howard, 433 F.2d 1 (5th Cir. 1970), and Beatrice Foods Co. v. United\nStates, 312 F.2d 29 (8th Cir. 1963), concerning the showing which must be made of improper\nmatters occurring before the grand jury before disclosure is required.\nLikewise, the proposed changes in rule 6(e) are not intended to make any change regarding\nwhether a defendant may challenge a grand jury indictment. The Supreme Court has declined to\nhold that defendants may challenge indictments on the ground that they are not supported by\nsufficient or competent evidence. Costello v. United States, 350 U.S. 359 (1956); Lawn v. United\n54\n\n\x0cStates, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966). Nor are the changes\nintended to permit the defendant to challenge the conduct of the attorney for the government\nbefore the grand jury absent a preliminary factual showing of serious misconduct.\nNote to Subdivision (e)(3)(C). The sentence added to subdivision (e)(3)(C) gives express\nrecognition to the fact that if the court orders disclosure, it may determine the circumstances of the\ndisclosure. For example, if the proceedings are electronically recorded, the court would have\ndiscretion in an appropriate case to deny defendant the right to a transcript at government expense.\nWhile it takes special skills to make a stenographic record understandable, an electronic recording\ncan be understood by merely listening to it, thus avoiding the expense of transcription.\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nNote to Subdivision (e)(3)(C). New subdivision (e)(3)(C)(iii) recognizes that it is\npermissible for the attorney for the government to make disclosure of matters occurring before one\ngrand jury to another federal grand jury. Even absent a specific provision to that effect, the courts\nhave permitted such disclosure in some circumstances. See, e.g., United States v. Socony-Vacuum\nOil Co. 310 U.S. 150 (1940); United States v. Garcia, 420 F.2d 309 (2d Cir. 1970). In this kind of\nsituation, \xe2\x80\x9c[s]ecrecy of grand jury materials should be protected almost as well by the safeguards at\nthe second grand jury proceeding, including the oath of the jurors, as by judicial supervision of the\ndisclosure of such materials.\xe2\x80\x9d United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978).\nNote to Subdivision (e)(3)(D). In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211\n(1979), the Court held on the facts there presented that it was an abuse of discretion for the district\njudge to order disclosure of grand jury transcripts for use in civil proceedings in another district\nwhere that judge had insufficient knowledge of those proceedings to make a determination of the\nneed for disclosure. The Court suggested a \xe2\x80\x9cbetter practice\xe2\x80\x9d on those facts, but declared that\n\xe2\x80\x9cprocedures to deal with the many variations are best left to the rulemaking procedures established\nby Congress.\xe2\x80\x9d\nThe first sentence of subdivision (e)(3)(D) makes it clear that when disclosure is sought\nunder subdivision (e)(2)(C)(i), the petition is to be filed in the district where the grand jury was\nconvened, whether or not it is the district of the \xe2\x80\x9cjudicial proceeding\xe2\x80\x9d giving rise to the petition.\nCourts which have addressed the question have generally taken this view, e.g., Illinois v.\nSarbaugh, 522 F.2d 768 (7th Cir. 1977). As stated in Douglas Oil,\nthose who seek grand jury transcripts have little choice other than to file a request with the\ncourt that supervised the grand jury, as it is the only court with control over the transcripts.\nQuite apart from the practical necessity, the policies underlying Rule 6(e) dictate that the\ngrand jury\'s supervisory court participate in reviewing such requests, as it is in the best position to\ndetermine the continuing need for grand jury secrecy. Ideally, the judge who supervised the grand\njury should review the request for disclosure, as he will have firsthand knowledge of the grand\njury\'s activities. But even other judges of the district where the grand jury sat may be able to\ndiscover facts affecting the need for secrecy more easily than would judges from elsewhere around\nthe country. The records are in the custody of the District Court, and therefore are readily available\nfor references. Moreover, the personnel of that court\xe2\x80\x94particularly those of the United States\nAttorney\'s Office who worked with the grand jury\xe2\x80\x94are more likely to be informed about the grand\njury proceedings than those in a district that had no prior experience with the subject of the request.\nThe second sentence requires the petitioner to serve notice of his petition upon several\npersons who, by the third sentence, are recognized as entitled to appear and be heard on the matter.\n55\n\n\x0cThe notice requirement ensures that all interested parties, if they wish, may make a timely\nappearance. Absent such notice, these persons, who then might only learn of the order made in\nresponse to the motion after it was entered, have had to resort to the cumbersome and inefficient\nprocedure of a motion to vacate the order. In re Special February 1971 Grand Jury v. Conlisk, 490\nF.2d 894 (7th Cir. 1973).\nThough some authority is to be found that parties to the judicial proceeding giving rise to\nthe motion are not entitled to intervene, in that \xe2\x80\x9cthe order to produce was not directed to\xe2\x80\x9d them,\nUnited States v. American Oil Co., 456 F.2d 1043 (3d Cir. 1972), that position was rejected in\nDouglas Oil, where it was noted that such persons have standing \xe2\x80\x9cto object to the disclosure order,\nas release of the transcripts to their civil adversaries could result in substantial injury to them.\xe2\x80\x9d As\nnoted in Illinois v. Sarbaugh, supra, while present rule 6(e) \xe2\x80\x9comits to state whether any one is\nentitled to object to disclosure,\xe2\x80\x9d the rule\nseems to contemplate a proceeding of some kind, judicial proceedings are not normally ex\nparte, and persons in the situation of the intervenors [parties to the civil proceeding] are likely to\nbe the only ones to object to an order for disclosure. If they are not allowed to appear, the\nadvantages of an adversary proceeding are lost.\nIf the judicial proceeding is a class action, notice to the representative is sufficient.\nThe amendment also recognizes that the attorney for the government in the district where\nthe grand jury convened also has an interest in the matter and should be allowed to be heard. It may\nsometimes be the case, as in Douglas Oil, that the prosecutor will have relatively little concern for\nsecrecy, at least as compared with certain parties to the civil proceeding. Nonetheless, it is\nappropriate to recognize that generally the attorney for the government is entitled to be heard so\nthat he may represent what Douglas Oil characterizes as \xe2\x80\x9cthe public interest in secrecy,\xe2\x80\x9d including\nthe government\'s legitimate concern about \xe2\x80\x9cthe possible effect upon the functioning of future\ngrand juries\xe2\x80\x9d of unduly liberal disclosure.\nThe second sentence leaves it to the court to decide whether any other persons should\nreceive notice and be allowed to intervene. This is appropriate, for the necessity for and feasibility\nof involving others may vary substantially from case to case. In Douglas Oil, it was noted that the\nindividual who produced before the grand jury the information now sought has an interest in the\nmatter:\nFear of future retribution or social stigma may act as powerful deterrents to those who\nwould come forward and aid the grand jury in the performance of its duties. Concern as to the\nfuture consequences of frank and full testimony is heightened where the witness is an employee of\na company under investigation.\nNotice to such persons, however is by no means inevitably necessary, and in some cases\nthe information sought may have reached the grand jury from such a variety of sources that it is not\npracticable to involve these sources in the disclosure proceeding. Similarly, while Douglas Oil\nnotes that rule 6(e) secrecy affords \xe2\x80\x9cprotection of the innocent accused from disclosure of the\naccusation made against him before the grand jury,\xe2\x80\x9d it is appropriate to leave to the court whether\nthat interest requires representation directly by the grand jury target at this time. When deemed\nnecessary to protect the identity of such other persons, it would be a permissible alternative for the\ngovernment or the court directly to give notice to these other persons, and thus the rule does not\nforeclose such action.\nThe notice requirement in the second sentence is inapplicable if the hearing is to be ex\nparte. The legislative history of rule 6(e) states: \xe2\x80\x9cIt is contemplated that the judicial hearing in\nconnection with an application for a court order by the government, under subparagraph (3)(C)(i)\n56\n\n\x0cshould be ex parte so as to preserve, to the maximum extent possible, grand jury secrecy.\xe2\x80\x9d S.Rep.\nNo. 95\xe2\x80\x93354, 1977 U.S. Code Cong. & Admin. News p. 532. Although such cases are\ndistinguishable from other cases arising under this subdivision because internal regulations limit\nfurther disclosure of information disclosed to the government, the rule provides only that the\nhearing \xe2\x80\x9cmay\xe2\x80\x9d be ex parte when the petitioner is the government. This allows the court to decide\nthat matter based upon the circumstances of the particular case. For example, an ex parte\nproceeding is much less likely to be appropriate if the government acts as petitioner as an\naccommodation to, e.g., a state agency.\nNote to Subdivision (e)(3)(E). Under the first sentence in new subdivision (e)(3)(E), the\npetitioner or any intervenor might seek to have the matter transferred to the federal district court\nwhere the judicial proceeding giving rise to the petition is pending. Usually, it will be the\npetitioner, who is seeking disclosure, who will desire the transfer, but this is not inevitably the\ncase. An intervenor might seek transfer on the ground that the other court, with greater knowledge\nof the extent of the need, would be less likely to conclude \xe2\x80\x9cthat the material * is needed to avoid\na possible injustice\xe2\x80\x9d (the test under Douglas Oil). The court may transfer on its own motion, for as\nnoted in Douglas Oil, if transfer is the better course of action it should not be foreclosed \xe2\x80\x9cmerely\nbecause the parties have failed to specify the relief to which they are entitled.\xe2\x80\x9d\nIt must be emphasized that transfer is proper only if the proceeding giving rise to the\npetition \xe2\x80\x9cis in federal district court in another district.\xe2\x80\x9d If, for example, the proceeding is located in\nanother district but is at the state level, a situation encompassed within rule 6(e)(3)(C)(i), In re\nSpecial February 1971 Grand Jury v. Conlisk, supra, there is no occasion to transfer. Ultimate\nresolution of the matter cannot be placed in the hands of the state court, and in such a case the\nfederal court in that place would lack what Douglas Oil recognizes as the benefit to be derived\nfrom transfer: \xe2\x80\x9cfirsthand knowledge of the litigation in which the transcripts allegedly are needed.\xe2\x80\x9d\nFormal transfer is unnecessary in intradistrict cases, even when the grand jury court and judicial\nproceeding court are not in the same division.\nAs stated in the first sentence, transfer by the court is appropriate \xe2\x80\x9cunless it can reasonably\nobtain sufficient knowledge of the proceeding to determine whether disclosure is proper.\xe2\x80\x9d (As\nreflected by the \xe2\x80\x9cwhether disclosure is proper\xe2\x80\x9d language, the amendment makes no effort to define\nthe disclosure standard; that matter is currently governed by Douglas Oil and the authorities cited\ntherein, and is best left to elaboration by future case law.) The amendment expresses a preference\nfor having the disclosure issue decided by the grand jury court. Yet, it must be recognized, as\nstated in Douglas Oil, that often this will not be possible because\nthe judges of the court having custody of the grand jury transcripts will have no firsthand\nknowledge of the litigation in which the transcripts allegedly are needed, and no practical means\nby which such knowledge can be obtained. In such a case, a judge in the district of the grand jury\ncannot weigh in an informed manner the need for disclosure against the need for maintaining grand\njury secrecy.\nThe penultimate sentence provides that upon transfer the transferring court shall order\ntransmitted the material sought to be disclosed and also a written evaluation of the need for\ncontinuing grand jury secrecy. Because the transferring court is in the best position to assess the\ninterest in continued grand jury secrecy in the particular instance, it is important that the court\nwhich will now have to balance that interest against the need for disclosure receive the benefit of\nthe transferring court\'s assessment. Transmittal of the material sought to be disclosed will not only\nfacilitate timely disclosure if it is thereafter ordered, but will also assist the other court in deciding\nhow great the need for disclosure actually is. For example, with that material at hand the other\n57\n\n\x0ccourt will be able to determine if there is any inconsistency between certain grand jury testimony\nand testimony received in the other judicial proceeding. The rule recognizes, however, that there\nmay be instances in which transfer of everything sought to be disclosed is not feasible. See, e.g., In\nre 1975\xe2\x80\x932 Grand Jury Investigation, 566 F.2d 1293 (5th Cir. 1978) (court ordered transmittal of\n\xe2\x80\x9can inventory of the grand jury subpoenas, transcripts, and documents,\xe2\x80\x9d as the materials in\nquestion were \xe2\x80\x9cexceedingly voluminous, filling no less than 55 large file boxes and one metal\nfiling cabinet\xe2\x80\x9d).\nThe last sentence makes it clear that in a case in which the matter is transferred to another\ncourt, that court should permit the various interested parties specified in the rule to be heard. Even\nif those persons were previously heard before the court which ordered the transfer, this will not\nsuffice. The order of transfer did not decide the ultimate issue of \xe2\x80\x9cwhether a particularized need for\ndisclosure outweighs the interest in continued grand jury secrecy,\xe2\x80\x9d Douglas Oil, supra, which is\nwhat now remains to be resolved by the court to which transfer was made. Cf. In re 1975\xe2\x80\x932 Grand\nJury Investigation, supra, holding that a transfer order is not appealable because it does not\ndetermine the ultimate question of disclosure, and thus \xe2\x80\x9c[n]o one has yet been aggrieved and no\none will become aggrieved until [the court to which the matter was transferred] acts.\xe2\x80\x9d\nNote to Subdivision (e)(5). This addition to rule 6 would make it clear that certain hearings\nwhich would reveal matters which have previously occurred before a grand jury or are likely to\noccur before a grand jury with respect to a pending or ongoing investigation must be conducted in\ncamera in whole or in part in order to prevent public disclosure of such secret information. One\nsuch hearing is that conducted under subdivision (e)(3)(D), for it will at least sometimes be\nnecessary to consider and assess some of the \xe2\x80\x9cmatters occurring before the grand jury\xe2\x80\x9d in order to\ndecide the disclosure issue. Two other kinds of hearings at which information about a particular\ngrand jury investigation might need to be discussed are those at which the question is whether to\ngrant a grand jury witness immunity or whether to order a grand jury witness to comply fully with\nthe terms of a subpoena directed to him.\nA recent GAO study established that there is considerable variety in the practice as to\nwhether such hearings are closed or open, and that open hearings often seriously jeopardize grand\njury secrecy:\nFor judges to decide these matters, the witness\xe2\x80\x99 relationship to the case under investigation\nmust be discussed. Accordingly, the identities of witnesses and targets, the nature of expected\ntestimony, and the extent to which the witness is cooperating are often revealed during\npreindictment proceedings. Because the matters discussed can compromise the purposes of grand\njury secrecy, some judges close the preindictment proceedings to the public and the press; others\ndo not. When the proceeding is open, information that may otherwise be kept secret under rule 6(e)\nbecomes available to the public and the press . . . .\nOpen preindictment proceedings are a major source of information which can compromise\nthe purposes of grand jury secrecy. In 25 cases we were able to establish links between open\nproceedings and later newspaper articles containing information about the identities of witnesses\nand targets and the nature of grand jury investigations.\nComptroller General, More Guidance and Supervision Needed over Federal Grand Jury\nProceedings 8\xe2\x80\x939 (Oct. 16, 1980).\nThe provisions of rule 6(e)(5) do not violate any constitutional right of the public or media\nto attend such pretrial hearings. There is no Sixth Amendment right in the public to attend pretrial\nproceedings, Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979), and Richmond Newspapers,\nInc. v. Virginia, 448 U.S. 555, (1980), only recognizes a First Amendment \xe2\x80\x9cright to attend criminal\n58\n\n\x0ctrials.\xe2\x80\x9d Richmond Newspapers was based largely upon the \xe2\x80\x9cunbroken, uncontradicted history\xe2\x80\x9d of\npublic trials, while in Gannett it was noted \xe2\x80\x9cthere exists no persuasive evidence that at common\nlaw members of the public had any right to attend pretrial proceedings.\xe2\x80\x9d Moreover, even assuming\nsome public right to attend certain pretrial proceedings, see United States v. Criden, 675 F.2d 550\n(3d Cir. 1982), that right is not absolute; it must give way, as stated in Richmond Newspapers, to\n\xe2\x80\x9can overriding interest\xe2\x80\x9d in a particular case in favor of a closed proceeding. By permitting closure\nonly \xe2\x80\x9cto the extent necessary to prevent disclosure of matters occurring before a grand jury,\xe2\x80\x9d rule\n6(e)(5) recognizes the longstanding interest in the secrecy of grand jury proceedings. Counsel or\nothers allowed to be present at the closed hearing may be put under a protective order by the court.\nSubdivision (e)(5) is expressly made \xe2\x80\x9csubject to any right to an open hearing in contempt\nproceedings.\xe2\x80\x9d This will accommodate any First Amendment right which might be deemed\napplicable in that context because of the proceedings\xe2\x80\x99 similarities to a criminal trial, cf. United\nStates v. Criden, supra, and also any Fifth or Sixth Amendment right of the contemnor. The latter\nright clearly exists as to a criminal contempt proceeding, In re Oliver, 333 U.S. 257 (1948), and\nsome authority is to be found recognizing such a right in civil contempt proceedings as well. In re\nRosahn, 671 F.2d 690 (2d Cir. 1982). This right of the contemnor must be requested by him and, in\nany event, does not require that the entire contempt proceedings, including recitation of the\nsubstance of the questions he has refused to answer, be public. Levine v. United States, 362 U.S.\n610 (1960).\nNote to Subdivision (e)(6). Subdivision (e)(6) provides that records, orders and subpoenas\nrelating to grand jury proceedings shall be kept under seal to the extent and for so long as is\nnecessary to prevent disclosure of matters occurring before a grand jury. By permitting such\ndocuments as grand jury subpoenas and immunity orders to be kept under seal, this provision\naddresses a serious problem of grand jury secrecy and expressly authorizes a procedure now in use\nin many but not all districts. As reported in Comptroller General, More Guidance and Supervision\nNeeded over Federal Grand Jury Proceedings 10, 14 (Oct. 16, 1980):\nIn 262 cases, documents presented at open preindictment proceedings and filed in public\nfiles revealed details of grand jury investigations. These documents are, of course, available to\nanyone who wants them, including targets of investigations. [There are] two documents\ncommonly found in public files which usually reveal the identities of witnesses and targets. The\nfirst document is a Department of Justice authorization to a U.S. attorney to apply to the court for a\ngrant of immunity for a witness. The second document is the court\'s order granting the witness\nimmunity from prosecution and compelling him to testify and produce requested information. *\nSubpoenas are the fundamental documents used during a grand jury\'s investigation because\nthrough subpoenas, grand juries can require witnesses to testify and produce documentary\nevidence for their consideration. Subpoenas can identify witnesses, potential targets, and the\nnature of an investigation. Rule 6(e) does not provide specific guidance on whether a grand jury\'s\nsubpoena should be kept secret. Additionally, case law has not consistently stated whether the\nsubpoenas are protected by rule 6(e).\nDistrict courts still have different opinions about whether grand jury subpoenas should be\nkept secret. Out of 40 Federal District Courts we contacted, 36 consider these documents to be\nsecret. However, 4 districts do make them available to the public.\nNote to Subdivision (g). In its present form, subdivision 6(g) permits a grand jury to serve\nno more than 18 months after its members have been sworn, and absolutely no exceptions are\npermitted. (By comparison, under the Organized Crime Control Act of 1970, Title I, 18 U.S.C.\n\xc2\xa7\xc2\xa73331 \xe2\x80\x933334, special grand juries may be extended beyond their basic terms of 18 months if their\n59\n\n\x0cbusiness has not been completed.) The purpose of the amendment is to permit some degree of\nflexibility as to the discharge of grand juries where the public interest would be served by an\nextension.\nAs noted in United States v. Fein, 504 F.2d 1170 (2d Cir. 1974), upholding the dismissal of\nan indictment returned 9 days after the expiration of the 18\xe2\x80\x93month period but during an attempted\nextension, under the present inflexible rule \xe2\x80\x9cit may well be that criminal proceedings which would\nbe in the public interest will be frustrated and that those who might be found guilty will escape trial\nand conviction.\xe2\x80\x9d The present inflexible rule can produce several undesirable consequences,\nespecially when complex fraud, organized crime, tax or antitrust cases are under investigation: (i)\nwastage of a significant amount of time and resources by the necessity of presenting the case once\nagain to a successor grand jury simply because the matter could not be concluded before the term\nof the first grand jury expired; (ii) precipitous action to conclude the investigation before the\nexpiration date of the grand jury; and (iii) potential defendants may be kept under investigation for\na longer time because of the necessity to present the matter again to another grand jury.\nThe amendment to subdivision 6(g) permits extension of a regular grand jury only \xe2\x80\x9cupon a\ndetermination that such extension is in the public interest.\xe2\x80\x9d This permits some flexibility, but\nreflects the fact that extension of regular grand juries beyond 18 months is to be the exception and\nnot the norm. The intention of the amendment is to make it possible for a grand jury to have\nsufficient extra time to wind up an investigation when, for example, such extension becomes\nnecessary because of the unusual nature of the case or unforeseen developments.\nBecause terms of court have been abolished, 28 U.S.C. \xc2\xa7138, the second sentence of\nsubdivision 6(g) has been deleted.\nNotes of Advisory Committee on Rules\xe2\x80\x941985 Amendment\nNote to Subdivision (e)(3)(A)(ii). Rule 6(e)(3)(A)(ii) currently provides that an attorney for\nthe government may disclose grand jury information, without prior judicial approval, to other\ngovernment personnel whose assistance the attorney for the government deems necessary in\nconducting the grand jury investigation. Courts have differed over whether employees of state and\nlocal governments are \xe2\x80\x9cgovernment personnel\xe2\x80\x9d within the meaning of the rule. Compare In re\nMiami Federal Grand Jury No. 79\xe2\x80\x939, 478 F.Supp. 490 (S.D.Fla. 1979), and In re Grand Jury\nProceedings, 445 F.Supp. 349 (D.R.I. 1978) (state and local personnel not included); with In re\n1979 Grand Jury Proceedings, 479 F.Supp. 93 (E.D.N.Y. 1979) (state and local personnel\nincluded). The amendment clarifies the rule to include state and local personnel.\nIt is clearly desirable that federal and state authorities cooperate, as they often do, in\norganized crime and racketeering investigations, in public corruption and major fraud cases, and in\nvarious other situations where federal and state criminal jurisdictions overlap. Because of such\ncooperation, government attorneys in complex grand jury investigations frequently find it\nnecessary to enlist the help of a team of government agents. While the agents are usually federal\npersonnel, it is not uncommon in certain types of investigations that federal prosecutors wish to\nobtain the assistance of state law enforcement personnel, which could be uniquely beneficial. The\namendment permits disclosure to those personnel in the circumstances stated.\nIt must be emphasized that the disclosure permitted is limited. The disclosure under this\nsubdivision is permissible only in connection with the attorney for the government\'s \xe2\x80\x9cduty to\nenforce federal criminal law\xe2\x80\x9d and only to those personnel \xe2\x80\x9cdeemed necessary . . . to assist\xe2\x80\x9d in the\nperformance of that duty. Under subdivision (e)(3)(B), the material disclosed may not be used for\n60\n\n\x0cany other purpose, and the names of persons to whom disclosure is made must be promptly\nprovided to the court.\nNote to Subdivision (e)(3)(B). The amendment to subdivision (e)(3)(B) imposes upon the\nattorney for the government the responsibility to certify to the district court that he has advised\nthose persons to whom disclosure was made under subdivision (e)(3)(A)(ii) of their obligation of\nsecrecy under Rule 6. Especially with the amendment of subdivision (e)(3)(A)(ii) to include\npersonnel of a state or subdivision of a state, who otherwise would likely be unaware of this\nobligation of secrecy, the giving of such advice is an important step in ensuring against inadvertent\nbreach of grand jury secrecy. But because not all federal government personnel will otherwise\nknow of this obligation, the giving of the advice and certification thereof is required as to all\npersons receiving disclosure under subdivision (e)(3)(A)(ii).\nNote to Subdivision (e)(3)(C). It sometimes happens that during a federal grand jury\ninvestigation evidence will be developed tending to show a violation of state law. When this\noccurs, it is very frequently the case that this evidence cannot be communicated to the appropriate\nstate officials for further investigation. For one thing, any state officials who might seek this\ninformation must show particularized need. Illinois v. Abbott & Associates, 103 S.Ct. 1356 (1983).\nFor another, and more significant, it is often the case that the information relates to a state crime\noutside the context of any pending or even contemplated state judicial proceeding, so that the\n\xe2\x80\x9cpreliminarily to or in connection with a judicial proceeding\xe2\x80\x9d requirement of subdivision\n(e)(3)(C)(i) cannot be met.\nThis inability lawfully to disclose evidence of a state criminal violation\xe2\x80\x94evidence\nlegitimately obtained by the grand jury\xe2\x80\x94constitutes an unreasonable barrier to the effective\nenforcement of our two-tiered system of criminal laws. It would be removed by new subdivision\n(e)(3)(C)(iv), which would allow a court to permit disclosure to a state or local official for the\npurpose of enforcing state law when an attorney for the government so requests and makes the\nrequisite showing.\nThe federal court has been given control over any disclosure which is authorized, for\nsubdivision (e)(3)(C) presently states that \xe2\x80\x9cthe disclosure shall be made in such manner, at such\ntime, and under such conditions as the court may direct.\xe2\x80\x9d The Committee is advised that it will be\nthe policy of the Department of Justice under this amendment to seek such disclosure only upon\napproval of the Assistant Attorney General in charge of the Criminal Division. There is no\nintention, by virtue of this amendment, to have federal grand juries act as an arm of the state.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nNew subdivision (a)(2) gives express recognition to a practice now followed in some\ndistrict courts, namely, that of designating alternate grand jurors at the time the grand jury is\nselected. (A person so designated does not attend court and is not paid the jury attendance fees and\nexpenses authorized by 28 U.S.C. \xc2\xa71871 unless subsequently impanelled pursuant to Rule 6(g).)\nBecause such designation may be a more efficient procedure than election of additional grand\njurors later as need arises under subdivision (g), the amendment makes it clear that it is a\npermissible step in the grand jury selection process.\nThis amendment is not intended to work any change in subdivision (g). In particular, the\nfact that one or more alternate jurors either have or have not been previously designated does not\nlimit the district court\'s discretion under subdivision (g) to decide whether, if a juror is excused\ntemporarily or permanently, another person should replace him to assure the continuity of the\n61\n\n\x0cgrand jury and its ability to obtain a quorum in order to complete its business.\nThe amendments [subdivisions (c) and (f)] are technical. No substantive change is\nintended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x941999 Amendment\nSubdivision 6(d). As currently written, Rule 6(d) absolutely bars any person, other than\nthe jurors themselves, from being present during the jury\'s deliberations and voting. Accordingly,\ninterpreters are barred from attending the deliberations and voting by the grand jury, even though\nthey may have been present during the taking of testimony. The amendment is intended to permit\ninterpreters to assist persons who are speech or hearing impaired and are serving on a grand jury.\nAlthough the Committee believes that the need for secrecy of grand jury deliberations and voting\nis paramount, permitting interpreters to assist hearing and speech impaired jurors in the process\nseems a reasonable accommodation. See also United States v. Dempsey, 830 F.2d 1084 (10th Cir.\n1987) (constitutionally rooted prohibition of non-jurors being present during deliberations was not\nviolated by interpreter for deaf petit jury member).\nThe subdivision has also been restyled and reorganized.\nSubdivision 6(f). The amendment to Rule 6(f) is intended to avoid the problems associated\nwith bringing the entire jury to the court for the purpose of returning an indictment. Although the\npractice is longstanding, in Breese v. United States, 226 U.S. 1 (1912), the Court rejected the\nargument that the requirement was rooted in the Constitution and observed that if there were ever\nany strong reasons for the requirement, \xe2\x80\x9cthey have disappeared, at least in part.\xe2\x80\x9d 226 U.S. at 9. The\nCourt added that grand jury\'s presence at the time the indictment was presented was a defect, if at\nall, in form only. Id. at 11. Given the problems of space, in some jurisdictions the grand jury sits in\na building completely separated from the courtrooms. In those cases, moving the entire jury to the\ncourtroom for the simple process of presenting the indictment may prove difficult and time\nconsuming. Even where the jury is in the same location, having all of the jurors present can be\nunnecessarily cumbersome in light of the fact that filing of the indictment requires a certification\nas to how the jurors voted.\nThe amendment provides that the indictment must be presented either by the jurors\nthemselves, as currently provided for in the rule, or by the foreperson or the deputy foreperson,\nacting on behalf of the jurors. In an appropriate case, the court might require all of the jurors to be\npresent if it had inquiries about the indictment.\nGAP Report\xe2\x80\x94Rule 6. The Committee modified Rule 6(d) to permit only interpreters\nassisting hearing or speech impaired grand jurors to be present during deliberations and voting.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 6 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\n62\n\n\x0cthroughout the rules. These changes are intended to be stylistic, except as noted below.\nThe first change is in Rule 6(b)(1). The last sentence of current Rule 6(b)(1) provides that\n\xe2\x80\x9cChallenges shall be made before the administration of the oath to the jurors and shall be tried by\nthe court.\xe2\x80\x9d That language has been deleted from the amended rule. The remainder of this\nsubdivision rests on the assumption that formal proceedings have begun against a person, i.e., an\nindictment has been returned. The Committee believed that although the first sentence reflects\ncurrent practice of a defendant being able to challenge the composition or qualifications of the\ngrand jurors after the indictment is returned, the second sentence does not comport with modern\npractice. That is, a defendant will normally not know the composition of the grand jury or identity\nof the grand jurors before they are administered their oath. Thus, there is no opportunity to\nchallenge them and have the court decide the issue before the oath is given.\nIn Rule 6(d)(1), the term \xe2\x80\x9ccourt stenographer\xe2\x80\x9d has been changed to \xe2\x80\x9ccourt reporter.\xe2\x80\x9d\nSimilar changes have been made in Rule 6(e)(1) and (2).\nRule 6(e) continues to spell out the general rule of secrecy of grand-jury proceedings and\nthe exceptions to that general rule. The last sentence in current Rule 6(e)(2), concerning contempt\nfor violating Rule 6, now appears in Rule 6(e)(7). No change in substance is intended.\nRule 6(e)(3)(A)(ii) includes a new provision recognizing the sovereignty of Indian Tribes\nand the possibility that it would be necessary to disclose grand-jury information to appropriate\ntribal officials in order to enforce federal law. Similar language has been added to Rule\n6(e)(3)(D)(iii).\nRule 6(e)(3)(A)(iii) is a new provision that recognizes that disclosure may be made to a\nperson under 18 U.S.C. \xc2\xa73322 (authorizing disclosures to an attorney for the government and\nbanking regulators for enforcing civil forfeiture and civil banking laws). This reference was added\nto avoid the possibility of the amendments to Rule 6 superseding that particular statute.\nRule 6(e)(3)(C) consists of language located in current Rule 6(e)(3)(C)(iii). The\nCommittee believed that this provision, which recognizes that prior court approval is not required\nfor disclosure of a grand-jury matter to another grand jury, should be treated as a separate\nsubdivision in revised Rule 6(e)(3). No change in practice is intended.\nRule 6(e)(3)(D) is new and reflects changes made to Rule 6 in the Uniting and\nStrengthening America by Providing Appropriate Tools Required to Intercept and Obstruct\nTerrorism (USA PATRIOT ACT) Act of 2001. The new provision permits an attorney for the\ngovernment to disclose grand-jury matters involving foreign intelligence or counterintelligence to\nother Federal officials, in order to assist those officials in performing their duties. Under Rule\n6(e)(3)(D)(i), the federal official receiving the information may only use the information as\nnecessary and may be otherwise limited in making further disclosures. Any disclosures made\nunder this provision must be reported under seal, within a reasonable time, to the court. The term\n\xe2\x80\x9cforeign intelligence information\xe2\x80\x9d is defined in Rule 6(e)(3)(D)(iii).\nRule 6(e)(3)(E)(iv) is a new provision that addresses disclosure of grand-jury information\nto armed forces personnel where the disclosure is for the purpose of enforcing military criminal\nlaw under the Uniform Code of Military Justice, 10 U.S.C. \xc2\xa7\xc2\xa7801 \xe2\x80\x93946. See, e.g., Department of\nDefense Directive 5525.7 (January 22, 1985); 1984 Memorandum of Understanding Between\nDepartment of Justice and the Department of Defense Relating to the Investigation and\nProsecution of Certain Crimes; Memorandum of Understanding Between the Departments of\nJustice and Transportation (Coast Guard) Relating to the Investigations and Prosecution of Crimes\nOver Which the Two Departments Have Concurrent Jurisdiction (October 9, 1967).\nIn Rule 6(e)(3)(F)(ii), the Committee considered whether to amend the language relating to\n63\n\n\x0c\xe2\x80\x9cparties to the judicial proceeding\xe2\x80\x9d and determined that in the context of the rule it is understood\nthat the parties referred to are the parties in the same judicial proceeding identified in Rule\n6(e)(3)(E)(i).\nThe Committee decided to leave in subdivision (e) the provision stating that a \xe2\x80\x9cknowing\nviolation of Rule 6\xe2\x80\x9d may be punished by contempt notwithstanding that, due to its apparent\napplication to the entirety of the Rule, the provision seemingly is misplaced in subdivision (e).\nResearch shows that Congress added the provision in 1977 and that it was crafted solely to deal\nwith violations of the secrecy prohibitions in subdivision (e). See S. Rep. No. 95\xe2\x80\x93354, p. 8 (1977).\nSupporting this narrow construction, the Committee found no reported decision involving an\napplication or attempted use of the contempt sanction to a violation other than of the disclosure\nrestrictions in subdivision (e). On the other hand, the Supreme Court in dicta did indicate on one\noccasion its arguable understanding that the contempt sanction would be available also for a\nviolation of Rule 6(d) relating to who may be present during the grand jury\'s deliberations. Bank of\nNova Scotia v. United States, 487 U.S. 250, 263 (1988).\nIn sum, it appears that the scope of the contempt sanction in Rule 6 is unsettled. Because\nthe provision creates an offense, altering its scope may be beyond the authority bestowed by the\nRules Enabling Act, 28 U.S.C. \xc2\xa7\xc2\xa72071 et seq. See 28 U.S.C. \xc2\xa72072(b) (Rules must not \xe2\x80\x9cabridge,\nenlarge, or modify any substantive right\xe2\x80\x9d). The Committee decided to leave the contempt\nprovision in its present location in subdivision (e), because breaking it out into a separate\nsubdivision could be construed to support the interpretation that the sanction may be applied to a\nknowing violation of any of the Rule\'s provisions rather than just those in subdivision (e). Whether\nor not that is a correct interpretation of the provision\xe2\x80\x94a matter on which the Committee takes no\nposition\xe2\x80\x94must be determined by case law, or resolved by Congress.\nCurrent Rule 6(g) has been divided into two new subdivisions, Rule 6(g), Discharge, and\nRule 6(h), Excuse. The Committee added the phrase in Rule 6(g) \xe2\x80\x9cexcept as otherwise provided by\nstatute,\xe2\x80\x9d to recognize the provisions of 18 U.S.C. \xc2\xa73331 relating to special grand juries.\nRule 6(i) is a new provision defining the term \xe2\x80\x9cIndian Tribe,\xe2\x80\x9d a term used only in this rule.\nCommittee Notes on Rules\xe2\x80\x942006 Amendment\nSubdivision (e)(3) and (7). This amendment makes technical changes to the language\nadded to Rule 6 by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108\xe2\x80\x93\n458, Title VI, \xc2\xa76501(a), 118 Stat. 3760, in order to bring the new language into conformity with\nthe conventions introduced in the general restyling of the Criminal Rules. No substantive change is\nintended.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivision (f). The amendment expressly allows a judge to take a grand jury return by\nvideo teleconference. Having the judge in the same courtroom remains the preferred practice\nbecause it promotes the public\xe2\x80\x99s confidence in the integrity and solemnity of a federal criminal\nproceeding. But there are situations when no judge is present in the courthouse where the grand\njury sits, and a judge would be required to travel long distances to take the return. Avoiding delay\nis also a factor, since the Speedy Trial Act, 18 U.S.C. \xc2\xa7 3161(b), requires that an indictment be\nreturned within thirty days of the arrest of an individual to avoid dismissal of the case. The\namendment is particularly helpful when there is no judge present at a courthouse where the grand\n64\n\n\x0cjury sits and the nearest judge is hundreds of miles away.\nUnder the amendment, the grand jury (or the foreperson) would appear in a courtroom in\nthe United States courthouse where the grand jury sits. Utilizing video teleconference, the judge\ncould participate by video from a remote location, convene court, and take the return. Indictments\ncould be transmitted in advance to the judge for review by reliable electronic means. This process\naccommodates the Speedy Trial Act, 18 U.S.C. \xc2\xa7 3161(b), and preserves the judge\xe2\x80\x99s time and\nsafety.\nChanges Made to Proposed Amendment Released For Public Comment\nNo changes were made in the amendment as published.\nReferences in Text\nThe Uniform Code of Military Justice, referred to in subd. (e)(3)(E)(v), is classified to\nchapter 47 (\xc2\xa7801 et seq.) of Title 10, Armed Forces.\nAmendment by Public Law\n2004 \xe2\x80\x94Subd. (e)(3)(A)(ii). Pub. L. 108\xe2\x80\x93458, \xc2\xa76501(a)(1)(A), substituted \xe2\x80\x9c, state\nsubdivision, Indian tribe, or foreign government\xe2\x80\x9d for \xe2\x80\x9cor state subdivision or of an Indian tribe\xe2\x80\x9d.\nSubd. (e)(3)(D). Pub. L. 108\xe2\x80\x93458, \xc2\xa76501(a)(1)(B)(i), inserted after first sentence \xe2\x80\x9cAn\nattorney for the government may also disclose any grand jury matter involving, within the United\nStates or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a\nthreat of domestic or international sabotage or terrorism, or clandestine intelligence gathering\nactivities by an intelligence service or network of a foreign power or by its agent, to any\nappropriate Federal, State, State subdivision, Indian tribal, or foreign government official, for the\npurpose of preventing or responding to such threat or activities.\xe2\x80\x9d\nSubd. (e)(3)(D)(i). Pub. L. 108\xe2\x80\x93458, \xc2\xa76501(a)(1)(B)(ii), struck out \xe2\x80\x9cfederal\xe2\x80\x9d before\n\xe2\x80\x9cofficial who\xe2\x80\x9d in first sentence and inserted at end \xe2\x80\x9cAny State, State subdivision, Indian tribal, or\nforeign government official who receives information under Rule 6(e)(3)(D) may use the\ninformation only consistent with such guidelines as the Attorney General and the Director of\nNational Intelligence shall jointly issue.\xe2\x80\x9d\nSubd. (e)(3)(E)(iii). Pub. L. 108\xe2\x80\x93458, \xc2\xa76501(a)(1)(C)(ii), added cl. (iii). Former cl. (iii)\nredesignated (iv).\nSubd. (e)(3)(E)(iv). Pub. L. 108\xe2\x80\x93458, \xc2\xa76501(a)(1)(C)(iii), substituted \xe2\x80\x9cState, Indian tribal,\nor foreign\xe2\x80\x9d for \xe2\x80\x9cstate or Indian tribal\xe2\x80\x9d and \xe2\x80\x9cIndian tribal, or foreign government official\xe2\x80\x9d for \xe2\x80\x9cor\nIndian tribal official\xe2\x80\x9d.\nPub. L. 108\xe2\x80\x93458, \xc2\xa76501(a)(1)(C)(i), redesignated cl. (iii) as (iv). Former cl. (iv)\nredesignated (v).\nSubd. (e)(3)(E)(v). Pub. L. 108\xe2\x80\x93458, \xc2\xa76501(a)(1)(C)(i), redesignated cl. (iv) as (v).\nSubd. (e)(7). Pub. L. 108\xe2\x80\x93458, \xc2\xa76501(a)(2), inserted \xe2\x80\x9c, or of guidelines jointly issued by\nthe Attorney General and the Director of National Intelligence pursuant to Rule 6,\xe2\x80\x9d after \xe2\x80\x9cviolation\nof Rule 6\xe2\x80\x9d.\n2002 \xe2\x80\x94Subd. (e). Pub. L. 107\xe2\x80\x93296, \xc2\xa7895, which directed certain amendments to subdiv.\n(e), could not be executed because of the amendment by the Court by order dated Apr. 29, 2002,\neff. Dec. 1, 2002. Section 895 of Pub. L. 107\xe2\x80\x93296 provided:\n\xe2\x80\x9cRule 6(e) of the Federal Rules of Criminal Procedure is amended\xe2\x80\x94\n65\n\n\x0c\xe2\x80\x9c(1) in paragraph (2), by inserting \xe2\x80\x98, or of guidelines jointly issued by the Attorney General\nand Director of Central Intelligence pursuant to Rule 6,\xe2\x80\x99 after \xe2\x80\x98Rule 6\xe2\x80\x99; and\n\xe2\x80\x9c(2) in paragraph (3)\xe2\x80\x94\n\xe2\x80\x9c(A) in subparagraph (A)(ii), by inserting \xe2\x80\x98or of a foreign government\xe2\x80\x99 after \xe2\x80\x98(including\npersonnel of a state or subdivision of a state\xe2\x80\x99;\n\xe2\x80\x9c(B) in subparagraph (C)(i)\xe2\x80\x94\n\xe2\x80\x9c(i) in subclause (I), by inserting before the semicolon the following: \xe2\x80\x98or, upon a request by\nan attorney for the government, when sought by a foreign court or prosecutor for use in an official\ncriminal investigation\xe2\x80\x99;\n\xe2\x80\x9c(ii) in subclause (IV)\xe2\x80\x94\n \xe2\x80\x9c(I) by inserting \xe2\x80\x98or foreign\xe2\x80\x99 after \xe2\x80\x98may disclose a violation of State\xe2\x80\x99;\n \xe2\x80\x9c(II) by inserting \xe2\x80\x98or of a foreign government\xe2\x80\x99 after \xe2\x80\x98to an appropriate official of a\nState or subdivision of a State\xe2\x80\x99; and\n \xe2\x80\x9c(III) by striking \xe2\x80\x98or\xe2\x80\x99 at the end;\n\xe2\x80\x9c(iii) by striking the period at the end of subclause (V) and inserting \xe2\x80\x98; or\xe2\x80\x99; and\n\xe2\x80\x9c(iv) by adding at the end the following:\n\xe2\x80\x9c \xe2\x80\x98(VI) when matters involve a threat of actual or potential attack or other grave hostile acts\nof a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or\ninternational terrorism, or clandestine intelligence gathering activities by an intelligence service or\nnetwork of a foreign power or by an agent of a foreign power, within the United States or\nelsewhere, to any appropriate federal, state, local, or foreign government official for the purpose of\npreventing or responding to such a threat.\xe2\x80\x99; and\n\xe2\x80\x9c(C) in subparagraph (C)(iii)\xe2\x80\x94\n\xe2\x80\x9c(i) by striking \xe2\x80\x98Federal\xe2\x80\x99;\n\xe2\x80\x9c(ii) by inserting \xe2\x80\x98or clause (i)(VI)\xe2\x80\x99 after \xe2\x80\x98clause (i)(V)\xe2\x80\x99; and\n\xe2\x80\x9c(iii) by adding at the end the following: \xe2\x80\x98Any state, local, or foreign official who receives\ninformation pursuant to clause (i)(VI) shall use that information only consistent with such\nguidelines as the Attorney General and Director of Central Intelligence shall jointly issue.\xe2\x80\x99.\xe2\x80\x9d\n2001 \xe2\x80\x94Subd. (e)(3)(C). Pub. L. 107\xe2\x80\x9356, \xc2\xa7203(a)(1), amended subpar. (C) generally. Prior\nto amendment, subpar. (C) read as follows: \xe2\x80\x9cDisclosure otherwise prohibited by this rule of\nmatters occurring before the grand jury may also be made\xe2\x80\x94\n\xe2\x80\x9c(i) when so directed by a court preliminarily to or in connection with a judicial\nproceeding;\n\xe2\x80\x9c(ii) when permitted by a court at the request of the defendant, upon a showing that\ngrounds may exist for a motion to dismiss the indictment because of matters occurring before the\ngrand jury;\n\xe2\x80\x9c(iii) when the disclosure is made by an attorney for the government to another federal\ngrand jury; or\n\xe2\x80\x9c(iv) when permitted by a court at the request of an attorney for the government, upon a\nshowing that such matters may disclose a violation of state criminal law, to an appropriate official\nof a state or subdivision of a state for the purpose of enforcing such law.\nIf the court orders disclosure of matters occurring before the grand jury, the disclosure shall\nbe made in such manner, at such time, and under such conditions as the court may direct.\xe2\x80\x9d\nSubd. (e)(3)(D). Pub. L. 107\xe2\x80\x9356, \xc2\xa7203(a)(2), substituted \xe2\x80\x9csubdivision (e)(3)(C)(i)(I)\xe2\x80\x9d for\n\xe2\x80\x9csubdivision (e)(3)(C)(i)\xe2\x80\x9d.\n1984 \xe2\x80\x94Subd. (e)(3)(C)(iv). Pub. L. 98\xe2\x80\x93473, eff. Nov. 1, 1987, added subcl. (iv), identical\n66\n\n\x0cto subcl. (iv) which had been previously added by Order of the Supreme Court dated Apr. 29,\n1985, eff. Aug. 1, 1985, thereby requiring no change in text.\nCommittee Notes on Rules - 2014 Amendment\nRule 6(e)(3)(D). This technical and conforming amendment updates a citation affected by\nthe editorial reclassification of chapter 15 of title 50, United States Code. The amendment replaces\nthe citation to 50 U.S.c. \xc2\xa7 401a with a citation to 50 U.S.C. \xc2\xa7 3003. No substantive change is\nintended.\nEffective Date of 1984 Amendment\nAmendment by Pub. L. 98\xe2\x80\x93473 effective Nov. 1, 1987, and applicable only to offenses\ncommitted after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98\xe2\x80\x93473, set\nout as an Effective Date note under section 3551 of this title.\nEffective Date of 1977 Amendment\nAmendment of this rule by order of the United States Supreme Court on Apr. 26, 1977,\nmodified and approved by Pub. L. 95\xe2\x80\x9378, effective Oct. 1, 1977, see section 4 of Pub. L. 95\xe2\x80\x9378, set\nout as an Effective Date of Pub. L. 95\xe2\x80\x9378 note under section 2074 of Title 28, Judiciary and\nJudicial Procedure.\nEffective Date of 1976 Amendment\nAmendment of subd. (f) by the order of the United States Supreme Court of Apr. 26, 1976,\neffective Aug. 1, 1976, see section 1 of Pub. L. 94\xe2\x80\x93349, July 8, 1976, 90 Stat. 822, set out as a note\nunder section 2074 of Title 28, Judiciary and Judicial Procedure.\n\nRule 7. The Indictment and the Information\n(a) When Used.\n(1) Felony. An offense (other than criminal contempt) must be prosecuted by an indictment\nif it is punishable:\n(A) by death; or\n(B) by imprisonment for more than one year.\n(2) Misdemeanor. An offense punishable by imprisonment for one year or less may be\nprosecuted in accordance with Rule 58(b)(1).\n(b) Waiving Indictment. An offense punishable by imprisonment for more than one year\nmay be prosecuted by information if the defendant\xe2\x80\x94in open court and after being advised of the\nnature of the charge and of the defendant\'s rights\xe2\x80\x94waives prosecution by indictment.\n(c) Nature and Contents.\n(1) In General. The indictment or information must be a plain, concise, and definite written\nstatement of the essential facts constituting the offense charged and must be signed by an attorney\nfor the government. It need not contain a formal introduction or conclusion. A count may\nincorporate by reference an allegation made in another count. A count may allege that the means\nby which the defendant committed the offense are unknown or that the defendant committed it by\n67\n\n\x0cone or more specified means. For each count, the indictment or information must give the official\nor customary citation of the statute, rule, regulation, or other provision of law that the defendant is\nalleged to have violated. For purposes of an indictment referred to in section 3282 of title 18,\nUnited States Code, for which the identity of the defendant is unknown, it shall be sufficient for the\nindictment to describe the defendant as an individual whose name is unknown, but who has a\nparticular DNA profile, as that term is defined in section 3282.\n(2) Citation Error. Unless the defendant was misled and thereby prejudiced, neither an\nerror in a citation nor a citation\'s omission is a ground to dismiss the indictment or information or\nto reverse a conviction.\n(d) Surplusage. Upon the defendant\'s motion, the court may strike surplusage from the\nindictment or information.\n(e) Amending an Information. Unless an additional or different offense is charged or a\nsubstantial right of the defendant is prejudiced, the court may permit an information to be amended\nat any time before the verdict or finding.\n(f) Bill of Particulars. The court may direct the government to file a bill of particulars. The\ndefendant may move for a bill of particulars before or within 14 days after arraignment or at a later\ntime if the court permits. The government may amend a bill of particulars subject to such\nconditions as justice requires.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30,\n1979, eff. Aug. 1, 1979; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29,\n2002, eff. Dec. 1, 2002; Pub. L. 108\xe2\x80\x9321, title VI, \xc2\xa7610(b), Apr. 30, 2003, 117 Stat. 692; Mar. 26,\n2009, eff. Dec. 1, 2009.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. This rule gives effect to the following provision of the Fifth\nAmendment to the Constitution of the United States: \xe2\x80\x9cNo person shall be held to answer for a\ncapital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury *\xe2\x80\x9d.\nAn infamous crime has been defined as a crime punishable by death or by imprisonment in a\npenitentiary or at hard labor, Ex parte Wilson, 114 U.S. 417, 427; United States v. Moreland, 258\nU.S. 433. Any sentence of imprisonment for a term of over one year may be served in a\npenitentiary, if so directed by the Attorney General, 18 U.S.C. 753f [now 4082, 4083]\n(Commitment of persons by any court of the United States and the juvenile court of the District of\nColumbia; place of confinement; transfers). Consequently any offense punishable by\nimprisonment for a term of over one year is an infamous crime.\n2. Petty offenses and misdemeanors for which no infamous punishment is prescribed may\nnow be prosecuted by information, 18 U.S.C. 541 [see 1] (Felonies and misdemeanors); Duke v.\nUnited States, 301 U.S. 492.\n3. For a discussion of the provision for waiver of indictment, see Note to Rule 7(b), infra.\n4. Presentment is not included as an additional type of formal accusation, since\npresentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal\ncourts.\nNote to Subdivision (b). 1. Opportunity to waive indictment and to consent to prosecution\nby information will be a substantial aid to defendants, especially those who, because of inability to\n68\n\n\x0cgive bail, are incarcerated pending action of the grand jury, but desire to plead guilty. This rule is\nparticularly important in those districts in which considerable intervals occur between sessions of\nthe grand jury. In many districts where the grand jury meets infrequently a defendant unable to\ngive bail and desiring to plead guilty is compelled to spend many days, and sometimes many\nweeks, and even months, in jail before he can begin the service of his sentence, whatever it may be,\nawaiting the action of a grand jury. Homer Cummings, 29 A.B.A.Jour. 654\xe2\x80\x93655; Vanderbilt, 29\nA.B.A.Jour. 376, 377; Robinson, 27 Jour. of the Am. Judicature Soc. 38, 45; Medalie, 4 Lawyers\nGuild R. (3)1, 3. The rule contains safeguards against improvident waivers.\nThe Judicial Conference of Senior Circuit Judges, in September 1941, recommended that\n\xe2\x80\x9cexisting law or established procedure be so changed, that a defendant may waive indictment and\nplead guilty to an information filed by a United States attorney in all cases except capital felonies.\xe2\x80\x9d\nReport of the Judicial Conference of Senior Circuit Judges (1941) 13. In September 1942 the\nJudicial Conference recommended that provision be made \xe2\x80\x9cfor waiver of indictment and jury trial,\nso that persons accused of crime may not be held in jail needlessly pending trial.\xe2\x80\x9d Id. (1942) 8.\nAttorneys General of the United States have from time to time recommended legislation to\npermit defendants to waive indictment and to consent to prosecution by information. See Annual\nReport of the Attorney General of the United States (Mitchell) (1931) 3; Id. (Mitchell) (1932) 6; Id.\n(Cummings) (1933) 1, (1936) 2, (1937) 11, (1938) 9; Id. (Murphy) (1939) 7.\nThe Federal Juvenile Delinquency Act [now 18 U.S.C. 5031 \xe2\x80\x935037], now permits a\njuvenile charged with an offense not punishable by death or life imprisonment to consent to\nprosecution by information on a charge of juvenile delinquency, 18 U.S.C. 922 [now 5032, 5033].\n2. On the constitutionality of this rule, see United States v. Gill, 55 F.2d 399 (D.N.M.),\nholding that the constitutional guaranty of indictment by grand jury may be waived by defendant.\nIt has also been held that other constitutional guaranties may be waived by the defendant, e. g.,\nPatton v. United States, 281 U.S. 276 (trial by jury); Johnson v. Zerbst, 304 U.S. 458, 465 (right of\ncounsel); Trono v. United States, 199 U.S. 521, 534 (protection against double jeopardy); United\nStates v. Murdock, 284 U.S. 141, 148 (privilege against self-incrimination); Diaz v. United States,\n223 U.S. 442, 450 (right of confrontation).\nNote to Subdivision (c). 1. This rule introduces a simple form of indictment, illustrated by\nForms 1 to 11 in the Appendix of Forms. Cf. Rule 8(a) of the Federal Rules of Civil Procedure [28\nU.S.C., Appendix]. For discussion of the effect of this rule and a comparison between the present\nform of indictment and the simple form introduced by this rule, see Vanderbilt, 29 A.B.A.Jour.\n376, 377; Homer Cummings, 29 A.B.A.Jour. 654, 655; Holtzoff, 3 F.R.D. 445, 448\xe2\x80\x93449; Holtzoff,\n12 Geo. Washington L.R. 119, 123\xe2\x80\x93126; Medalie, 4 Lawyers Guild R. (3)1, 3.\n2. The provision contained in the fifth sentence that it may be alleged in a single count that\nthe means by which the defendant committed the offense are unknown, or that he committed it by\none or more specified means, is intended to eliminate the use of multiple counts for the purpose of\nalleging the commission of the offense by different means or in different ways. Cf. Federal Rules\nof Civil Procedure, Rule 8(e)(2) [28 U.S.C., Appendix].\n3. The law at present regards citations to statutes or regulations as not a part of the\nindictment. A conviction may be sustained on the basis of a statute or regulation other than that\ncited. Williams v. United States, 168 U.S. 382, 389; United States v. Hutcheson, 312 U.S. 219, 229.\nThe provision of the rule, in view of the many statutes and regulations, is for the benefit of the\ndefendant and is not intended to cause a dismissal of the indictment, but simply to provide a means\nby which he can be properly informed without danger to the prosecution.\nNote to Subdivision (d). This rule introduces a means of protecting the defendant against\n69\n\n\x0cimmaterial or irrelevant allegations in an indictment or information, which may, however, be\nprejudicial. The authority of the court to strike such surplusage is to be limited to doing so on\ndefendant\'s motion, in the light of the rule that the guaranty of indictment by a grand jury implies\nthat an indictment may not be amended, Ex parte Bain, 121 U.S. 1. By making such a motion, the\ndefendant would, however, waive his rights in this respect.\nNote to Subdivision (e). This rule continues the existing law that, unlike an indictment, an\ninformation may be amended, Muncy v. United States, 289 F. 780 (C.C.A. 4th).\nNote to Subdivision (f). This rule is substantially a restatement of existing law on bills of\nparticulars.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe amendment to the first sentence eliminating the requirement of a showing of cause is\ndesigned to encourage a more liberal attitude by the courts toward bills of particulars without\ntaking away the discretion which courts must have in dealing with such motions in individual\ncases. For an illustration of wise use of this discretion see the opinion by Justice Whittaker written\nwhen he was a district judge in United States v. Smith, 16 F.R.D. 372 (W.D.Mo. 1954).\nThe amendment to the second sentence gives discretion to the court to permit late filing of\nmotions for bills of particulars in meritorious cases. Use of late motions for the purpose of\ndelaying trial should not, of course, be permitted. The courts have not been agreed as to their\npower to accept late motions in the absence of a local rule or a previous order. See United States v.\nMiller, 217 F.Supp. 760 (E.D.Pa. 1963); United States v. Taylor, 25 F.R.D. 225 (E.D.N.Y. 1960);\nUnited States v. Sterling, 122 F.Supp. 81 (E.D.Pa. 1954) (all taking a limited view of the power of\nthe court). But cf. United States v. Brown, 179 F.Supp. 893 (E.D.N.Y. 1959) (exercising discretion\nto permit an out of time motion).\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivision (c)(2) is new. It is intended to provide procedural implementation of the\nrecently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title\nIX, \xc2\xa71963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II,\n\xc2\xa7408(a)(2).\nThe Congress viewed the provisions of the Organized Crime Control Act of 1970 as\nreestablishing a limited common law criminal forfeiture. S. Rep. No. 91\xe2\x80\x93617, 91st Cong., 1st Sess.\n79\xe2\x80\x9380 (1969). The legislative history of the Comprehensive Drug Abuse Prevention and Control\nAct of 1970 indicates a congressional purpose to have similar procedures apply to the forfeiture of\nprofits or interests under that act. H. Rep. No. 91\xe2\x80\x931444 (part I), 91st Cong., 2d Sess. 81\xe2\x80\x9385 (1970).\nUnder the common law, in a criminal forfeiture proceeding the defendant was apparently\nentitled to notice, trial, and a special jury finding on the factual issues surrounding the declaration\nof forfeiture which followed his criminal conviction. Subdivision (c)(2) provides for notice.\nChanges in rules 31 and 32 provide for a special jury finding and for a judgment authorizing the\nAttorney General to seize the interest or property forfeited.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nThe amendment to rule 7(c)(2) is intended to clarify its meaning. Subdivision (c)(2) was\n70\n\n\x0cadded in 1972, and, as noted in the Advisory Committee Note thereto, was \xe2\x80\x9cintended to provide\nprocedural implementation of the recently enacted criminal forfeiture provision of the Organized\nCrime Control Act of 1970, Title IX, \xc2\xa71963, and the Comprehensive Drug Abuse Prevention and\nControl Act of 1970, Title II, \xc2\xa7408(a)(2).\xe2\x80\x9d These provisions reestablished a limited common law\ncriminal forfeiture, necessitating the addition of subdivision (c)(2) and corresponding changes in\nrules 31 and 32, for at common law the defendant in a criminal forfeiture proceeding was entitled\nto notice, trial, and a special jury finding on the factual issues surrounding the declaration of\nforfeiture which followed his criminal conviction.\nAlthough there is some doubt as to what forfeitures should be characterized as \xe2\x80\x9cpunitive\xe2\x80\x9d\nrather than \xe2\x80\x9cremedial,\xe2\x80\x9d see Note, 62 Cornell L.Rev. 768 (1977), subdivision (c)(2) is intended to\napply to those forfeitures which are criminal in the sense that they result from a special verdict\nunder rule 31(e) and a judgment under rule 32(b)(2), and not to those resulting from a separate in\nrem proceeding. Because some confusion in this regard has resulted from the present wording of\nsubdivision (c)(2), United States v. Hall, 521 F.2d 406 (9th Cir. 1975), a clarifying amendment is\nin order.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942000 Amendment\nThe rule is amended to reflect new Rule 32.2, which now governs criminal forfeiture\nprocedures.\nGAP Report\xe2\x80\x94Rule 7. The Committee initially made no changes to the published draft of\nthe Rule 7 amendment. However, because of changes to Rule 32.2(a), discussed infra, the\nproposed language has been changed to reflect that the indictment must provide notice of an intent\nto seek forfeiture.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 7 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic.\nThe Committee has deleted the references to \xe2\x80\x9chard labor\xe2\x80\x9d in the rule. This punishment is\nnot found in current federal statutes.\nThe Committee added an exception for criminal contempt to the requirement in Rule\n7(a)(1) that a prosecution for felony must be initiated by indictment. This is consistent with case\nlaw, e.g., United States v. Eichhorst, 544 F.2d 1383 (7th Cir. 1976), which has sustained the use of\nthe special procedures for instituting criminal contempt proceedings found in Rule 42. While\nindictment is not a required method of bringing felony criminal contempt charges, however, it is a\npermissible one. See United States v. Williams, 622 F.2d 830 (5th Cir. 1980). No change in\npractice is intended.\nThe title of Rule 7(c)(3) has been amended. The Committee believed that potential\nconfusion could arise with the use of the term \xe2\x80\x9charmless error.\xe2\x80\x9d Rule 52, which deals with the\nissues of harmless error and plain error, is sufficient to address the topic. Potentially, the topic of\n71\n\n\x0charmless error could arise with regard to any of the other rules and there is insufficient need to\nhighlight the term in Rule 7. Rule 7(c)(3), on the other hand, focuses specifically on the effect of an\nerror in the citation of authority in the indictment. That material remains but without any reference\nto harmless error.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nThe time set in the former rule at 10 days has been revised to 14 days. See the Committee\nNote to Rule 45(a).\nSubdivision (c). The provision regarding forfeiture is obsolete. In 2000 the same language\nwas repeated in subdivision (a) of Rule 32.2, which was intended to consolidate the rules dealing\nwith forfeiture.\nAmendment by Public Law\n2003 \xe2\x80\x94Subd. (c)(1). Pub. L. 108\xe2\x80\x9321 inserted at end \xe2\x80\x9cFor purposes of an indictment\nreferred to in section 3282 of title 18, United States Code, for which the identity of the defendant is\nunknown, it shall be sufficient for the indictment to describe the defendant as an individual whose\nname is unknown, but who has a particular DNA profile, as that term is defined in that section\n3282.\xe2\x80\x9d\n\nRule 8. Joinder of Offenses or Defendants\n(a) Joinder of Offenses. The indictment or information may charge a defendant in separate\ncounts with 2 or more offenses if the offenses charged\xe2\x80\x94whether felonies or misdemeanors or\nboth\xe2\x80\x94are of the same or similar character, or are based on the same act or transaction, or are\nconnected with or constitute parts of a common scheme or plan.\n(b) Joinder of Defendants. The indictment or information may charge 2 or more defendants\nif they are alleged to have participated in the same act or transaction, or in the same series of acts or\ntransactions, constituting an offense or offenses. The defendants may be charged in one or more\ncounts together or separately. All defendants need not be charged in each count.\nNotes\n(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). This rule is substantially a restatement of existing law, 18 U.S.C.\n[former] 557 (Indictments and presentments; joinder of charges).\nNote to Subdivision (b). The first sentence of the rule is substantially a restatement of\nexisting law, 9 Edmunds, Cyclopedia of Federal Procedure (2d Ed.) 4116. The second sentence\nformulates a practice now approved in some circuits. Caringella v. United States, 78 F.2d 563, 567\n(C.C.A. 7th).\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\n\n72\n\n\x0cThe language of Rule 8 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\n\nRule 9. Arrest Warrant or Summons on an Indictment or Information\n(a) Issuance. The court must issue a warrant\xe2\x80\x94or at the government\'s request, a\nsummons\xe2\x80\x94for each defendant named in an indictment or named in an information if one or more\naffidavits accompanying the information establish probable cause to believe that an offense has\nbeen committed and that the defendant committed it. The court may issue more than one warrant or\nsummons for the same defendant. If a defendant fails to appear in response to a summons, the court\nmay, and upon request of an attorney for the government must, issue a warrant. The court must\nissue the arrest warrant to an officer authorized to execute it or the summons to a person authorized\nto serve it.\n(b) Form.\n(1) Warrant. The warrant must conform to Rule 4(b)(1) except that it must be signed by the\nclerk and must describe the offense charged in the indictment or information.\n(2) Summons. The summons must be in the same form as a warrant except that it must\nrequire the defendant to appear before the court at a stated time and place.\n(c) Execution or Service; Return; Initial Appearance.\n(1) Execution or Service.\n(A) The warrant must be executed or the summons served as provided in Rule 4(c)(1), (2),\nand (3).\n(B) The officer executing the warrant must proceed in accordance with Rule 5(a)(1).\n(2) Return. A warrant or summons must be returned in accordance with Rule 4(c)(4).\n(3) Initial Appearance. When an arrested or summoned defendant first appears before the\ncourt, the judge must proceed under Rule 5.\n(d) Warrant by Telephone or Other Means. In accordance with Rule 4.1, a magistrate judge\nmay issue an arrest warrant or summons based on information communicated by telephone or\nother reliable electronic means.\nNotes\n(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x93\n64, \xc2\xa73(4), July 31, 1975, 89 Stat. 370; Pub. L. 94\xe2\x80\x93149, \xc2\xa75, Dec. 12, 1975, 89 Stat. 806; Apr. 30,\n1979, eff. Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29,\n2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. See Note to Rule 4, supra.\n2. The provision of Rule 9(a) that a warrant may be issued on the basis of an information\nonly if the latter is supported by oath is necessitated by the Fourth Amendment to the Constitution\nof the United States. See Albrecht v. United States, 273 U.S. 1, 5.\n3. The provision of Rule 9(b)(1) that the amount of bail may be fixed by the court and\nendorsed on the warrant states a practice now prevailing in many districts and is intended to\nfacilitate the giving of bail by the defendant and eliminate delays between the arrest and the giving\n73\n\n\x0cof bail, which might ensue if bail cannot be fixed until after arrest.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivision (b) is amended to make clear that the person arrested shall be brought before a\nUnited States magistrate if the information or indictment charges a \xe2\x80\x9cminor offense\xe2\x80\x9d triable by the\nUnited States magistrate.\nSubdivision (c) is amended to reflect the office of United States magistrate.\nSubdivision (d) is new. It provides for a remand to the United States magistrate of cases in\nwhich the person is charged with a \xe2\x80\x9cminor offense.\xe2\x80\x9d The magistrate can then proceed in\naccordance with rule 5 to try the case if the right to trial before a judge of the district court is\nwaived.\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nRule 9 is revised to give high priority to the issuance of a summons unless a \xe2\x80\x9cvalid reason\xe2\x80\x9d\nis given for the issuance of an arrest warrant. See a comparable provision in rule 4.\nUnder the rule, a summons will issue by the clerk unless the attorney for the government\npresents a valid reason for the issuance of an arrest warrant. Under the old rule, it has been argued\nthat the court must issue an arrest warrant if one is desired by the attorney for the government. See\nauthorities listed in Frankel, Bench Warrants Upon the Prosecutor\'s Demand: A View From the\nBench, 71 Colum.L.Rev. 403, 410 n. 25 (1971). For an expression of the view that this is\nundesirable policy, see Frankel, supra, pp. 410\xe2\x80\x93415.\nA summons may issue if there is an information supported by oath. The indictment itself is\nsufficient to establish the existence of probable cause. See C. Wright, Federal Practice and\nProcedure: Criminal \xc2\xa7151 (1969); 8 J. Moore, Federal Practice 9.02[2] at p. 9\xe2\x80\x934 (2d ed.) Cipes\n(1969); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed. 2d 1503 (1958). This is\nnot necessarily true in the case of an information. See C. Wright, supra, \xc2\xa7151; 8 J. Moore, supra,\n9.02. If the government requests a warrant rather than a summons, good practice would obviously\nrequire the judge to satisfy himself that there is probable cause. This may appear from the\ninformation or from an affidavit filed with the information. Also a defendant can, at a proper time,\nchallenge an information issued without probable cause.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 9 of the Federal Rules of Criminal\nProcedure is closely related to Rule 4. Rule 9 deals with arrest procedures after an information has\nbeen filed or an indictment returned. The present rule gives the prosecutor the authority to decide\nwhether a summons or a warrant shall issue.\nThe Supreme Court\'s amendments to Rule 9 parallel its amendments to Rule 4. The basic\nchange made in Rule 4 is also made in Rule 9.\nB. Committee Action. For the reasons set forth above in connection with Rule 4, the\nCommittee endorses and accepts the basic change in Rule 9. The Committee made changes in Rule\n9 similar to the changes it made in Rule 4.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\n\n74\n\n\x0cSubdivision (a) is amended to make explicit the fact that a warrant may issue upon the basis\nof an information only if the information or an affidavit filed with the information shows probable\ncause for the arrest. This has generally been assumed to be the state of the law even though not\nspecifically set out in rule 9; see C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7151 (1969);\n8 J. Moore, Federal Practice par. 9.02[2] (2d ed. 1976).\nIn Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court rejected the contention \xe2\x80\x9cthat\nthe prosecutor\'s decision to file an information is itself a determination of probable cause that\nfurnishes sufficient reason to detain a defendant pending trial,\xe2\x80\x9d commenting:\nAlthough a conscientious decision that the evidence warrants prosecution affords a\nmeasure of protection against unfounded detention, we do not think prosecutorial judgment\nstanding alone meets the requirements of the Fourth Amendment. Indeed, we think the Court\'s\nprevious decisions compel disapproval of [such] procedure. In Albrecht v. United States, 273 U.S.\n1, 5, 47 S.Ct. 250, 251, 71 L.Ed. 505 (1927), the Court held that an arrest warrant issued solely\nupon a United States Attorney\'s information was invalid because the accompanying affidavits\nwere defective. Although the Court\'s opinion did not explicitly state that the prosecutor\'s official\noath could not furnish probable cause, that conclusion was implicit in the judgment that the arrest\nwas illegal under the Fourth Amendment.\nNo change is made in the rule with respect to warrants issuing upon indictments. In\nGerstein, the Court indicated it was not disturbing the prior rule that \xe2\x80\x9can indictment, \xe2\x80\x98fair upon its\nface,\xe2\x80\x99 and returned by a \xe2\x80\x98properly constituted grand jury\xe2\x80\x99 conclusively determines the existence of\nprobable cause and requires issuance of an arrest warrant without further inquiry.\xe2\x80\x9d See Ex parte\nUnited States, 287 U.S. 241, 250 (1932).\nThe provision to the effect that a summons shall issue \xe2\x80\x9cby direction of the court\xe2\x80\x9d has been\neliminated because it conflicts with the first sentence of the rule, which states that a warrant \xe2\x80\x9cshall\xe2\x80\x9d\nissue when requested by the attorney for the government, if properly supported. However, an\naddition has been made providing that if the attorney for the government does not make a request\nfor either a warrant or summons, then the court may in its discretion issue either one. Other\nstylistic changes ensure greater consistency with comparable provisions in rule 4.\nNotes of Advisory Committee on Rules\xe2\x80\x941982 Amendment\nNote to Subdivision (a). The amendment of subdivision (a), by reference to Rule 5, clarifies\nwhat is to be done once the defendant is brought before the magistrate. This means, among other\nthings, that no preliminary hearing is to be held in a Rule 9 case, as Rule 5(c) provides that no such\nhearing is to be had \xe2\x80\x9cif the defendant is indicted or if an information against the defendant is filed.\xe2\x80\x9d\nNote to Subdivision (b). The amendment of subdivision (b) conforms Rule 9 to the\ncomparable provisions in Rule 4(c)(1) and (2).\nNote to Subdivision (c). The amendment of subdivision (c) conforms Rule 9 to the\ncomparable provisions in Rules 4(d)(4) and 5(a) concerning return of the warrant.\nNote to Subdivision (d). This subdivision, incorrect in its present form in light of the recent\namendment of 18 U.S.C. \xc2\xa73401(a), has been abrogated as unnecessary in light of the change to\nsubdivision (a).\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\n\n75\n\n\x0cThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 9 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nRule 9 has been changed to reflect its relationship to Rule 4 procedures for obtaining an\narrest warrant or summons. Thus, rather than simply repeating material that is already located in\nRule 4, the Committee determined that where appropriate, Rule 9 should simply direct the reader\nto the procedures specified in Rule 4.\nRule 9(a) has been amended to permit a judge discretion whether to issue an arrest warrant\nwhen a defendant fails to respond to a summons on a complaint. Under the current language of the\nrule, if the defendant fails to appear, the judge must issue a warrant. Under the amended version, if\nthe defendant fails to appear and the government requests that a warrant be issued, the judge must\nissue one. In the absence of such a request, the judge has the discretion to do so. This change\nmirrors language in amended Rule 4(a).\nA second amendment has been made in Rule 9(b)(1). The rule has been amended to delete\nlanguage permitting the court to set the amount of bail on the warrant. The Committee believes\nthat this language is inconsistent with the 1984 Bail Reform Act. See United States v. Thomas, 992\nF. Supp. 782 (D.V.I. 1998) (bail amount endorsed on warrant that has not been determined in\nproceedings conducted under Bail Reform Act has no bearing on decision by judge conducting\nRule 40 hearing).\nThe language in current Rule 9(c)(1), concerning service of a summons on an organization,\nhas been moved to Rule 4.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivision (d). Rule 9(d) authorizes a court to issue an arrest warrant or summons\nelectronically on the return of an indictment or the filing of an information. In large judicial\ndistricts the need to travel to the courthouse to obtain an arrest warrant in person can be\nburdensome, and advances in technology make the secure transmission of a reliable version of the\nwarrant or summons possible. This change works in conjunction with the amendment to Rule 6\nthat permits the electronic return of an indictment, which similarly eliminates the need to travel to\nthe courthouse.\nChanges Made to Proposed Amendment Released for Public Comment\nNo changes were made in the amendment as published.\nAmendment by Public Law\n1975 \xe2\x80\x94Subd. (a). Pub. L. 94\xe2\x80\x9364 amended subd. (a) generally.\nSubd. (b)(1). Pub. L. 94\xe2\x80\x93149 substituted reference to \xe2\x80\x9crule 4(c)(1)\xe2\x80\x9d for \xe2\x80\x9crule 4(b)(1)\xe2\x80\x9d.\nSubd. (c)(1). Pub. L. 94\xe2\x80\x93149 substituted reference to \xe2\x80\x9crule 4(d)(1), (2), and (3)\xe2\x80\x9d for \xe2\x80\x9crule\n4(c)(1), (2), and (3)\xe2\x80\x9d.\n76\n\n\x0cEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\n77\n\n\x0cTITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL\nRule 10. Arraignment\n(a) In General. An arraignment must be conducted in open court and must consist of:\n(1) ensuring that the defendant has a copy of the indictment or information;\n(2) reading the indictment or information to the defendant or stating to the defendant the\nsubstance of the charge; and then\n(3) asking the defendant to plead to the indictment or information.\n(b) Waiving Appearance. A defendant need not be present for the arraignment if:\n(1) the defendant has been charged by indictment or misdemeanor information;\n(2) the defendant, in a written waiver signed by both the defendant and defense counsel,\nhas waived appearance and has affirmed that the defendant received a copy of the indictment or\ninformation and that the plea is not guilty; and\n(3) the court accepts the waiver.\n(c) Video Teleconferencing. Video teleconferencing may be used to arraign a defendant if\nthe defendant consents.\nNotes\n(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. The first sentence states the prevailing practice.\n2. The requirement that the defendant shall be given a copy of the indictment or\ninformation before he is called upon to plead, contained in the second sentence, is new.\n3. Failure to comply with arraignment requirements has been held not to be jurisdictional,\nbut a mere technical irregularity not warranting a reversal of a conviction, if not raised before trial,\nGarland v. State of Washington, 232 U.S. 642.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 10 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nRead together, Rules 10 and 43 require the defendant to be physically present in court for\nthe arraignment. See, e.g., Valenzuela-Gonzales v. United States, 915 F.2d 1276, 1280 (9th Cir.\n1990) (Rules 10 and 43 are broader in protection than the Constitution). The amendments to Rule\n10 create two exceptions to that requirement. The first provides that the court may hold an\narraignment in the defendant\'s absence when the defendant has waived the right to be present in\nwriting and the court consents to that waiver. The second permits the court to hold arraignments by\n78\n\n\x0cvideo teleconferencing when the defendant is at a different location. A conforming amendment has\nalso been made to Rule 43.\nIn amending Rule 10 and Rule 43, the Committee was concerned that permitting a\ndefendant to be absent from the arraignment could be viewed as an erosion of an important\nelement of the judicial process. First, it may be important for a defendant to see and experience\nfirst-hand the formal impact of the reading of the charge. Second, it may be necessary for the court\nto personally see and speak with the defendant at the arraignment, especially when there is a real\nquestion whether the defendant actually understands the gravity of the proceedings. And third,\nthere may be difficulties in providing the defendant with effective and confidential assistance of\ncounsel if counsel, but not the defendant, appears at the arraignment.\nThe Committee nonetheless believed that in appropriate circumstances the court, and the\ndefendant, should have the option of conducting the arraignment in the defendant\'s absence. The\nquestion of when it would be appropriate for a defendant to waive an appearance is not spelled out\nin the rule. That is left to the defendant and the court in each case.\nA critical element to the amendment is that no matter how convenient or cost effective a\ndefendant\'s absence might be, the defendant\'s right to be present in court stands unless he or she\nwaives that right in writing. Under the amendment, both the defendant and the defendant\'s attorney\nmust sign the waiver. Further, the amendment requires that the waiver specifically state that the\ndefendant has received a copy of the charging instrument.\nIf the trial court has reason to believe that in a particular case the defendant should not be\npermitted to waive the right, the court may reject the waiver and require that the defendant actually\nappear in court. That might be particularly appropriate when the court wishes to discuss\nsubstantive or procedural matters in conjunction with the arraignment and the court believes that\nthe defendant\'s presence is important in resolving those matters. It might also be appropriate to\nreject a requested waiver where an attorney for the government presents reasons for requiring the\ndefendant to appear personally.\nThe amendment does not permit waiver of an appearance when the defendant is charged\nwith a felony information. In that instance, the defendant is required by Rule 7(b) to be present in\ncourt to waive the indictment. Nor does the amendment permit a waiver of appearance when the\ndefendant is standing mute (see Rule 11(a)(4)), or entering a conditional plea (see Rule 11(a)(2)), a\nnolo contendere plea (see Rule 11(a)(3)), or a guilty plea (see Rule 11(a)(1)). In each of those\ninstances the Committee believed that it was more appropriate for the defendant to appear\npersonally before the court.\nIt is important to note that the amendment does not permit the defendant to waive the\narraignment itself, which may be a triggering mechanism for other rules.\nRule 10(c) addresses the second substantive change in the rule. That provision permits the\ncourt to conduct arraignments through video teleconferencing, if the defendant waives the right to\nbe arraigned in court. Although the practice is now used in state courts and in some federal courts,\nRules 10 and 43 have generally prevented federal courts from using that method for arraignments\nin criminal cases. See, e.g., Valenzuela-Gonzales v. United States, supra (Rules 10 and 43 mandate\nphysical presence of defendant at arraignment and that arraignment take place in open court). A\nsimilar amendment was proposed by the Committee in 1993 and published for public comment.\nThe amendment was later withdrawn from consideration in order to consider the results of several\nplanned pilot programs. Upon further consideration, the Committee believed that the benefits of\nusing video teleconferencing outweighed the costs of doing so. This amendment also parallels an\namendment in Rule 5(f) that would permit initial appearances to be conducted by video\n79\n\n\x0cteleconferencing.\nIn amending Rules 5, 10, and 43 (which generally requires the defendant\'s presence at all\nproceedings), the Committee carefully considered the argument that permitting a defendant to\nappear by video teleconferencing might be considered an erosion of an important element of the\njudicial process. Much can be lost when video teleconferencing occurs. First, the setting itself may\nnot promote the public\'s confidence in the integrity and solemnity of a federal criminal proceeding;\nthat is the view of some who have witnessed the use of such proceedings in some state\njurisdictions. While it is difficult to quantify the intangible benefits and impact of requiring a\ndefendant to be brought before a federal judicial officer in a federal courtroom, the Committee\nrealizes that something is lost when a defendant is not required to make a personal appearance. A\nrelated consideration is that the defendant may be located in a room that bears no resemblance\nwhatsoever to a judicial forum and the equipment may be inadequate for high-quality\ntransmissions. Second, using video teleconferencing can interfere with counsel\'s ability to meet\npersonally with his or her client at what, at least in that jurisdiction, might be an important\nappearance before a magistrate judge. Third, the defendant may miss an opportunity to meet with\nfamily or friends, and others who might be able to assist the defendant, especially in any attempts\nto obtain bail. Finally, the magistrate judge may miss an opportunity to accurately assess the\nphysical, emotional, and mental condition of a defendant\xe2\x80\x94a factor that may weigh on pretrial\ndecisions, such as release from detention.\nOn the other hand, the Committee considered that in some jurisdictions, the courts face a\nhigh volume of criminal proceedings. The Committee was also persuaded to adopt the amendment\nbecause in some jurisdictions delays may occur in travel time from one location to another\xe2\x80\x94in\nsome cases requiring either the magistrate judge or the participants to travel long distances. In\nthose instances, it is not unusual for a defense counsel to recognize the benefit of conducting a\nvideo teleconferenced proceeding, which will eliminate lengthy and sometimes expensive travel or\npermit the arraignment to be conducted much sooner. Finally, the Committee was aware that in\nsome jurisdictions, courtrooms now contain high quality technology for conducting such\nprocedures, and that some courts are already using video teleconferencing\xe2\x80\x94with the consent of\nthe parties.\nThe Committee believed that, on balance and in appropriate circumstances, the court and\nthe defendant should have the option of using video teleconferencing for arraignments, as long as\nthe defendant consents to that procedure. The question of when it would be appropriate for a\ndefendant to consent is not spelled out in the rule. That is left to the defendant and the court in each\ncase. Although the rule does not specify any particular technical requirements regarding the\nsystem to be used, if the equipment or technology is deficient, the public may lose confidence in\nthe integrity and dignity of the proceedings.\nThe amendment does not require a court to adopt or use video teleconferencing. In\ndeciding whether to use such procedures, a court may wish to consider establishing clearly\narticulated standards and procedures. For example, the court would normally want to insure that\nthe location used for televising the video teleconferencing is conducive to the solemnity of a\nfederal criminal proceeding. That might require additional coordination, for example, with the\ndetention facility to insure that the room, furniture, and furnishings reflect the dignity associated\nwith a federal courtroom. Provision should also be made to insure that the judge, or a surrogate, is\nin a position to carefully assess the condition of the defendant. And the court should also consider\nestablishing procedures for insuring that counsel and the defendant (and even the defendant\'s\nimmediate family) are provided an ample opportunity to confer in private.\n80\n\n\x0cAlthough the rule requires the defendant to waive a personal appearance for an\narraignment, the rule does not require that the waiver for video teleconferencing be in writing. Nor\ndoes it require that the defendant waive that appearance in person, in open court. It would normally\nbe sufficient for the defendant to waive an appearance while participating through a video\nteleconference.\nThe amendment leaves to the courts the decision first, whether to permit video\narraignments, and second, the procedures to be used. The Committee was satisfied that the\ntechnology has progressed to the point that video teleconferencing can address the concerns raised\nin the past about the ability of the court and the defendant to see each other and for the defendant\nand counsel to be in contact with each other, either at the same location or by a secure remote\nconnection.\n\nRule 11. Pleas (effective December 1, 2013)\n(a) Entering a Plea.\n(1) In General. A defendant may plead not guilty, guilty, or (with the court\'s consent) nolo\ncontendere.\n(2) Conditional Plea. With the consent of the court and the government, a defendant may\nenter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an\nappellate court review an adverse determination of a specified pretrial motion. A defendant who\nprevails on appeal may then withdraw the plea.\n(3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must\nconsider the parties\xe2\x80\x99 views and the public interest in the effective administration of justice.\n(4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant\norganization fails to appear, the court must enter a plea of not guilty.\n(b) Considering and Accepting a Guilty or Nolo Contendere Plea.\n(1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or\nnolo contendere, the defendant may be placed under oath, and the court must address the defendant\npersonally in open court. During this address, the court must inform the defendant of, and\ndetermine that the defendant understands, the following:\n(A) the government\'s right, in a prosecution for perjury or false statement, to use against\nthe defendant any statement that the defendant gives under oath;\n(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;\n(C) the right to a jury trial;\n(D) the right to be represented by counsel\xe2\x80\x94and if necessary have the court appoint\ncounsel\xe2\x80\x94at trial and at every other stage of the proceeding;\n(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from\ncompelled self-incrimination, to testify and present evidence, and to compel the attendance of\nwitnesses;\n(F) the defendant\'s waiver of these trial rights if the court accepts a plea of guilty or nolo\ncontendere;\n(G) the nature of each charge to which the defendant is pleading;\n(H) any maximum possible penalty, including imprisonment, fine, and term of supervised\nrelease;\n(I) any mandatory minimum penalty;\n(J) any applicable forfeiture;\n(K) the court\'s authority to order restitution;\n81\n\n\x0c(L) the court\'s obligation to impose a special assessment;\n(M) in determining a sentence, the court\'s obligation to calculate the applicable\nsentencing-guideline range and to consider that range, possible departures under the Sentencing\nGuidelines, and other sentencing factors under 18 U.S.C. \xc2\xa73553(a);\n(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally\nattack the sentence; and\n(O) that, if convicted, a defendant who is not a United States citizen may be removed from\nthe United States, denied citizenship, and denied admission to the United States in the future.\n(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo\ncontendere, the court must address the defendant personally in open court and determine that the\nplea is voluntary and did not result from force, threats, or promises (other than promises in a plea\nagreement).\n(3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea,\nthe court must determine that there is a factual basis for the plea.\n(c) Plea Agreement Procedure.\n(1) In General. An attorney for the government and the defendant\'s attorney, or the\ndefendant when proceeding pro se, may discuss and reach a plea agreement. The court must not\nparticipate in these discussions. If the defendant pleads guilty or nolo contendere to either a\ncharged offense or a lesser or related offense, the plea agreement may specify that an attorney for\nthe government will:\n(A) not bring, or will move to dismiss, other charges;\n(B) recommend, or agree not to oppose the defendant\'s request, that a particular sentence or\nsentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or\npolicy statement, or sentencing factor does or does not apply (such a recommendation or request\ndoes not bind the court); or\n(C) agree that a specific sentence or sentencing range is the appropriate disposition of the\ncase, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing\nfactor does or does not apply (such a recommendation or request binds the court once the court\naccepts the plea agreement).\n(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open\ncourt when the plea is offered, unless the court for good cause allows the parties to disclose the\nplea agreement in camera.\n(3) Judicial Consideration of a Plea Agreement.\n(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the\ncourt may accept the agreement, reject it, or defer a decision until the court has reviewed the\npresentence report.\n(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court\nmust advise the defendant that the defendant has no right to withdraw the plea if the court does not\nfollow the recommendation or request.\n(4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the\ndefendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C),\nthe agreed disposition will be included in the judgment.\n(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions\nof the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and\nin open court (or, for good cause, in camera):\n(A) inform the parties that the court rejects the plea agreement;\n82\n\n\x0c(B) advise the defendant personally that the court is not required to follow the plea\nagreement and give the defendant an opportunity to withdraw the plea; and\n(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose\nof the case less favorably toward the defendant than the plea agreement contemplated.\n(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of\nguilty or nolo contendere:\n(1) before the court accepts the plea, for any reason or no reason; or\n(2) after the court accepts the plea, but before it imposes sentence if:\n(A) the court rejects a plea agreement under 11(c)(5); or\n(B) the defendant can show a fair and just reason for requesting the withdrawal.\n(e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the\ndefendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only\non direct appeal or collateral attack.\n(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements.\nThe admissibility or inadmissibility of a plea, a plea discussion, and any related statement is\ngoverned by Federal Rule of Evidence 410.\n(g) Recording the Proceedings. The proceedings during which the defendant enters a plea\nmust be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a\nnolo contendere plea, the record must include the inquiries and advice to the defendant required\nunder Rule 11(b) and (c).\n(h) Harmless Error. A variance from the requirements of this rule is harmless error if it\ndoes not affect substantial rights.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x93\n64, \xc2\xa73(5)\xe2\x80\x93(10), July 31, 1975, 89 Stat. 371, 372; Apr. 30, 1979, eff. Aug. 1, 1979, and Dec. 1,\n1980; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug.\n1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Pub. L. 100\xe2\x80\x93690, title VII, \xc2\xa77076, Nov. 18, 1988, 102\nStat. 4406; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff.\nDec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 16, 2013, eff. Dec. 1, 2013.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. This rule is substantially a restatement of existing law and practice, 18 U.S.C. [former]\n564 (Standing mute); Fogus v. United States, 34 F.2d 97 (C.C.A. 4th) (duty of court to ascertain\nthat plea of guilty is intelligently and voluntarily made).\n2. The plea of nolo contendere has always existed in the Federal courts, Hudson v. United\nStates, 272 U.S. 451; United States v. Norris, 281 U.S. 619. The use of the plea is recognized by\nthe Probation Act, 18 U.S.C. 724 [now 3651]. While at times criticized as theoretically lacking in\nlogical basis, experience has shown that it performs a useful function from a practical standpoint.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe great majority of all defendants against whom indictments or informations are filed in\nthe federal courts plead guilty. Only a comparatively small number go to trial. See United States\nAttorneys Statistical Report, Fiscal Year 1964, p. 1. The fairness and adequacy of the procedures\n83\n\n\x0con acceptance of pleas of guilty are of vital importance in according equal justice to all in the\nfederal courts.\nThree changes are made in the second sentence. The first change makes it clear that before\naccepting either a plea of guilty or nolo contendere the court must determine that the plea is made\nvoluntarily with understanding of the nature of the charge. The second change expressly requires\nthe court to address the defendant personally in the course of determining that the plea is made\nvoluntarily and with understanding of the nature of the charge. The reported cases reflect some\nconfusion over this matter. Compare United States v. Diggs, 304 F.2d 929 (6th Cir. 1962);\nDomenica v. United States, 292 F.2d 483 (1st Cir. 1961); Gundlach v. United States, 262 F.2d 72\n(4th Cir. 1958), cert. den., 360 U.S. 904 (1959); and Julian v. United States, 236 F.2d 155 (6th Cir.\n1956), which contain the implication that personal interrogation of the defendant is the better\npractice even when he is represented by counsel, with Meeks v. United States, 298 F.2d 204 (5th\nCir. 1962); Nunley v. United States, 294 F.2d 579 (10th Cir. 1961), cert. den., 368 U.S. 991 (1962);\nand United States v. Von der Heide, 169 F.Supp. 560 (D.D.C. 1959).\nThe third change in the second sentence adds the words \xe2\x80\x9cand the consequences of his plea\xe2\x80\x9d\nto state what clearly is the law. See, e.g., Von Moltke v. Gillies, 332 U.S. 708, 724 (1948);\nKercheval v. United States, 274 U.S. 220, 223 (1927); Munich v. United States, 337 F.2d 356 (9th\nCir. 1964); Pilkington v. United States, 315 F.2d 204 (4th Cir. 1963); Smith v. United States, 324\nF.2d 436 (D.C. Cir. 1963); but cf. Marvel v. United States, 335 F.2d 101 (5th Cir. 1964).\nA new sentence is added at the end of the rule to impose a duty on the court in cases where\nthe defendant pleads guilty to satisfy itself that there is a factual basis for the plea before entering\njudgment. The court should satisfy itself, by inquiry of the defendant or the attorney for the\ngovernment, or by examining the presentence report, or otherwise, that the conduct which the\ndefendant admits constitutes the offense charged in the indictment or information or an offense\nincluded therein to which the defendant has pleaded guilty. Such inquiry should, e.g., protect a\ndefendant who is in the position of pleading voluntarily with an understanding of the nature of the\ncharge but without realizing that his conduct does not actually fall within the charge. For a similar\nrequirement see Mich. Stat. Ann. \xc2\xa728.1058 (1954); Mich. Sup. Ct. Rule 35A; In re Valle, 364\nMich. 471, 110 N.W.2d 673 (1961); People v. Barrows, 358 Mich. 267, 99 N.W.2d 347 (1959);\nPeople v. Bumpus, 355 Mich. 374, 94 N.W.2d 854 (1959); People v. Coates, 337 Mich. 56, 59\nN.W.2d 83 (1953). See also Stinson v. United States, 316 F.2d 554 (5th Cir. 1963). The normal\nconsequence of a determination that there is not a factual basis for the plea would be for the court\nto set aside the plea and enter a plea of not guilty.\nFor a variety of reasons it is desirable in some cases to permit entry of judgment upon a\nplea of nolo contendere without inquiry into the factual basis for the plea. The new third sentence\nis not, therefore, made applicable to pleas of nolo contendere. It is not intended by this omission to\nreflect any view upon the effect of a plea of nolo contendere in relation to a plea of guilty. That\nproblem has been dealt with by the courts. See e.g., Lott v. United States, 367 U.S. 421, 426\n(1961).\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nThe amendments to rule 11 are designed to achieve two principal objectives:\n(1) Subdivision (c) prescribes the advice which the court must give to insure that the\ndefendant who pleads guilty has made an informed plea.\n(2) Subdivision (e) provides a plea agreement procedure designed to give recognition to the\n84\n\n\x0cpropriety of plea discussions; to bring the existence of a plea agreement out into the open in court;\nand to provide methods for court acceptance or rejection of a plea agreement.\nOther less basic changes are also made. The changes are discussed in the order in which\nthey appear in the rule.\nSubdivision (b) retains the requirement that the defendant obtain the consent of the court in\norder to plead nolo contendere. It adds that the court shall, in deciding whether to accept the plea,\nconsider the views of the prosecution and of the defense and also the larger public interest in the\nadministration of criminal justice.\nAlthough the plea of nolo contendere has long existed in the federal courts, Hudson v.\nUnited States, 272 U.S. 451, 47 S.Ct. 127, 71 L.Ed. 347 (1926), the desirability of the plea has\nbeen a subject of disagreement. Compare Lane-Reticker, Nolo Contendere in North Carolina, 34\nN.C.L.Rev. 280, 290\xe2\x80\x93291 (1956), with Note. The Nature and Consequences of the Plea of Nolo\nContendere, 33 Neb.L.Rev. 428, 434 (1954), favoring the plea. The American Bar Association\nProject on Standards for Criminal Justice takes the position that \xe2\x80\x9cthe case for the nolo plea is not\nstrong enough to justify a minimum standard supporting its use,\xe2\x80\x9d but because \xe2\x80\x9cuse of the plea\ncontributes in some degree to the avoidance of unnecessary trials\xe2\x80\x9d it does not proscribe use of the\nplea. ABA, Standards Relating to Pleas of Guilty \xc2\xa71.1(a) Commentary at 16 (Approved Draft,\n1968).\nA plea of nolo contendere is, for purposes of punishment, the same as the plea of guilty.\nSee discussion of the history of the nolo plea in North Carolina v. Alford, 400 U.S. 25, 35 \xe2\x80\x9336 n. 8,\n91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Note, The Nature and Consequences of the Plea of Nolo\nContendere, 33 Neb.L.Rev. 428, 430 (1954). A judgment upon the plea is a conviction and may be\nused to apply multiple offender statutes. Lenvin and Meyers, Nolo Contendere: Its Nature and\nImplications, 51 Yale L.J. 1255, 1265 (1942). Unlike a plea of guilty, however, it cannot be used\nagainst a defendant as an admission in a subsequent criminal or civil case. 4 Wigmore \xc2\xa71066(4), at\n58 (3d ed. 1940, Supp. 1970); Rules of Evidence for United States Courts and Magistrates, rule\n803(22) (Nov. 1971). See Lenvin and Meyers, Nolo Contendere: Its Nature and Implications, 51\nYale L.J. 1255 (1942); ABA Standards Relating to Pleas of Guilty \xc2\xa7\xc2\xa71.1(a) and (b), Commentary\nat 15\xe2\x80\x9318 (Approved Draft, 1968).\nThe factors considered relevant by particular courts in determining whether to permit the\nplea of nolo contendere vary. Compare United States v. Bagliore, 182 F.Supp. 714, 716 (E.D.N.Y.\n1960), where the view is taken that the plea should be rejected unless a compelling reason for\nacceptance is established, with United States v. Jones, 119 F.Supp. 288, 290 (S.D.Cal. 1954),\nwhere the view is taken that the plea should be accepted in the absence of a compelling reason to\nthe contrary.\nA defendant who desires to plead nolo contendere will commonly want to avoid pleading\nguilty because the plea of guilty can be introduced as an admission in subsequent civil litigation.\nThe prosecution may oppose the plea of nolo contendere because it wants a definite resolution of\nthe defendant\'s guilty or innocence either for correctional purposes or for reasons of subsequent\nlitigation. ABA Standards Relating to Pleas of Guilty \xc2\xa71.1(b) Commentary at 16\xe2\x80\x9318 (Approved\nDraft, 1968). Under subdivision (b) of the new rule the balancing of the interests is left to the trial\njudge, who is mandated to take into account the larger public interest in the effective\nadministration of justice.\nSubdivision (c) prescribes the advice which the court must give to the defendant as a\nprerequisite to the acceptance of a plea of guilty. The former rule required that the court determine\nthat the plea was made with \xe2\x80\x9cunderstanding of the nature of the charge and the consequences of the\n85\n\n\x0cplea.\xe2\x80\x9d The amendment identifies more specifically what must be explained to the defendant and\nalso codifies, in the rule, the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23\nL.Ed.2d 274 (1969), which held that a defendant must be apprised of the fact that he relinquishes\ncertain constitutional rights by pleading guilty.\nSubdivision (c) retains the requirement that the court address the defendant personally. See\nMcCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). There is also\nan amendment to rule 43 to make clear that a defendant must be in court at the time of the plea.\nSubdivision (c)(1) retains the current requirement that the court determine that the\ndefendant understands the nature of the charge. This is a common requirement. See ABA\nStandards Relating to Pleas of Guilty \xc2\xa71.4(a) (Approved Draft, 1968); Illinois Supreme Court Rule\n402(a)(1) (1970), Ill.Rev.Stat. 1973, ch. 110A, \xc2\xa7402(a)(1). The method by which the defendant\'s\nunderstanding of the nature of the charge is determined may vary from case to case, depending on\nthe complexity of the circumstances and the particular defendant. In some cases, a judge may do\nthis by reading the indictment and by explaining the elements of the offense to the defendants.\nThompson, The Judge\'s Responsibility on a Plea of Guilty 62 W.Va.L.Rev. 213, 220 (1960);\nResolution of Judges of U.S. District Court for D.C., June 24, 1959.\nFormer rule 11 required the court to inform the defendant of the \xe2\x80\x9cconsequences of the\nplea.\xe2\x80\x9d Subdivision (c)(2) changes this and requires instead that the court inform the defendant of\nand determine that he understands \xe2\x80\x9cthe mandatory minimum penalty provided by law, if any, and\nthe maximum possible penalty provided by law for the offense to which the plea is offered.\xe2\x80\x9d The\nobjective is to insure that a defendant knows what minimum sentence the judge must impose and\nwhat maximum sentence the judge may impose. This information is usually readily ascertainable\nfrom the face of the statute defining the crime, and thus it is feasible for the judge to know\nspecifically what to tell the defendant. Giving this advice tells a defendant the shortest mandatory\nsentence and also the longest possible sentence for the offense to which he is pleading guilty.\nIt has been suggested that it is desirable to inform a defendant of additional consequences\nwhich might follow from his plea of guilty. Durant v. United States, 410 F.2d 689 (1st Cir. 1969),\nheld that a defendant must be informed of his ineligibility for parole. Trujillo v. United States, 377\nF.2d 266 (5th Cir. 1967), cert. denied 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967), held that\nadvice about eligibility for parole is not required. It has been suggested that a defendant be advised\nthat a jury might find him guilty only of a lesser included offense. C. Wright, Federal Practice and\nProcedure: Criminal \xc2\xa7173 at 374 (1969). See contra Dorrough v. United States, 385 F.2d 887 (5th\nCir. 1967). The ABA Standards Relating to Pleas of Guilty \xc2\xa71.4(c)(iii) (Approved Draft, 1968)\nrecommend that the defendant be informed that he may be subject to additional punishment if the\noffense charged is one for which a different or additional punishment is authorized by reason of the\ndefendant\'s previous conviction.\nUnder the rule the judge is not required to inform a defendant about these matters, though a\njudge is free to do so if he feels a consequence of a plea of guilty in a particular case is likely to be\nof real significance to the defendant. Currently, certain consequences of a plea of guilty, such as\nparole eligibility, may be so complicated that it is not feasible to expect a judge to clearly advise\nthe defendant. For example, the judge may impose a sentence under 18 U.S.C. \xc2\xa74202 making the\ndefendant eligible for parole when he has served one third of the judicially imposed maximum; or,\nunder 18 U.S.C. \xc2\xa74208(a)(1), making parole eligibility after a specified period of time less than\none third of the maximum; or, under 18 U.S.C. \xc2\xa74208(a)(2), leaving eligibility to the discretion of\nthe parole board. At the time the judge is required to advise the defendant of the consequences of\nhis plea, the judge will usually not have seen the presentence report and thus will have no basis for\n86\n\n\x0cgiving a defendant any very realistic advice as to when he might be eligible for parole. Similar\ncomplications exist with regard to other, particularly collateral, consequences of a plea of guilty in\na given case.\nSubdivisions (c)(3) and (4) specify the constitutional rights that the defendant waives by a\nplea of guilty or nolo contendere. These subdivisions are designed to satisfy the requirements of\nunderstanding waiver set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274\n(1969). Subdivision (c)(3) is intended to require that the judge inform the defendant and determine\nthat he understands that he waives his fifth amendment rights. The rule takes the position that the\ndefendant\'s right not to incriminate himself is best explained in terms of his right to plead not\nguilty and to persist in that plea if it has already been made. This is language identical to that\nadopted in Illinois for the same purpose. See Illinois Supreme Court Rule 402(a)(3) (1970),\nIll.Rev.Stat. 1973, ch. 110A, \xc2\xa7402(a)(3).\nSubdivision (c)(4) assumes that a defendant\'s right to have his guilt proved beyond a\nreasonable doubt and the right to confront his accusers are best explained by indicating that the\nright to trial is waived. Specifying that there will be no future trial of any kind makes this fact clear\nto those defendants who, though knowing they have waived trial by jury, are under the mistaken\nimpression that some kind of trial will follow. Illinois has recently adopted similar language.\nIllinois Supreme Court Rule 402(a)(4) (1970), Ill.Rev.Stat. 1973, ch. 110A, \xc2\xa7402(a)(4). In\nexplaining to a defendant that he waives his right to trial, the judge may want to explain some of\nthe aspects of trial such as the right to confront witnesses, to subpoena witnesses, to testify in his\nown behalf, or, if he chooses, not to testify. What is required, in this respect, to conform to Boykin\nis left to future case-law development.\nSubdivision (d) retains the requirement that the court determine that a plea of guilty or nolo\ncontendere is voluntary before accepting it. It adds the requirement that the court also inquire\nwhether the defendant\'s willingness to plead guilty or nolo contendere results from prior plea\ndiscussions between the attorney for the government and the defendant or his attorney. See\nSantobello v. New York, 404 U.S. 257, 261 \xe2\x80\x93262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971): \xe2\x80\x9cThe plea\nmust, of course, be voluntary and knowing and if it was induced by promises, the essence of those\npromises must in some way be made known.\xe2\x80\x9d Subdivisions (d) and (e) afford the court adequate\nbasis for rejecting an improper plea agreement induced by threats or inappropriate promises.\nThe new rule specifies that the court personally address the defendant in determining the\nvoluntariness of the plea.\nBy personally interrogating the defendant, not only will the judge be better able to ascertain\nthe plea\'s voluntariness, but he will also develop a more complete record to support his\ndetermination in a subsequent postconviction attack. * Both of these goals are undermined in\nproportion to the degree the district judge resorts to \xe2\x80\x9cassumptions\xe2\x80\x9d not based upon recorded\nresponses to his inquiries. McCarthy v. United States, 394 U.S. 459, 466, 467, 89 S.Ct. 1166, 22\nL.Ed.2d 418 (1969).\nSubdivision (e) provides a plea agreement procedure. In doing so it gives recognition to the\npropriety of plea discussions and plea agreements provided that they are disclosed in open court\nand subject to acceptance or rejection by the trial judge.\nAlthough reliable statistical information is limited, one recent estimate indicated that guilty\npleas account for the disposition of as many as 95% of all criminal cases. ABA Standards Relating\nto Pleas of Guilty, pp. 1\xe2\x80\x932 (Approved Draft, 1968). A substantial number of these are the result of\nplea discussions. The President\'s Commission on Law Enforcement and Administration of Justice,\nTask Force Report: The Courts 9 (1967); D. Newman, Conviction: The Determination of Guilt or\n87\n\n\x0cInnocence Without Trial 3 (1966); L. Weinreb, Criminal Process 437 (1969); Note, Guilty Plea\nBargaining: Compromises by Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964).\nThere is increasing acknowledgement of both the inevitability and the propriety of plea\nagreements. See, e.g., ABA Standards Relating to Pleas of Guilty \xc2\xa73.1 (Approved Draft, 1968);\nIllinois Supreme Court Rule 402 (1970), Ill.Rev.Stat. 1973, ch. 110A, \xc2\xa7402.\nIn Brady v. United States, 397 U.S. 742, 752 \xe2\x80\x93753, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970),\nthe court said:\nOf course, that the prevalence of guilty pleas is explainable does not necessarily validate\nthose pleas or the system which produces them. But we cannot hold that it is unconstitutional for\nthe State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and\nwho demonstrates by his plea that he is ready and willing to admit his crime and to enter the\ncorrectional system in a frame of mind that affords hope for success in rehabilitation over a shorter\nperiod of time than might otherwise be necessary.\nIn Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971),\nthe court said:\nThe disposition of criminal charges by agreement between the prosecutor and the accused,\nsometimes loosely called \xe2\x80\x9cplea bargaining,\xe2\x80\x9d is an essential component of the administration of\njustice. Properly administered, it is to be encouraged.\nAdministratively, the criminal justice system has come to depend upon pleas of guilty and,\nhence, upon plea discussions. See, e.g., President\'s Commission on Law Enforcement and\nAdministration of Justice, Task Force Report. The Courts 9 (1967); Note, Guilty Plea Bargaining:\nCompromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964). But\nexpediency is not the basis for recognizing the propriety of a plea agreement practice. Properly\nimplemented, a plea agreement procedure is consistent with both effective and just administration\nof the criminal law. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. This is\nthe conclusion reached in the ABA Standards Relating to Pleas of Guilty \xc2\xa71.8 (Approved Draft,\n1968); the ABA Standards Relating to The Prosecution Function and The Defense Function pp.\n243\xe2\x80\x93253 (Approved Draft, 1971); and the ABA Standards Relating to the Function of the Trial\nJudge, \xc2\xa74.1 (App.Draft, 1972). The Supreme Court of California recently recognized the propriety\nof plea bargaining. See People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970). A\nplea agreement procedure has recently been decided in the District of Columbia Court of General\nSessions upon the recommendation of the United States Attorney. See 51 F.R.D. 109 (1971).\nWhere the defendant by his plea aids in insuring prompt and certain application of\ncorrectional measures, the proper ends of the criminal justice system are furthered because swift\nand certain punishment serves the ends of both general deterrence and the rehabilitation of the\nindividual defendant. Cf. Note, The Influence of the Defendant\'s Plea on Judicial Determination of\nSentence, 66 Yale L.J. 204, 211 (1956). Where the defendant has acknowledged his guilt and\nshown a willingness to assume responsibility for his conduct, it has been thought proper to\nrecognize this in sentencing. See also ALI, Model Penal Code \xc2\xa77.01 (P.O.D. 1962); NPPA Guides\nfor Sentencing (1957). Granting a charge reduction in return for a plea of guilty may give the\nsentencing judge needed discretion, particularly where the facts of a case do not warrant the harsh\nconsequences of a long mandatory sentence or collateral consequences which are unduly severe. A\nplea of guilty avoids the necessity of a public trial and may protect the innocent victim of a crime\nagainst the trauma of direct and cross-examination.\nFinally, a plea agreement may also contribute to the successful prosecution of other more\nserious offenders. See D. Newman, Conviction: The Determination of Guilt or Innocence Without\n88\n\n\x0cTrial, chs. 2 and 3 (1966); Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure\nGuilty Pleas, 112 U.Pa.L.Rev. 865, 881 (1964).\nWhere plea discussions and agreements are viewed as proper, it is generally agreed that it\nis preferable that the fact of the plea agreement be disclosed in open court and its propriety be\nreviewed by the trial judge.\nWe have previously recognized plea bargaining as an ineradicable fact. Failure to\nrecognize it tends not to destroy it but to drive it underground. We reiterate what we have said\nbefore: that when plea bargaining occurs it ought to be spread on the record [The Bench Book\nprepared by the Federal Judicial Center for use by United States District Judges now suggests that\nthe defendant be asked by the court \xe2\x80\x9cif he believes there is any understanding or if any predictions\nhave been made to him concerning the sentence he will receive.\xe2\x80\x9d Bench Book for United States\nDistrict Judges, Federal Judicial Center (1969) at 1.05.3.] and publicly disclosed. United States v.\nWilliams, 407 F.2d 940 (4th Cir. 1969). * In the future we think that the district judges should\nnot only make the general inquiry under Rule 11 as to whether the plea of guilty has been coerced\nor induced by promises, but should specifically inquire of counsel whether plea bargaining has\noccurred. Logically the general inquiry should elicit information about plea bargaining, but it\nseldom has in the past. Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970).\nIn the past, plea discussions and agreements have occurred in an informal and largely\ninvisible manner. Enker, Perspectives on Plea Bargaining, in President\'s Commission on Law\nEnforcement and Administration of Justice, Task Force Report: The Courts 108, 115 (1967).\nThere has often been a ritual of denial that any promises have been made, a ritual in which judges,\nprosecutors, and defense counsel have participated. ABA Standards Relating to Pleas of Guilty\n\xc2\xa73.1, Commentary at 60\xe2\x80\x9369 (Approved Draft 1968); Task Force Report: The Courts 9.\nConsequently, there has been a lack of effective judicial review of the propriety of the agreements,\nthus increasing the risk of real or apparent unfairness. See ABA Standards Relating to Pleas of\nGuilty \xc2\xa73.1, Commentary at 60 et seq.; Task Force Report: The Courts 9\xe2\x80\x9313.\nThe procedure described in subdivision (e) is designed to prevent abuse of plea discussions\nand agreements by providing appropriate and adequate safeguards.\nSubdivision (e)(1) specifies that the \xe2\x80\x9cattorney for the government and the attorney for the\ndefendant or the defendant when acting pro se may\xe2\x80\x9d participate in plea discussions. The inclusion\nof \xe2\x80\x9cthe defendant when acting pro se\xe2\x80\x9d is intended to reflect the fact that there are situations in\nwhich a defendant insists upon representing himself. It may be desirable that an attorney for the\ngovernment not enter plea discussions with a defendant personally. If necessary, counsel can be\nappointed for purposes of plea discussions. (Subdivision (d) makes it mandatory that the court\ninquire of the defendant whether his plea is the result of plea discussions between him and the\nattorney for the government. This is intended to enable the court to reject an agreement reached by\nan unrepresented defendant unless the court is satisfied that acceptance of the agreement\nadequately protects the rights of the defendant and the interests of justice.) This is substantially the\nposition of the ABA Standards Relating to Pleas of Guilty \xc2\xa73.1(a), Commentary at 65\xe2\x80\x9366\n(Approved Draft, 1968). Apparently, it is the practice of most prosecuting attorneys to enter plea\ndiscussions only with defendant\'s counsel. Note, Guilty Plea Bargaining: Compromises By\nProsecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 904 (1964). Discussions without\nbenefit of counsel increase the likelihood that such discussions may be unfair. Some courts have\nindicated that plea discussions in the absence of defendant\'s attorney may be constitutionally\nprohibited. See Anderson v. North Carolina, 221 F.Supp. 930, 935 (W.D.N.C.1963); Shape v.\nSigler, 230 F.Supp. 601, 606 (D.Neb. 1964).\n89\n\n\x0cSubdivision (e)(1) is intended to make clear that there are four possible concessions that\nmay be made in a plea agreement. First, the charge may be reduced to a lesser or related offense.\nSecond, the attorney for the government may promise to move for dismissal of other charges.\nThird, the attorney for the government may agree to recommend or not oppose the imposition of a\nparticular sentence. Fourth, the attorneys for the government and the defense may agree that a\ngiven sentence is an appropriate disposition of the case. This is made explicit in subdivision (e)(2)\nwhere reference is made to an agreement made \xe2\x80\x9cin the expectation that a specific sentence will be\nimposed.\xe2\x80\x9d See Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty\nPleas, 112 U.Pa.L.Rev. 865, 898 (1964).\nSubdivision (e)(1) prohibits the court from participating in plea discussions. This is the\nposition of the ABA Standards Relating to Pleas of Guilty \xc2\xa73.3(a) (Approved Draft, 1968).\nIt has been stated that it is common practice for a judge to participate in plea discussions.\nSee D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 32\xe2\x80\x9352, 78\xe2\x80\x93\n104 (1966); Note, Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas,\n112 U.Pa.L.Rev. 865, 891, 905 (1964).\nThere are valid reasons for a judge to avoid involvement in plea discussions. It might lead\nthe defendant to believe that he would not receive a fair trial, were there a trial before the same\njudge. The risk of not going along with the disposition apparently desired by the judge might\ninduce the defendant to plead guilty, even if innocent. Such involvement makes it difficult for a\njudge to objectively assess the voluntariness of the plea. See ABA Standards Relating to Pleas of\nGuilty \xc2\xa73.3(a), Commentary at 72\xe2\x80\x9374 (Approved Draft, 1968); Note, Guilty Plea Bargaining:\nCompromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 891\xe2\x80\x93892 (1964);\nComment, Official Inducements to Plead Guilty: Suggested Morals for a Marketplace, 32\nU.Chi.L.Rev. 167, 180\xe2\x80\x93183 (1964); Informal Opinion No. 779 ABA Professional Ethics\nCommittee (\xe2\x80\x9cA judge should not be a party to advance arrangements for the determination of\nsentence, whether as a result of a guilty plea or a finding of guilt based on proof.\xe2\x80\x9d), 51 A.B.A.J.\n444 (1965). As has been recently pointed out:\nThe unequal positions of the judge and the accused, one with the power to commit to prison\nand the other deeply concerned to avoid prison, as once raise a question of fundamental fairness.\nWhen a judge becomes a participant in plea bargaining he brings to bear the full force and majesty\nof his office. His awesome power to impose a substantially longer or even maximum sentence in\nexcess of that proposed is present whether referred to or not. A defendant needs no reminder that if\nhe rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly\nlonger sentence. United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 254 (S.D.N.Y. 1966).\nOn the other hand, one commentator has taken the position that the judge may be involved\nin discussions either after the agreement is reached or to help elicit facts and an agreement. Enker,\nPerspectives on Plea Bargaining, in President\'s Commission on Law Enforcement and\nAdministration of Justice, Task Force Report: The Courts 108, 117\xe2\x80\x93118 (1967).\nThe amendment makes clear that the judge should not participate in plea discussions\nleading to a plea agreement. It is contemplated that the judge may participate in such discussions\nas may occur when the plea agreement is disclosed in open court. This is the position of the\nrecently adopted Illinois Supreme Court Rule 402(d)(1) (1970), Ill.Rev.Stat. 1973, ch. 110A,\n\xc2\xa7402(d)(1). As to what may constitute \xe2\x80\x9cparticipation,\xe2\x80\x9d contrast People v. Earegood, 12 Mich.App.\n256, 268\xe2\x80\x93269, 162 N.W.2d 802, 809\xe2\x80\x93810 (1968), with Kruse v. State, 47 Wis.2d 460, 177 N.W.2d\n322 (1970).\nSubdivision (e)(2) provides that the judge shall require the disclosure of any plea\n90\n\n\x0cagreement in open court. In People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970),\nthe court said:\n[T]he basis of the bargain should be disclosed to the court and incorporated in the record.\n*\nWithout limiting that court to those we set forth, we note four possible methods of\nincorporation: (1) the bargain could be stated orally and recorded by the court reporter, whose\nnotes then must be preserved or transcribed; (2) the bargain could be set forth by the clerk in the\nminutes of the court; (3) the parties could file a written stipulation stating the terms of the bargain;\n(4) finally, counsel or the court itself may find it useful to prepare and utilize forms for the\nrecordation of plea bargains. 91 Cal.Rptr. 393, 394, 477 P.2d at 417, 418.\nThe District of Columbia Court of General Sessions is using a \xe2\x80\x9cSentence-Recommendation\nAgreement\xe2\x80\x9d form.\nUpon notice of the plea agreement, the court is given the option to accept or reject the\nagreement or defer its decision until receipt of the presentence report.\nThe judge may, and often should, defer his decision until he examines the presentence\nreport. This is made possible by rule 32 which allows a judge, with the defendant\'s consent, to\ninspect a presentence report to determine whether a plea agreement should be accepted. For a\ndiscussion of the use of conditional plea acceptance, see ABA Standards Relating to Pleas of\nGuilty \xc2\xa73.3(b), Commentary at 74\xe2\x80\x9376, and Supplement, Proposed Revisions \xc2\xa73.3(b) at 2\xe2\x80\x933\n(Approved Draft, 1968); Illinois Supreme Court Rule 402(d)(2) (1970), Ill.Rev.Stat. 1973, ch.\n110A, \xc2\xa7402(d)(2).\nThe plea agreement procedure does not attempt to define criteria for the acceptance or\nrejection of a plea agreement. Such a decision is left to the discretion of the individual trial judge.\nSubdivision (e)(3) makes is mandatory, if the court decides to accept the plea agreement,\nthat it inform the defendant that it will embody in the judgment and sentence the disposition\nprovided in the plea agreement, or one more favorable to the defendant. This serves the purpose of\ninforming the defendant immediately that the agreement will be implemented.\nSubdivision (e)(4) requires the court, if it rejects the plea agreement, to inform the\ndefendant of this fact and to advise the defendant personally, in open court, that the court is not\nbound by the plea agreement. The defendant must be afforded an opportunity to withdraw his plea\nand must be advised that if he persists in his guilty plea or plea of nolo contendere, the disposition\nof the case may be less favorable to him than that contemplated by the plea agreement. That the\ndefendant should have the opportunity to withdraw his plea if the court rejects the plea agreement\nis the position taken in ABA Standards Relating to Pleas of Guilty, Supplement, Proposed\nRevisions \xc2\xa72.1(a)(ii)(5) (Approved Draft, 1968). Such a rule has been adopted in Illinois. Illinois\nSupreme Court Rule 402(d)(2) (1970), Ill.Rev.Stat. 1973, ch. 110A, \xc2\xa7402(d)(2).\nIf the court rejects the plea agreement and affords the defendant the opportunity to\nwithdraw the plea, the court is not precluded from accepting a guilty plea from the same defendant\nat a later time, when such plea conforms to the requirements of rule 11.\nSubdivision (e)(5) makes it mandatory that, except for good cause shown, the court be\nnotified of the existence of a plea agreement at the arraignment or at another time prior to trial\nfixed by the court. Having a plea entered at this stage provides a reasonable time for the defendant\nto consult with counsel and for counsel to complete any plea discussions with the attorney for the\ngovernment. ABA Standards Relating to Pleas of Guilty \xc2\xa71.3 (Approved Draft, 1968). The\nobjective of the provision is to make clear that the court has authority to require a plea agreement\nto be disclosed sufficiently in advance of trial so as not to interfere with the efficient scheduling of\n91\n\n\x0ccriminal cases.\nSubdivision (e)(6) is taken from rule 410, Rules of Evidence for United States Courts and\nMagistrates (Nov. 1971). See Advisory Committee Note thereto. See also the ABA Standards\nRelating to Pleas of Guilty \xc2\xa72.2 (Approved Draft, 1968); Illinois Supreme Court Rule 402(f)\n(1970), Ill.Rev.Stat. 1973, ch. 110A, \xc2\xa7402(f).\nSubdivision (f) retains the requirement of old rule 11 that the court should not enter\njudgment upon a plea of guilty without making such an inquiry as will satisfy it that there is a\nfactual basis for the plea. The draft does not specify that any particular type of inquiry be made.\nSee Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); \xe2\x80\x9c Fed.Rule\nCrim.Proc. 11, governing pleas in federal courts, now makes clear that the sentencing judge must\ndevelop, on the record, the factual basis for the plea, as, for example, by having the accused\ndescribe the conduct that gave rise to the charge.\xe2\x80\x9d An inquiry might be made of the defendant, of\nthe attorneys for the government and the defense, of the presentence report when one is available,\nor by whatever means is appropriate in a specific case. This is the position of the ABA Standards\nRelating to Pleas of Guilty \xc2\xa71.6 (Approved Draft, 1968). Where inquiry is made of the defendant\nhimself it may be desirable practice to place the defendant under oath. With regard to a\ndetermination that there is a factual basis for a plea of guilty to a \xe2\x80\x9clessor or related offense,\xe2\x80\x9d\ncompare ABA Standards Relating to Pleas of Guilty \xc2\xa73.1(b)(ii), Commentary at 67\xe2\x80\x9368 (Approved\nDraft, 1968), with ALI, Model Penal Code \xc2\xa71.07(5) (P.O.D. 1962). The rule does not speak\ndirectly to the issue of whether a judge may accept a plea of guilty where there is a factual basis for\nthe plea but the defendant asserts his innocence. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.\n160, 27 L.Ed.2d 162 (1970). The procedure in such case would seem to be to deal with this as a\nplea of nolo contendere, the acceptance of which would depend upon the judge\'s decision as to\nwhether acceptance of the plea is consistent with \xe2\x80\x9cthe interest of the public in the effective\nadministration of justice\xe2\x80\x9d [new rule 11(b)]. The defendant who asserts his innocence while\npleading guilty or nolo contendere is often difficult to deal with in a correctional setting, and it may\ntherefore be preferable to resolve the issue of guilt or innocence at the trial stage rather than\nleaving that issue unresolved, thus complicating subsequent correctional decisions. The rule is\nintended to make clear that a judge may reject a plea of nolo contendere and require the defendant\neither to plead not guilty or to plead guilty under circumstances in which the judge is able to\ndetermine that the defendant is in fact guilty of the crime to which he is pleading guilty.\nSubdivision (g) requires that a verbatim record be kept of the proceedings. If there is a plea\nof guilty or nolo contendere, the record must include, without limitation, the court\'s advice to the\ndefendant, the inquiry into the voluntariness of the plea and the plea agreement, and the inquiry\ninto the accuracy of the plea. Such a record is important in the event of a postconviction attack.\nABA Standards Relating to Pleas of Guilty \xc2\xa71.7 (Approved Draft, 1968). A similar requirement\nwas adopted in Illinois: Illinois Supreme Court Rule 402(e) (1970), Ill.Rev.Stat. 1973, ch. 110A,\n\xc2\xa7402(e).\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 11 of the Federal Rules of Criminal\nProcedure deals with pleas. The Supreme Court has proposed to amend this rule extensively.\nRule 11 provides that a defendant may plead guilty, not guilty, or nolo contendere. The\nSupreme Court\'s amendments to Rule 11(b) provide that a nolo contendere plea \xe2\x80\x9cshall be accepted\nby the court only after due consideration of the views of the parties and the interest of the public in\n92\n\n\x0cthe effective administration of justice.\xe2\x80\x9d\nThe Supreme Court amendments to Rule 11(c) spell out the advise that the court must give\nto the defendant before accepting the defendant\'s plea of guilty or nolo contendere. The Supreme\nCourt amendments to Rule 11(d) set forth the steps that the court must take to insure that a guilty or\nnolo contendere plea has been voluntarily made.\nThe Supreme Court amendments to Rule 11(e) establish a plea agreement procedure. This\nprocedure permits the parties to discuss disposing of a case without a trial and sets forth the type of\nagreements that the parties can reach concerning the disposition of the case. The procedure is not\nmandatory; a court is free not to permit the parties to present plea agreements to it.\nThe Supreme Court amendments to Rule 11(f) require that the court, before entering\njudgment upon a plea of guilty, satisfy itself that \xe2\x80\x9cthere is a factual basis for the plea.\xe2\x80\x9d The\nSupreme Court amendments to Rule 11(g) require that a verbatim record be kept of the\nproceedings at which the defendant enters a plea.\nB. Committee Action. The proposed amendments to Rule 11, particularly those relating to\nthe plea negotiating procedure, have generated much comment and criticism. No observer is\nentirely happy that our criminal justice system must rely to the extent it does on negotiated\ndispositions of cases. However, crowded court dockets make plea negotiating a fact that the\nFederal Rules of Criminal Procedure should contend with. The Committee accepts the basic\nstructure and provisions of Rule 11(e).\nRule 11(e) as proposed permits each federal court to decide for itself the extent to which it\nwill permit plea negotiations to be carried on within its own jurisdiction. No court is compelled to\npermit any plea negotiations at all. Proposed Rule 11(e) regulates plea negotiations and\nagreements if, and to the extent that, the court permits such negotiations and agreements.\n[Proposed Rule 11(e) has been criticized by some federal judges who read it to mandate the court\nto permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed\nduring its testimony that the rule does not mandate that a court permit any form of plea agreement\nto be presented to it. See, e.g., the remarks of United States Circuit Judge William H. Webster in\nHearings II, at 196. See also the exchange of correspondence between Judge Webster and United\nStates District Judge Frank A. Kaufman in Hearings II, at 289\xe2\x80\x9390.]\nProposed Rule 11(e) contemplates 4 different types of plea agreements. First, the\ndefendant can plead guilty or nolo contendere in return for the prosecutor\'s reducing the charge to\na less serious offense. Second, the defendant can plead guilty or nolo contendere in return for the\nprosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the\ndefendant can plead guilty or nolo contendere in return for the prosecutor\'s recommending a\nsentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the\nappropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e)\ncontemplates that the plea agreement may bind the defendant to do more than just plead guilty or\nnolo contendere. For example, the plea agreement may bind the defendant to cooperate with the\nprosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to\npermit the parties to agree on such terms in a plea agreement.]\nThe Committee added language in subdivisions (e)(2) and (e)(4) to permit a plea\nagreement to be disclosed to the court, or rejected by it, in camera. There must be a showing of\ngood cause before the court can conduct such proceedings in camera. The language does not\naddress itself to whether the showing of good cause may be made in open court or in camera. That\nissue is left for the courts to resolve on a case-by-case basis. These changes in subdivisions (e)(2)\nand (e)(4) will permit a fair trial when there is substantial media interest in a case and the court is\n93\n\n\x0crejecting a plea agreement.\nThe Committee added an exception to subdivision (e)(6). That subdivision provides:\nEvidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to\nplead guilty or nolo contendere to the crime charged or any other crime, or of statements made in\nconnection with any of the foregoing pleas or offers, is not admissible in any civil or criminal\nproceeding against the person who made the plea or offer.\nThe Committee\'s exception permits the use of such evidence in a perjury or false statement\nprosecution where the plea, offer, or related statement was made by the defendant on the record,\nunder oath and in the presence of counsel. The Committee recognizes that even this limited\nexception may discourage defendants from being completely candid and open during plea\nnegotiations and may even result in discouraging the reaching of plea agreements. However, the\nCommittee believes hat, on balance, it is more important to protect the integrity of the judicial\nprocess from willful deceit and untruthfulness. [The Committee does not intend its language to be\nconstrued as mandating or encouraging the swearing-in of the defendant during proceedings in\nconnection with the disclosure and acceptance or rejection of a plea agreement.]\nThe Committee recast the language of Rule 11(c), which deals with the advice given to a\ndefendant before the court can accept his plea of guilty or nolo contendere. The Committee acted\nin part because it believed that the warnings given to the defendant ought to include those that\nBoykin v. Alabama, 395 U.S. 238 (1969), said were constitutionally required. In addition, and as a\nresult of its change in subdivision (e)(6), the Committee thought if only fair that the defendant be\nwarned that his plea of guilty (later withdrawn) or nolo contendere, or his offer of either plea, or his\nstatements made in connection with such pleas or offers, could later be used against him in a\nperjury trial if made under oath, on the record, and in the presence of counsel.\nNotes of Conference Committee, House Report No. 94\xe2\x80\x93414; 1975 Amendment\nNote to subdivision (c). Rule 11(c) enumerates certain things that a judge must tell a\ndefendant before the judge can accept that defendant\'s plea of guilty or nolo contendere. The\nHouse version expands upon the list originally proposed by the Supreme Court. The Senate\nversion adopts the Supreme Court\'s proposal.\nThe Conference adopts the House provision.\nNote to subdivision (e)(1). Rule 11(e)(1) outlines some general considerations concerning\nthe plea agreement procedure. The Senate version makes nonsubstantive change in the House\nversion.\nThe Conference adopts the Senate provision.\nNote to subdivision (e)(6). Rule 11(e)(6) deals with the use of statements made in\nconnection with plea agreements. The House version permits a limited use of pleas of guilty, later\nwithdrawn, or nolo contendere, offers of such pleas, and statements made in connection with such\npleas or offers. Such evidence can be used in a perjury or false statement prosecution if the plea,\noffer, or related statement was made under oath, on the record, and in the presence of counsel. The\nSenate version permits evidence of voluntary and reliable statements made in court on the record\nto be used for the purpose of impeaching the credibility of the declarant or in a perjury or false\nstatement prosecution.\nThe Conference adopts the House version with changes. The Conference agrees that\nneither a plea nor the offer of a plea ought to be admissible for any purpose. The\nConference-adopted provision, therefore, like the Senate provision, permits only the use of\n94\n\n\x0cstatements made in connection with a plea of guilty, later withdrawn, or a plea of nolo contendere,\nor in connection with an offer of a guilty or nolo contendere plea.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nNote to Subdivision (e)(2). The amendment to rule 11(e)(2) is intended to clarify the\ncircumstances in which the court may accept or reject a plea agreement, with the consequences\nspecified in subdivision (e)(3) and (4). The present language has been the cause of some confusion\nand has led to results which are not entirely consistent. Compare United States v. Sarubbi, 416\nF.Supp. 633 (D. N.J. 1976); with United States v. Hull, 413 F.Supp. 145 (E.D. Tenn. 1976).\nRule 11(e)(1) specifies three types of plea agreements, namely, those in which the attorney\nfor the government might\n(A) move for dismissal of other charges; or\n(B) make a recommendation, or agree not to oppose the defendant\'s request, for a particular\nsentence, with the understanding that such recommendation or request shall not be binding upon\nthe court; or\n(C) agree that a specific sentence is the appropriate disposition of the case.\nA (B) type of plea agreement is clearly of a different order than the other two, for an\nagreement to recommend or not to oppose is discharged when the prosecutor performs as he\nagreed to do. By comparison, critical to a type (A) or (C) agreement is that the defendant receive\nthe contemplated charge dismissal or agreed-to sentence. Consequently, there must ultimately be\nan acceptance or rejection by the court of a type (A) or (C) agreement so that it may be determined\nwhether the defendant shall receive the bargained-for concessions or shall instead be afforded an\nopportunity to withdraw his plea. But this is not so as to a type (B) agreement; there is no\n\xe2\x80\x9cdisposition provided for\xe2\x80\x9d in such a plea agreement so as to make the acceptance provisions of\nsubdivision (e)(3) applicable, nor is there a need for rejection with opportunity for withdrawal\nunder subdivision (e)(4) in light of the fact that the defendant knew the nonbinding character of the\nrecommendation or request. United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977); United\nStates v. Savage, 561 F.2d 554 (4th Cir. 1977).\nBecause a type (B) agreement is distinguishable from the others in that it involves only a\nrecommendation or request not binding upon the court, it is important that the defendant be aware\nthat this is the nature of the agreement into which he has entered. The procedure contemplated by\nthe last sentence of amended subdivision (e)(2) will establish for the record that there is such\nawareness. This provision conforms to ABA Standards Relating to Pleas of Guilty \xc2\xa71.5 (Approved\nDraft, 1968), which provides that \xe2\x80\x9cthe court must advise the defendant personally that the\nrecommendations of the prosecuting attorney are not binding on the court.\xe2\x80\x9d\nSometimes a plea agreement will be partially but not entirely of the (B) type, as where a\ndefendant, charged with counts 1, 2 and 3, enters into an agreement with the attorney for the\ngovernment wherein it is agreed that if defendant pleads guilty to count 1, the prosecutor will\nrecommend a certain sentence as to that count and will move for dismissal of counts 2 and 3. In\nsuch a case, the court must take particular care to ensure that the defendant understands which\ncomponents of the agreement involve only a (B) type recommendation and which do not. In the\nabove illustration, that part of the agreement which contemplates the dismissal of counts 2 and 3 is\nan (A) type agreement, and thus under rule 11(e) the court must either accept the agreement to\ndismiss these counts or else reject it and allow the defendant to withdraw his plea. If rejected, the\ndefendant must be allowed to withdraw the plea on count 1 even if the type (B) promise to\n95\n\n\x0crecommend a certain sentence on that count is kept, for a multi-faceted plea agreement is\nnonetheless a single agreement. On the other hand, if counts 2 and 3 are dismissed and the sentence\nrecommendation is made, then the defendant is not entitled to withdraw his plea even if the\nsentence recommendation is not accepted by the court, for the defendant received all he was\nentitled to under the various components of the plea agreement.\nNote to Subdivision (e)(6). The major objective of the amendment to rule 11(e)(6) is to\ndescribe more precisely, consistent with the original purpose of the provision, what evidence\nrelating to pleas or plea discussions is inadmissible. The present language is susceptible to\ninterpretation which would make it applicable to a wide variety of statements made under various\ncircumstances other than within the context of those plea discussions authorized by rule 11(e) and\nintended to be protected by subdivision (e)(6) of the rule. See United States v. Herman, 544 F.2d\n791 (5th Cir. 1977), discussed herein.\nFed.R.Ev. 410, as originally adopted by Pub. L. 93\xe2\x80\x93595, provided in part that \xe2\x80\x9cevidence of\na plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo\ncontendere to the crime charged or any other crime, or of statements made in connection with any\nof the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or\nproceeding against the person who made the plea or offer.\xe2\x80\x9d (This rule was adopted with the proviso\nthat it \xe2\x80\x9cshall be superseded by any amendment to the Federal Rules of Criminal Procedure which is\ninconsistent with this rule.\xe2\x80\x9d) As the Advisory Committee Note explained: \xe2\x80\x9cExclusion of offers to\nplead guilty or nolo has as its purpose the promotion of disposition of criminal cases by\ncompromise.\xe2\x80\x9d The amendment of Fed.R.Crim.P. 11, transmitted to Congress by the Supreme\nCourt in April 1974, contained a subdivision (e)(6) essentially identical to the rule 410 language\nquoted above, as a part of a substantial revision of rule 11. The most significant feature of this\nrevision was the express recognition given to the fact that the \xe2\x80\x9cattorney for the government and the\nattorney for the defendant or the defendant when acting pro se may engage in discussions with a\nview toward reaching\xe2\x80\x9d a plea agreement. Subdivision (e)(6) was intended to encourage such\ndiscussions. As noted in H.R.Rep. No. 94\xe2\x80\x93247, 94th Cong., 1st Sess. 7 (1975), the purpose of\nsubdivision (e)(6) is to not \xe2\x80\x9cdiscourage defendants from being completely candid and open during\nplea negotiations.\xe2\x80\x9d Similarly, H.R.Rep. No. 94\xe2\x80\x93414, 94th Cong., 1st Sess. 10 (1975), states that\n\xe2\x80\x9cRule 11(e)(6) deals with the use of statements made in connection with plea agreements.\xe2\x80\x9d (Rule\n11(e)(6) was thereafter enacted, with the addition of the proviso allowing use of statements in a\nprosecution for perjury, and with the qualification that the inadmissible statements must also be\n\xe2\x80\x9crelevant to\xe2\x80\x9d the inadmissible pleas or offers. Pub. L. 94\xe2\x80\x9364; Fed.R.Ev. 410 was then amended to\nconform. Pub. L. 94\xe2\x80\x93149.)\nWhile this history shows that the purpose of Fed.R.Ev. 410 and Fed.R.Crim.P. 11 (e)(6) is\nto permit the unrestrained candor which produces effective plea discussions between the \xe2\x80\x9cattorney\nfor the government and the attorney for the defendant or the defendant when acting pro se,\xe2\x80\x9d given\nvisibility and sanction in rule 11(e), a literal reading of the language of these two rules could\nreasonably lead to the conclusion that a broader rule of inadmissibility obtains. That is, because\n\xe2\x80\x9cstatements\xe2\x80\x9d are generally inadmissible if \xe2\x80\x9cmade in connection with, and relevant to\xe2\x80\x9d an \xe2\x80\x9coffer to\nplead guilty,\xe2\x80\x9d it might be thought that an otherwise voluntary admission to law enforcement\nofficials is rendered inadmissible merely because it was made in the hope of obtaining leniency by\na plea. Some decisions interpreting rule 11(e)(6) point in this direction. See United States v.\nHerman, 544 F.2d 791 (5th Cir. 1977) (defendant in custody of two postal inspectors during\ncontinuance of removal hearing instigated conversation with them and at some point said he would\nplead guilty to armed robbery if the murder charge was dropped; one inspector stated they were not\n96\n\n\x0c\xe2\x80\x9cin position\xe2\x80\x9d to make any deals in this regard; held, defendant\'s statement inadmissible under rule\n11(e)(6) because the defendant \xe2\x80\x9cmade the statements during the course of a conversation in which\nhe sought concessions from the government in return for a guilty plea\xe2\x80\x9d); United States v. Brooks,\n536 F.2d 1137 (6th Cir. 1976) (defendant telephoned postal inspector and offered to plead guilty if\nhe got 2-year maximum; statement inadmissible).\nThe amendment makes inadmissible statements made \xe2\x80\x9cin the course of any proceedings\nunder this rule regarding\xe2\x80\x9d either a plea of guilty later withdrawn or a plea of nolo contendere, and\nalso statements \xe2\x80\x9cmade in the course of plea discussions with an attorney for the government which\ndo not result in a plea of guilty or which result in a plea of guilty later withdrawn.\xe2\x80\x9d It is not limited\nto statements by the defendant himself, and thus would cover statements by defense counsel\nregarding defendant\'s incriminating admissions to him. It thus fully protects the plea discussion\nprocess authorized by rule 11 without attempting to deal with confrontations between suspects and\nlaw enforcement agents, which involve problems of quite different dimensions. See, e.g., ALI\nModel Code of Pre-Arraignment Procedure, art. 140 and \xc2\xa7150.2(8) (Proposed Official Draft,\n1975) (latter section requires exclusion if \xe2\x80\x9ca law enforcement officer induces any person to make a\nstatement by promising leniency\xe2\x80\x9d). This change, it must be emphasized, does not compel the\nconclusion that statements made to law enforcement agents, especially when the agents purport to\nhave authority to bargain, are inevitably admissible. Rather, the point is that such cases are not\ncovered by the per se rule of 11(e)(6) and thus must be resolved by that body of law dealing with\npolice interrogations.\nIf there has been a plea of guilty later withdrawn or a plea of nolo contendere, subdivision\n(e)(6)(C) makes inadmissible statements made \xe2\x80\x9cin the course of any proceedings under this rule\xe2\x80\x9d\nregarding such pleas. This includes, for example, admissions by the defendant when he makes his\nplea in court pursuant to rule 11 and also admissions made to provide the factual basis pursuant to\nsubdivision (f). However, subdivision (e)(6)(C) is not limited to statements made in court. If the\ncourt were to defer its decision on a plea agreement pending examination of the presentence report,\nas authorized by subdivision (e)(2), statements made to the probation officer in connection with\nthe preparation of that report would come within this provision.\nThis amendment is fully consistent with all recent and major law reform efforts on this\nsubject. ALI Model Code of Pre-Arraignment Procedure \xc2\xa7350.7 (Proposed Official Draft, 1975),\nand ABA Standards Relating to Pleas of Guilty \xc2\xa73.4 (Approved Draft, 1968) both provide:\nUnless the defendant subsequently enters a plea of guilty or nolo contendere which is not\nwithdrawn, the fact that the defendant or his counsel and the prosecuting attorney engaged in plea\ndiscussions or made a plea agreement should not be received in evidence against or in favor of the\ndefendant in any criminal or civil action or administrative proceedings.\nThe Commentary to the latter states:\nThe above standard is limited to discussions and agreements with the prosecuting attorney.\nSometimes defendants will indicate to the police their willingness to bargain, and in such instances\nthese statements are sometimes admitted in court against the defendant. State v. Christian, 245\nS.W.2d 895 (Mo.1952). If the police initiate this kind of discussion, this may have some bearing\non the admissibility of the defendant\'s statement. However, the policy considerations relevant to\nthis issue are better dealt with in the context of standards governing in-custody interrogation by the\npolice.\nSimilarly, Unif.R.Crim.P. 441(d) (Approved Draft, 1974), provides that except under\nlimited circumstances \xe2\x80\x9cno discussion between the parties or statement by the defendant or his\nlawyer under this Rule,\xe2\x80\x9d i.e., the rule providing \xe2\x80\x9cthe parties may meet to discuss the possibility of\n97\n\n\x0cpretrial diversion * or of a plea agreement,\xe2\x80\x9d are admissible. The amendment is likewise\nconsistent with the typical state provision on this subject; see, e.g., Ill.S.Ct. Rule 402(f).\nThe language of the amendment identifies with more precision than the present language\nthe necessary relationship between the statements and the plea or discussion. See the dispute\nbetween the majority and concurring opinions in United States v. Herman, 544 F.2d 791 (5th Cir.\n1977), concerning the meanings and effect of the phrases \xe2\x80\x9cconnection to\xe2\x80\x9d and \xe2\x80\x9crelevant to\xe2\x80\x9d in the\npresent rule. Moreover, by relating the statements to \xe2\x80\x9cplea discussions\xe2\x80\x9d rather than \xe2\x80\x9can offer to\nplead,\xe2\x80\x9d the amendment ensures \xe2\x80\x9cthat even an attempt to open plea bargaining [is] covered under\nthe same rule of inadmissibility.\xe2\x80\x9d United States v. Brooks, 536 F.2d 1137 (6th Cir. 1976).\nThe last sentence of Rule 11(e)(6) is amended to provide a second exception to the general\nrule of nonadmissibility of the described statements. Under the amendment, such a statement is\nalso admissible \xe2\x80\x9cin any proceeding wherein another statement made in the course of the same plea\nor plea discussions has been introduced and the statement ought in fairness be considered\ncontemporaneously with it.\xe2\x80\x9d This change is necessary so that, when evidence of statements made\nin the course of or as a consequence of a certain plea or plea discussions are introduced under\ncircumstances not prohibited by this rule (e.g., not \xe2\x80\x9cagainst\xe2\x80\x9d the person who made the plea), other\nstatements relating to the same plea or plea discussions may also be admitted when relevant to the\nmatter at issue. For example, if a defendant upon a motion to dismiss a prosecution on some\nground were able to admit certain statements made in aborted plea discussions in his favor, then\nother relevant statements made in the same plea discussions should be admissible against the\ndefendant in the interest of determining the truth of the matter at issue. The language of the\namendment follows closely that in Fed.R.Evid. 106, as the considerations involved are very\nsimilar.\nThe phrase \xe2\x80\x9cin any civil or criminal proceeding\xe2\x80\x9d has been moved from its present position,\nfollowing the word \xe2\x80\x9cagainst,\xe2\x80\x9d for purposes of clarity. An ambiguity presently exists because the\nword \xe2\x80\x9cagainst\xe2\x80\x9d may be read as referring either to the kind of proceeding in which the evidence is\noffered or the purpose for which it is offered. The change makes it clear that the latter construction\nis correct. No change is intended with respect to provisions making evidence rules inapplicable in\ncertain situations. See, e.g., Fed.R.Evid. 104 (a) and 1101(d).\nUnlike ABA Standards Relating to Pleas of Guilty \xc2\xa73.4 (Approved Draft, 1968), and ALI\nModel Code of Pre-Arraignment Procedure \xc2\xa7350.7 (Proposed Official Draft, 1975), rule 11(e)(6)\ndoes not also provide that the described evidence is inadmissible \xe2\x80\x9cin favor of\xe2\x80\x9d the defendant. This\nis not intended to suggest, however, that such evidence will inevitably be admissible in the\ndefendant\'s favor. Specifically, no disapproval is intended of such decisions as United States v.\nVerdoorn, 528 F.2d 103 (8th Cir. 1976), holding that the trial judge properly refused to permit the\ndefendants to put into evidence at their trial the fact the prosecution had attempted to plea bargain\nwith them, as \xe2\x80\x9cmeaningful dialogue between the parties would, as a practical matter, be impossible\nif either party had to assume the risk that plea offers would be admissible in evidence.\xe2\x80\x9d\nNotes of Advisory Committee on Rules\xe2\x80\x941982 Amendment\nNote to Subdivision (c)(1). Subdivision (c)(1) has been amended by specifying \xe2\x80\x9cthe effect\nof any special parole term\xe2\x80\x9d as one of the matters about which a defendant who has tendered a plea\nof guilty or nolo contendere is to be advised by the court. This amendment does not make any\nchange in the law, as the courts are in agreement that such advice is presently required by Rule 11.\nSee, e.g., Moore v. United States, 592 F.2d 753 (4th Cir. 1979); United States v. Eaton, 579 F.2d\n98\n\n\x0c1181 (10th Cir. 1978); Richardson v. United States, 577 F.2d 447 (8th Cir. 1978); United States v.\nDel Prete, 567 F.2d 928 (9th Cir. 1978); United States v. Watson, 548 F.2d 1058 (D.C.Cir. 1977);\nUnited States v. Crusco, 536 F.2d 21 (2d Cir. 1976); United States v. Yazbeck, 524 F.2d 641 (1st\nCir. 1975); United States v. Wolak, 510 F.2d 164 (6th Cir. 1975). In United States v. Timmreck,\n441 U.S. 780 (1979), 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the Supreme Court assumed that the\njudge\'s failure in that case to describe the mandatory special parole term constituted \xe2\x80\x9ca failure to\ncomply with the formal requirements of the Rule.\xe2\x80\x9d\nThe purpose of the amendment is to draw more specific attention to the fact that advice\nconcerning special parole terms is a necessary part of Rule 11 procedure. As noted in Moore v.\nUnited States, supra:\nSpecial parole is a significant penalty. * Unlike ordinary parole, which does not involve\nsupervision beyond the original prison term set by the court and the violation of which cannot lead\nto confinement beyond that sentence, special parole increases the possible period of confinement.\nIt entails the possibility that a defendant may have to serve his original sentence plus a substantial\nadditional period, without credit for time spent on parole. Explanation of special parole in open\ncourt is therefore essential to comply with the Rule\'s mandate that the defendant be informed of\n\xe2\x80\x9cthe maximum possible penalty provided by law.\xe2\x80\x9d\nAs the aforecited cases indicate, in the absence of specification of the requirement in the\nrule it has sometimes happened that such advice has been inadvertently omitted from Rule 11\nwarnings.\nThe amendment does not attempt to enumerate all of the characteristics of the special\nparole term which the judge ought to bring to the defendant\'s attention. Some flexibility in this\nrespect must be preserved although it is well to note that the unique characteristics of this kind of\nparole are such that they may not be readily perceived by laymen. Moore v. United States supra,\nrecommends that in an appropriate case the judge\ninform the defendant and determine that he understands the following:\n(1) that a special parole term will be added to any prison sentence he receives;\n(2) the minimum length of the special parole term that must be imposed and the absence of\na statutory maximum;\n(3) that special parole is entirely different from\xe2\x80\x94and in addition to\xe2\x80\x94ordinary parole; and\n(4) that if the special parole is violated, the defendant can be returned to prison for the\nremainder of his sentence and the full length of his special parole term.\nThe amendment should not be read as meaning that a failure to comply with this particular\nrequirement will inevitably entitle the defendant to relief. See United States v. Timmreck, supra.\nLikewise, the amendment makes no change in the existing law to the effect\nthat many aspects of traditional parole need not be communicated to the defendant by the\ntrial judge under the umbrella of Rule 11. For example, a defendant need not be advised of all\nconceivable consequences such as when he may be considered for parole or that, if he violates his\nparole, he will again be imprisoned.\nBunker v. Wise, 550 F.2d 1155, 1158 (9th Cir. 1977).\nNote to Subdivision (c)(4). The amendment to subdivision (c)(4) is intended to overcome\nthe present conflict between the introductory language of subdivision (c), which contemplates the\nadvice being given \xe2\x80\x9c[b]efore accepting a plea of guilty or nolo contendere,\xe2\x80\x9d and thus presumably\nafter the plea has been tendered, and the \xe2\x80\x9cif he pleads\xe2\x80\x9d language of subdivision (c)(4) which\nsuggests the plea has not been tendered.\nAs noted by Judge Doyle in United States v. Sinagub, 468 F.Supp. 353 (W.D.Wis.1979):\n99\n\n\x0cTaken literally, this wording of subsection (4) of 11(c) suggests that before eliciting any\nplea at an arraignment, the court is required to insure that a defendant understands that if he or she\npleads guilty or nolo contendere, the defendant will be waiving the right to trial. Under subsection\n(3) of 11(c), however, there is no requirement that at this pre-plea stage, the court must insure that\nthe defendant understands that he or she enjoys the right to a trial and, at trial, the right to the\nassistance of counsel, the right to confront and cross-examine witnesses against him or her, and the\nright not to be compelled to incriminate himself or herself. It would be incongruous to require that\nat the pre-plea stage the court insure that the defendant understands that if he enters a plea of guilty\nor nolo contendere he will be waiving a right, the existence and nature of which need not be\nexplained until after such a plea has been entered. I conclude that the insertion of the words \xe2\x80\x9cthat if\nhe pleads guilty or nolo contendere,\xe2\x80\x9d as they appear in subsection (4) of 11(c), was an accident of\ndraftsmanship which occurred in the course of Congressional rewriting of 11(c) as it has been\napproved by the Supreme Court. Those words are to be construed consistently with the words\n\xe2\x80\x9cBefore accepting a plea of guilty or nolo contendere,\xe2\x80\x9d as they appear in the opening language of\n11(c), and consistently with the omission of the words \xe2\x80\x9cthat if he pleads\xe2\x80\x9d from subsections (1), (2),\nand (3) of 11(c). That is, as they appear in subsection (4) of 11(c), the words, \xe2\x80\x9cthat if he pleads\nguilty or nolo contendere\xe2\x80\x9d should be construed to mean \xe2\x80\x9cthat if his plea of guilty or nolo\ncontendere is accepted by the court.\xe2\x80\x9d\nAlthough this is a very logical interpretation of the present language, the amendment will\navoid the necessity to engage in such analysis in order to determine the true meaning of\nsubdivision (c)(4).\nNote to Subdivision (c)(5). Subdivision (c)(5), in its present form, may easily be read as\ncontemplating that in every case in which a plea of guilty or nolo contendere is tendered, warnings\nmust be given about the possible use of defendant\'s statements, obtained under oath, on the record\nand in the presence of counsel, in a later prosecution for perjury or false statement. The language\nhas prompted some courts to reach the remarkable result that a defendant who pleads guilty or nolo\ncontendere without receiving those warnings must be allowed to overturn his plea on appeal even\nthough he was never questioned under oath, on the record, in the presence of counsel about the\noffense to which he pleaded. United States v. Artis, No. 78\xe2\x80\x935012 (4th Cir. March 12, 1979); United\nStates v. Boone, 543 F.2d 1090 (4th Cir. 1976). Compare United States v. Michaelson, 552 F.2d\n472 (2d Cir. 1977) (failure to give subdivision (c)(5) warnings not a basis for reversal, \xe2\x80\x9cat least\nwhen, as here, defendant was not put under oath before questioning about his guilty plea\xe2\x80\x9d). The\npresent language of subdivision (c)(5) may also have contributed to the conclusion, not otherwise\nsupported by the rule, that \xe2\x80\x9cRule 11 requires that the defendant be under oath for the entirety of the\nproceedings\xe2\x80\x9d conducted pursuant to that rule and that failure to place the defendant under oath\nwould itself make necessary overturning the plea on appeal. United States v. Aldridge, 553 F.2d\n922 (5th Cir. 1977).\nWhen questioning of the kind described in subdivision (c)(5) is not contemplated by the\njudge who is receiving the plea, no purpose is served by giving the (c)(5) warnings, which in such\ncircumstances can only confuse the defendant and detract from the force of the other warnings\nrequired by Rule 11. As correctly noted in United States v. Sinagub, supra,\nsubsection (5) of section (c) of Rule 11 is qualitatively distinct from the other sections of\nthe Rule. It does not go to whether the plea is knowingly or voluntarily made, nor to whether the\nplea should be accepted and judgment entered. Rather, it does go to the possible consequences of\nan event which may or may not occur during the course of the arraignment hearing itself, namely,\nthe administration of an oath to the defendant. Whether this event is to occur is wholly within the\n100\n\n\x0ccontrol of the presiding judge. If the event is not to occur, it is pointless to inform the defendant of\nits consequences. If a presiding judge intends that an oath not be administered to a defendant\nduring an arraignment hearing, but alters that intention at some point, only then would the need\narise to inform the defendant of the possible consequences of the administration of the oath.\nThe amendment to subdivision (c)(5) is intended to make it clear that this is the case.\nThe amendment limits the circumstances in which the warnings must be given, but does\nnot change the fact, as noted in Sinagub that these warnings are \xe2\x80\x9cqualitatively distinct\xe2\x80\x9d from the\nother advice required by Rule 11(c). This being the case, a failure to give the subdivision (c)(5)\nwarnings even when the defendant was questioned under oath, on the record and in the presence of\ncounsel would in no way affect the validity of the defendant\'s plea. Rather, this failure bears upon\nthe admissibility of defendant\'s answers pursuant to subdivision (e)(6) in a later prosecution for\nperjury or false statement.\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nNote to Subdivision (a). There are many defenses, objections and requests which a\ndefendant must ordinarily raise by pretrial motion. See, e.g., 18 U.S.C. \xc2\xa73162(a)(2);\nFed.R.Crim.P.12(b). Should that motion be denied, interlocutory appeal of the ruling by the\ndefendant is seldom permitted. See United States v. MacDonald, 435 U.S. 850 (1978) (defendant\nmay not appeal denial of his motion to dismiss based upon Sixth Amendment speedy trial\ngrounds); DiBella v. United States, 369 U.S. 121 (1962) (defendant may not appeal denial of\npretrial motion to suppress evidence); compare Abney v. United States, 431 U.S. 651 (1977)\n(interlocutory appeal of denial of motion to dismiss on double jeopardy grounds permissible).\nMoreover, should the defendant thereafter plead guilty or nolo contendere, this will usually\nforeclose later appeal with respect to denial of the pretrial motion \xe2\x80\x9cWhen a criminal defendant has\nsolemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he\nmay not thereafter raise independent claims relating to the deprivation of constitutional rights that\noccurred prior to the entry of the guilty plea.\xe2\x80\x9d Tollett v. Henderson, 411 U.S. 258, (1973). Though\na nolo plea differs from a guilty plea in other respects, it is clear that it also constitutes a waiver of\nall nonjurisdictional defects in a manner equivalent to a guilty plea. Lott v. United States, 367 U.S.\n421 (1961).\nAs a consequence, a defendant who has lost one or more pretrial motions will often go\nthrough an entire trial simply to preserve the pretrial issues for later appellate review. This results\nin a waste of prosecutorial and judicial resources, and causes delay in the trial of other cases,\ncontrary to the objectives underlying the Speedy Trial Act of 1974, 18 U.S.C. \xc2\xa73161 et seq. These\nunfortunate consequences may be avoided by the conditional plea device expressly authorized by\nnew subdivision (a)(2).\nThe development of procedures to avoid the necessity for trials which are undertaken for\nthe sole purpose of preserving pretrial objections has been consistently favored by the\ncommentators. See ABA Standards Relating to the Administration of Criminal Justice, standard\n21\xe2\x80\x931.3(c) (2d ed. 1978); Model Code of Pre-Arraignment Procedure \xc2\xa7SS 290.1(4)(b) (1975);\nUniform Rules of Criminal Procedure, rule 444(d) (Approved Draft, 1974); 1 C. Wright, Federal\nPractice and Procedure \xe2\x80\x94 Criminal \xc2\xa7175 (1969); 3 W. LaFave, Search and Seizure \xc2\xa711.1 (1978).\nThe Supreme Court has characterized the New York practice, whereby appeals from suppression\nmotions may be appealed notwithstanding a guilty plea, as a \xe2\x80\x9ccommendable effort to relieve the\nproblem of congested trial calendars in a manner that does not diminish the opportunity for the\n101\n\n\x0cassertion of rights guaranteed by the Constitution.\xe2\x80\x9d Lefkowitz v. Newsome, 420 U.S. 283, 293\n(1975). That Court has never discussed conditional pleas as such, but has permitted without\ncomment a federal appeal on issues preserved by a conditional plea. Jaben v. United States, 381\nU.S. 214 (1965).\nIn the absence of specific authorization by statute or rule for a conditional plea, the circuits\nhave divided on the permissibility of the practice. Two circuits have actually approved the entry of\nconditional pleas, United States v. Burke, 517 F.2d 377 (2d Cir. 1975); United States v. Moskow,\n588 F.2d 882 (3d Cir. 1978); and two others have praised the conditional plea concept, United\nStates v. Clark, 459 F.2d 977 (8th Cir. 1972); United States v. Dorsey, 449 F.2d 1104 (D.C.Cir.\n1971). Three circuits have expressed the view that a conditional plea is logically inconsistent and\nthus improper, United States v. Brown, 499 F.2d 829 (7th Cir. 1974); United States v. Sepe, 472\nF.2d 784, aff\'d en banc, 486 F.2d 1044 (5th Cir. 1973); United States v. Cox, 464 F.2d 937 (6th Cir.\n1972); three others have determined only that conditional pleas are not now authorized in the\nfederal system, United States v. Benson, 579 F.2d 508 (9th Cir. 1978); United States v. Nooner,\n565 F.2d 633 (10th Cir. 1977); United States v. Matthews, 472 F.2d 1173 (4th Cir. 1973); while\none circuit has reserved judgment on the issue, United States v. Warwar, 478 F.2d 1183 (1st Cir.\n1973). (At the state level, a few jurisdictions by statute allow appeal from denial of a motion to\nsuppress notwithstanding a subsequent guilty plea, Cal. Penal Code \xc2\xa71538.5 (m); N.Y.Crim. Proc.\nLaw \xc2\xa7710.20(1); Wis.Stat.Ann. \xc2\xa7971.31 (10), but in the absence of such a provision the state\ncourts are also in disagreement as to whether a conditional plea is permissible; see cases collected\nin Comment, 26 U.C.L.A. L.Rev. 360, 373 (1978).)\nThe conditional plea procedure provided for in subdivision (a)(2) will, as previously noted,\nserve to conserve prosecutorial and judicial resources and advance speedy trial objectives. It will\nalso produce much needed uniformity in the federal system on this matter; see United States v.\nClark, supra, noting the split of authority and urging resolution by statute or rule. Also, the\navailability of a conditional plea under specified circumstances will aid in clarifying the fact that\ntraditional, unqualified pleas do constitute a waiver of nonjurisdictional defects. See United States\nv. Nooner, supra (defendant sought appellate review of denial of pretrial suppression motion,\ndespite his prior unqualified guilty plea, claiming the Second Circuit conditional plea practice led\nhim to believe a guilty plea did not bar appeal of pretrial issues).\nThe obvious advantages of the conditional plea procedure authorized by subdivision (a)(2)\nare not outweighed by any significant or compelling disadvantages. As noted in Comment, supra,\nat 375: \xe2\x80\x9cFour major arguments have been raised by courts disapproving of conditioned pleas. The\nobjections are that the procedure encourages a flood of appellate litigation, militates against\nachieving finality in the criminal process, reduces effectiveness of appellate review due to the lack\nof a full trial record, and forces decision on constitutional questions that could otherwise be\navoided by invoking the harmless error doctrine.\xe2\x80\x9d But, as concluded therein, those \xe2\x80\x9carguments do\nnot withstand close analysis.\xe2\x80\x9d Ibid.\nAs for the first of those arguments, experience in states which have permitted appeals of\nsuppression motions notwithstanding a subsequent plea of guilty is most relevant, as conditional\npleas are likely to be most common when the objective is to appeal that kind of pretrial ruling. That\nexperience has shown that the number of appeals has not increased substantially. See Comment, 9\nHous.L.Rev. 305, 315\xe2\x80\x9319 (1971). The minimal added burden at the appellate level is certainly a\nsmall price to pay for avoiding otherwise unnecessary trials.\nAs for the objection that conditional pleas conflict with the government\'s interest in\nachieving finality, it is likewise without force. While it is true that the conditional plea does not\n102\n\n\x0chave the complete finality of the traditional plea of guilty or nolo contendere because \xe2\x80\x9cthe essence\nof the agreement is that the legal guilt of the defendant exists only if the prosecution\'s case\xe2\x80\x9d\nsurvives on appeal, the plea\ncontinues to serve a partial state interest in finality, however, by establishing admission of\nthe defendant\'s factual guilt. The defendant stands guilty and the proceedings come to an end if the\nreserved issue is ultimately decided in the government\'s favor.\nComment, 26 U.C.L.A. L.Rev. 360, 378 (1978).\nThe claim that the lack of a full trial record precludes effective appellate review may on\noccasion be relevant. Cf. United States v. MacDonald, supra (holding interlocutory appeal not\navailable for denial of defendant\'s pretrial motion to dismiss, on speedy trial grounds, and noting\nthat \xe2\x80\x9cmost speedy trial claims * are best considered only after the relevant facts have been\ndeveloped at trial\xe2\x80\x9d). However, most of the objections which would likely be raised by pretrial\nmotion and preserved for appellate review by a conditional plea are subject to appellate resolution\nwithout a trial record. Certainly this is true as to the very common motion to suppress evidence, as\nis indicated by the fact that appellate courts presently decide such issues upon interlocutory appeal\nby the government.\nWith respect to the objection that conditional pleas circumvent application of the harmless\nerror doctrine, it must be acknowledged that \xe2\x80\x9c[a]bsent a full trial record, containing all the\ngovernment\'s evidence against the defendant, invocation of the harmless error rule is arguably\nimpossible.\xe2\x80\x9d Comment, supra, at 380. But, the harmless error standard with respect to\nconstitutional objections is sufficiently high, see Chapman v. California, 386 U.S. 18 (1967), that\nrelatively few appellate decisions result in affirmance upon that basis. Thus it will only rarely be\ntrue that the conditional plea device will cause an appellate court to consider constitutional\nquestions which could otherwise have been avoided by invocation of the doctrine of harmless\nerror.\nTo the extent that these or related objections would otherwise have some substance, they\nare overcome by the provision in Rule 11(a)(2) that the defendant may enter a conditional plea\nonly \xe2\x80\x9cwith the approval of the court and the consent of the government.\xe2\x80\x9d (In this respect, the rule\nadopts the practice now found in the Second Circuit.) The requirement of approval by the court is\nmost appropriate, as it ensures, for example, that the defendant is not allowed to take an appeal on\na matter which can only be fully developed by proceeding to trial; cf. United States v. MacDonald,\nsupra. As for consent by the government, it will ensure that conditional pleas will be allowed only\nwhen the decision of the court of appeals will dispose of the case either by allowing the plea to\nstand or by such action as compelling dismissal of the indictment or suppressing essential\nevidence. Absent such circumstances, the conditional plea might only serve to postpone the trial\nand require the government to try the case after substantial delay, during which time witnesses\nmay be lost, memories dimmed, and the offense grown so stale as to lose jury appeal. The\ngovernment is in a unique position to determine whether the matter at issue would be\ncase-dispositive, and, as a party to the litigation, should have an absolute right to refuse to consent\nto potentially prejudicial delay. Although it was suggested in United States v. Moskow, supra, that\nthe government should have no right to prevent the entry of a conditional plea because a defendant\nhas no comparable right to block government appeal of a pretrial ruling pursuant to 18 U.S.C.\n\xc2\xa73731, that analogy is unconvincing. That statute requires the government to certify that the appeal\nis not taken for purposes of delay. Moreover, where the pretrial ruling is case-dispositive, \xc2\xa73731 is\nthe only mechanism by which the government can obtain appellate review, but a defendant may\nalways obtain review by pleading not guilty.\n103\n\n\x0cUnlike the state statutes cited earlier, Rule 11(a)(2) is not limited to instances in which the\npretrial ruling the defendant wishes to appeal was in response to defendant\'s motion to suppress\nevidence. Though it may be true that the conditional plea device will be most commonly employed\nas to such rulings, the objectives of the rule are well served by extending it to other pretrial rulings\nas well. See, e.g., ABA Standards, supra (declaring the New York provision \xe2\x80\x9cshould be enlarged to\ninclude other pretrial defenses\xe2\x80\x9d); Uniform Rules of Criminal Procedure, rule 444(d) (Approved\nDraft, 1974) (\xe2\x80\x9cany pretrial motion which, if granted, would be dispositive of the case\xe2\x80\x9d).\nThe requirement that the conditional plea be made by the defendant \xe2\x80\x9creserving in writing\nthe right to appeal from the adverse determination of any specified pretrial motion,\xe2\x80\x9d though\nextending beyond the Second Circuit practice, will ensure careful attention to any conditional plea.\nIt will document that a particular plea was in fact conditional, and will identify precisely what\npretrial issues have been preserved for appellate review. By requiring this added step, it will be\npossible to avoid entry of a conditional plea without the considered acquiescence of the\ngovernment (see United States v. Burke, supra, holding that failure of the government to object to\nentry of a conditional plea constituted consent) and post-plea claims by the defendant that his plea\nshould be deemed conditional merely because it occurred after denial of his pretrial motions (see\nUnited States v. Nooner, supra).\nIt must be emphasized that the only avenue of review of the specified pretrial ruling\npermitted under a rule 11(a)(2) conditional plea is an appeal, which must be brought in compliance\nwith Fed.R.App.P. 4 (b). Relief via 28 U.S.C. \xc2\xa72255 is not available for this purpose.\nThe Supreme Court has held that certain kinds of constitutional objections may be raised\nafter a plea of guilty. Menna v. New York, 423 U.S. 61 (1975) (double jeopardy violation);\nBlackledge v. Perry, 417 U.S. 21 (1974) (due process violation by charge enhancement following\ndefendant\'s exercise of right to trial de novo). Subdivision 11(a)(2) has no application to such\nsituations, and should not be interpreted as either broadening or narrowing the Menna-Blackledge\ndoctrine or as establishing procedures for its application.\nNote to Subdivision (h). Subdivision (h) makes clear that the harmless error rule of Rule\n52(a) is applicable to Rule 11. The provision does not, however, attempt to define the meaning of\n\xe2\x80\x9charmless error,\xe2\x80\x9d which is left to the case law. Prior to the amendments which took effect on Dec.\n1, 1975, Rule 11 was very brief; it consisted of but four sentences. The 1975 amendments\nincreased significantly the procedures which must be undertaken when a defendant tenders a plea\nof guilty or nolo contendere, but this change was warranted by the \xe2\x80\x9ctwo principal objectives\xe2\x80\x9d then\nidentified in the Advisory Committee Note: (1) ensuring that the defendant has made an informed\nplea; and (2) ensuring that plea agreements are brought out into the open in court. An inevitable\nconsequence of the 1975 amendments was some increase in the risk that a trial judge, in a\nparticular case, might inadvertently deviate to some degree from the procedure which a very literal\nreading of Rule 11 would appear to require.\nThis being so, it became more apparent than ever that Rule 11 should not be given such a\ncrabbed interpretation that ceremony was exalted over substance. As stated in United States v.\nScarf, 551 F.2d 1124 (8th Cir. 1977), concerning amended Rule 11: \xe2\x80\x9cIt is a salutary rule, and\ndistrict courts are required to act in substantial compliance with it although * ritualistic\ncompliance is not required.\xe2\x80\x9d As similarly pointed out in United States v. Saft, 558 F.2d 1073 (2d\nCir. 1977),\nthe Rule does note say that compliance can be achieved only by reading the specified items\nin haec verba. Congress meant to strip district judges of freedom to decide what they must explain\nto a defendant who wishes to plead guilty, not to tell them precisely how to perform this important\n104\n\n\x0ctask in the great variety of cases that would come before them. While a judge who contents himself\nwith literal application of the Rule will hardly be reversed, it cannot be supposed that Congress\npreferred this to a more meaningful explanation, provided that all the specified elements were\ncovered.\nTwo important points logically flow from these sound observations. One concerns the\nmatter of construing Rule 11: it is not to be read as requiring a litany or other ritual which can be\ncarried out only by word-for-word adherence to a set \xe2\x80\x9cscript.\xe2\x80\x9d The other, specifically addressed in\nnew subdivision (h), is that even when it may be concluded Rule 11 has not been complied with in\nall respects, it does not inevitably follow that the defendant\'s plea of guilty or nolo contendere is\ninvalid and subject to being overturned by any remedial device then available to the defendant.\nNotwithstanding the declaration in Rule 52(a) that \xe2\x80\x9c[a]ny error, defect, irregularity or\nvariance which does not affect substantial rights shall be disregarded,\xe2\x80\x9d there has existed for some\nyears considerable disagreement concerning the applicability of the harmless error doctrine to\nRule 11 violations. In large part, this is attributable to uncertainty as to the continued vitality and\nthe reach of McCarthy v. United States, 394 U.S. 459 (1969). In McCarthy, involving a direct\nappeal from a plea of guilty because of noncompliance with Rule 11, the Court concluded\nthat prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the\ndefendant of the Rule\'s procedural safeguards, which are designed to facilitate a more accurate\ndetermination of the voluntariness of his plea. Our holding [is] that a defendant whose plea has\nbeen accepted in violation of Rule 11 should be afforded the opportunity to plead anew *.\nMcCarthy has been most frequently relied upon in cases where, as in that case, the\ndefendant sought relief because of a Rule 11 violation by the avenue of direct appeal. It has been\nheld that in such circumstances a defendant\'s conviction must be reversed whenever the \xe2\x80\x9cdistrict\ncourt accepts his guilty plea without fully adhering to the procedure provided for in Rule 11,\xe2\x80\x9d\nUnited States v. Boone, 543 F.2d 1090 (4th Cir. 1976), and that in this context any reliance by the\ngovernment on the Rule 52(a) harmless error concept \xe2\x80\x9cmust be rejected.\xe2\x80\x9d United States v. Journet,\n544 F.2d 633 (2d Cir. 1976). On the other hand, decisions are to be found taking a harmless error\napproach on direct appeal where it appeared the nature and extent of the deviation from Rule 11\nwas such that it could not have had any impact on the defendant\'s decision to plead or the fairness\nin now holding him to his plea. United States v. Peters, No. 77\xe2\x80\x931700 (4th Cir., Dec. 22, 1978)\n(where judge failed to comply fully with Rule 11(c)(1), in that defendant not correctly advised of\nmaximum years of special parole term but was told it is at least 3 years, and defendant thereafter\nsentenced to 15 years plus 3-year special parole term, government\'s motion for summary\naffirmance granted, as \xe2\x80\x9cthe error was harmless\xe2\x80\x9d); United States v. Coronado, 554 F.2d 166 (5th\nCir. 1977) (court first holds that charge of conspiracy requires some explanation of what\nconspiracy means to comply with Rule 11(c)(1), but then finds no reversible error \xe2\x80\x9cbecause the\nrule 11 proceeding on its face discloses, despite the trial court\'s failure sufficiently to make the\nrequired explicitation of the charges, that Coronado understood them\xe2\x80\x9d).\nBut this conflict has not been limited to cases involving nothing more than a direct appeal\nfollowing defendant\'s plea. For example, another type of case is that in which the defendant has\nbased a post-sentence motion to withdraw his plea on a Rule 11 violation. Rule 32(d) says that\nsuch a motion may be granted \xe2\x80\x9cto correct manifest injustice,\xe2\x80\x9d and some courts have relied upon\nthis latter provision in holding that post-sentence plea withdrawal need not be permitted merely\nbecause Rule 11 was not fully complied with and that instead the district court should hold an\nevidentiary hearing to determine \xe2\x80\x9cwhether manifest injustice will result if the conviction based on\nthe guilty plea is permitted to stand.\xe2\x80\x9d United States v. Scarf, 551 F.2d 1124 (8th Cir. 1977). Others,\n105\n\n\x0chowever, have held that McCarthy applies and prevails over the language of Rule 32(d), so that \xe2\x80\x9ca\nfailure to scrupulously comply with Rule 11 will invalidate a plea without a showing of manifest\ninjustice.\xe2\x80\x9d United States v. Cantor, 469 F.2d 435 (3d Cir. 1972).\nDisagreement has also existed in the context of collateral attack upon pleas pursuant to 28\nU.S.C. \xc2\xa72255. On the one hand, it has been concluded that \xe2\x80\x9c[n]ot every violation of Rule 11\nrequires that the plea be set aside\xe2\x80\x9d in a \xc2\xa72255 proceeding, and that \xe2\x80\x9ca guilty plea will be set aside\non collateral attack only where to not do so would result in a miscarriage of justice, or where there\nexists exceptional circumstances justifying such relief.\xe2\x80\x9d Evers v. United States, 579 F.2d 71 (10th\nCir. 1978). The contrary view was that McCarthy governed in \xc2\xa72255 proceedings because \xe2\x80\x9cthe\nSupreme Court hinted at no exceptions to its policy of strict enforcement of Rule 11.\xe2\x80\x9d Timmreck v.\nUnited States, 577 F.2d 377 (6th Cir. 1978). But a unanimous Supreme Court resolved this conflict\nin United States v. Timmreck, 441 U.S. 780 (1979), where the Court concluded that the reasoning\nof Hill v. United States, 368 U.S. 424 (1962) (ruling a collateral attack could not be predicated on\na violation of Rule 32(a))\nis equally applicable to a formal violation of Rule 11. *\nIndeed, if anything, this case may be a stronger one for foreclosing collateral relief than the\nHill case. For the concern with finality served by the limitation on collateral attack has special\nforce with respect to convictions based on guilty pleas.\n\xe2\x80\x9cEvery inroad on the concept of finality undermines confidence in the integrity of our\nprocedures; and, by increasing the volume of judicial work, inevitably delays and impairs the\norderly administration of justice. The impact is greatest when new grounds for setting aside guilty\npleas are approved because the vast majority of criminal convictions result from such pleas.\nMoreover, the concern that unfair procedures may have resulted in the conviction of an innocent\ndefendant is only rarely raised by a petition to set aside a guilty plea.\xe2\x80\x9d\nThis interest in finality is strongest in the collateral attack context the Court was dealing\nwith in Timmreck, which explains why the Court there adopted the Hill requirement that in a\n\xc2\xa72255 proceeding the rule violation must amount to \xe2\x80\x9ca fundamental defect which inherently\nresults in a complete miscarriage of justice\xe2\x80\x9d or \xe2\x80\x9can omission inconsistent with the rudimentary\ndemands of fair procedure.\xe2\x80\x9d The interest in finality of guilty pleas described in Timmreck is of\nsomewhat lesser weight when a direct appeal is involved (so that the Hill standard is obviously\ninappropriate in that setting), but yet is sufficiently compelling to make unsound the proposition\nthat reversal is required even where it is apparent that the Rule 11 violation was of the harmless\nerror variety.\nThough the McCarthy per se rule may have been justified at the time and in the\ncircumstances which obtained when the plea in that case was taken, this is no longer the case. For\none thing, it is important to recall that McCarthy dealt only with the much simpler pre-1975\nversion of Rule 11, which required only a brief procedure during which the chances of a minor,\ninsignificant and inadvertent deviation were relatively slight. This means that the chances of a\ntruly harmless error (which was not involved in McCarthy in any event, as the judge made no\ninquiry into the defendant\'s understanding of the nature of the charge, and the government had\npresented only the extreme argument that a court \xe2\x80\x9ccould properly assume that petitioner was\nentering that plea with a complete understanding of the charge against him\xe2\x80\x9d merely from the fact\nhe had stated he desired to plead guilty) are much greater under present Rule 11 than under the\nversion before the Court in McCarthy. It also means that the more elaborate and lengthy\nprocedures of present Rule 11, again as compared with the version applied in McCarthy, make it\nmore apparent than ever that a guilty plea is not \xe2\x80\x9ca mere gesture, a temporary and meaningless\n106\n\n\x0cformality reversible at the defendant\'s whim,\xe2\x80\x9d but rather \xe2\x80\x9c \xe2\x80\x98a grave and solemn act,\xe2\x80\x99 which is\n\xe2\x80\x98accepted only with care and discernment.\xe2\x80\x99 \xe2\x80\x9d United States v. Barker, 514 F.2d 208\n(D.C.Cir.1975), quoting from Brady v. United States, 397 U.S. 742 (1970). A plea of that character\nshould not be overturned, even on direct appeal, when there has been a minor and technical\nviolation of Rule 11 which amounts to harmless error.\nSecondly, while McCarthy involved a situation in which the defendant\'s plea of guilty was\nbefore the court of appeals on direct appeal, the Supreme Court appears to have been primarily\nconcerned with \xc2\xa72255-type cases, for the Court referred exclusively to cases of that kind in the\ncourse of concluding that a per se rule was justified as to Rule 11 violations because of \xe2\x80\x9cthe\ndifficulty of achieving [rule 11\'s] purposes through a postconviction voluntariness hearing.\xe2\x80\x9d But\nthat reasoning has now been substantially undercut by United States v. Timmreck, supra, for the\nCourt there concluded \xc2\xa72255 relief \xe2\x80\x9cis not available when all that is shown is a failure to comply\nwith the formal requirements of the Rule,\xe2\x80\x9d at least absent \xe2\x80\x9cother aggravating circumstances,\xe2\x80\x9d\nwhich presumably could often only be developed in the course of a later evidentiary hearing.\nAlthough all of the aforementioned considerations support the policy expressed in new\nsubdivision (h), the Advisory Committee does wish to emphasize two important cautionary notes.\nThe first is that subdivision (h) should not be read as supporting extreme or speculative harmless\nerror claims or as, in effect, nullifying important Rule 11 safeguards. There would not be harmless\nerror under subdivision (h) where, for example, as in McCarthy, there had been absolutely no\ninquiry by the judge into defendant\'s understanding of the nature of the charge and the harmless\nerror claim of the government rests upon nothing more than the assertion that it may be \xe2\x80\x9cassumed\xe2\x80\x9d\ndefendant possessed such understanding merely because he expressed a desire to plead guilty.\nLikewise, it would not be harmless error if the trial judge totally abdicated to the prosecutor the\nresponsibility for giving to the defendant the various Rule 11 warnings, as this \xe2\x80\x9cresults in the\ncreation of an atmosphere of subtle coercion that clearly contravenes the policy behind Rule 11.\xe2\x80\x9d\nUnited States v. Crook, 526 F.2d 708 (5th Cir. 1976).\nIndeed, it is fair to say that the kinds of Rule 11 violations which might be found to\nconstitute harmless error upon direct appeal are fairly limited, as in such instances the matter\n\xe2\x80\x9cmust be resolved solely on the basis of the Rule 11 transcript\xe2\x80\x9d and the other portions (e.g.,\nsentencing hearing) of the limited record made in such cases. United States v. Coronado, supra.\nIllustrative are: where the judge\'s compliance with subdivision (c)(1) was not absolutely complete,\nin that some essential element of the crime was not mentioned, but the defendant\'s responses\nclearly indicate his awareness of that element, see United States v. Coronado, supra; where the\njudge\'s compliance with subdivision (c)(2) was erroneous in part in that the judge understated the\nmaximum penalty somewhat, but the penalty actually imposed did not exceed that indicated in the\nwarnings, see United States v. Peters, supra; and where the judge completely failed to comply with\nsubdivision (c)(5), which of course has no bearing on the validity of the plea itself, cf. United\nStates v. Sinagub, supra.\nThe second cautionary note is that subdivision (h) should not be read as an invitation to\ntrial judges to take a more casual approach to Rule 11 proceedings. It is still true, as the Supreme\nCourt pointed out in McCarthy, that thoughtful and careful compliance with Rule 11 best serves\nthe cause of fair and efficient administration of criminal justice, as it\nwill help reduce the great waste of judicial resources required to process the frivolous\nattacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when\nthe original record is inadequate. It is, therefore, not too much to require that, before sentencing\ndefendants to years of imprisonment, district judges take the few minutes necessary to inform them\n107\n\n\x0cof their rights and to determine whether they understand the action they are taking.\nSubdivision (h) makes no change in the responsibilities of the judge at Rule 11\nproceedings, but instead merely rejects the extreme sanction of automatic reversal.\nIt must also be emphasized that a harmless error provision has been added to Rule 11\nbecause some courts have read McCarthy as meaning that the general harmless error provision in\nRule 52(a) cannot be utilized with respect to Rule 11 proceedings. Thus, the addition of\nsubdivision (h) should not be read as suggesting that Rule 52(a) does not apply in other\ncircumstances because of the absence of a provision comparable to subdivision (h) attached to\nother rules.\nNotes of Advisory Committee on Rules\xe2\x80\x941985 Amendment\nNote to Subdivision (c)(1). Section 5 of the Victim and Witness Protection Act of 1982,\nPub. L. No. 97\xe2\x80\x93291, 96 Stat. 1248 (1982), adds 18 U.S.C. \xc2\xa73579, providing that when sentencing a\ndefendant convicted of a Title 18 offense or of violating various subsections of the Federal\nAviation Act of 1958, the court \xe2\x80\x9cmay order, in addition to or in lieu of any other penalty authorized\nby law, that the defendant make restitution to any victim of the offense.\xe2\x80\x9d Under this law restitution\nis favored; if the court \xe2\x80\x9cdoes not order restitution, or orders only partial restitution, . . . the court\nshall state on the record the reasons therefor.\xe2\x80\x9d Because this restitution is deemed an aspect of the\ndefendant\'s sentence, S. Rept. No. 97\xe2\x80\x93532, 97th Cong., 2d Sess., 30\xe2\x80\x9333 (1982), it is a matter about\nwhich a defendant tendering a plea of guilty or nolo contendere should be advised.\nBecause this new legislation contemplates that the amount of the restitution to be ordered\nwill be ascertained later in the sentencing process, this amendment to Rule 11(c)(1) merely\nrequires that the defendant be told of the court\'s power to order restitution. The exact amount or\nupper limit cannot and need not be stated at the time of the plea. Failure of a court to advise a\ndefendant of the possibility of a restitution order would constitute harmless error under subdivision\n(h) if no restitution were thereafter ordered.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941989 Amendment\nThe amendment mandates that the district court inform a defendant that the court is\nrequired to consider any applicable guidelines but may depart from them under some\ncircumstances. This requirement assures that the existence of guidelines will be known to a\ndefendant before a plea of guilty or nolo contendere is accepted. Since it will be impracticable, if\nnot impossible, to know which guidelines will be relevant prior to the formulation of a presentence\nreport and resolution of disputed facts, the amendment does not require the court to specify which\nguidelines will be important or which grounds for departure might prove to be significant. The\nadvice that the court is required to give cannot guarantee that a defendant who pleads guilty will\nnot later claim a lack of understanding as to the importance of guidelines at the time of the plea. No\nadvice is likely to serve as a complete protection against post-plea claims of ignorance or\nconfusion. By giving the advice, the court places the defendant and defense counsel on notice of\nthe importance that guidelines may play in sentencing and of the possibility of a departure from\n108\n\n\x0cthose guidelines. A defendant represented by competent counsel will be in a position to enter an\nintelligent plea.\nThe amended rule does not limit the district court\'s discretion to engage in a more extended\ncolloquy with the defendant in order to impart additional information about sentencing guidelines\nor to inquire into the defendant\'s knowledge concerning guidelines. The amended rule sets forth\nonly the minimum advice that must be provided to the defendant by the court.\nCommittee Notes on Rules\xe2\x80\x941999 Amendment\nSubdivision (a). The amendment deletes use of the term \xe2\x80\x9ccorporation\xe2\x80\x9d and substitutes in\nits place the term \xe2\x80\x9corganization,\xe2\x80\x9d with a reference to the definition of that term in 18 U.S.C. \xc2\xa718.\nSubdivision (c)(6). Rule 11(c) has been amended specifically to reflect the increasing\npractice of including provisions in plea agreements which require the defendant to waive certain\nappellate rights. The increased use of such provisions is due in part to the increasing number of\ndirect appeals and collateral reviews challenging sentencing decisions. Given the increased use of\nsuch provisions, the Committee believed it was important to insure that first, a complete record\nexists regarding any waiver provisions, and second, that the waiver was voluntarily and knowingly\nmade by the defendant. Although a number of federal courts have approved the ability of a\ndefendant to enter into such waiver agreements, the Committee takes no position on the underlying\nvalidity of such waivers.\nSubdivision (e). Amendments have been made to Rule 11(e)(1)(B) and (C) to reflect the\nimpact of the Sentencing Guidelines on guilty pleas. Although Rule 11 is generally silent on the\nsubject, it has become clear that the courts have struggled with the subject of guideline sentencing\nvis a vis plea agreements, entry and timing of guilty pleas, and the ability of the defendant to\nwithdraw a plea of guilty. The amendments are intended to address two specific issues.\nFirst, both subdivisions (e)(1)(B) and (e)(1)(C) have been amended to recognize that a plea\nagreement may specifically address not only what amounts to an appropriate sentence, but also a\nsentencing guideline, a sentencing factor, or a policy statement accompanying a sentencing\nguideline or factor. Under an (e)(1)(B) agreement, the government, as before, simply agrees to\nmake a recommendation to the court, or agrees not to oppose a defense request concerning a\nparticular sentence or consideration of a sentencing guideline, factor, or policy statement. The\namendment makes it clear that this type of agreement is not binding on the court. Second, under an\n(e)(1)(C) agreement, the government and defense have actually agreed on what amounts to an\nappropriate sentence or have agreed to one of the specified components. The amendment also\nmakes it clear that this agreement is binding on the court once the court accepts it. As is the\nsituation under the current Rule, the court retains absolute discretion whether to accept a plea\nagreement.\nGAP Report\xe2\x80\x94Rule 11. The Committee made no changes to the published draft\namendments to Rule 11. But it did add language to the Committee Note which reflects the view\nthat the amendment is not intended to signal its approval of the underlying practice of including\nwaiver provisions in pretrial agreements.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 11 has been amended and reorganized as part of the general restyling\nof the Criminal Rules to make them more easily understood and to make style and terminology\n109\n\n\x0cconsistent throughout the rules. These changes are intended to be stylistic only, except as noted\nbelow.\nAmended Rule 11(b)(1) requires the court to apprise the defendant of his or her rights\nbefore accepting a plea of guilty or nolo contendere. The Committee determined to expand upon\nthe incomplete listing in the current rule of the elements of the \xe2\x80\x9cmaximum possible penalty\xe2\x80\x9d and\nany \xe2\x80\x9cmandatory minimum\xe2\x80\x9d penalty to include advice as to the maximum or minimum term of\nimprisonment, forfeiture, fine, and special assessment, in addition to the two types of maximum\nand minimum penalties presently enumerated: restitution and supervised release. The outmoded\nreference to a term of \xe2\x80\x9cspecial parole\xe2\x80\x9d has been eliminated.\nAmended Rule 11(b)(2), formerly Rule 11(d), covers the issue of determining that the plea\nis voluntary, and not the result of force, threats, or promises (other than those in a plea agreement).\nThe reference to an inquiry in current Rule 11(d) whether the plea has resulted from plea\ndiscussions with the government has been deleted. That reference, which was often a source of\nconfusion to defendants who were clearly pleading guilty as part of a plea agreement with the\ngovernment, was considered unnecessary.\nRule 11(c)(1)(A) includes a change, which recognizes a common type of plea\nagreement\xe2\x80\x94that the government will \xe2\x80\x9cnot bring\xe2\x80\x9d other charges.\nThe Committee considered whether to address the practice in some courts of using judges\nto facilitate plea agreements. The current rule states that \xe2\x80\x9cthe court shall not participate in any\ndiscussions between the parties concerning such plea agreement.\xe2\x80\x9d Some courts apparently believe\nthat that language acts as a limitation only upon the judge taking the defendant\'s plea and thus\npermits other judges to serve as facilitators for reaching a plea agreement between the government\nand the defendant. See, e.g., United States v. Torres, 999 F.2d 376, 378 (9th Cir. 1993) (noting\npractice and concluding that presiding judge had not participated in a plea agreement that had\nresulted from discussions involving another judge). The Committee decided to leave the Rule as it\nis with the understanding that doing so was in no way intended either to approve or disapprove the\nexisting law interpreting that provision.\nAmended Rules 11(c)(3) to (5) address the topics of consideration, acceptance, and\nrejection of a plea agreement. The amendments are not intended to make any change in practice.\nThe topics are discussed separately because in the past there has been some question about the\npossible interplay between the court\'s consideration of the guilty plea in conjunction with a plea\nagreement and sentencing and the ability of the defendant to withdraw a plea. See United States v.\nHyde, 520 U.S. 670 (1997) (holding that plea and plea agreement need not be accepted or rejected\nas a single unit; \xe2\x80\x9cguilty pleas can be accepted while plea agreements are deferred, and the\nacceptance of the two can be separated in time.\xe2\x80\x9d). Similarly, the Committee decided to more\nclearly spell out in Rule 11(d) and 11(e) the ability of the defendant to withdraw a plea. See United\nStates v. Hyde, supra.\nAmended Rule 11(e) is a new provision, taken from current Rule 32(e), that addresses the\nfinality of a guilty or nolo contendere plea after the court imposes sentence. The provision makes it\nclear that it is not possible for a defendant to withdraw a plea after sentence is imposed.\nThe reference to a \xe2\x80\x9cmotion under 28 U.S.C. \xc2\xa72255 \xe2\x80\x9d has been changed to the broader term\n\xe2\x80\x9ccollateral attack\xe2\x80\x9d to recognize that in some instances a court may grant collateral relief under\nprovisions other than \xc2\xa72255. See United States v. Jeffers, 234 F.3d 277 (5th Cir. 2000) (petition\nunder \xc2\xa72241 may be appropriate where remedy under \xc2\xa72255 is ineffective or inadequate).\nCurrently, Rule 11(e)(5) requires that unless good cause is shown, the parties are to give\npretrial notice to the court that a plea agreement exists. That provision has been deleted. First, the\n110\n\n\x0cCommittee believed that although the provision was originally drafted to assist judges, under\ncurrent practice few counsel would risk the consequences in the ordinary case of not informing the\ncourt that an agreement exists. Secondly, the Committee was concerned that there might be rare\ncases where the parties might agree that informing the court of the existence of an agreement might\nendanger a defendant or compromise an ongoing investigation in a related case. In the end, the\nCommittee believed that, on balance, it would be preferable to remove the provision and reduce\nthe risk of pretrial disclosure.\nFinally, revised Rule 11(f), which addresses the issue of admissibility or inadmissibility of\npleas and statements made during the plea inquiry, cross references Federal Rule of Evidence 410.\nCommittee Notes on Rules\xe2\x80\x942007 Amendment\nSubdivision (b)(1)(M). The amendment conforms Rule 11 to the Supreme Court\'s decision\nin United States v. Booker, 543 U.S. 220 (2005). Booker held that the provision of the federal\nsentencing statute that makes the Guidelines mandatory, 18 U.S.C. \xc2\xa73553(b)(1), violates the Sixth\nAmendment right to jury trial. With this provision severed and excised, the Court held, the\nSentencing Reform Act \xe2\x80\x9cmakes the Guidelines effectively advisory,\xe2\x80\x9d and \xe2\x80\x9crequires a sentencing\ncourt to consider Guidelines ranges, see 18 U.S.C.A. \xc2\xa73553(a)(4) (Supp. 2004), but it permits the\ncourt to tailor the sentence in light of other statutory concerns as well, see \xc2\xa73553(a) (Supp. 2004).\xe2\x80\x9d\nId. at 245\xe2\x80\x9346. Rule 11(b)(M) incorporates this analysis into the information provided to the\ndefendant at the time of a plea of guilty or nolo contendere.\nChanges Made to Proposed Amendment Released for Public Comment. No changes were\nmade to the text of the proposed amendment as released for public comment. One change was\nmade to the Committee note. The reference to the Fifth Amendment was deleted from the\ndescription of the Supreme Court\'s decision in Booker.\nCommittee Notes on Rules\xe2\x80\x942013 Amendment\nSubdivision (b)(1)(O). The amendment requires the court to include a general statement\nthat there may be immigration consequences of conviction in the advice provided to the defendant\nbefore the court accepts a plea of guilty or nolo contendre.\nFor a defendant who is not a citizen of the United States, a criminal conviction may lead to\nremoval, exclusion, and the inability to become a citizen. In Padilla v. Kentucky, 130 S. Ct. 1473\n(2010), the Supreme Court held that a defense attorney\'s failure to advise the defendant concerning\nthe risk of deportation fell below the objective standard of reasonable professional assistance\nguaranteed by the Sixth Amendment.\nThe amendment mandates a generic warning, not specific advice concerning the\ndefendant\'s individual situation. Judges in many districts already include a warning about\nimmigration consequences in the plea colloquy, and the amendment adopts this practice as good\npolicy. The Committee concluded that the most effective and efficient method of conveying this\ninformation is to provide it to every defendant, without attempting to determine the defendant\'s\ncitizenship.\nChanges Made After Publication and Comment. The Committee Note was revised to make\nit clear that the court is to give a general statement that there may be immigration consequences,\nnot specific advice concerning a defendant\'s individual situation.\nReferences in Text\n111\n\n\x0cThe Federal Rules of Evidence, referred to in subd. (f), are set out in the Appendix to Title\n28, Judiciary and Judicial Procedure.\nAmendment by Public Law\n1988 \xe2\x80\x94Subd. (c)(1). Pub. L. 100\xe2\x80\x93690 inserted \xe2\x80\x9cor term of supervised release\xe2\x80\x9d after\n\xe2\x80\x9cspecial parole term\xe2\x80\x9d.\n1975 \xe2\x80\x94Pub. L. 94\xe2\x80\x9364 amended subds. (c) and (e)(1)\xe2\x80\x93(4), (6) generally.\nEffective Date of 1979 Amendment\nAmendment of subd. (e)(6) of this rule by order of the United States Supreme Court of Apr.\n30, 1979, effective Dec. 1, 1980, see section 1(1) of Pub. L. 96\xe2\x80\x9342, July 31, 1979, 93 Stat. 326, set\nout as a note under section 2074 of Title 28, Judiciary and Judicial Procedure.\nEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, except with respect to the amendment adding subd. (e)(6) of this rule, effective Aug. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\nRule 12. Pleadings and Pretrial Motions\n(a) Pleadings. The pleadings in a criminal proceeding are the indictment, the information,\nand the pleas of not guilty, guilty, and nolo contendere.\n(b) Pretrial Motions.\n(1) In General. A party may raise by pretrial motion any defense, objection, or request\nthat the court can determine without a trial on the merits. Rule 47 applies to a pretrial motion.\n(2) Motions That May Be Made Before Trial. A party may raise by pretrial motion any\ndefense, objection, or request that the court can determine without a trial of the general issue.\nMotions That May Be Made at Any Time. A motion that the court lacks jurisdiction may be made at\nany time while the case is pending.\n(3) Motions That Must Be Made Before Trial. The following defenses, objections. and\nrequests must be raised by pretrial motion before trial if the basis for the motion is then reasonably\navailable and the motion can be determined without a trial on the merits :\n(A) a motion alleging a defect in instituting the prosecution;, including:\n(i) improper venue;\n(ii) preindictment delay;\n(iii) a violation of the constitutional right to a speedy trial;\n(iv) selective or vindictive prosecution; and\n(v) an error in the grand-jury proceeding or preliminary hearing:\n(B) a motion alleging a defect in the indictment or information, including:\n112\n\n\x0c(i) joining two or more offenses in the same count (duplicity);\n(ii) charging the same offense in more than one count (multiplicity);\n(iii) lack of specificity;\n(iv) improper joinder; and\n(v) failure to state an offense;\n\xe2\x80\x94but at any time while the case is pending, the court may hear a claim that the indictment\nor information fails to invoke the court\'s jurisdiction or to state an offense;\n(C) a motion to suppression of evidence;\n(D) a Rule 14 motion to sever severance of charges or defendants under Rule 14; and\n(E) a Rule 16 motion for discovery under Rule 16.\n(4) Notice of the Government\'s Intent to Use Evidence.\n(A) At the Government\'s Discretion. At the arraignment or as soon afterward as\npracticable, the government may notify the defendant of its intent to use specified evidence at trial\nin order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C).\n(B) At the Defendant\'s Request. At the arraignment or as soon afterward as practicable, the\ndefendant may, in order to have an opportunity to move to suppress evidence under Rule\n12(b)(3)(C), request notice of the government\'s intent to use (in its evidence-in-chief at trial) any\nevidence that the defendant may be entitled to discover under Rule 16.\n(c) Motion Deadline. Deadline for a Pretrial Motion; Consequences of Not Making a\nTimely Motion.\n(1) Setting the Deadline. The court may, at the arraignment or as soon afterward as\npracticable, set a deadline for the parties to make pretrial motions and may also schedule a motion\nhearing. If the court does not set one, the deadline is the start of trial.\n2. Extending or Resetting the Deadline. At any time before trial, the court may extend or\nreset the deadline for pretrial motions.\n3. Consequences of Not Making a Timely Motion Under Rule 12(b)(3). If a party does not\nmeet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may\nconsider the defense, objection, or request if the party shows good cause.\n(d) Ruling on a Motion. The court must decide every pretrial motion before trial unless it\nfinds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the\ndeferral will adversely affect a party\'s right to appeal. When factual issues are involved in deciding\na motion, the court must state its essential findings on the record.\n(e) [Reserved] Waiver of a Defense, Objection, or Request. A party waives any Rule\n12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or\nby any extension the court provides. For good cause, the court may grant relief from the waiver.\n(f) Recording the Proceedings. All proceedings at a motion hearing, including any findings\nof fact and conclusions of law made orally by the court, must be recorded by a court reporter or a\nsuitable recording device.\n(g) Defendant\'s Continued Custody or Release Status. If the court grants a motion to\ndismiss based on a defect in instituting the prosecution, in the indictment, or in the information, it\nmay order the defendant to be released or detained under 18 U.S.C. \xc2\xa73142 for a specified time until\na new indictment or information is filed. This rule does not affect any federal statutory period of\nlimitations.\n(h) Producing Statements at a Suppression Hearing. Rule 26.2 applies at a suppression\nhearing under Rule 12(b)(3)(C). At a suppression hearing, a law enforcement officer is considered\na government witness.\nNotes\n113\n\n\x0c(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x9364, \xc2\xa73(11), (12), July 31, 1975,\n89 Stat. 372; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff.\nDec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2014, eff. Dec. 1, 2014.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. This rule abolishes pleas to the jurisdiction, pleas in abatement,\ndemurrers, special pleas in bar, and motions to quash. A motion to dismiss or for other appropriate\nrelief is substituted for the purpose of raising all defenses and objections heretofore interposed in\nany of the foregoing modes. \xe2\x80\x9cThis should result in a reduction of opportunities for dilatory tactics\nand, at the same time, relieve the defense of embarrassment. Many competent practitioners have\nbeen baffled and mystified by the distinctions between pleas in abatement, pleas in bar, demurrers,\nand motions to quash, and have, at times, found difficulty in determining which of these should be\ninvoked.\xe2\x80\x9d Homer Cummings, 29 A.B.A.Jour. 655. See also, Medalie, 4 Lawyers Guild R. (3)1, 4.\n2. A similar change was introduced by the Federal Rules of Civil Procedure (Rule 7(a))\nwhich has proven successful. It is also proposed by the A.L.I. Code of Criminal Procedure (Sec.\n209).\nNote to Subdivision (b)(1) and (2). These two paragraphs classify into two groups all\nobjections and defenses to be interposed by motion prescribed by Rule 12(a). In one group are\ndefenses and objections which must be raised by motion, failure to do so constituting a waiver. In\nthe other group are defenses and objections which at the defendant\'s option may be raised by\nmotion, failure to do so, however, not constituting a waiver. (Cf. Rule 12 of Federal Rules of Civil\nProcedure [28 U.S.C., Appendix].)\nIn the first of these groups are included all defenses and objections that are based on defects\nin the institution of the prosecution or in the indictment and information, other than lack of\njurisdiction or failure to charge an offense. All such defenses and objections must be included in a\nsingle motion. (Cf. Rule 12(g) of Federal Rules of Civil Procedure [28 U.S.C., Appendix].)\nAmong the defenses and objections in this group are the following: Illegal selection or\norganization of the grand jury, disqualification of individual grand jurors, presence of\nunauthorized persons in the grand jury room, other irregularities in grand jury proceedings, defects\nin indictment or information other than lack of jurisdiction or failure to state an offense, etc. The\nprovision that these defenses and objections are waived if not raised by motion substantially\ncontinues existing law, as they are waived at present unless raised before trial by plea in\nabatement, demurrer, motion to quash, etc.\nIn the other group of objections and defenses, which the defendant at his option may raise\nby motion before trial, are included all defenses and objections which are capable of determination\nwithout a trial of the general issue. They include such matters as former jeopardy, former\nconviction, former acquittal, statute of limitations, immunity, lack of jurisdiction, failure of\nindictment or information to state an offense, etc. Such matters have been heretofore raised by\ndemurrers, special pleas in bar and motions to quash.\nNote to Subdivision (b)(3). This rule, while requiring the motion to be made before\npleading, vests discretionary authority in the court to permit the motion to be made within a\nreasonable time thereafter. The rule supersedes 18 U.S.C. 556a [now 3288, 3289], fixing a definite\nlimitation of time for pleas in abatement and motions to quash. The rule also eliminates the\nrequirement for technical withdrawal of a plea if it is desired to interpose a preliminary objection\n114\n\n\x0cor defense after the plea has been entered. Under this rule a plea will be permitted to stand in the\nmeantime.\nNote to Subdivision (b)(4). This rule substantially restates existing law. It leaves with the\ncourt discretion to determine in advance of trial defenses and objections raised by motion or to\ndefer them for determination at the trial. It preserves the right to jury trial in those cases in which\nthe right is given under the Constitution or by statute. In all other cases it vests in the court\nauthority to determine issues of fact in such manner as the court deems appropriate.\nNote to Subdivision (b)(5). 1. The first sentence substantially restates existing law, 18\nU.S.C. [former] 561 (Indictments and presentments; judgment on demurrer), which provides that\nin case a demurrer to an indictment or information is overruled, the judgment shall be respondeat\nouster.\n2. The last sentence of the rule that \xe2\x80\x9cNothing in this rule shall be deemed to affect the\nprovisions of any act of Congress relating to periods of limitations\xe2\x80\x9d is intended to preserve the\nprovisions of statutes which permit a reindictment if the original indictment is found defective or is\ndismissed for other irregularities and the statute of limitations has run in the meantime, 18 U.S.C.\n587 [now 3288] (Defective indictment; defect found after period of limitations; reindictment); Id.\nsec. 588 [now 3289] (Defective indictment; defect found before period of limitations;\nreindictment); Id. sec. 589 [now 3288, 3289] (Defective indictment; defense of limitations to new\nindictment); Id. sec. 556a [now 3288, 3289] (Indictments and presentments; objections to drawing\nor qualification of grand jury; time for filing; suspension of statute of limitations).\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nSubdivision (a) remains as it was in the old rule. It \xe2\x80\x9cspeaks only of defenses and objections\nthat prior to the rules could have been raised by a plea, demurrer, or motion to quash\xe2\x80\x9d (C. Wright,\nFederal Practice and Procedure: Criminal \xc2\xa7191 at p. 397 (1969)), and this might be interpreted as\nlimiting the scope of the rule. However, some courts have assumed that old rule 12 does apply to\npretrial motions generally, and the amendments to subsequent subdivisions of the rule should\nmake clear that the rule is applicable to pretrial motion practice generally. (See e.g., rule 12(b)(3),\n(4), (5) and rule 41(e).)\nSubdivision (b) is changed to provide for some additional motions and requests which must\nbe made prior to trial. Subdivisions (b)(1) and (2) are restatements of the old rule.\nSubdivision (b)(3) makes clear that objections to evidence on the ground that it was\nillegally obtained must be raised prior to trial. This is the current rule with regard to evidence\nobtained as a result of an illegal search. See rule 41(e); C. Wright, Federal Practice and Procedure:\nCriminal \xc2\xa7673 (1969, Supp. 1971). It is also the practice with regard to other forms of illegality\nsuch as the use of unconstitutional means to obtain a confession. See C. Wright, Federal Practice\nand Procedure: Criminal \xc2\xa7673 at p. 108 (1969). It seems apparent that the same principle should\napply whatever the claimed basis for the application of the exclusionary rule of evidence may be.\nThis is consistent with the court\'s statement in Jones v. United States, 362 U.S. 257, 264, 80 S.Ct.\n725, 4 L.Ed.2d 697 (1960):\nThis provision of Rule 41(e), requiring the motion to suppress to be made before trial, is a\ncrystallization of decisions of this Court requiring that procedure, and is designed to eliminate\nfrom the trial disputes over police conduct not immediately relevant to the question of guilt.\n(Emphasis added.)\nSubdivision (b)(4) provides for a pretrial request for discovery by either the defendant or\n115\n\n\x0cthe government to the extent to which such discovery is authorized by rule 16.\nSubdivision (b)(5) provides for a pretrial request for a severance as authorized in rule 14.\nSubdivision (c) provides that a time for the making of motions shall be fixed at the time of\nthe arraignment or as soon thereafter as practicable by court rule or direction of a judge. The rule\nleaves to the individual judge whether the motions may be oral or written. This and other\namendments to rule 12 are designed to make possible and to encourage the making of motions\nprior to trial, whenever possible, and in a single hearing rather than in a series of hearings. This is\nthe recommendation of the American Bar Association\'s Committee on Standards Relating to\nDiscovery and Procedure Before Trial (Approved Draft, 1970); see especially \xc2\xa7\xc2\xa75.2 and 5.3. It\nalso is the procedure followed in those jurisdictions which have used the so-called \xe2\x80\x9comnibus\nhearing\xe2\x80\x9d originated by Judge James Carter in the Southern District of California. See 4 Defender\nNewsletter 44 (1967); Miller, The Omnibus Hearing\xe2\x80\x94An Experiment in Federal Criminal\nDiscovery, 5 San Diego L.Rev. 293 (1968); American Bar Association, Standards Relating to\nDiscovery and Procedure Before Trial, Appendices B, C, and D (Approved Draft, 1970). The\nomnibus hearing is also being used, on an experimental basis, in several other district courts.\nAlthough the Advisory Committee is of the view that it would be premature to write the omnibus\nhearing procedure into the rules, it is of the view that the single pretrial hearing should be made\npossible and its use encouraged by the rules.\nThere is a similar trend in state practice. See, e.g., State ex rel. Goodchild v. Burke, 27\nWis.2d 244, 133 N.W.2d 753 (1965); State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141\nN.W.2d 3 (1965).\nThe rule provides that the motion date be set at \xe2\x80\x9cthe arraignment or as soon thereafter as\npracticable.\xe2\x80\x9d This is the practice in some federal courts including those using the omnibus hearing.\n(In order to obtain the advantage of the omnibus hearing, counsel routinely plead not guilty at the\ninitial arraignment on the information or indictment and then may indicate a desire to change the\nplea to guilty following the omnibus hearing. This practice builds a more adequate record in guilty\nplea cases.) The rule further provides that the date may be set before the arraignment if local rules\nof court so provide.\nSubdivision (d) provides a mechanism for insuring that a defendant knows of the\ngovernment\'s intention to use evidence to which the defendant may want to object. On some\noccasions the resolution of the admissibility issue prior to trial may be advantageous to the\ngovernment. In these situations the attorney for the government can make effective defendant\'s\nobligation to make his motion to suppress prior to trial by giving defendant notice of the\ngovernment\'s intention to use certain evidence. For example, in United States v. Desist, 384 F.2d\n889, 897 (2d Cir. 1967), the court said:\nEarly in the pretrial proceedings, the Government commendably informed both the court\nand defense counsel that an electronic listening device had been used in investigating the case, and\nsuggested a hearing be held as to its legality.\nSee also the \xe2\x80\x9cOmnibus Crime Control and Safe Streets Act of 1968,\xe2\x80\x9d 18 U.S.C. \xc2\xa72518(9):\nThe contents of any intercepted wire or oral communication or evidence derived therefrom\nshall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in\na Federal or State court unless each party, not less than ten days before the trial, hearing, or\nproceeding, has been furnished with a copy of the court order, and accompanying application,\nunder which the interception was authorized or approved.\nIn cases in which defendant wishes to know what types of evidence the government intends\nto use so that he can make his motion to suppress prior to trial, he can request the government to\n116\n\n\x0cgive notice of its intention to use specified evidence which the defendant is entitled to discover\nunder rule 16. Although the defendant is already entitled to discovery of such evidence prior to\ntrial under rule 16, rule 12 makes it possible for him to avoid the necessity of moving to suppress\nevidence which the government does not intend to use. No sanction is provided for the\ngovernment\'s failure to comply with the court\'s order because the committee believes that\nattorneys for the government will in fact comply and that judges have ways of insuring\ncompliance. An automatic exclusion of such evidence, particularly where the failure to give notice\nwas not deliberate, seems to create too heavy a burden upon the exclusionary rule of evidence,\nespecially when defendant has opportunity for broad discovery under rule 16. Compare ABA\nProject on Standards for Criminal Justice, Standards Relating to Electronic Surveillance\n(Approved Draft, 1971) at p. 116:\nA failure to comply with the duty of giving notice could lead to the suppression of\nevidence. Nevertheless, the standards make it explicit that the rule is intended to be a matter of\nprocedure which need not under appropriate circumstances automatically dictate that evidence\notherwise admissible be suppressed.\nPretrial notice by the prosecution of its intention to use evidence which may be subject to a\nmotion to suppress is increasingly being encouraged in state practice. See, e.g., State ex rel.\nGoodchild v. Burke, 27 Wis.2d 244, 264, 133 N.W.2d 753, 763 (1965):\nIn the interest of better administration of criminal justice we suggest that wherever\npracticable the prosecutor should within a reasonable time before trial notify the defense as to\nwhether any alleged confession or admission will be offered in evidence at the trial. We also\nsuggest, in cases where such notice is given by the prosecution, that the defense, if it intends to\nattack the confession or admission as involuntary, notify the prosecutor of a desire by the defense\nfor a special determination on such issue.\nSee also State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 553\xe2\x80\x93556, 141 N.W.2d 3, 13\xe2\x80\x9315\n(1965):\nAt the time of arraignment when a defendant pleads not guilty, or as soon as possible\nthereafter, the state will advise the court as to whether its case against the defendant will include\nevidence obtained as the result of a search and seizure; evidence discovered because of a\nconfession or statements in the nature of a confession obtained from the defendant; or confessions\nor statements in the nature of confessions.\nUpon being so informed, the court will formally advise the attorney for the defendant (or\nthe defendant himself if he refuses legal counsel) that he may, if he chooses, move the court to\nsuppress the evidence so secured or the confession so obtained if his contention is that such\nevidence was secured or confession obtained in violation of defendant\'s constitutional rights. *\nThe procedure which we have outlined deals only with evidence obtained as the result of a\nsearch and seizure and evidence consisting of or produced by confession on the part of the\ndefendant. However, the steps which have been suggested as a method of dealing with evidence of\nthis type will indicate to counsel and to the trial courts that the pretrial consideration of other\nevidentiary problems, the resolution of which is needed to assure the integrity of the trial when\nconducted, will be most useful and that this court encourages the use of such procedures whenever\npractical.\nSubdivision (e) provides that the court shall rule on a pretrial motion before trial unless the\ncourt orders that it be decided upon at the trial of the general issue or after verdict. This is the old\nrule. The reference to issues which must be tried by the jury is dropped as unnecessary, without\nany intention of changing current law or practice. The old rule begs the question of when a jury\n117\n\n\x0cdecision is required at the trial, providing only that a jury is necessary if \xe2\x80\x9crequired by the\nConstitution or an act of Congress.\xe2\x80\x9d It will be observed that subdivision (e) confers general\nauthority to defer the determination of any pretrial motion until after verdict. However, in the case\nof a motion to suppress evidence the power should be exercised in the light of the possibility that if\nthe motion is ultimately granted a retrial of the defendant may not be permissible.\nSubdivision (f) provides that a failure to raise the objections or make the requests specified\nin subdivision (b) constitutes a waiver thereof, but the court is allowed to grant relief from the\nwaiver if adequate cause is shown. See C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7192\n(1969), where it is pointed out that the old rule is unclear as to whether the waiver results only from\na failure to raise the issue prior to trial or from the failure to do so at the time fixed by the judge for\na hearing. The amendment makes clear that the defendant and, where appropriate, the government\nhave an obligation to raise the issue at the motion date set by the judge pursuant to subdivision (c).\nSubdivision (g) requires that a verbatim record be made of pretrial motion proceedings and\nrequires the judge to make a record of his findings of fact and conclusions of law. This is desirable\nif pretrial rulings are to be subject to postconviction review on the record. The judge may find and\nrule orally from the bench, so long as a verbatim record is taken. There is no necessity of a separate\nwritten memorandum containing the judge\'s findings and conclusions.\nSubdivision (h) is essentially old rule 12(b)(5) except for the deletion of the provision that\ndefendant may plead if the motion is determined adversely to him or, if he has already entered a\nplea, that that plea stands. This language seems unnecessary particularly in light of the experience\nin some district courts where a pro forma plea of not guilty is entered at the arraignment, pretrial\nmotions are later made, and depending upon the outcome the defendant may then change his plea\nto guilty or persist in his plea of not guilty.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 12 of the Federal Rules of Criminal\nProcedure deals with pretrial motions and pleadings. The Supreme Court proposed several\namendments to it. The more significant of these are set out below.\nSubdivision (b) as proposed to be amended provides that the pretrial motions may be oral\nor written, at the court\'s discretion. It also provides that certain types of motions must be made\nbefore trial.\nSubdivision (d) as proposed to be amended provides that the government, either on its own\nor in response to a request by the defendant, must notify the defendant of its intention to use certain\nevidence in order to give the defendant an opportunity before trial to move to suppress that\nevidence.\nSubdivision (e) as proposed to be amended permits the court to defer ruling on a pretrial\nmotion until the trial of the general issue or until after verdict.\nSubdivision (f) as proposed to be amended provides that the failure before trial to file\nmotions or requests or to raise defenses which must be filed or raised prior to trial, results in a\nwaiver. However, it also provides that the court, for cause shown, may grant relief from the waiver.\nSubdivision (g) as proposed to be amended requires that a verbatim record be made of the\npretrial motion proceedings and that the judge make a record of his findings of fact and\nconclusions of law.\nB. Committee Action. The Committee modified subdivision (e) to permit the court to defer\nits ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot\n118\n\n\x0cdefer its ruling if to do so will adversely affect a party\'s right to appeal. The Committee believes\nthat the rule proposed by the Supreme Court could deprive the government of its appeal rights\nunder statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes\nto discourage the tendency to reserve rulings on pretrial motions until after verdict in the hope that\nthe jury\'s verdict will make a ruling unnecessary.\nThe Committee also modified subdivision (h), which deals with what happens when the\ncourt grants a pretrial motion based upon a defect in the institution of the prosecution or in the\nindictment or information. The Committee\'s change provides that when such a motion is granted,\nthe court may order that the defendant be continued in custody or that his bail be continued for a\nspecified time. A defendant should not automatically be continued in custody when such a motion\nis granted. In order to continue the defendant in custody, the court must not only determine that\nthere is probable cause, but it must also determine, in effect, that there is good cause to have the\ndefendant arrested.\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nNote to Subdivision (i). As noted in the recent decision of United States v. Raddatz, 447\nU.S. 667 (1980), hearings on pretrial suppression motions not infrequently necessitate a\ndetermination of the credibility of witnesses. In such a situation, it is particularly important, as also\nhighlighted by Raddatz, that the record include some other evidence which tends to either verify or\ncontrovert the assertions of the witness. (This is especially true in light of the Raddatz holding that\na district judge, in order to make an independent evaluation of credibility, is not required to rehear\ntestimony on which a magistrate based his findings and recommendations following a suppression\nhearing before the magistrate.) One kind of evidence which can often fulfill this function is prior\nstatements of the testifying witness, yet courts have consistently held that in light of the Jencks\nAct, 18 U.S.C. \xc2\xa73500, such production of statements cannot be compelled at a pretrial suppression\nhearing. United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975); United States v. Sebastian, 497\nF.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result,\nwhich finds no express Congressional approval in the legislative history of the Jencks Act, see\nUnited States v. Sebastian, supra; United States v. Covello, 410 F.2d 536 (2d Cir. 1969), would be\nobviated by new subdivision (i) of rule 12.\nThis change will enhance the accuracy of the factual determinations made in the context of\npretrial suppression hearings. As noted in United States v. Sebastian, supra, it can be argued\nmost persuasively that the case for pretrial disclosure is strongest in the framework of a\nsuppression hearing. Since findings at such a hearing as to admissibility of challenged evidence\nwill often determine the result at trial and, at least in the case of fourth amendment suppression\nmotions, cannot be relitigated later before the trier of fact, pretrial production of the statements of\nwitnesses would aid defense counsel\'s impeachment efforts at perhaps the most crucial point in the\ncase. * [A] government witness at the suppression hearing may not appear at trial so that\ndefendants could never test his credibility with the benefits of Jencks Act material.\nThe latter statement is certainly correct, for not infrequently a police officer who must\ntestify on a motion to suppress as to the circumstances of an arrest or search will not be called at\ntrial because he has no information necessary to the determination of defendant\'s guilt. See, e.g.,\nUnited States v. Spagnuolo, supra (dissent notes that \xe2\x80\x9cunder the prosecution\'s own admission, it\ndid not intend to produce at trial the witnesses called at the pretrial suppression hearing\xe2\x80\x9d).\nMoreover, even if that person did testify at the trial, if that testimony went to a different subject\n119\n\n\x0cmatter, then under rule 26.2(c) only portions of prior statements covering the same subject matter\nneed be produced, and thus portions which might contradict the suppression hearing testimony\nwould not be revealed. Thus, while it may be true, as declared in United States v. Montos, supra,\nthat \xe2\x80\x9cdue process does not require premature production at pretrial hearings on motions to suppress\nof statements ultimately subject to discovery under the Jencks Act,\xe2\x80\x9d the fact of the matter is that\nthose statements\xe2\x80\x94or, the essential portions thereof\xe2\x80\x94are not necessarily subject to later discovery.\nMoreover, it is not correct to assume that somehow the problem can be solved by leaving\nthe suppression issue \xe2\x80\x9copen\xe2\x80\x9d in some fashion for resolution once the trial is under way, at which\ntime the prior statements will be produced. In United States v. Spagnuolo, supra, the court\nresponded to the defendant\'s dilemma of inaccessible prior statements by saying that the\nsuppression motion could simply be deferred until trial. But, under the current version of rule 12\nthis is not possible; subdivision (b) declares that motions to suppress \xe2\x80\x9cmust\xe2\x80\x9d be made before trial,\nand subdivision (e) says such motions cannot be deferred for determination at trial \xe2\x80\x9cif a party\'s\nright to appeal is adversely affected,\xe2\x80\x9d which surely is the case as to suppression motions. As for the\npossibility of the trial judge reconsidering the motion to suppress on the basis of prior statements\nproduced at trial and casting doubt on the credibility of a suppression hearing witness, it is not a\ndesirable or adequate solution. For one thing, as already noted, there is no assurance that the prior\nstatements will be forthcoming. Even if they are, it is not efficient to delay the continuation of the\ntrial to undertake a reconsideration of matters which could have been resolved in advance of trial\nhad the critical facts then been available. Furthermore, if such reconsideration is regularly to be\nexpected of the trial judge, then this would give rise on appeal to unnecessary issues of the kind\nwhich confronted the court in United States v. Montos, supra\xe2\x80\x94whether the trial judge was\nobligated either to conduct a new hearing or to make a new determination in light of the new\nevidence.\nThe second sentence of subdivision (i) provides that a law enforcement officer is to be\ndeemed a witness called by the government. This means that when such a federal, state or local\nofficer has testified at a suppression hearing, the defendant will be entitled to any statement of the\nofficer in the possession of the government and relating to the subject matter concerning which the\nwitness has testified, without regard to whether the officer was in fact called by the government or\nthe defendant. There is considerable variation in local practice as to whether the arresting or\nsearching officer is considered the witness of the defendant or of the government, but the need for\nthe prior statement exists in either instance.\nThe second sentence of subdivision (i) also provides that upon a claim of privilege the\ncourt is to excise the privileged matter before turning over the statement. The situation most likely\nto arise is that in which the prior statement of the testifying officer identifies an informant who\nsupplied some or all of the probable cause information to the police. Under McCray v. Illinois, 386\nU.S. 300 (1967), it is for the judge who hears the motion to decide whether disclosure of the\ninformant\'s identity is necessary in the particular case. Of course, the government in any case may\nprevent disclosure of the informant\'s identity by terminating reliance upon information from that\ninformant.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\n\n120\n\n\x0cThe amendment to subdivision (i) is one of a series of contemporaneous amendments to\nRules 26.2, 32(f), 32.1, 46, and Rule 8 of the Rules Governing \xc2\xa72255 Hearings, which extended\nRule 26.2, Production of Witness Statements, to other proceedings or hearings conducted under\nthe Rules of Criminal Procedure. Rule 26.2(c) now explicitly states that the trial court may excise\nprivileged matter from the requested witness statements. That change rendered similar language in\nRule 12(i) redundant.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 12 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nThe last sentence of current Rule 12(a), referring to the elimination of \xe2\x80\x9call other pleas, and\ndemurrers and motions to quash\xe2\x80\x9d has been deleted as unnecessary.\nRule 12(b) is modified to more clearly indicate that Rule 47 governs any pretrial motions\nfiled under Rule 12, including form and content. The new provision also more clearly delineates\nthose motions that must be filed pretrial and those that may be filed pretrial. No change in practice\nis intended.\nRule 12(b)(4) is composed of what is currently Rule 12(d). The Committee believed that\nthat provision, which addresses the government\'s requirement to disclose discoverable information\nfor the purpose of facilitating timely defense objections and motions, was more appropriately\nassociated with the pretrial motions specified in Rule 12(b)(3).\nRule 12(c) includes a non-stylistic change. The reference to the \xe2\x80\x9clocal rule\xe2\x80\x9d exception has\nbeen deleted to make it clear that judges should be encouraged to set deadlines for motions. The\nCommittee believed that doing so promotes more efficient case management, especially when\nthere is a heavy docket of pending cases. Although the rule permits some discretion in setting a\ndate for motion hearings, the Committee believed that doing so at an early point in the proceedings\nwould also promote judicial economy.\nMoving the language in current Rule 12(d) caused the relettering of the subdivisions\nfollowing Rule 12(c).\nAlthough amended Rule 12(e) is a revised version of current Rule 12(f), the Committee\nintends to make no change in the current law regarding waivers of motions or defenses.\nCommittee Notes on Rules - 2014 Amendment\nRule 12(b)(1). The language formerly in (b)(2), which provided that "any defense,\nobjection, or request that the court can determine without trial of the general issue" may be raised\nby motion before trial, has been relocated here. The more modem phrase "trial on the merits" is\nsubstituted for the more archaic phrase "trial of the general issue." No change in meaning is\nintended.\nRule 12(b )(2). As revised, subdivision (b )(2) states that lack ofjurisdiction may be raised\nat any time the case is pending. This provision was relocated from its previous placement at the\nend of subsection (b)(3)(B) and restyled. No change in meaning is intended.\nRule 12(b )(3). The amendment clarifies which motions must be raised before trial.\nThe introductory language includes two important limitations. The basis for the motion\n121\n\n\x0cmust be one that is "reasonably available" and the motion must be one that the court can determine\n"without trial on the merits." The types of claims subject to Rule 12(b)(3) generally will be\navailable before trial and they can -and should -be resolved then. The Committee recognized,\nhowever, that in some cases, a party may not have access to the information needed to raise\nparticular claims that fall within the general categories subject to Rule 12(b)(3) prior to trial. The\n"then reasonably available" language is intended to ensure that a claim a party could not have\nraised on time is not subject to the limitation on review imposed by Rule 12(c)(3). Additionally,\nonly those issues that can be determined "without a trial on the merits" need be raised by motion\nbefore trial. Just as in (b)(1), the more modem phrase "trial on the merits" is substituted for the\nmore archaic phrase "trial of the general issue." No change in meaning is intended.\nThe rule\'s command that motions alleging "a defect in instituting the prosecution" and\n"errors in the indictment or information" must be made before trial is unchanged. The amendment\nadds a nonexclusive list of commonly raised claims under each category to help ensure that such\nclaims are not overlooked. The Rule is not intended to and does not affect or supersede statutory\nprovisions that establish the time to make specific motions, such as motions under the Jury\nSelection and Service Act, 18 U.S.C. \xc2\xa7 1867(a).\nRule 12(b)(3)(B) has also been amended to remove language that allowed the court at any\ntime while the case is pending to hear a claim that the "indictment or information fails ... to state an\noffense." This specific charging error was previously considered fatal whenever raised and was\nexcluded from the general requirement that charging deficiencies be raised prior to trial. The\nSupreme Court abandoned any jurisdictional justification for the exception in United States v.\nCotton, 535 U.S. 625, 62931 (2002) (overruling Ex parte Bain, 121 U.S. 1 (1887), "[i]nsofar as it\nheld that a defective indictment deprives a court ofjurisdiction").\nRule 12(c). As revised, subdivision (c) governs both the deadline for making pretrial\nmotions and the consequences of failing to meet the deadline for motions that must be made before\ntrial under Rule 12(b)(3).\nAs amended, subdivision (c) contains three paragraphs. Paragraph (c)(1) retains the\nexisting\n\xc2\xb7provisions for establishing the time when pretrial motions must be made, and adds a\nsentence stating that unless the court sets a deadline, the deadline for pretrial motions is the start of\ntrial, so that motions may be ruled upon before jeopardy attaches. Subdivision ( e) of the present\nrule contains the language "or by any extension the court provides," which anticipates that a\ndistrict court has broad discretion to extend, reset, or decline to extend or reset, the deadline for\npretrial motions. New paragraph (c)(2) recognizes this discretion explicitly and relocates the\nRule\'s mention of it to a more logical place -after the provision concerning setting the deadline and\nbefore the provision concerning the consequences of not meeting the deadline. No change in\nmeaning is intended.\nNew paragraph (c)(3) governs the review of untimely claims, previously addressed in Rule\n12(e). Rule 12(e) provided that a party "waives" a defense not raised within the time set under Rule\n12(c). Although the term waiver in the context of a criminal case ordinarily refers to the intentional\nrelinquishment of a known right, Rule 12( e) has never required any determination that a party who\nfailed to make a timely motion intended to relinquish a defense, objection, or request that was not\nraised in a timely fashion. Accordingly, to avoid possible confusion the Committee decided not to\nemploy the term "waiver" in new paragraph (c)(3).\nThe standard for review of untimely claims under new paragraph 12( c )(3) depends on the\nnature of the defense, objection, or request. The general standard for claims that must be raised\n122\n\n\x0cbefore trial under Rule 12(b)(3) is stated in (c)(3)(A), which -like the present rule requires that the\nparty seeking relief show "good cause" for failure to raise a claim by the deadline. The Supreme\nCourt and lower federal courts have interpreted the "good cause" standard under Rule 12(e) to\nrequire both (1) "cause" for the failure to raise the claim on time, and (2) "prejudice" resulting from\nthe error. Davis v. United States, 411 U.S. 233, 242 (1973); Shotwell MIg. Co. v. United States,\n371 U.S. 341, 363 (1963).\nNew subparagraph (c)(3)(B) provides a different standard for one specific claim: the\nfailure of the charging document to state an offense. The Committee concluded that judicial review\nof these claims, which go to adequacy of the notice afforded to the defendant, and the power to\nbring a defendant to trial or to impose punishment, should be available without a showing of "good\ncause." Rather, review should be available whenever a defendant shows prejudice from the failure\nto state a claim. Accordingly, subparagraph (c)(3)(B) provides that the court can consider these\nclaims if the party "shows prejudice." Unlike plain error review under Rule 52(b), the standard\nunder Rule (12)(c)(3)(B) does not require a showing that the error was "plain" or that the error\n"seriously affects the fairness, integrity, or public reputation of judicial proceedings."\nNevertheless, it will not always be possible for a defendant to make the required showing of\nprejudice. For example, in some cases in which the charging document omitted an element of the\noffense, the defendant may have admitted the element as part of a guilty plea after having been\nafforded timely notice by other means.\nRule 12(e). The effect of failure to raise issues by a pretrial motion has been relocated from\n(e) to (c)(3).\nChanges Made After Publication and Comment\nLanguage that had been deleted from Rule 12(b)(2) as unnecessary was restored and\nrelocated in (b)(1). The change begins the Rule\'s treatment of pretrial motions with an appropriate\ngeneral statement and responds to concerns that the deletion might have been perceived as\nunintentionally restricting the district courts\' authority to rule on pretrial motions. The references\nto "double jeopardy" and "statute of limitations" were dropped from the nonexclusive list in\n(b)(3)(A) to permit further debate over the treatment of such claims. New paragraph (c)(2) was\nadded to state explicitly the district court\'s authority to extend or reset the deadline for pretrial\nmotions; this authority had been recognized implicitly in language being deleted from Rule 12(e).\nIn subdivision (c), the cross reference to Rule 52 was omitted as unnecessarily controversial. In\nsubparagraph (c )(3)(A), the current language "good cause" was retained. In subparagraph (c\n)(3)(B), the reference to "double jeopardy" was omitted to mirror the omission from (b)(3)(A), and\nthe word "only" was deleted from the phrase "prejudice only" because it was superfluous. Finally,\nthe Committee Note was amended to reflect these post-publication changes and to state explicitly\nthat the rule is not intended to change or supersede statutory deadlines under provisions such as the\nJury Selection and Service Act.\nAmendment by Public Law\n1975 \xe2\x80\x94Pub. L. 94\xe2\x80\x9364 amended subds. (e) and (h) generally.\nEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n123\n\n\x0c22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\nRule 12.1 Notice of an Alibi Defense\n(a) Government\'s Request for Notice and Defendant\'s Response.\n(1) Government\'s Request. An attorney for the government may request in writing that the\ndefendant notify an attorney for the government of any intended alibi defense. The request must\nstate the time, date, and place of the alleged offense.\n(2) Defendant\'s Response. Within 14 days after the request, or at some other time the court\nsets, the defendant must serve written notice on an attorney for the government of any intended\nalibi defense. The defendant\'s notice must state:\n(A) each specific place where the defendant claims to have been at the time of the alleged\noffense; and\n(B) the name, address, and telephone number of each alibi witness on whom the defendant\nintends to rely.\n(b) Disclosing Government Witnesses.\n(1) Disclosure.\n(A) In General. If the defendant serves a Rule 12.1(a)(2) notice, an attorney for the\ngovernment must disclose in writing to the defendant or the defendant\'s attorney:\n(i) the name of each witness\xe2\x80\x94and the address and telephone number of each witness other\nthan a victim\xe2\x80\x94that the government intends to rely on to establish that the defendant was present at\nthe scene of the alleged offense; and\n(ii) each government rebuttal witness to the defendant\'s alibi defense.\n(B) Victim\'s Address and Telephone Number. If the government intends to rely on a\nvictim\'s testimony to establish that the defendant was present at the scene of the alleged offense\nand the defendant establishes a need for the victim\'s address and telephone number, the court may:\n(i) order the government to provide the information in writing to the defendant or the\ndefendant\'s attorney; or\n(ii) fashion a reasonable procedure that allows preparation of the defense and also protects\nthe victim\'s interests.\n(2) Time to Disclose. Unless the court directs otherwise, an attorney for the government\nmust give its Rule 12.1(b)(1) disclosure within 14 days after the defendant serves notice of an\nintended alibi defense under Rule 12.1(a)(2), but no later than 14 days before trial.\n(c) Continuing Duty to Disclose.\n(1) In General. Both an attorney for the government and the defendant must promptly\ndisclose in writing to the other party the name of each additional witness\xe2\x80\x94and the address and\ntelephone number of each additional witness other than a victim\xe2\x80\x94if:\n(A) the disclosing party learns of the witness before or during trial; and\n(B) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party\nhad known of the witness earlier.\n(2) Address and Telephone Number of an Additional Victim Witness. The address and\ntelephone number of an additional victim witness must not be disclosed except as provided in Rule\n12.1 (b)(1)(B).\n(d) Exceptions. For good cause, the court may grant an exception to any requirement of\nRule 12.1(a)\xe2\x80\x93(c).\n(e) Failure to Comply. If a party fails to comply with this rule, the court may exclude the\n124\n\n\x0ctestimony of any undisclosed witness regarding the defendant\'s alibi. This rule does not limit the\ndefendant\'s right to testify.\n(f) Inadmissibility of Withdrawn Intention. Evidence of an intention to rely on an alibi\ndefense, later withdrawn, or of a statement made in connection with that intention, is not, in any\ncivil or criminal proceeding, admissible against the person who gave notice of the intention.\nNotes\n(Added Apr. 22, 1974, eff. Dec. 1, 1975; amended Pub. L. 94\xe2\x80\x9364, \xc2\xa73(13), July 31, 1975, 89\nStat. 372; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff.\nDec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)\nNotes of Advisory Committee on Rules\xe2\x80\x941974\nRule 12.1 is new. See rule 87 of the United States District Court Rules for the District of\nColumbia for a somewhat comparable provision.\nThe Advisory Committee has dealt with the issue of notice of alibi on several occasions\nover the course of the past three decades. In the Preliminary Draft of the Federal Rules of Criminal\nProcedure, 1943, and the Second Preliminary Draft, 1944, an alibi-notice rule was proposed. But\nthe Advisory Committee was closely divided upon whether there should be a rule at all and, if\nthere were to be a rule, what the form of the rule should be. Orfield, The Preliminary Draft of the\nFederal Rules of Criminal Procedure, 22 Texas L.Rev. 37, 57\xe2\x80\x9358 (1943). The principal\ndisagreement was whether the prosecutor or the defendant should initiate the process. The Second\nPreliminary Draft published in 1944 required the defendant to initiate the process by a motion to\nrequire the government to state with greater particularity the time and place it would rely on. Upon\nreceipt of this information, defendant was required to give his notice of alibi. This formulation was\n\xe2\x80\x9cvehemently objected\xe2\x80\x9d to by five members of the committee (out of a total of eighteen) and two\nalternative rule proposals were submitted to the Supreme Court. Both formulations\xe2\x80\x94one requiring\nthe prosecutor to initiate the process, the other requiring the defendant to initiate the\nprocess\xe2\x80\x94were rejected by the Court. See Epstein, Advance Notice of Alibi, 55 J.Crim.L., C. &\nP.S. 29, 30 (1964), in which the view is expressed that the unresolved split over the rule \xe2\x80\x9cprobably\ncaused\xe2\x80\x9d the court to reject an alibi-notice rule.\nRule 12.1 embodies an intermediate position. The initial burden is upon the defendant to\nraise the defense of alibi, but he need not specify the details of his alibi defense until the\ngovernment specifies the time, place, and date of alleged offense. Each party must, at the\nappropriate time, disclose the names and addresses of witnesses.\nIn 1962 the Advisory Committee drafted an alibi-notice rule and included it in the\nPreliminary Draft of December 1962, rule 12A at pp. 5\xe2\x80\x936. This time the Advisory Committee\nwithdrew the rule without submitting it to the Standing Committee on Rules of Practice and\nProcedure. Wright, Proposed Changes in Federal Civil, Criminal, and Appellate Procedure, 35\nF.R.D. 317, 326 (1964). Criticism of the December 1962 alibi-notice rule centered on\nconstitutional questions and questions of general fairness to the defendant. See Everett, Discovery\nin Criminal Cases\xe2\x80\x94In Search of a Standard, 1964 Duke L.J. 477, 497\xe2\x80\x93499.\nDoubts about the constitutionality of a notice-of-alibi rule were to some extent resolved by\nWilliams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In that case the court\nsustained the constitutionality of the Florida notice-of-alibi statute, but left unresolved two\nimportant questions.\n125\n\n\x0c(1) The court said that it was not holding that a notice-of-alibi requirement was valid under\nconditions where a defendant does not enjoy \xe2\x80\x9creciprocal discovery against the State.\xe2\x80\x9d 399 U.S. at\n82 n. 11, 90 S.Ct. 1893. Under the revision of rule 16, the defendant is entitled to substantially\nenlarged discovery in federal cases, and it would seem appropriate to conclude that the rules will\ncomply with the \xe2\x80\x9creciprocal discovery\xe2\x80\x9d qualification of the Williams decision. [See, Wardius v.\nOregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) was decided after the approval of\nproposed Rule 12.1 by the Judicial Conference of the United States. In that case the Court held the\nOregon Notice-of-Alibi statute unconstitutional because of the failure to give the defendant\nadequate reciprocal discovery rights.]\n(2) The court said that it did not consider the question of the \xe2\x80\x9cvalidity of the threatened\nsanction, had petitioner chosen not to comply with the notice-of-alibi rule.\xe2\x80\x9d 399 U.S. at 83 n. 14,\n90 S.Ct. 1893. This issue remains unresolved. [See Wardius v. Oregon, 412 U.S. at 472, Note 4, 93\nS.Ct. 2208.] Rule 12.1(e) provides that the court may exclude the testimony of any witness whose\nname has not been disclosed pursuant to the requirements of the rule. The defendant may,\nhowever, testify himself. Prohibiting from testifying a witness whose name was not disclosed is a\ncommon provision in state statutes. See Epstein, supra, at 35. It is generally assumed that the\nsanction is essential if the notice-of-alibi rule is to have practical significance. See Epstein, supra,\nat 36. The use of the term \xe2\x80\x9cmay\xe2\x80\x9d is intended to make clear that the judge may allow the alibi\nwitness to testify if, under the particular circumstances, there is cause shown for the failure to\nconform to the requirements of the rules. This is further emphasized by subdivision (f) which\nprovides for exceptions whenever \xe2\x80\x9cgood cause\xe2\x80\x9d is shown for the exception.\nThe Supreme Court of Illinois recently upheld an Illinois statute which requires a\ndefendant to give notice of his alibi witnesses although the prosecution is not required to disclose\nits alibi rebuttal witnesses. People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634 (1970). Because the\ndefense complied with the requirement, the court did not have to consider the propriety of\npenalizing noncompliance.\nThe requirement of notice of alibi seems to be an increasingly common requirement of\nstate criminal procedure. State statutes and court rules are cited in 399 U.S. at 82 n. 11, 90 S.Ct.\n1893. See also Epstein, supra.\nRule 12.1 will serve a useful purpose even though rule 16 now requires disclosure of the\nnames and addresses of government and defense witnesses. There are cases in which the identity\nof defense witnesses may be known, but it may come as a surprise to the government that they\nintend to testify as to an alibi and there may be no advance notice of the details of the claimed alibi.\nThe result often is an unnecessary interruption and delay in the trial to enable the government to\nconduct an appropriate investigation. The objective of rule 12.1 is to prevent this by providing a\nmechanism which will enable the parties to have specific information in advance of trial to prepare\nto meet the issue of alibi during the trial.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 12.1 is a new rule that deals with\nthe defense of alibi. It provides that a defendant must notify the government of his intention to rely\nupon the defense of alibi. Upon receipt of such notice, the government must advise the defendant\nof the specific time, date, and place at which the offense is alleged to have been committed. The\ndefendant must then inform the government of the specific place at which he claims to have been\nwhen the offense is alleged to have been committed, and of the names and addresses of the\n126\n\n\x0cwitnesses on whom he intends to rely to establish his alibi. The government must then inform the\ndefendant of the names and addresses of the witnesses on whom it will rely to establish the\ndefendant\'s presence at the scene of the crime. If either party fails to comply with the provisions of\nthe rule, the court may exclude the testimony of any witness whose identity is not disclosed. The\nrule does not attempt to limit the right of the defendant to testify in his own behalf.\nB. Committee Action. The Committee disagrees with the defendant-triggered procedures\nof the rule proposed by the Supreme Court. The major purpose of a notice-of-alibi rule is to\nprevent unfair surprise to the prosecution. The Committee, therefore, believes that it should be up\nto the prosecution to trigger the alibi defense discovery procedures. If the prosecution is worried\nabout being surprised by an alibi defense, it can trigger the alibi defense discovery procedures. If\nthe government fails to trigger the procedures and if the defendant raises an alibi defense at trial,\nthen the government cannot claim surprise and get a continuance of the trial.\nThe Committee has adopted a notice-of-alibi rule similar to the one now used in the District\nof Columbia. [See Rule 2\xe2\x80\x935(b) of the Rules of the United States District Court for the District of\nColumbia. See also Rule 16\xe2\x80\x931 of the Rules of Criminal Procedure for the Superior Court of the\nDistrict of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the defendant of\nthe time, place, and date of the alleged offense, then the defendant has 10 days in which to notify\nthe prosecutor of his intention to rely upon an alibi defense, specify where he claims to have been\nat the time of the alleged offense, and provide a list of his alibi witnesses. The prosecutor, within\n10 days but no later than 10 days before trial, must then provide the defendant with a list of\nwitnesses who will place the defendant at the scene of the alleged crime and those witnesses who\nwill be used to rebut the defendant\'s alibi witnesses.\nThe Committee\'s rule does not operate only to the benefit of the prosecution. In fact, its rule\nwill provide the defendant with more information than the rule proposed by the Supreme Court.\nThe rule proposed by the Supreme Court permits the defendant to obtain a list of only those\nwitnesses who will place him at the scene of the crime. The defendant, however, would get the\nnames of these witnesses anyway as part of his discovery under Rule 16(a)(1)(E). The Committee\nrule not only requires the prosecution to provide the names of witnesses who place the defendant at\nthe scene of the crime, but it also requires the prosecution to turn over the names of those witnesses\nwho will be called in rebuttal to the defendant\'s alibi witnesses. This is information that the\ndefendant is not otherwise entitled to discover.\nNotes of Advisory Committee on Rules\xe2\x80\x941985 Amendment\nNote to Subdivision (f). This clarifying amendment is intended to serve the same purpose as\na comparable change made in 1979 to similar language in Rule 11(e)(6). The change makes it clear\nthat evidence of a withdrawn intent or of statements made in connection therewith is thereafter\ninadmissible against the person who gave the notice in any civil or criminal proceeding, without\nregard to whether the proceeding is against that person.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\n\n127\n\n\x0cThe language of Rule 12.1 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only, except as noted\nbelow.\nCurrent Rules 12.1(d) and 12.1(e) have been switched in the amended rule to improve the\norganization of the rule.\nFinally, the amended rule includes a new requirement that in providing the names and\naddresses of alibi and any rebuttal witnesses, the parties must also provide the phone numbers of\nthose witnesses. See Rule 12.1(a)(2), Rule 12.1(b)(1), and Rule 12.1(c). The Committee believed\nthat requiring such information would facilitate locating and interviewing those witnesses.\nCommittee Notes on Rules\xe2\x80\x942008 Amendment\nSubdivisions (b) and (c). The amendment implements the Crime Victims\xe2\x80\x99 Rights Act,\nwhich states that victims have the right to be reasonably protected from the accused and to be\ntreated with respect for the victim\'s dignity and privacy. See 18 U.S.C. \xc2\xa73771(a)(1) & (8). The rule\nprovides that a victim\'s address and telephone number should not automatically be provided to the\ndefense when an alibi defense is raised. If a defendant establishes a need for this information, the\ncourt has discretion to order its disclosure or to fashion an alternative procedure that provides the\ndefendant with the information necessary to prepare a defense, but also protects the victim\'s\ninterests.\nIn the case of victims who will testify concerning an alibi claim, the same procedures and\nstandards apply to both the prosecutor\'s initial disclosure and the prosecutor\'s continuing duty to\ndisclose under subdivision (c).\nChanges Made to Proposed Amendment Released for Public Comment. The Committee\nmade very minor changes in the text at the suggestion of the Style Consultant. The Committee\nrevised the Note in response to public comments, omitting the suggestion that the court might upon\noccasion have the defendant and victim meet.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nThe times set in the former rule at 10 days have been revised to 14 days. See the Committee\nNote to Rule 45(a).\nAmendment by Public Law\n1975 \xe2\x80\x94Pub. L. 94\xe2\x80\x9364 amended Rule 12.1 generally.\nEffective Date of Rule; Effective Date of 1975 Amendments\nThis rule, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective\nDec. 1, 1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\nRule 12.2 Notice of an Insanity Defense; Mental Examination\n(a) Notice of an Insanity Defense. A defendant who intends to assert a defense of insanity\nat the time of the alleged offense must so notify an attorney for the government in writing within\n128\n\n\x0cthe time provided for filing a pretrial motion, or at any later time the court sets, and file a copy of\nthe notice with the clerk. A defendant who fails to do so cannot rely on an insanity defense. The\ncourt may, for good cause, allow the defendant to file the notice late, grant additional\ntrial-preparation time, or make other appropriate orders.\n(b) Notice of Expert Evidence of a Mental Condition. If a defendant intends to introduce\nexpert evidence relating to a mental disease or defect or any other mental condition of the\ndefendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case, the\ndefendant must\xe2\x80\x94within the time provided for filing a pretrial motion or at any later time the court\nsets\xe2\x80\x94notify an attorney for the government in writing of this intention and file a copy of the notice\nwith the clerk. The court may, for good cause, allow the defendant to file the notice late, grant the\nparties additional trial-preparation time, or make other appropriate orders.\n(c) Mental Examination.\n(1) Authority to Order an Examination; Procedures.\n(A) The court may order the defendant to submit to a competency examination under 18\nU.S.C. \xc2\xa74241.\n(B) If the defendant provides notice under Rule 12.2(a), the court must, upon the\ngovernment\'s motion, order the defendant to be examined under 18 U.S.C. \xc2\xa74242. If the defendant\nprovides notice under Rule 12.2(b) the court may, upon the government\'s motion, order the\ndefendant to be examined under procedures ordered by the court.\n(2) Disclosing Results and Reports of Capital Sentencing Examination. The results and\nreports of any examination conducted solely under Rule 12.2(c)(1) after notice under Rule\n12.2(b)(2) must be sealed and must not be disclosed to any attorney for the government or the\ndefendant unless the defendant is found guilty of one or more capital crimes and the defendant\nconfirms an intent to offer during sentencing proceedings expert evidence on mental condition.\n(3) Disclosing Results and Reports of the Defendant\'s Expert Examination. After\ndisclosure under Rule 12.2(c)(2) of the results and reports of the government\'s examination, the\ndefendant must disclose to the government the results and reports of any examination on mental\ncondition conducted by the defendant\'s expert about which the defendant intends to introduce\nexpert evidence.\n(4) Inadmissibility of a Defendant\'s Statements. No statement made by a defendant in the\ncourse of any examination conducted under this rule (whether conducted with or without the\ndefendant\'s consent), no testimony by the expert based on the statement, and no other fruits of the\nstatement may be admitted into evidence against the defendant in any criminal proceeding except\non an issue regarding mental condition on which the defendant:\n(A) has introduced evidence of incompetency or evidence requiring notice under Rule\n12.2(a) or (b)(1), or\n(B) has introduced expert evidence in a capital sentencing proceeding requiring notice\nunder Rule 12.2(b)(2).\n(d) Failure to Comply.\n(1) Failure to Give Notice or to Submit to Examination. The court may exclude any expert\nevidence from the defendant on the issue of the defendant\'s mental disease, mental defect, or any\nother mental condition bearing on the defendant\'s guilt or the issue of punishment in a capital case\nif the defendant fails to:\n(A) give notice under Rule 12.2(b); or\n(B) submit to an examination when ordered under Rule 12.2(c).\n(2) Failure to Disclose. The court may exclude any expert evidence for which the\n129\n\n\x0cdefendant has failed to comply with the disclosure requirement of Rule 12.2(c)(3).\n(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice\nwas given under Rule 12.2(a) or (b), later withdrawn, is not, in any civil or criminal proceeding,\nadmissible against the person who gave notice of the intention.\nNotes\n(Added Apr. 22, 1974, eff. Dec. 1, 1975; amended Pub. L. 94\xe2\x80\x9364, \xc2\xa73(14), July 31, 1975, 89\nStat. 373; Apr. 28, 1983, eff. Aug. 1, 1983; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7404, Oct. 12, 1984, 98 Stat.\n2067; Pub. L. 98\xe2\x80\x93596, \xc2\xa711(a), (b), Oct. 30, 1984, 98 Stat. 3138; Apr. 29, 1985, eff. Aug. 1, 1985;\nPub. L. 99\xe2\x80\x93646, \xc2\xa724, Nov. 10, 1986, 100 Stat. 3597; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29,\n2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.)\nNotes of Advisory Committee on Rules\xe2\x80\x941974\nRule 12.2 is designed to require a defendant to give notice prior to trial of his intention (1)\nto rely upon the defense of insanity or (2) to introduce expert testimony of mental disease or defect\non the theory that such mental condition is inconsistent with the mental state required for the\noffense charged. This rule does not deal with the issue of mental competency to stand trial.\nThe objective is to give the government time to prepare to meet the issue, which will\nusually require reliance upon expert testimony. Failure to give advance notice commonly results in\nthe necessity for a continuance in the middle of a trial, thus unnecessarily delaying the\nadministration of justice.\nA requirement that the defendant give notice of his intention to rely upon the defense of\ninsanity was proposed by the Advisory Committee in the Second Preliminary Draft of Proposed\nAmendments (March 1964), rule 12.1, p. 7. The objective of the 1964 proposal was explained in a\nbrief Advisory Committee Note:\nUnder existing procedure although insanity is a defense, once it is raised the burden to\nprove sanity beyond a reasonable doubt rests with the government. Davis v. United States, 160\nU.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). This rule requires pretrial notice to the government of\nan insanity defense, thus permitting it to prepare to meet the issue. Furthermore, in Lynch v.\nOverholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962), the Supreme Court held that, at\nleast in the face of a mandatory commitment statute, the defendant had a right to determine\nwhether or not to raise the issue of insanity. The rule gives the defendant a method of raising the\nissue and precludes any problem of deciding whether or not the defendant relied on insanity.\nThe Standing Committee on Rules of Practice and Procedure decided not to recommend\nthe proposed Notice of Insanity rule to the Supreme Court. Reasons were not given.\nRequiring advance notice of the defense of insanity is commonly recommended as a\ndesirable procedure. The Working Papers of the National Commission on Reform of Federal\nCriminal Laws, Vol. 1, p. 254 (1970), state in part:\nIt is recommended that procedural reform provide for advance notice that evidence of\nmental disease or defect will be relied upon in defense. . . .\nRequiring advance notice is proposed also by the American Law Institute\'s Model Penal\nCode, \xc2\xa74.03 (P.O.D. 1962). The commentary in Tentative Draft No. 4 at 193\xe2\x80\x93194 (1955) indicates\nthat, as of that time, six states required pretrial notice and an additional eight states required that\nthe defense of insanity be specially pleaded.\nFor recent state statutes see N.Y. CPL \xc2\xa7250.10 (McKinney\'s Consol. Laws, c. 11\xe2\x80\x93A, 1971)\n130\n\n\x0cenacted in 1970 which provides that no evidence by a defendant of a mental disease negativing\ncriminal responsibility shall be allowed unless defendant has served notice on the prosecutor of his\nintention to rely upon such defense. See also New Jersey Penal Code (Final Report of the New\nJersey Criminal Law Revision Commission, Oct. 1971) \xc2\xa72c: 4\xe2\x80\x933; New Jersey Court Rule 3:12;\nState v. Whitlow, 45 N.J. 3, 22 n. 3, 210 T.2d 763 (1965), holding the requirement of notice to be\nboth appropriate and not in violation of the privilege against self-incrimination.\nSubdivision (a) deals with notice of the \xe2\x80\x9cdefense of insanity.\xe2\x80\x9d In this context the term\ninsanity has a well-understood meaning. See, e.g., Tydings, A Federal Verdict of Not Guilty by\nReason of Insanity and a Subsequent Commitment Procedure, 27 Md.L.Rev. 131 (1967). Precisely\nhow the defense of insanity is phrased does, however, differ somewhat from circuit to circuit. See\nStudy Draft of a New Federal Criminal Code, \xc2\xa7503 Comment at 37 (USGPO 1970). For a more\nextensive discussion of present law, see Working Papers of the National Commission on Reform\nof Federal Criminal Laws, Vol. 1, pp. 229\xe2\x80\x93247 (USGPO 1970). The National Commission\nrecommends the adoption of a single test patterned after the proposal of the American Law\nInstitute\'s Model Penal Code. The proposed definition provides in part:\nIn any prosecution for an offense lack of criminal responsibility by reason of mental\ndisease or defect is a defense. [Study Draft of a New Federal Criminal Code \xc2\xa7503 at 36\xe2\x80\x9337.]\nShould the proposal of the National Commission be adopted by the Congress, the language\nof subdivision (a) probably ought to be changed to read \xe2\x80\x9cdefense of lack of criminal responsibility\nby reason of mental disease or defect\xe2\x80\x9d rather than \xe2\x80\x9cdefense of insanity.\xe2\x80\x9d\nSubdivision (b) is intended to deal with the issue of expert testimony bearing upon the\nissue of whether the defendant had the \xe2\x80\x9cmental state required for the offense charged.\xe2\x80\x9d\nThere is some disagreement as to whether it is proper to introduce evidence of mental\ndisease or defect bearing not upon the defense of insanity, but rather upon the existence of the\nmental state required by the offense charged. The American Law Institute\'s Model Penal Code\ntakes the position that such evidence is admissible [\xc2\xa74.02(1) (P.O.D. 1962)]. See also People v.\nGorshen, 51 Cal.2d 716, 336 P.2d 492 (1959).\nThe federal cases reach conflicting conclusions. See Rhodes v. United States, 282 F.2d 59,\n62 (4th Cir. 1960):\nThe proper way would have been to ask the witness to describe the defendant\'s mental\ncondition and symptoms, his pathological beliefs and motivations, if he was thus afflicted, and to\nexplain how these influenced or could have influenced his behavior, particularly his mental\ncapacity knowingly to make the false statement charged, or knowingly to forge the signatures *.\nCompare Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946).\nSubdivision (b) does not attempt to decide when expert testimony is admissible on the\nissue of the requisite mental state. It provides only that the defendant must give pretrial notice\nwhen he intends to introduce such evidence. The purpose is to prevent the need for a continuance\nwhen such evidence is offered without prior notice. The problem of unnecessary delay has arisen\nin jurisdictions which do not require prior notice of an intention to use expert testimony on the\nissue of mental state. Referring to this, the California Special Commission on Insanity and\nCriminal Offenders, First Report 30 (1962) said:\nThe abuses of the present system are great. Under a plea of \xe2\x80\x9cnot guilty\xe2\x80\x9d without any notice\nto the people that the defense of insanity will be relied upon, defendant has been able to raise the\ndefense upon the trial of the issue as to whether he committed the offense charged.\nAs an example of the delay occasioned by the failure to heretofore require a pretrial notice\nby the defendant, see United States v. Albright, 388 F.2d 719 (4th Cir. 1968), where a jury trial was\n131\n\n\x0crecessed for 23 days to permit a psychiatric examination by the prosecution when the defendant\ninjected a surprise defense of lack of mental competency.\nSubdivision (c) gives the court the authority to order the defendant to submit to a\npsychiatric examination by a psychiatrist designated by the court. A similar provision is found in\nALI, Model Penal Code \xc2\xa74.05(1) (P.O.D. 1962). This is a common provision of state law, the\nconstitutionality of which has been sustained. Authorities are collected in ALI, Model Penal Code,\npp. 195\xe2\x80\x93196 Tent. Draft No. 4, (1955). For a recent proposal, see the New Jersey Penal Code \xc2\xa72c:\n4\xe2\x80\x935 (Final Report of the New Jersey Criminal Law Revision Commission, Oct. 1971) authorizing\nappointment of \xe2\x80\x9cat least one qualified psychiatrist to examine and report upon the mental condition\nof the defendant.\xe2\x80\x9d Any issue of self-incrimination which might arise can be dealt with by the court\nas, for example, by a bifurcated trial which deals separately with the issues of guilt and of mental\nresponsibility. For statutory authority to appoint a psychiatrist with respect to competency to stand\ntrial, see 18 U.S.C. \xc2\xa74244.\nSubdivision (d) confers authority on the court to exclude expert testimony in behalf of a\ndefendant who has failed to give notice under subdivision (b) or who refuses to be examined by a\ncourt-appointed psychiatrist under subdivision (c). See State v. Whitlow, 45 N.J. 3, 23, 210 A.2d\n763 (1965), which indicates that it is proper to limit or exclude testimony by a defense psychiatrist\nwhenever defendant refuses to be examined.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 12.2 is a new rule that deals with\ndefense based upon mental condition. It provides that: (1) The defendant must notify the\nprosecution in writing of his intention to rely upon the defense of insanity. If the defendant fails to\ncomply, \xe2\x80\x9cinsanity may not be raised as a defense.\xe2\x80\x9d (2) If the defendant intends to introduce expert\ntestimony relating to mental disease or defect on the issue whether he had the requisite mental\nstate, he must notify the prosecution in writing. (3) The court, on motion of the prosecution, may\norder the defendant to submit to a psychiatric examination by a court-appointed psychiatrist. (4) If\nthe defendant fails to undergo the court-ordered psychiatric examination, the court may exclude\nany expert witness the defendant offers on the issue of his mental state.\nB. Committee Action. The Committee agrees with the proposed rule but has added\nlanguage concerning the use of statements made to a psychiatrist during the course of a psychiatric\nexamination provided for by Rule 12.2. The language provides:\nNo statement made by the accused in the course of any examination provided for by this\nrule, whether the examination shall be with or without the consent of the accused, shall be admitted\nin evidence against the accused before the judge who or jury which determines the guilt of the\naccused, prior to the determination of guilt.\nThe purpose of this rule is to secure the defendant\'s fifth amendment right against\nself-incrimination. See State v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967). The provision is\nflexible and does not totally preclude the use of such statements. For example, the defendant\'s\nstatement can be used at a separate determination of the issue of sanity or for sentencing purposes\nonce guilt has been determined. A limiting instruction to the jury in a single trial to consider\nstatements made to the psychiatrist only on the issue of sanity would not satisfy the requirements\nof the rule as amended. The prejudicial effect on the determination of guilt would be inescapable.\nThe Committee notes that the rule does not attempt to resolve the issue whether the court\ncan constitutionally compel a defendant to undergo a psychiatric examination when the defendant\n132\n\n\x0cis unwilling to undergo one. The provisions of subdivision (c) are qualified by the phrase, \xe2\x80\x9cIn an\nappropriate case.\xe2\x80\x9d If the court cannot constitutionally compel an unwilling defendant to undergo a\npsychiatric examination, then the provisions of subdivision (c) are inapplicable in every instance\nwhere the defendant is unwilling to undergo a court-ordered psychiatric examination. The\nCommittee, by its approval of subdivision (c), intends to take no stand whatever on the\nconstitutional question.\nConference Committee Notes, House Report No. 94\xe2\x80\x93414; 1975 Amendment\nRule 12.2(c) deals with court-ordered psychiatric examinations. The House version\nprovides that no statement made by a defendant during a court-ordered psychiatric examination\ncould be admitted in evidence against the defendant before the trier of fact that determines the\nissue of guilt prior to the determination of guilt. The Senate version deletes this provision.\nThe Conference adopts a modified House provision and restores to the bill the language of\nH.R. 6799 as it was originally introduced. The Conference adopted language provides that no\nstatement made by the defendant during a psychiatric examination provided for by the rule shall be\nadmitted against him on the issue of guilt in any criminal proceeding.\nThe Conference believes that the provision in H.R. 6799 as originally introduced in the\nHouse adequately protects the defendant\'s fifth amendment right against self-incrimination. The\nrule does not preclude use of statements made by a defendant during a court-ordered psychiatric\nexamination. The statements may be relevant to the issue of defendant\'s sanity and admissible on\nthat issue. However, a limiting instruction would not satisfy the rule if a statement is so prejudicial\nthat a limiting instruction would be ineffective. Cf. practice under 18 U.S.C. 4244.\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nNote to Subdivision (b). Courts have recently experienced difficulty with the question of\nwhat kind of expert testimony offered for what purpose falls within the notice requirement of rule\n12.2(b). See, e.g., United States v. Hill, 655 F.2d 512 (3d Cir. 1980) (rule not applicable to\ntendered testimony of psychologist concerning defendant\'s susceptibility of inducement, offered to\nreinforce defendant\'s entrapment defense); United States v. Webb, 625 F.2d 709 (5th Cir. 1980)\n(rule not applicable to expert testimony tendered to show that defendant lacked the \xe2\x80\x9cpropensity to\ncommit a violent act,\xe2\x80\x9d as this testimony was offered \xe2\x80\x9cto prove that Webb did not commit the\noffense charged,\xe2\x80\x9d shooting at a helicopter, \xe2\x80\x9cnot that certain conduct was unaccompanied by\ncriminal intent\xe2\x80\x9d); United States v. Perl, 584 F.2d 1316 (4th Cir. 1978) (because entrapment\ndefense properly withheld from jury, it was unnecessary to decide if the district court erred in\nholding rule applicable to tendered testimony of the doctor that defendant had increased\nsusceptibility to suggestion as a result of medication he was taking); United States v. Olson, 576\nF.2d 1267 (8th Cir. 1978) (rule applicable to tendered testimony of an alcoholism and drug\ntherapist that defendant was not responsible for his actions because of a problem with alcohol);\nUnited States v. Staggs, 553 F.2d 1073 (7th Cir. 1977) (rule applicable to tendered testimony of\npsychologist that defendant, charged with assaulting federal officer, was more likely to hurt\nhimself than to direct his aggressions toward others, as this testimony bears upon whether\ndefendant intended to put victim in apprehension when he picked up the gun).\nWhat these cases illustrate is that expert testimony about defendant\'s mental condition may\nbe tendered in a wide variety of circumstances well beyond the situation clearly within rule\n133\n\n\x0c12.2(b), i.e., where a psychiatrist testifies for the defendant regarding his diminished capacity. In\nall of these situations and others like them, there is good reason to make applicable the notice\nprovisions of rule 12.2(b). This is because in all circumstances in which the defendant plans to\noffer expert testimony concerning his mental condition at the time of the crime charged, advance\ndisclosure to the government will serve \xe2\x80\x9cto permit adequate pretrial preparation, to prevent\nsurprise at trial, and to avoid the necessity of delays during trial.\xe2\x80\x9d 2 A.B.A. Standards for Criminal\nJustice 11\xe2\x80\x9355 (2d 1980). Thus, while the district court in United States v. Hill, 481 F.Supp. 558\n(E.D.Pa. 1979), incorrectly concluded that present rule 12.2(b) covers testimony by a psychologist\nbearing on the defense of entrapment, the court quite properly concluded that the government\nwould be seriously disadvantaged by lack of notice. This would have meant that the government\nwould not have been equipped to cross-examine the expert, that any expert called by the\ngovernment would not have had an opportunity to hear the defense expert testify, and that the\ngovernment would not have had an opportunity to conduct the kind of investigation needed to\nacquire rebuttal testimony on defendant\'s claim that he was especially susceptible to inducement.\nConsequently, rule 12.2(b) has been expanded to cover all of the aforementioned situations.\nNote to Subdivision (c). The amendment of the first sentence of subdivision (c),\nrecognizing that the government may seek to have defendant subjected to a mental examination by\nan expert other than a psychiatrist, is prompted by the same considerations discussed above.\nBecause it is possible that the defendant will submit to examination by an expert of his own other\nthan a psychiatrist, it is necessary to recognize that it will sometimes be appropriate for defendant\nto be examined by a government expert other than a psychiatrist.\nThe last sentence of subdivision (c) has been amended to more accurately reflect the Fifth\nAmendment considerations at play in this context. See Estelle v. Smith, 451 U.S. 454 (1981),\nholding that self-incrimination protections are not inevitably limited to the guilt phase of a trial and\nthat the privilege, when applicable, protects against use of defendant\'s statement and also the fruits\nthereof, including expert testimony based upon defendant\'s statements to the expert. Estelle also\nintimates that \xe2\x80\x9ca defendant can be required to submit to a sanity examination,\xe2\x80\x9d and presumably\nsome other form of mental examination, when \xe2\x80\x9chis silence may deprive the State of the only\neffective means it has of controverting his proof on an issue that he interjected into the case.\xe2\x80\x9d\nNote to Subdivision (d). The broader term \xe2\x80\x9cmental condition\xe2\x80\x9d is appropriate here in light of\nthe above changes to subdivisions (b) and (c).\nNote to Subdivision (e). New subdivision (e), generally consistent with the protection\nafforded in rule 12.1(f) with respect to notice of alibi, ensures that the notice required under\nsubdivision (b) will not deprive the defendant of an opportunity later to elect not to utilize any\nexpert testimony. This provision is consistent with Williams v. Florida, 399 U.S. 78 (1970),\nholding the privilege against self-incrimination is not violated by requiring the defendant to give\nnotice of a defense where the defendant retains the \xe2\x80\x9cunfettered choice\xe2\x80\x9d of abandoning the defense.\nDissenting Statement of Justice O\'Connor to 1983 Amendment\nWith one minor reservation, I join the Court in its adoption of the proposed amendments.\nThey represent the product of considerable effort by the Advisory Committee, and they will\ninstitute desirable reforms. My sole disagreement with the Court\'s action today lies in its failure to\nrecommend correction of an apparent error in the drafting of Proposed Rule 12.2(e).\nAs proposed, Rule 12.2(e) reads:\n\xe2\x80\x9cEvidence of an intention as to which notice was given under subdivision (a) or (b), later\n134\n\n\x0cwithdrawn, is not admissible in any civil or criminal proceeding against the person who gave\nnotice of the intention.\xe2\x80\x9d\nIdentical language formerly appeared in Fed. Rules Crim. Proc. 11(e)(6) and Fed. Rules\nEvid. 410, each of which stated that\n\xe2\x80\x9c[Certain material] is not admissible in any civil or criminal proceeding against the\ndefendant.\xe2\x80\x9d\nThose rules were amended, Supreme Court Order April 30, 1979, 441 U.S. 970, 987, 1007,\nPub. Law 96\xe2\x80\x9342, approved July 31, 1979, 93 Stat. 326. After the amendments, the relevant\nlanguage read,\n\xe2\x80\x9c[Certain material] is not, in any civil or criminal proceeding, admissible against the\ndefendant.\xe2\x80\x9d\nAs the Advisory Committee explained, this minor change was necessary to eliminate an\nambiguity. Before the amendment, the word \xe2\x80\x9cagainst\xe2\x80\x9d could be read as referring either to the kind\nof proceeding in which the evidence was offered or to the purpose for which it was offered. Thus,\nfor instance, if a person was a witness in a suit but not a party, it was unclear whether the evidence\ncould be used to impeach him. In such a case, the use would be against the person, but the\nproceeding would not be against him. Similarly, if the person wished to introduce the evidence in\na proceeding in which he was the defendant, the use, but not the proceeding, would be against him.\nTo eliminate the ambiguity, the Advisory Committee proposed the amendment clarifying that the\nevidence was inadmissible against the person, regardless of whether the particular proceeding was\nagainst the person. See Adv. Comm. Note to Fed. Rules Crim. Proc. 11(e)(6); Adv. Comm. Note to\nFed. Rules Evid. 410.\nThe same ambiguity inheres in the proposed version of Rule 12.2(e). We should\nrecommend that it be eliminated now. To that extent, I respectfully dissent.\nNotes of Advisory Committee on Rules\xe2\x80\x941985 Amendment\nNote to Subdivision (e). This clarifying amendment is intended to serve the same purpose\nas a comparable change made in 1979 to similar language in Rule 11(e)(6). The change makes it\nclear that evidence of a withdrawn intent is thereafter inadmissible against the person who gave the\nnotice in any civil or criminal proceeding, without regard to whether the proceeding is against that\nperson.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 12.2 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only, except as noted\nbelow.\nThe substantive changes to Rule 12.2 are designed to address five issues. First, the\namendment clarifies that a court may order a mental examination for a defendant who has\nindicated an intention to raise a defense of mental condition bearing on the issue of guilt. Second,\n135\n\n\x0cthe defendant is required to give notice of an intent to present expert evidence of the defendant\'s\nmental condition during a capital sentencing proceeding. Third, the amendment addresses the\nability of the trial court to order a mental examination for a defendant who has given notice of an\nintent to present evidence of mental condition during capital sentencing proceedings and when the\nresults of that examination may be disclosed. Fourth, the amendment addresses the timing of\ndisclosure of the results and reports of the defendant\'s expert examination. Finally, the amendment\nextends the sanctions for failure to comply with the rule\'s requirements to the punishment phase of\na capital case.\nUnder current Rule 12.2(b), a defendant who intends to offer expert testimony on the issue\nof his or her mental condition on the question of guilt must provide a pretrial notice of that intent.\nThe amendment extends that notice requirement to a defendant who intends to offer expert\nevidence, testimonial or otherwise, on his or her mental condition during a capital sentencing\nproceeding. As several courts have recognized, the better practice is to require pretrial notice of\nthat intent so that any mental examinations can be conducted without unnecessarily delaying\ncapital sentencing proceedings. See, e.g., United States v. Beckford, 962 F. Supp. 748, 754\xe2\x80\x9364\n(E.D. Va. 1997); United States v. Haworth, 942 F. Supp. 1406, 1409 (D.N.M. 1996). The\namendment adopts that view.\nRevised Rule 12.2(c)(1) addresses and clarifies the authority of the court to order mental\nexaminations for a defendant\xe2\x80\x94to determine competency of a defendant to stand trial under 18\nU.S.C. \xc2\xa74241; to determine the defendant\'s sanity at the time of the alleged offense under 18\nU.S.C. \xc2\xa74242; or in those cases where the defendant intends to present expert testimony on his or\nher mental condition. Rule 12.2(c)(1)(A) reflects the traditional authority of the court to order\ncompetency examinations. With regard to examinations to determine insanity at the time of the\noffense, current Rule 12.2(c) implies that the trial court may grant a government motion for a\nmental examination of a defendant who has indicated under Rule 12.2(a) an intent to raise the\ndefense of insanity. But the corresponding statute, 18 U.S.C. \xc2\xa74242, requires the court to order an\nexamination if the defendant has provided notice of an intent to raise that defense and the\ngovernment moves for the examination. Revised Rule 12.2(c)(1)(B) now conforms the rule to\n\xc2\xa74242. Any examination conducted on the issue of the insanity defense would thus be conducted\nin accordance with the procedures set out in that statutory provision.\nRevised Rule 12.2(c)(1)(B) also addresses those cases where the defendant is not relying\non an insanity defense, but intends to offer expert testimony on the issue of mental condition.\nWhile the authority of a trial court to order a mental examination of a defendant who has registered\nan intent to raise the insanity defense seems clear, the authority under the rule to order an\nexamination of a defendant who intends only to present expert testimony on his or her mental\ncondition on the issue of guilt is not as clear. Some courts have concluded that a court may order\nsuch an examination. See, e.g., United States v. Stackpole, 811 F.2d 689, 697 (1st Cir. 1987);\nUnited States v. Buchbinder, 796 F.2d 910, 915 (1st Cir. 1986); and United States v. Halbert, 712\nF.2d 388 (9th Cir. 1983). In United States v. Davis, 93 F.3d 1286 (6th Cir. 1996), however, the\ncourt in a detailed analysis of the issue concluded that the district court lacked the authority under\nthe rule to order a mental examination of a defendant who had provided notice of an intent to offer\nevidence on a defense of diminished capacity. The court noted first that the defendant could not be\nordered to undergo commitment and examination under 18 U.S.C. \xc2\xa74242, because that provision\nrelates to situations when the defendant intends to rely on the defense of insanity. The court also\nrejected the argument that the examination could be ordered under Rule 12.2(c) because this was,\nin the words of the rule, an \xe2\x80\x9cappropriate case.\xe2\x80\x9d The court concluded, however, that the trial court\n136\n\n\x0chad the inherent authority to order such an examination.\nThe amendment clarifies that the authority of a court to order a mental examination under\nRule 12.2(c)(1)(B) extends to those cases when the defendant has provided notice, under Rule\n12.2(b), of an intent to present expert testimony on the defendant\'s mental condition, either on the\nmerits or at capital sentencing. See, e.g., United States v. Hall, 152 F.3d 381 (5th Cir. 1998), cert.\ndenied, 119 S. Ct. 1767 (1999).\nThe amendment to Rule 12.2(c)(1) is not intended to affect any statutory or inherent\nauthority a court may have to order other mental examinations.\nThe amendment leaves to the court the determination of what procedures should be used\nfor a court-ordered examination on the defendant\'s mental condition (apart from insanity). As\ncurrently provided in the rule, if the examination is being ordered in connection with the\ndefendant\'s stated intent to present an insanity defense, the procedures are dictated by 18 U.S.C.\n\xc2\xa74242. On the other hand, if the examination is being ordered in conjunction with a stated intent to\npresent expert testimony on the defendant\'s mental condition (not amounting to a defense of\ninsanity) either at the guilt or sentencing phases, no specific statutory counterpart is available.\nAccordingly, the court is given the discretion to specify the procedures to be used. In so doing, the\ncourt may certainly be informed by other provisions, which address hearings on a defendant\'s\nmental condition. See, e.g., 18 U.S.C. \xc2\xa74241, et seq.\nAdditional changes address the question when the results of an examination ordered under\nRule 12.2(b)(2) may, or must, be disclosed. The Supreme Court has recognized that use of a\ndefendant\'s statements during a court-ordered examination may compromise the defendant\'s right\nagainst self-incrimination. See Estelle v. Smith, 451 U.S. 454 (1981) (defendant\'s privilege against\nself-incrimination violated when he was not advised of right to remain silent during court-ordered\nexamination and prosecution introduced statements during capital sentencing hearing). But\nsubsequent cases have indicated that the defendant waives the privilege if the defendant introduces\nexpert testimony on his or her mental condition. See, e.g., Powell v. Texas, 492 U.S. 680, 683 \xe2\x80\x9384\n(1989); Buchanan v. Kentucky, 483 U.S. 402, 421 \xe2\x80\x9324 (1987); Presnell v. Zant, 959 F.2d 1524,\n1533 (11th Cir. 1992); Williams v. Lynaugh, 809 F.2d 1063, 1068 (5th Cir. 1987); United States v.\nMadrid, 673 F.2d 1114, 1119-21 (10th Cir. 1982). That view is reflected in Rule 12.2(c), which\nindicates that the statements of the defendant may be used against the defendant only after the\ndefendant has introduced testimony on his or her mental condition. What the current rule does not\naddress is if, and to what extent, the prosecution may see the results of the examination, which may\ninclude the defendant\'s statements, when evidence of the defendant\'s mental condition is being\npresented solely at a capital sentencing proceeding.\nThe proposed change in Rule 12.2(c)(2) adopts the procedure used by some courts to seal\nor otherwise insulate the results of the examination until it is clear that the defendant will introduce\nexpert evidence about his or her mental condition at a capital sentencing hearing; i.e., after a\nverdict of guilty on one or more capital crimes, and a reaffirmation by the defendant of an intent to\nintroduce expert mental-condition evidence in the sentencing phase. See, e.g., United States v.\nBeckford, 962 F. Supp. 748 (E.D. Va. 1997). Most courts that have addressed the issue have\nrecognized that if the government obtains early access to the accused\'s statements, it will be\nrequired to show that it has not made any derivative use of that evidence. Doing so can consume\ntime and resources. See, e.g., United States v. Hall, supra, 152 F.3d at 398 (noting that sealing of\nrecord, although not constitutionally required, \xe2\x80\x9clikely advances interests of judicial economy by\navoiding litigation over [derivative use issue]\xe2\x80\x9d).\nExcept as provided in Rule 12.2(c)(3), the rule does not address the time for disclosing\n137\n\n\x0cresults and reports of any expert examination conducted by the defendant. New Rule 12.2(c)(3)\nprovides that upon disclosure under subdivision (c)(2) of the results and reports of the\ngovernment\'s examination, disclosure of the results and reports of the defendant\'s expert\nexamination is mandatory, if the defendant intends to introduce expert evidence relating to the\nexamination.\nRule 12.2(c), as previously written, restricted admissibility of the defendant\'s statements\nduring the course of an examination conducted under the rule to an issue respecting mental\ncondition on which the defendant \xe2\x80\x9chas introduced testimony\xe2\x80\x9d\xe2\x80\x94expert or otherwise. As amended,\nRule 12.2(c)(4) provides that the admissibility of such evidence in a capital sentencing proceeding\nis triggered only by the defendant\'s introduction of expert evidence. The Committee believed that,\nin this context, it was appropriate to limit the government\'s ability to use the results of its expert\nmental examination to instances in which the defendant has first introduced expert evidence on the\nissue.\nRule 12.2(d) has been amended to extend sanctions for failure to comply with the rule to\nthe penalty phase of a capital case. The selection of an appropriate remedy for the failure of a\ndefendant to provide notice or submit to an examination under subdivisions (b) and (c) is entrusted\nto the discretion of the court. While subdivision (d) recognizes that the court may exclude the\nevidence of the defendant\'s own expert in such a situation, the court should also consider \xe2\x80\x9cthe\neffectiveness of less severe sanctions, the impact of preclusion on the evidence at trial and the\noutcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation\nwas willful.\xe2\x80\x9d Taylor v. Illinois, 484 U.S. 400, 414 n.19 (1988) (citing Fendler v. Goldsmith, 728\nF.2d 1181 (9th Cir. 1983)).\nCommittee Notes on Rules\xe2\x80\x942005 Amendment\nThe amendment to Rule 12.2(d) fills a gap created in the 2002 amendments to the rule. The\nsubstantively amended rule that took effect December 1, 2002, permits a sanction of exclusion of\n\xe2\x80\x9cany expert evidence\xe2\x80\x9d for failure to give notice or failure to submit to an examination, but provides\nno sanction for failure to disclose reports. The proposed amendment is designed to address that\nspecific issue.\nRule 12.2(d)(1) is a slightly restructured version of current Rule 12.2(d). Rule 12.2(d)(2) is\nnew and permits the court to exclude any expert evidence for failure to comply with the disclosure\nrequirement in Rule 12.2(c)(3). The sanction is intended to relate only to the evidence related to\nthe matters addressed in the report, which the defense failed to disclose. Unlike the broader\nsanction for the two violations listed in Rule 12.2(d)(1)\xe2\x80\x94which can substantially affect the entire\nhearing\xe2\x80\x94the Committee believed that it would be overbroad to expressly authorize exclusion of\n\xe2\x80\x9cany\xe2\x80\x9d expert evidence, even evidence unrelated to the results and reports that were not disclosed,\nas required in Rule 12.2(c)(3).\nThe rule assumes that the sanction of exclusion will result only where there has been a\ncomplete failure to disclose the report. If the report is disclosed, albeit in an untimely fashion,\nother relief may be appropriate, for example, granting a continuance to the government to review\nthe report.\nChanges Made After Publication and Comment. The Committee made no additional\nchanges to Rule 12.2, following publication.\nAmendment by Public Law\n\n138\n\n\x0c1986 \xe2\x80\x94Subd. (c). Pub. L. 99\xe2\x80\x93646 inserted \xe2\x80\x9c4241 or\xe2\x80\x9d before \xe2\x80\x9c4242\xe2\x80\x9d.\n1984 \xe2\x80\x94Subd. (a). Pub. L. 98\xe2\x80\x93473, \xc2\xa7404(a), substituted \xe2\x80\x9coffense\xe2\x80\x9d for \xe2\x80\x9ccrime\xe2\x80\x9d.\nSubd. (b). Pub. L. 98\xe2\x80\x93473, \xc2\xa7404(b), which directed the amendment of subd. (b) by deleting\n\xe2\x80\x9cother condition bearing upon the issue of whether he had the mental state required for the offense\ncharged\xe2\x80\x9d and inserting in lieu thereof \xe2\x80\x9cany other mental condition bearing upon the issue of guilt\xe2\x80\x9d,\nwas repealed by section 11(b) of Pub. L. 98\xe2\x80\x93596.\nSubd. (c). Pub. L. 98\xe2\x80\x93596, \xc2\xa711(a)(1), substituted \xe2\x80\x9cto an examination pursuant to 18 U.S.C.\n4242 \xe2\x80\x9d for \xe2\x80\x9cto a mental examination by a psychiatrist or other expert designated for this purpose in\nthe order of the court\xe2\x80\x9d.\nPub. L. 98\xe2\x80\x93473, \xc2\xa7404(c), which directed the amendment of subd. (c) by deleting \xe2\x80\x9cto a\npsychiatric examination by a psychiatrist designated for this purpose in the order of the court\xe2\x80\x9d and\ninserting in lieu thereof \xe2\x80\x9cto an examination pursuant to 18 U.S.C. 4242 \xe2\x80\x9d could not be executed\nbecause the phrase to be deleted did not appear. See amendment note for section 11(a)(1) of Pub.\nL. 98\xe2\x80\x93596 above.\nSubd. (d). Pub. L. 98\xe2\x80\x93596, \xc2\xa711(a)(2), substituted \xe2\x80\x9cguilt\xe2\x80\x9d for \xe2\x80\x9cmental condition\xe2\x80\x9d.\nPub. L. 98\xe2\x80\x93473, \xc2\xa7404(d), which directed the amendment of subd. (d) by deleting \xe2\x80\x9cmental\nstate\xe2\x80\x9d and inserting in lieu thereof \xe2\x80\x9cguilt\xe2\x80\x9d, was repealed by section 11(b) of Pub. L. 98\xe2\x80\x93596.\n1975 \xe2\x80\x94Pub. L. 94\xe2\x80\x9364 amended subd. (c) generally.\nEffective Date of 1984 Amendment\nSection 11(c) of Pub. L. 98\xe2\x80\x93596 provided that: \xe2\x80\x9cThe amendments and repeals made by\nsubsections (a) and (b) of this section [amending this rule] shall apply on and after the enactment\nof the joint resolution entitled \xe2\x80\x98Joint resolution making continuing appropriations for the fiscal\nyear 1985, and for other purposes\xe2\x80\x99, H.J. Res. 648, Ninety-eighth Congress [Pub. L. 98\xe2\x80\x93473, Oct.\n12, 1984].\xe2\x80\x9d\nEffective Date of Rule; Effective Date of 1975 Amendments\nThis rule, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective\nDec. 1, 1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\nRule 12.3 Notice of a Public-Authority Defense\n(a) Notice of the Defense and Disclosure of Witnesses.\n(1) Notice in General. If a defendant intends to assert a defense of actual or believed\nexercise of public authority on behalf of a law enforcement agency or federal intelligence agency\nat the time of the alleged offense, the defendant must so notify an attorney for the government in\nwriting and must file a copy of the notice with the clerk within the time provided for filing a\npretrial motion, or at any later time the court sets. The notice filed with the clerk must be under seal\nif the notice identifies a federal intelligence agency as the source of public authority.\n(2) Contents of Notice. The notice must contain the following information:\n(A) the law enforcement agency or federal intelligence agency involved;\n(B) the agency member on whose behalf the defendant claims to have acted; and\n(C) the time during which the defendant claims to have acted with public authority.\n(3) Response to the Notice. An attorney for the government must serve a written response\n139\n\n\x0con the defendant or the defendant\'s attorney within 14 days after receiving the defendant\'s notice,\nbut no later than 21 days before trial. The response must admit or deny that the defendant exercised\nthe public authority identified in the defendant\'s notice.\n(4) Disclosing Witnesses.\n(A) Government\'s Request. An attorney for the government may request in writing that the\ndefendant disclose the name, address, and telephone number of each witness the defendant intends\nto rely on to establish a public-authority defense. An attorney for the government may serve the\nrequest when the government serves its response to the defendant\'s notice under Rule 12.3(a)(3),\nor later, but must serve the request no later than 21 days before trial.\n(B) Defendant\'s Response. Within 14 days after receiving the government\'s request, the\ndefendant must serve on an attorney for the government a written statement of the name, address,\nand telephone number of each witness.\n(C) Government\'s Reply. Within 14 days after receiving the defendant\'s statement, an\nattorney for the government must serve on the defendant or the defendant\'s attorney a written\nstatement of the name of each witness \xe2\x80\x94 and the address and telephone number of each witness\nother than a victim \xe2\x80\x94 that the government intends to rely on to oppose the defendant\'s\npublic-authority defense.\n(D) Victim\'s Address and Telephone Number. If the government intends to rely on a\nvictim\'s testimony to oppose the defendant\'s public-authority defense and the defendant\nestablishes a need for the victim\'s address and telephone number, the court may:\n(i) order the government to provide the information in writing to the defendant or the\ndefendant\'s attorney; or\n(ii) fashion a reasonable procedure that allows for preparing the defense and also protects\nthe victim\'s interests.\n(5) Additional Time. The court may, for good cause, allow a party additional time to\ncomply with this rule.\n(b) Continuing Duty to Disclose.\n(1) In General. Both an attorney for the government and the defendant must promptly\ndisclose in writing to the other party the name of any additional witness \xe2\x80\x94 and the address, and\ntelephone number of any additional witness other than a victim \xe2\x80\x94 if:\n(A) the disclosing party learns of the witness before or during trial; and\n(B) the witness should have been disclosed under Rule 12.3(a)(4) if the disclosing party\nhad known of the witness earlier.\n(2) Address and Telephone Number of an Additional Victim-Witness. The address and\ntelephone number of an additional victim-witness must not be disclosed except as provided in Rule\n12.3(a)(4)(D).\n(c) Failure to Comply. If a party fails to comply with this rule, the court may exclude the\ntestimony of any undisclosed witness regarding the public-authority defense. This rule does not\nlimit the defendant\'s right to testify.\n(d) Protective Procedures Unaffected. This rule does not limit the court\'s authority to issue\nappropriate protective orders or to order that any filings be under seal.\n(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice\nwas given under Rule 12.3(a), later withdrawn, is not, in any civil or criminal proceeding,\nadmissible against the person who gave notice of the intention.\nNotes\n\n140\n\n\x0c(Added Pub. L. 100\xe2\x80\x93690, title VI, \xc2\xa76483, Nov. 18, 1988, 102 Stat. 4382; amended Apr. 29,\n2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010.)\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 12.3 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only, except as noted\nbelow.\nSubstantive changes have been made in Rule 12.3(a)(4) and 12.3(b). As in Rule 12.1, the\nCommittee decided to include in the restyled rule the requirement that the parties provide the\ntelephone numbers of any witnesses disclosed under the rule.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nThe times set in the former rule at 7, 10, or 20 days have been revised to 14 or 21 days. See\nthe Committee Note to Rule 45(a).\nCommittee Notes on Rules\xe2\x80\x942010 Amendment\nSubdivisions (a) and (b). The amendment implements the Crime Victims\xe2\x80\x99 Rights Act,\nwhich states that victims have the right to be reasonably protected from the accused, and to be\ntreated with respect for the victim\xe2\x80\x99s dignity and privacy. See 18 U.S.C. \xc2\xa7 3771(a)(1) & (8). The\nrule provides that a victim\xe2\x80\x99s address and telephone number should not automatically be provided\nto the defense when a public-authority defense is raised. If a defendant establishes a need for this\ninformation, the court has discretion to order its disclosure or to fashion an alternative procedure\nthat provides the defendant with the information necessary to prepare a defense, but also protects\nthe victim\xe2\x80\x99s interests.\nIn the case of victims who will testify concerning a public-authority claim, the same\nprocedures and standards apply to both the prosecutor\xe2\x80\x99s initial disclosure and the prosecutor\xe2\x80\x99s\ncontinuing duty to disclose under subdivision (b).\nChanges Made to Proposed Amendment Released for Public Comment.\nNo changes were made after the amendment was released for public comment.\n\nRule 12.4 Disclosure Statement\n(a) Who Must File.\n(1) Nongovernmental Corporate Party. Any nongovernmental corporate party to a\nproceeding in a district court must file a statement that identifies any parent corporation and any\npublicly held corporation that owns 10% or more of its stock or states that there is no such\ncorporation.\n(2) Organizational Victim. If an organization is a victim of the alleged criminal activity, the\ngovernment must file a statement identifying the victim. If the organizational victim is a\ncorporation, the statement must also disclose the information required by Rule 12.4(a)(1) to the\nextent it can be obtained through due diligence.\n(b) Time for Filing; Supplemental Filing. A party must:\n(1) file the Rule 12.4(a) statement upon the defendant\'s initial appearance; and\n141\n\n\x0c(2) promptly file a supplemental statement upon any change in the information that the\nstatement requires.\nNotes\n(Added Apr. 29, 2002, eff. Dec. 1, 2002.)\nCommittee Notes on Rules\xe2\x80\x942002\nRule 12.4 is a new rule modeled after Federal Rule of Appellate Procedure 26.1 and\nparallels similar provisions being proposed in new Federal Rule of Civil Procedure 7.1. The\npurpose of the rule is to assist judges in determining whether they must recuse themselves because\nof a \xe2\x80\x9cfinancial interest in the subject matter in controversy.\xe2\x80\x9d Code of Judicial Conduct, Canon\n3C(1)(c)(1972). It does not, however, deal with other circumstances that might lead to\ndisqualification for other reasons.\nUnder Rule 12.4(a)(1), any nongovernmental corporate party must file a statement that\nindicates whether it has any parent corporation that owns 10% or more of its stock or indicates that\nthere is no such corporation. Although the term \xe2\x80\x9cnongovernmental corporate party\xe2\x80\x9d will almost\nalways involve organizational defendants, it might also cover any third party that asserts an\ninterest in property to be forfeited under new Rule 32.2.\nRule 12.4(a)(2) requires an attorney for the government to file a statement that lists any\norganizational victims of the alleged criminal activity; the purpose of this disclosure is to alert the\ncourt to the fact that a possible ground for disqualification might exist. Further, if the\norganizational victim is a corporation, the statement must include the same information required of\nany nongovernmental corporate party. The rule requires an attorney for the government to use due\ndiligence in obtaining that information from a corporate organizational victim, recognizing that the\ntiming requirements of Rule 12.4(b) might make it difficult to obtain the necessary information by\nthe time the initial appearance is conducted.\nAlthough the disclosures required by Rule 12.4 may seem limited, they are calculated to\nreach the majority of circumstances that are likely to call for disqualification on the basis of\ninformation that a judge may not know or recollect. Framing a rule that calls for more detailed\ndisclosure is problematic and will inevitably require more information than is necessary for\npurposes of automatic recusal. Unnecessary disclosure of volumes of information may create the\nrisk that a judge will overlook the one bit of information that might require disqualification, and\nmay also create the risk that courts will experience unnecessary disqualifications rather than\nattempt to unravel a potentially difficult question.\nThe same concerns about overbreadth are potentially present in any local rules that might\naddress this topic. Rule 12.4 does not address the promulgation of any local rules that might\naddress the same issue, or supplement the requirements of the rule.\nThe rule does not cover disclosure of all financial information that could be relevant to a\njudge\'s decision whether to recuse himself or herself from a case. The Committee believes that\nwith the various disclosure practices in the federal courts and with the development of technology,\nmore comprehensive disclosure may be desirable and feasible.\nRule 12.4(b)(1) indicates that the time for filing the disclosure statement is at the point\nwhen the defendant enters an initial appearance under Rule 5. Although there may be other\ninstances where an earlier appearance of a party in a civil proceeding would raise concerns about\nwhether the presiding judicial officer should be notified of a possible grounds for recusal, the\n142\n\n\x0cCommittee believed that in criminal cases, the most likely time for that to occur is at the initial\nappearance and that it was important to set a uniform triggering event for disclosures under this\nrule.\nFinally, Rule 12.4(b)(2) requires the parties to file supplemental statements with the court\nif there are any changes in the information required in the statement.\n\nRule 13. Joint Trial of Separate Cases\nThe court may order that separate cases be tried together as though brought in a single\nindictment or information if all offenses and all defendants could have been joined in a single\nindictment or information.\nNotes\n(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule is substantially a restatement of existing law, 18 U.S.C. [former] 557\n(Indictments and presentments; joinder of charges); Logan v. United States, 144 U.S. 263, 296;\nShowalter v. United States, 260 F. 719 (C.C.A. 4th)\xe2\x80\x94cert. den., 250 U.S. 672; Hostetter v. United\nStates, 16 F.2d 921 (C.C.A. 8th); Capone v. United States, 51 F.2d 609, 619\xe2\x80\x93620 (C.C.A. 7th).\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 13 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\n\nRule 14. Relief from Prejudicial Joinder\n(a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a\nconsolidation for trial appears to prejudice a defendant or the government, the court may order\nseparate trials of counts, sever the defendants\xe2\x80\x99 trials, or provide any other relief that justice\nrequires.\n(b) Defendant\'s Statements. Before ruling on a defendant\'s motion to sever, the court may\norder an attorney for the government to deliver to the court for in camera inspection any\ndefendant\'s statement that the government intends to use as evidence.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule is a restatement of existing law under which severance and other similar relief is\nentirely in the discretion of the court, 18 U.S.C. [former] 557 (Indictments and presentments;\njoinder of charges); Pointer v. United States, 151 U.S. 396; Pierce v. United States, 160 U.S. 355;\n143\n\n\x0cUnited States v. Ball, 163 U.S. 662, 673; Stilson v. United States, 250 U.S. 583.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nA defendant may be prejudiced by the admission in evidence against a co-defendant of a\nstatement or confession made by that co-defendant. This prejudice cannot be dispelled by\ncross-examination if the co-defendant does not take the stand. Limiting instructions to the jury\nmay not in fact erase the prejudice. While the question whether to grant a severance is generally\nleft within the discretion of the trial court, recent Fifth Circuit cases have found sufficient\nprejudice involved to make denial of a motion for severance reversible error. See Schaffer v.\nUnited States, 221 F.2d 17 (5th Cir. 1955); Barton v. United States, 263 F.2d 894 (5th Cir. 1959).\nIt has even been suggested that when the confession of the co-defendant comes as a surprise at the\ntrial, it may be error to deny a motion or a mistrial. See Belvin v. United States, 273 F.2d 583 (5th\nCir. 1960).\nThe purpose of the amendment is to provide a procedure whereby the issue of possible\nprejudice can be resolved on the motion for severance. The judge may direct the disclosure of the\nconfessions or statements of the defendants to him for in camera inspection as an aid to\ndetermining whether the possible prejudice justifies ordering separate trials. Cf. note, Joint and\nSingle Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 551,\n565 (1965).\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 14 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nThe reference to a defendant\'s \xe2\x80\x9cconfession\xe2\x80\x9d in the last sentence of the current rule has been\ndeleted. The Committee believed that the reference to the \xe2\x80\x9cdefendant\'s statements\xe2\x80\x9d in the amended\nrule would fairly embrace any confessions or admissions by a defendant.\n\nRule 15. Depositions\n(a) When Taken.\n(1) In General. A party may move that a prospective witness be deposed in order to\npreserve testimony for trial. The court may grant the motion because of exceptional circumstances\nand in the interest of justice. If the court orders the deposition to be taken, it may also require the\ndeponent to produce at the deposition any designated material that is not privileged, including any\nbook, paper, document, record, recording, or data.\n(2) Detained Material Witness. A witness who is detained under 18 U.S.C. \xc2\xa73144 may\nrequest to be deposed by filing a written motion and giving notice to the parties. The court may\nthen order that the deposition be taken and may discharge the witness after the witness has signed\nunder oath the deposition transcript.\n(b) Notice.\n(1) In General. A party seeking to take a deposition must give every other party reasonable\nwritten notice of the deposition\'s date and location. The notice must state the name and address of\neach deponent. If requested by a party receiving the notice, the court may, for good cause, change\nthe deposition\'s date or location.\n144\n\n\x0c(2) To the Custodial Officer. A party seeking to take the deposition must also notify the\nofficer who has custody of the defendant of the scheduled date and location.\n(c) Defendant\'s Presence.\n(1) Defendant in Custody. Except as authorized by Rule 15(c)(3), the officer who has\ncustody of the defendant must produce the defendant at the deposition and keep the defendant in\nthe witness\'s presence during the examination, unless the defendant:\n(A) waives in writing the right to be present; or\n(B) persists in disruptive conduct justifying exclusion after being warned by the court that\ndisruptive conduct will result in the defendant\'s exclusion.\n(2) Defendant Not in Custody. Except as authorized by Rule 15(c)(3), a defendant who is\nnot in custody has the right upon request to be present at the deposition, subject to any conditions\nimposed by the court. If the government tenders the defendant\xe2\x80\x99s expenses as provided in Rule\n15(d) but the defendant still fails to appear, the defendant \xe2\x80\x94 absent good cause \xe2\x80\x94 waives both the\nright to appear and any objection to the taking and use of the deposition based on that right.\n(3) Taking Depositions Outside the United States Without the Defendant\xe2\x80\x99s Presence. The\ndeposition of a witness who is outside the United States may be taken without the defendant\xe2\x80\x99s\npresence if the court makes casespecific findings of all the following:\n(A) the witness\xe2\x80\x99s testimony could provide substantial proof of a material fact in a felony\nprosecution;\n(B) there is a substantial likelihood that the witness\xe2\x80\x99s attendance at trial cannot be obtained;\n(C) the witness\xe2\x80\x99s presence for a deposition in the United States cannot be obtained;\n(D) the defendant cannot be present because:\n(i) the country where the witness is located will not permit the defendant to attend the\ndeposition;\n(ii) for an in-custody defendant, secure transportation and continuing custody cannot be\nassured at the witness\xe2\x80\x99s location; or\n(iii) for an out-of-custody defendant, no reasonable conditions will assure an appearance at\nthe deposition or at trial or sentencing; and\n(E) the defendant can meaningfully participate in the deposition through reasonable means.\n(d) Expenses. If the deposition was requested by the government, the court may\xe2\x80\x94or if the\ndefendant is unable to bear the deposition expenses, the court must\xe2\x80\x94order the government to pay:\n(1) any reasonable travel and subsistence expenses of the defendant and the defendant\'s\nattorney to attend the deposition; and\n(2) the costs of the deposition transcript.\n(e) Manner of Taking. Unless these rules or a court order provides otherwise, a deposition\nmust be taken and filed in the same manner as a deposition in a civil action, except that:\n(1) A defendant may not be deposed without that defendant\'s consent.\n(2) The scope and manner of the deposition examination and cross-examination must be\nthe same as would be allowed during trial.\n(3) The government must provide to the defendant or the defendant\'s attorney, for use at the\ndeposition, any statement of the deponent in the government\'s possession to which the defendant\nwould be entitled at trial.\n(f) Admissibility and Use as Evidence. An order authorizing a deposition to be taken under\nthis rule does not determine its admissibility. A party may use all or part of a deposition as\nprovided by the Federal Rules of Evidence.\n(g) Objections. A party objecting to deposition testimony or evidence must state the\n145\n\n\x0cgrounds for the objection during the deposition.\n(h) Depositions by Agreement Permitted. The parties may by agreement take and use a\ndeposition with the court\'s consent.\nNotes\n(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x9364, \xc2\xa73(15)\xe2\x80\x93(19), July 31, 1975,\n89 Stat. 373, 374; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7209(b), Oct. 12, 1984, 98 Stat. 1986; Mar. 9, 1987, eff.\nAug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002; Jun. 30, 2011, eff. Dec. 1, 2012.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. This rule continues the existing law permitting defendants to\ntake depositions in certain limited classes of cases under dedimus potestatem and in perpetuam rei\nmemoriam, 28 U.S.C. [former] 644. This statute has been generally held applicable to criminal\ncases, Clymer v. United States, 38 F.2d 581 (C.C.A. 10th); Wong Yim v. United States, 118 F.2d\n667 (C.C.A. 9th)\xe2\x80\x94cert. den., 313 U.S. 589; United States v. Cameron, 15 F. 794 (C.C.E.D.Mo.);\nUnited States v. Hofmann, 24 F.Supp. 847 (S.D.N.Y.). Contra, Luxemberg v. United States, 45\nF.2d 497 (C.C.A. 4th)\xe2\x80\x94cert. den., 283 U.S. 820. The rule continues the limitation of the statute\nthat the taking of depositions is to be restricted to cases in which they are necessary \xe2\x80\x9cin order to\nprevent a failure of justice.\xe2\x80\x9d\n2. Unlike the practice in civil cases in which depositions may be taken as a matter of right\nby notice without permission of the court (Rules 26(a) and 30, Federal Rules of Civil Procedure\n[28 U.S.C., Appendix]), this rule permits depositions to be taken only by order of the court, made\nin the exercise of discretion and on notice to all parties. It was contemplated that in criminal cases\ndepositions would be used only in exceptional situations, as has been the practice heretofore.\n3. This rule introduces a new feature in authorizing the taking of the deposition of a witness\ncommitted for failure to give bail (see Rule 46(b)). This matter is, however, left to the discretion of\nthe court. The purpose of the rule is to afford a method of relief for such a witness, if the court finds\nit proper to extend it.\nNote to Subdivision (b). This subdivision, as well as subdivisions (d) and (f), sets forth the\nprocedure to be followed in the event that the court grants an order for the taking of a deposition.\nThe procedure prescribed is similar to that in civil cases, Rules 28\xe2\x80\x9331, Federal Rules of Civil\nProcedure [28 U.S.C., Appendix].\nNote to Subdivision (c). This rule introduces a new feature for the purpose of protecting the\nrights of an indigent defendant.\nNote to Subdivision (d). See Note to Subdivision (b), supra.\nNote to Subdivision (e). In providing when and for what purpose a deposition may be used\nat the trial, this rule generally follows the corresponding provisions of the Federal Rules of Civil\nProcedure, Rule 26(d)(3) [28 U.S.C., Appendix]. The only difference is that in civil cases a\ndeposition may be introduced at the trial if the witness is at a greater distance than 100 miles from\nthe place of trial, while this rule requires that the witness be out of the United States. The\ndistinction results from the fact that a subpoena in a civil case runs only within the district where\nissued or 100 miles from the place of trial (Rule 45(e)(1), Federal Rules of Civil Procedure), while\na subpoena in a criminal case runs throughout the United States (see Rule 17(e)(1), infra).\nNote to Subdivision (f). See Note to Subdivision (b), supra.\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\n146\n\n\x0cRule 15 authorizes the taking of depositions by the government. Under former rule 15 only\na defendant was authorized to take a deposition.\nThe revision is similar to Title VI of the Organized Crime Control Act of 1970. The\nprincipal difference is that Title VI ( 18 U.S.C. \xc2\xa73503) limits the authority of the government to\ntake depositions to cases in which the Attorney General certifies that the \xe2\x80\x9cproceeding is against a\nperson who is believed to have participated in an organized criminal activity.\xe2\x80\x9d This limitation is\nnot contained in rule 15.\nDealing with the issue of government depositions so soon after the enactment of 18 U.S.C.\n\xc2\xa73503 is not inconsistent with the congressional purpose. On the floor of the House, Congressman\nPoff, a principal spokesman for the proposal, said that the House version was not designed to\n\xe2\x80\x9climit the Judicial Conference of the United States in the exercise of its rulemaking authority . . .\nfrom addressing itself to other problems in this area or from adopting a broader approach.\xe2\x80\x9d 116\nCong.Rec. 35293 (1970).\nThe recently enacted Title VI of the Organized Crime Control Act of 1970 ( 18 U.S.C.\n\xc2\xa73503) is based upon earlier efforts of the Advisory Committee on Criminal Rules which has over\nthe past twenty-five years submitted several proposals authorizing government depositions.\nThe earlier drafts of the Federal Rules of Criminal Procedure proposed that the government\nbe allowed to take depositions. Orfield, The Federal Rules of Criminal Procedure, 33 Calif.L.Rev.\n543, 559 (1945). The Fifth Draft of what became rule 15 (then rule 20) dated June 1942, was\nsubmitted to the Supreme Court for comment. The court had a number of unfavorable comments\nabout allowing government depositions. These comments were not published. The only reference\nto the fact that the court made comments is in 2 Orfield, Criminal Procedure under the Federal\nRules \xc2\xa715:1 (1966); and Orfield, Depositions in Federal Criminal Procedure, 9 S.C.L.Q. 376, 380\xe2\x80\x93\n381 (1957).\nThe Advisory Committee, in the 1940\'s, continued to recommend the adoption of a\nprovision authorizing government depositions. The final draft submitted to the Supreme Court\ncontained a section providing:\nThe following additional requirements shall apply if the deposition is taken at the instance\nof the government or of a witness. The officer having custody of a defendant shall be notified of\nthe time and place set for examination, and shall produce him at the examination and keep him in\nthe presence of the witness during the examination. A defendant not in custody shall be given\nnotice and shall have the right to be present at the examination. The government shall pay in\nadvance to the defendant\'s attorney and a defendant not in custody expenses of travel and\nsubsistence for attendance at the examination.\nSee 2 Orfield, Criminal Procedure under the Federal Rules \xc2\xa715:3, pp. 447\xe2\x80\x93448 (1966);\nOrfield, Depositions in Federal Criminal Procedure, 9 S.C.L.Q. 376, 383 (1957).\nThe Supreme Court rejected this section in this entirety, thus eliminating the provision for\ndepositions by the government. These changes were made without comment.\nThe proposal to allow government depositions was renewed in the amendments to the\nFederal Rules of Criminal Procedure in the early 1960\'s. The Preliminary Draft of Proposed\nAmendments to Rules of Criminal Procedure for the United States District Courts (December\n1962) proposed to amend rule 15 by eliminating the words \xe2\x80\x9cof a defendant\xe2\x80\x9d from the first sentence\nof subdivision (a) and adding a subdivision (g) which was practically identical to the subdivision\nrejected by the Supreme Court in the original draft of the rules.\n147\n\n\x0cThe Second Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure\nfor the United States District Courts (March 1964) continued to propose allowing governments\ndepositions. Subdivision (g) was substantially modified, however.\nThe following additional requirements shall apply if the deposition is taken at the instance\nof the government or a witness. Both the defendant and his attorney shall be given reasonable\nadvance notice of the time and place set for the examination. The officer having custody of a\ndefendant shall be notified of the time and place set for the examination, and shall produce him at\nthe examination and keep him in the presence of the witness during the examination. A defendant\nnot in custody shall have the right to be present at the examination but his failure to appear after\nnotice and tender of expenses shall constitute a waiver of that right. The government shall pay to\nthe defendant\'s attorney and to a defendant not in custody expenses of travel and subsistence for\nattendance at the examination. The government shall make available to the defendant for his\nexamination and use at the taking of the deposition any statement of the witness being deposed\nwhich is in the possession of the government and which the government would be required to\nmake available to the defendant if the witness were testifying at the trial.\nThe proposal to authorize government depositions was rejected by the Standing Committee\non Rules of Practice and Procedure, C. Wright, Federal Practice and Procedure \xc2\xa7241 at 477 (1969).\n4 Barron, Federal Practice and Procedure (Supp. 1967). The Report of the Judicial Conference,\nsubmitted to the Supreme Court for approval late in 1965, contained no proposal for an\namendment to rule 15. See 39 F.R.D. 69, 168\xe2\x80\x93211 (1966).\nWhen the Organized Crime Control Act of 1970 was originally introduced in the Senate (S.\n30) it contained a government deposition provision which was similar to the 1964 proposal of the\nCriminal Rules Advisory Committee, except that the original bill (S. 30) failed to provide\nstandards to control the use of depositions at the trial. For an explanation and defense of the\noriginal proposal see McClellan, The Organized Crime Act (S. 30) or Its Critics: Which Threatens\nCivil Liberties?, 46 Notre Dame Lawyer 55, 100\xe2\x80\x93108 (1970). This omission was remedied, prior\nto passage, with the addition of what is now 18 U.S.C. \xc2\xa73503(f) which prescribes the\ncircumstances in which a deposition can be used. The standards are the same as those in former\nrule 15(e) with the addition of language allowing the use of the deposition when \xe2\x80\x9cthe witness\nrefuses in the trial or hearing to testify concerning the subject of the deposition or the part offered.\xe2\x80\x9d\nBefore the Organized Crime Control Act of 1970 was enacted an additional amendment\nwas added providing that the right of the government to take a deposition is limited to cases in\nwhich the Attorney General certifies that the defendant is \xe2\x80\x9cbelieved to have participated in an\norganized criminal activity\xe2\x80\x9d [ 18 U.S.C. \xc2\xa73503(a) ]. The argument in favor of the amendment was\nthat the whole purpose of the act was to deal with organized crime and therefore its provisions,\nincluding that providing for government depositions, should be limited to organized crime type\ncases.\nThere is another aspect of Advisory Committee history which is relevant. In January 1970,\nthe Advisory Committee circulated proposed changes in rule 16, one of which gives the\ngovernment, when it has disclosed the identity of its witnesses, the right to take a deposition and\nuse it \xe2\x80\x9cin the event the witness has become unavailable without the fault of the government or if the\nwitness has changed his testimony.\xe2\x80\x9d [See Preliminary Draft of Proposed Amendments to the\nFederal Rules of Criminal Procedure for the United States District Courts, rule 16(a)(1)(vi)\n(January 1970).] This provision is now incorporated within rule 16(a)(1)(v).\nBecause neither the court nor the standing committee gave reasons for rejecting the\ngovernment deposition proposal, it is not possible to know why they were not approved. To the\n148\n\n\x0cextent that the rejection was based upon doubts as to the constitutionality of such a proposal, those\ndoubts now seem resolved by California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489\n(1970).\nOn the merits, the proposal to allow the government to take depositions is consistent with\nthe revision of rule 16 and with section 804(b)(1) of the Rules of Evidence for the United States\nCourts and Magistrates (November 1971) which provides that the following is not excluded by the\nhearsay rule if the declarant is unavailable:\n(1) Former Testimony. Testimony given as a witness at another hearing of the same or a\ndifferent proceeding, or in a deposition taken in compliance with law in the course of another\nproceeding, at the instance of or against a party with an opportunity to develop the testimony by\ndirect, cross, or redirect examination, with motive and interest similar to those of the party against\nwhom now offered.\nSubdivision (a) is revised to provide that the government as well as the defendant is entitled\nto take a deposition. The phrase \xe2\x80\x9cwhenever due to special circumstances of the case it is in the\ninterest of justice,\xe2\x80\x9d is intended to make clear that the decision by the court as to whether to order\nthe taking of a deposition shall be made in the context of the circumstances of the particular case.\nThe principal objective is the preservation of evidence for use at trial. It is not to provide a method\nof pretrial discovery nor primarily for the purpose of obtaining a basis for later cross-examination\nof an adverse witness. Discovery is a matter dealt with in rule 16. An obviously important factor is\nwhether a deposition will expedite, rather than delay, the administration of criminal justice. Also\nimportant is the presence or absence of factors which determine the use of a deposition at the trial,\nsuch as the agreement of the parties to use of the deposition; the possible unavailability of the\nwitness; or the possibility that coercion may be used upon the witness to induce him to change his\ntestimony or not to testify. See rule 16(a)(1)(v).\nSubdivision (a) also makes explicit that only the \xe2\x80\x9ctestimony of a prospective witness of a\nparty\xe2\x80\x9d can be taken. This means the party\'s own witness and does not authorize a discovery\ndeposition of an adverse witness. The language \xe2\x80\x9cfor use at trial\xe2\x80\x9d is intended to give further\nemphasis to the importance of the criteria for use specified in subdivision (e).\nIn subdivision (b) reference is made to the defendant in custody. If he is in state custody, a\nwrit of habeas corpus ad testificandum (to produce the prisoner for purposes of testimony) may be\nrequired to accomplish his presence.\nIn subdivision (d) the language \xe2\x80\x9cexcept as otherwise provided in these rules\xe2\x80\x9d is meant to\nmake clear that the subpoena provisions of rule 17 control rather than the provisions of the civil\nrules.\nThe use of the phrase \xe2\x80\x9cand manner\xe2\x80\x9d in subdivision (d)(2) is intended to emphasize that the\nauthorization is not to conduct an adverse examination of an opposing witness.\nIn subdivision (e) the phrase \xe2\x80\x9cas substantive evidence\xe2\x80\x9d is added to make clear that the\ndeposition can be used as evidence in chief as well as for purposes of impeachment.\nSubdivision (e) also makes clear that the deposition can be used as affirmative evidence\nwhenever the witness is available but gives testimony inconsistent with that given in the\ndeposition. A California statute which contained a similar provision was held constitutional in\nCalifornia v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). This is also consistent\nwith section 801(d)(1) of the Rules of Evidence for United States Courts and Magistrates (Nov.\n1971).\nSubdivision (f) is intended to insure that a record of objections and the grounds for the\nobjections is made at the time the deposition is taken when the witness is available so that the\n149\n\n\x0cwitness can be examined further, if necessary, on the point of the objection so that there will be an\nadequate record for the court\'s later ruling upon the objection.\nSubdivision (g) uses the \xe2\x80\x9cunavailability\xe2\x80\x9d definition of the Rules of Evidence for the United\nStates Courts and Magistrates, 804(a) (Nov. 1971).\nSubdivision (h) is intended to make clear that the court always has authority to order the\ntaking of a deposition, or to allow the use of a deposition, where there is an agreement of the\nparties to the taking or to the use.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 15 of the Federal Rules of Criminal\nProcedure provides for the taking of depositions. The present rule permits only the defendant to\nmove that a deposition of a prospective witness be taken. The court may grant the motion if it\nappears that (a) the prospective witness will be unable to attend or be prevented from attending the\ntrial, (b) the prospective witness\xe2\x80\x99 testimony is material, and (c) the prospective witness\xe2\x80\x99 testimony\nis necessary to prevent a failure of justice.\nThe Supreme Court promulgated several amendments to Rule 15. The more significant\namendments are described below.\nSubdivision (a) as proposed to be amended permits either party to move the court for the\ntaking of a deposition of a witness. However, a party may only move to take the deposition of one\nof its own witnesses, not one of the adversary party\'s witnesses.\nSubdivision (c) as proposed to be amended provides that whenever a deposition is taken at\nthe instance of the government or of an indigent defendant, the expenses of the taking of the\ndeposition must be paid by the government.\nSubdivision (e) as proposed to be amended provides that part or all of the deposition may\nbe used at trial as substantive evidence if the witness is \xe2\x80\x9cunavailable\xe2\x80\x9d or if the witness gives\ntestimony inconsistent with his deposition.\nSubdivision (b)[(g)] as proposed to be amended defines \xe2\x80\x9cunavailable.\xe2\x80\x9d \xe2\x80\x9cUnavailable\xe2\x80\x9d as a\nwitness includes situations in which the deponent:\n(1) is exempted by ruling of the judge on the ground of privilege from testifying concerning\nthe subject matter of his deposition; or\n(2) persists in refusing to testify concerning the subject matter of his deposition despite an\norder of the judge to do so; or\n(3) testifies to a lack of memory of the subject matter of his deposition; or\n(4) is unable to be present or to testify at the hearing because of death or then existing\nphysical or mental illness or infirmity; or\n(5) is absent from the hearing and the proponent of his deposition has been unable to\nprocure his attendance by process or other reasonable means. A deponent is not unavailable as a\nwitness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the\nprocurement or wrongdoing of the proponent of his deposition for the purpose of preventing the\nwitness from attending or testifying.\nB. Committee Action. The Committee narrowed the definition of \xe2\x80\x9cunavailability\xe2\x80\x9d in\nsubdivision (g). The Committee deleted language from that subdivision that provided that a\nwitness was \xe2\x80\x9cunavailable\xe2\x80\x9d if the court exempts him from testifying at the trial on the ground of\nprivilege. The Committee does not want to encourage the use of depositions at trial, especially in\nview of the importance of having live testimony from a witness on the witness stand.\n150\n\n\x0cThe Committee added a provision to subdivision (b) to parallel the provision of Rule\n43(b)(2). This is to make it clear that a disruptive defendant may be removed from the place where\na deposition is being taken.\nThe Committee added language to subdivision (c) to make clear that the government must\npay for the cost of the transcript of a deposition when the deposition is taken at the instance of an\nindigent defendant or of the government. In order to use a deposition at trial, it must be transcribed.\nThe proposed rule did not explicitly provide for payment of the cost of transcribing, and the\nCommittee change rectifies this.\nThe Committee notes that subdivision (e) permits the use of a deposition when the witness\n\xe2\x80\x9cgives testimony at the trial or hearing inconsistent with his deposition.\xe2\x80\x9d Since subdivision (e)\nrefers to the rules of evidence, the Committee understands that the Federal Rules of Evidence will\ngovern the admissibility and use of the deposition. The Committee, by adopting subdivision (e) as\nproposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern\nthe admissibility and use of the deposition.\nThe Committee believes that Rule 15 will not encourage trials by deposition. A deposition\nmay be taken only in \xe2\x80\x9cexceptional circumstances\xe2\x80\x9d when \xe2\x80\x9cit is in the interest of justice that the\ntestimony of a prospective witness of a party be taken and preserved. *\xe2\x80\x9d A deposition, once it is\ntaken, is not automatically admissible at trial, however. It may only be used at trial if the witness is\nunavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is\nsimilar to the procedure established by the Organized Crime Control Act of 1970 for the taking and\nuse of depositions in organized crime cases. See 18 U.S.C. 3503.\nConference Committee Notes, House Report No. 94\xe2\x80\x93414; 1975 Amendment\nRule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e)\npermits a deposition to be used if the witness is unavailable. Rule 15(g) defines that term.\nThe Supreme Court\'s proposal defines five circumstances in which the witness will be\nconsidered unavailable. The House version of the bill deletes a provision that said a witness is\nunavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject\nmatter of his deposition. The Senate version of the bill by cross reference to the Federal Rules of\nEvidence, restores the Supreme Court proposal.\nThe Conference adopts the Senate provision.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 15 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nIn Rule 15(a), the list of materials to be produced has been amended to include the\nexpansive term \xe2\x80\x9cdata\xe2\x80\x9d to reflect the fact that in an increasingly technological culture, the\ninformation may exist in a format not already covered by the more conventional list, such as a\nbook or document.\n151\n\n\x0cThe last portion of current Rule 15(b), dealing with the defendant\'s presence at a\ndeposition, has been moved to amended Rule 15(c).\nRevised Rule 15(d) addresses the payment of expenses incurred by the defendant and the\ndefendant\'s attorney. Under the current rule, if the government requests the deposition, or if the\ndefendant requests the deposition and is unable to pay for it, the court may direct the government to\npay for travel and subsistence expenses for both the defendant and the defendant\'s attorney. In\neither case, the current rule requires the government to pay for the transcript. Under the amended\nrule, if the government requested the deposition, the court must require the government to pay\nreasonable subsistence and travel expenses and the cost of the deposition transcript. If the\ndefendant is unable to pay the deposition expenses, the court must order the government to pay\nreasonable subsistence and travel expenses and the deposition transcript costs\xe2\x80\x94regardless of who\nrequested the deposition. Although the current rule places no apparent limits on the amount of\nfunds that should be reimbursed, the Committee believed that insertion of the word \xe2\x80\x9creasonable\xe2\x80\x9d\nwas consistent with current practice.\nRule 15(f) is intended to more clearly reflect that the admissibility of any deposition taken\nunder the rule is governed not by the rule itself, but instead by the Federal Rules of Evidence.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivisions (c)(3) and (f). This amendment provides a mechanism for taking depositions\nin cases in which important witnesses \xe2\x80\x94 government and defense witnesses both \xe2\x80\x94 live in, or\nhave fled to, countries where they cannot be reached by the court\xe2\x80\x99s subpoena power. Although\nRule 15 authorizes depositions of witnesses in certain circumstances, the rule to date has not\naddressed instances where an important witness is not in the United States, there is a substantial\nlikelihood the witness\xe2\x80\x99s attendance at trial cannot be obtained, and it would not be possible to\nsecurely transport the defendant or a co-defendant to the witness\xe2\x80\x99s location for a deposition.\nWhile a party invokes Rule 15 in order to preserve testimony for trial, the rule does not\ndetermine whether the resulting deposition will be admissible, in whole or in part. Subdivision (f)\nprovides that in the case of all depositions, questions of admissibility of the evidence obtained are\nleft to the courts to resolve on a case by case basis. Under Rule 15(f), the courts make this\ndetermination applying the Federal Rules of Evidence, which state that relevant evidence is\nadmissible except as otherwise provided by the Constitution, statutes, the Rules of Evidence, and\nother rules prescribed by the Supreme Court. Fed. R. Evid. 402.\nRule 15(c) as amended imposes significant procedural limitations on taking certain\ndepositions in criminal cases. The amended rule authorizes a deposition outside a defendant\xe2\x80\x99s\nphysical presence only in very limited circumstances after the trial court makes casespecific\nfindings. Amended Rule 15(c)(3) delineates these circumstances and the specific findings a trial\ncourt must make before permitting parties to depose a witness outside the defendant\xe2\x80\x99s presence.\nThe party requesting the deposition shoulders the burden of proof \xe2\x80\x94 by a preponderance of the\nevidence \xe2\x80\x94 on the elements that must be shown. The amended rule recognizes the important\nwitness confrontation principles and vital law enforcement and other public interests that are\ninvolved.\nThis amendment does not supersede the relevant provisions of 18 U.S.C. \xc2\xa7 3509,\nauthorizing depositions outside the defendant\xe2\x80\x99s physical presence in certain cases involving child\nvictims and witnesses, or any other provision of law.\nChanges Made After Publication and Comment. The limiting phrase \xe2\x80\x9cin the United States\xe2\x80\x9d\n152\n\n\x0cwas deleted from Rule 15(c)(1) and (2) and replaced with the phrase \xe2\x80\x9cExcept as authorized by Rule\n15(c)(3).\xe2\x80\x9d The revised language makes clear that foreign depositions under the authority of (c)(3)\nare exceptions to the provisions requiring the defendant\xe2\x80\x99s presence, but other depositions outside\nthe United States remain subject to the general requirements of (c)(1) and (2). For example, a\ndefendant may waive his right to be present at a foreign deposition, and a defendant who attends a\nforeign deposition may be removed from such a deposition if he is disruptive. In subdivision\n(c)(3)(D) the introductory phrase was revised to the simpler \xe2\x80\x9cbecause.\xe2\x80\x9d\nIn order to restrict foreign depositions outside of the defendant\xe2\x80\x99s presence to situations\nwhere the deposition serves an important public interest, the limiting phrase \xe2\x80\x9cin a felony\nprosecution\xe2\x80\x9d was added to subdivision (c)(3)(A).\nThe text of subdivision (f) and the Committee Note were revised to state more clearly the\nlimited purpose and effect of the amendment, which is providing assistance in pretrial discovery.\nCompliance with the procedural requirements for the taking of the foreign testimony does not\npredetermine admissibility at trial, which is determined on a case-by-case basis, applying the\nFederal Rules of Evidence and the Constitution.\nOther changes were also made in the Committee Note. In conformity with the style\nconventions governing the rules, citations to cases were deleted, and other changes were made to\nimprove clarity.\nReferences in Text\nThe Federal Rules of Evidence, referred to in subd. (f), are set out in the Appendix to Title\n28, Judiciary and Judicial Procedure.\nAmendment by Public Law\n1984 \xe2\x80\x94Subd. (a). Pub. L. 98\xe2\x80\x93473 substituted \xe2\x80\x9cdetained pursuant to section 3144 of title 18,\nUnited States Code\xe2\x80\x9d for \xe2\x80\x9ccommitted for failure to give bail to appear to testify at a trial or hearing\xe2\x80\x9d.\n1975 \xe2\x80\x94Pub. L. 94\xe2\x80\x9364 amended subds. (a), (b), (c), and (e) generally, struck out subd. (g),\nand redesignated subd. (h) as (g).\nEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\nRule 16. Discovery and Inspection (effective December 1, 2013)\n(a) Government\'s Disclosure.\n(1) Information Subject to Disclosure.\n(A) Defendant\'s Oral Statement. Upon a defendant\'s request, the government must disclose\nto the defendant the substance of any relevant oral statement made by the defendant, before or after\narrest, in response to interrogation by a person the defendant knew was a government agent if the\ngovernment intends to use the statement at trial.\n(B) Defendant\'s Written or Recorded Statement. Upon a defendant\'s request, the\n153\n\n\x0cgovernment must disclose to the defendant, and make available for inspection, copying, or\nphotographing, all of the following:\n(i) any relevant written or recorded statement by the defendant if:\n\xe2\x80\xa2 statement is within the government\'s possession, custody, or control; and\n\xe2\x80\xa2 the attorney for the government knows\xe2\x80\x94or through due diligence could know\xe2\x80\x94that the\nstatement exists;\n(ii) the portion of any written record containing the substance of any relevant oral\nstatement made before or after arrest if the defendant made the statement in response to\ninterrogation by a person the defendant knew was a government agent; and\n(iii) the defendant\'s recorded testimony before a grand jury relating to the charged offense.\n(C) Organizational Defendant. Upon a defendant\'s request, if the defendant is an\norganization, the government must disclose to the defendant any statement described in Rule\n16(a)(1)(A) and (B) if the government contends that the person making the statement:\n(i) was legally able to bind the defendant regarding the subject of the statement because of\nthat person\'s position as the defendant\'s director, officer, employee, or agent; or\n(ii) was personally involved in the alleged conduct constituting the offense and was legally\nable to bind the defendant regarding that conduct because of that person\'s position as the\ndefendant\'s director, officer, employee, or agent.\n(D) Defendant\'s Prior Record. Upon a defendant\'s request, the government must furnish\nthe defendant with a copy of the defendant\'s prior criminal record that is within the government\'s\npossession, custody, or control if the attorney for the government knows\xe2\x80\x94or through due\ndiligence could know\xe2\x80\x94that the record exists.\n(E) Documents and Objects. Upon a defendant\'s request, the government must permit the\ndefendant to inspect and to copy or photograph books, papers, documents, data, photographs,\ntangible objects, buildings or places, or copies or portions of any of these items, if the item is\nwithin the government\'s possession, custody, or control and:\n(i) the item is material to preparing the defense;\n(ii) the government intends to use the item in its case-in-chief at trial; or\n(iii) the item was obtained from or belongs to the defendant.\n(F) Reports of Examinations and Tests. Upon a defendant\'s request, the government must\npermit a defendant to inspect and to copy or photograph the results or reports of any physical or\nmental examination and of any scientific test or experiment if:\n(i) the item is within the government\'s possession, custody, or control;\n(ii) the attorney for the government knows\xe2\x80\x94or through due diligence could know\xe2\x80\x94that\nthe item exists; and\n(iii) the item is material to preparing the defense or the government intends to use the item\nin its case-in-chief at trial.\n(G) Expert Witnesses. At the defendant\'s request, the government must give to the\ndefendant a written summary of any testimony that the government intends to use under Rules 702,\n703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government\nrequests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government\nmust, at the defendant\'s request, give to the defendant a written summary of testimony that the\ngovernment intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as\nevidence at trial on the issue of the defendant\'s mental condition. The summary provided under this\nsubparagraph must describe the witness\'s opinions, the bases and reasons for those opinions, and\nthe witness\'s qualifications.\n154\n\n\x0c(2) Information Not Subject to Disclosure. Except as permitted by Rule 16(a)(1)(A)-(D),\n(F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or\nother internal government documents made by an attorney for the government or other\ngovernment agent in connection with investigating or prosecuting the case. Nor does this rule\nauthorize the discovery or inspection of statements made by prospective government witnesses\nexcept as provided in 18 U.S.C. \xc2\xa73500.\n(3) Grand Jury Transcripts. This rule does not apply to the discovery or inspection of a\ngrand jury\'s recorded proceedings, except as provided in Rules 6, 12(h), 16(a)(1), and 26.2.\n(b) Defendant\'s Disclosure.\n(1) Information Subject to Disclosure.\n(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and\nthe government complies, then the defendant must permit the government, upon request, to inspect\nand to copy or photograph books, papers, documents, data, photographs, tangible objects,\nbuildings or places, or copies or portions of any of these items if:\n(i) the item is within the defendant\'s possession, custody, or control; and\n(ii) the defendant intends to use the item in the defendant\'s case-in-chief at trial.\n(B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule Rule\n16(a)(1)(F) and the government complies, the defendant must permit the government, upon\nrequest, to inspect and to copy or photograph the results or reports of any physical or mental\nexamination and of any scientific test or experiment if:\n(i) the item is within the defendant\'s possession, custody, or control; and\n(ii) the defendant intends to use the item in the defendant\'s case-in-chief at trial, or intends\nto call the witness who prepared the report and the report relates to the witness\'s testimony.\n(C) Expert Witnesses. The defendant must, at the government\'s request, give to the\ngovernment a written summary of any testimony that the defendant intends to use under Rules 702,\n703, or 705 of the Federal Rules of Evidence as evidence at trial, if\xe2\x80\x94\n(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government\ncomplies; or\n(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert\ntestimony on the defendant\'s mental condition.\nThis summary must describe the witness\'s opinions, the bases and reasons for those\nopinions, and the witness\'s qualifications[.]\n(2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule\n16(b)(1) does not authorize discovery or inspection of:\n(A) reports, memoranda, or other documents made by the defendant, or the defendant\'s\nattorney or agent, during the case\'s investigation or defense; or\n(B) a statement made to the defendant, or the defendant\'s attorney or agent, by:\n(i) the defendant;\n(ii) a government or defense witness; or\n(iii) a prospective government or defense witness.\n(c) Continuing Duty to Disclose. A party who discovers additional evidence or material\nbefore or during trial must promptly disclose its existence to the other party or the court if:\n(1) the evidence or material is subject to discovery or inspection under this rule; and\n(2) the other party previously requested, or the court ordered, its production.\n(d) Regulating Discovery.\n(1) Protective and Modifying Orders. At any time the court may, for good cause, deny,\n155\n\n\x0crestrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a\nparty to show good cause by a written statement that the court will inspect ex parte. If relief is\ngranted, the court must preserve the entire text of the party\'s statement under seal.\n(2) Failure to Comply. If a party fails to comply with this rule, the court may:\n(A) order that party to permit the discovery or inspection; specify its time, place, and\nmanner; and prescribe other just terms and conditions;\n(B) grant a continuance;\n(C) prohibit that party from introducing the undisclosed evidence; or\n(D) enter any other order that is just under the circumstances.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x93\n64, \xc2\xa73(20)\xe2\x80\x93(28), July 31, 1975, 89 Stat. 374, 375; Pub. L. 94\xe2\x80\x93149, \xc2\xa75, Dec. 12, 1975, 89 Stat. 806;\nApr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;\nApr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 11, 1997, eff. Dec. 1, 1997;\nApr. 29, 2002, eff. Dec. 1, 2002; Pub. L. 107\xe2\x80\x93273, div. C, title I, \xc2\xa711019(b), Nov. 2, 2002, 117\nStat. 1825; Apr. 16, 2013, eff. Dec. 1, 2013.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nWhether under existing law discovery may be permitted in criminal cases is doubtful,\nUnited States v. Rosenfeld, 57 F.2d 74 (C.C.A. 2d)\xe2\x80\x94cert. den., 286 U.S. 556. The courts have,\nhowever, made orders granting to the defendant an opportunity to inspect impounded documents\nbelonging to him, United States v. B. Goedde and Co., 40 F.Supp. 523, 534 (E.D.Ill.). The rule is a\nrestatement of this procedure. In addition, it permits the procedure to be invoked in cases of objects\nand documents obtained from others by seizure or by process, on the theory that such evidential\nmatter would probably have been accessible to the defendant if it had not previously been seized\nby the prosecution. The entire matter is left within the discretion of the court.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe extent to which pretrial discovery should be permitted in criminal cases is a complex\nand controversial issue. The problems have been explored in detail in recent legal literature, most\nof which has been in favor of increasing the range of permissible discovery. See, e.g. Brennan, The\nCriminal Prosecution: Sporting Event or Quest for Truth, 1963 Wash.U.L.Q. 279; Everett,\nDiscovery in Criminal Cases\xe2\x80\x94In Search of a Standard, 1964 Duke L.J. 477; Fletcher, Pretrial\nDiscovery in State Criminal Cases, 12 Stan.L.Rev. 293 (1960); Goldstein, The State and the\nAccused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1172\xe2\x80\x931198 (1960);\nKrantz, Pretrial Discovery in Criminal Cases: A Necessity for Fair and Impartial Justice, 42\nNeb.L.Rev. 127 (1962); Louisell, Criminal Discovery: Dilemma Real or Apparent, 49\nCalif.L.Rev. 56 (1961); Louisell, The Theory of Criminal Discovery and the Practice of Criminal\nLaw, 14 Vand.L.Rev. 921 (1961); Moran, Federal Criminal Rules Changes: Aid or Illusion for the\nIndigent Defendant? 51 A.B.A.J. 64 (1965); Symposium, Discovery in Federal Criminal Cases, 33\nF.R.D. 47\xe2\x80\x93128 (1963); Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev.\n228 (1964); Developments in the Law\xe2\x80\x94Discovery, 74 Harv.L.Rev. 940, 1051\xe2\x80\x931063. Full judicial\nexploration of the conflicting policy considerations will be found in State v. Tune, 13 N.J. 203, 98\n156\n\n\x0cA.2d 881 (1953) and State v. Johnson, 28 N.J. 133, 145 A.2d 313 (1958); cf. State v. Murphy, 36\nN.J. 172, 175 A.2d 622 (1961); State v. Moffa, 36 N.J. 219, 176 A.2d 1 (1961). The rule has been\nrevised to expand the scope of pretrial discovery. At the same time provisions are made to guard\nagainst possible abuses.\nSubdivision (a).\xe2\x80\x94The court is authorized to order the attorney for the government to\npermit the defendant to inspect and copy or photograph three different types of material:\n(1) Relevant written or recorded statements or confessions made by the defendant, or\ncopies thereof. The defendant is not required to designate because he may not always be aware that\nhis statements or confessions are being recorded. The government\'s obligation is limited to\nproduction of such statements as are within the possession, custody or control of the government,\nthe existence of which is known, or by the exercise of due diligence may become known, to the\nattorney for the government. Discovery of statements and confessions is in line with what the\nSupreme Court has described as the \xe2\x80\x9cbetter practice\xe2\x80\x9d (Cicenia v. LaGay, 357 U.S. 504, 511\n(1958)), and with the law in a number of states. See e.g., Del. Rules Crim. Proc., Rule 16; Ill.Stat.\nCh. 38, \xc2\xa7729; Md. Rules Proc., Rule 728; State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962); Cash\nv. Superior Court, 53 Cal.2d 72, 346 P.2d 407 (1959); State v. Bickham, 239 La. 1094, 121 So.2d\n207, cert. den. 364 U.S. 874 (1960); People v. Johnson, 356 Mich. 619, 97 N.W.2d 739 (1959);\nState v. Johnson, supra; People v. Stokes, 24 Miss.2d 755, 204 N.Y.Supp.2d 827 (Ct.Gen.Sess.\n1960). The amendment also makes it clear that discovery extends to recorded as well as written\nstatements. For state cases upholding the discovery of recordings, see, e.g., People v. Cartier, 51\nCal.2d 590, 335 P.2d 114 (1959); State v. Minor, 177 A.2d 215 (Del.Super.Ct. 1962).\n(2) Relevant results or reports of physical or mental examinations, and of scientific tests or\nexperiments (including fingerprint and handwriting comparisons) made in connection with the\nparticular case, or copies thereof. Again the defendant is not required to designate but the\ngovernment\'s obligation is limited to production of items within the possession, custody or control\nof the government, the existence of which is known, or by the exercise of due diligence may\nbecome known, to the attorney for the government. With respect to results or reports of scientific\ntests or experiments the range of materials which must be produced by the government is further\nlimited to those made in connection with the particular case. Cf. Fla.Stats. \xc2\xa7909.18; State v.\nSuperior Court, 90 Ariz. 133, 367 P.2d 6 (1961); People v. Cooper, 53 Cal.2d 755, 770, 3\nCal.Rptr. 148, 157, 349 P.2d 1964, 973 (1960); People v. Stokes, supra, at 762, 204 N.Y.Supp.2d\nat 835.\n(3) Relevant recorded testimony of a defendant before a grand jury. The policy which\nfavors pretrial disclosure to a defendant of his statements to government agents also supports,\npretrial disclosure of his testimony before a grand jury. Courts, however, have tended to require a\nshowing of special circumstances before ordering such disclosure. See, e.g., United States v.\nJohnson, 215 F.Supp. 300 (D.Md. 1963). Disclosure is required only where the statement has been\nrecorded and hence can be transcribed.\nSubdivision (b).\xe2\x80\x94This subdivision authorizes the court to order the attorney for the\ngovernment to permit the defendant to inspect the copy or photograph all other books, papers,\ndocuments, tangible objects, buildings or places, or copies or portions thereof, which are within\nthe possession, custody or control of the government. Because of the necessarily broad and general\nterms in which the items to be discovered are described, several limitations are imposed:\n(1) While specific designation is not required of the defendant, the burden is placed on him\nto make a showing of materiality to the preparation of his defense and that his request is\nreasonable. The requirement of reasonableness will permit the court to define and limit the scope\n157\n\n\x0cof the government\'s obligation to search its files while meeting the legitimate needs of the\ndefendant. The court is also authorized to limit discovery to portions of items sought.\n(2) Reports, memoranda, and other internal government documents made by government\nagents in connection with the investigation or prosecution of the case are exempt from discovery.\nCf. Palermo v. United States, 360 U.S. 343 (1959); Ogden v. United States, 303 F.2d 724 (9th Cir.\n1962).\n(3) Except as provided for reports of examinations and tests in subdivision (a)(2),\nstatements made by government witnesses or prospective government witnesses to agents of the\ngovernment are also exempt from discovery except as provided by 18 U.S.C. \xc2\xa73500.\nSubdivision (c).\xe2\x80\x94This subdivision permits the court to condition a discovery order under\nsubdivision (a)(2) and subdivision (b) by requiring the defendant to permit the government to\ndiscover similar items which the defendant intends to produce at the trial and which are within his\npossession, custody or control under restrictions similar to those placed in subdivision (b) upon\ndiscovery by the defendant. While the government normally has resources adequate to secure the\ninformation necessary for trial, there are some situations in which mutual disclosure would appear\nnecessary to prevent the defendant from obtaining an unfair advantage. For example, in cases\nwhere both prosecution and defense have employed experts to make psychiatric examinations, it\nseems as important for the government to study the opinions of the experts to be called by the\ndefendant in order to prepare for trial as it does for the defendant to study those of the government\'s\nwitnesses. Or in cases (such as antitrust cases) in which the defendant is well represented and well\nfinanced, mutual disclosure so far as consistent with the privilege against self-incrimination would\nseem as appropriate as in civil cases. State cases have indicated that a requirement that the\ndefendant disclose in advance of trial materials which he intends to use on his own behalf at the\ntrial is not a violation of the privilege against self-incrimination. See Jones v. Superior Court, 58\nCal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919 (1962); People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr.\n424, 384 P.2d 16 (1963); Traynor, Ground Lost and Found in Criminal Discovery. 39\nN.Y.U.L.Rev. 228, 246 (1964); Comment, The Self-Incrimination Privilege: Barrier to Criminal\nDiscovery, 51 Calif.L.Rev. 135 (1963); Note, 76 Harv.L.Rev. 828 (1963).\nSubdivision (d).\xe2\x80\x94This subdivision is substantially the same as the last sentence of the\nexisting rule.\nSubdivision (e).\xe2\x80\x94This subdivision gives the court authority to deny, restrict or defer\ndiscovery upon a sufficient showing. Control of the abuses of discovery is necessary if it is to be\nexpanded in the fashion proposed in subdivisions (a) and (b). Among the considerations to be\ntaken into account by the court will be the safety of witnesses and others, a particular danger of\nperjury or witness intimidation, the protection of information vital to the national security, and the\nprotection of business enterprises from economic reprisals.\nFor an example of a use of a protective order in state practice, see People v. Lopez, 60\nCal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16 (1963). See also Brennan, Remarks on Discovery, 33\nF.R.D. 56, 65 (1963); Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev.\n228, 244, 250.\nIn some cases it would defeat the purpose of the protective order if the government were\nrequired to make its showing in open court. The problem arises in its most extreme form where\nmatters of national security are involved. Hence a procedure is set out where upon motion by the\ngovernment the court may permit the government to make its showing, in whole or in part, in a\nwritten statement to be inspected by the court in camera. If the court grants relief based on such\nshowing, the government\'s statement is to be sealed and preserved in the records of the court to be\n158\n\n\x0cmade available to the appellate court in the event of an appeal by the defendant, Cf. 18 U.S.C.\n\xc2\xa73500.\nSubdivision (f).\xe2\x80\x94This subdivision is designed to encourage promptness in making\ndiscovery motions and to give the court sufficient control to prevent unnecessary delay and court\ntime consequent upon a multiplication of discovery motions. Normally one motion should\nencompass all relief sought and a subsequent motion permitted only upon a showing of cause.\nWhere pretrial hearings are used pursuant to Rule 17.1, discovery issues may be resolved at such\nhearings.\nSubdivision (g).\xe2\x80\x94The first sentence establishes a continuing obligation on a party subject\nto a discovery order with respect to material discovered after initial compliance. The duty provided\nis to notify the other party, his attorney or the court of the existence of the material. A motion can\nthen be made by the other party for additional discovery and, where the existence of the material is\ndisclosed shortly before or during the trial, for any necessary continuance.\nThe second sentence gives wide discretion to the court in dealing with the failure of either\nparty to comply with a discovery order. Such discretion will permit the court to consider the\nreasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the\nfeasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nRule 16 is revised to give greater discovery to both the prosecution and the defense.\nSubdivision (a) deals with disclosure of evidence by the government. Subdivision (b) deals with\ndisclosure of evidence by the defendant. The majority of the Advisory Committee is of the view\nthat the two\xe2\x80\x94prosecution and defense discovery\xe2\x80\x94are related and that the giving of a broader right\nof discovery to the defense is dependent upon giving also a broader right of discovery to the\nprosecution.\nThe draft provides for a right of prosecution discovery independent of any prior request for\ndiscovery by the defendant. The Advisory Committee is of the view that this is the most desirable\napproach to prosecution discovery. See American Bar Association, Standards Relating to\nDiscovery and Procedure Before Trial, pp. 7, 43\xe2\x80\x9346 (Approved Draft, 1970).\nThe language of the rule is recast from \xe2\x80\x9cthe court may order\xe2\x80\x9d or \xe2\x80\x9cthe court shall order\xe2\x80\x9d to\n\xe2\x80\x9cthe government shall permit\xe2\x80\x9d or \xe2\x80\x9cthe defendant shall permit.\xe2\x80\x9d This is to make clear that discovery\nshould be accomplished by the parties themselves, without the necessity of a court order unless\nthere is dispute as to whether the matter is discoverable or a request for a protective order under\nsubdivision (d)(1). The court, however, has the inherent right to enter an order under this rule.\nThe rule is intended to prescribe the minimum amount of discovery to which the parties are\nentitled. It is not intended to limit the judge\'s discretion to order broader discovery in appropriate\ncases. For example, subdivision (a)(3) is not intended to deny a judge\'s discretion to order\ndisclosure of grand jury minutes where circumstances make it appropriate to do so.\nSubdivision (a)(1)(A) amends the old rule to provide, upon request of the defendant, the\ngovernment shall permit discovery if the conditions specified in subdivision (a)(1)(A) exist. Some\ncourts have construed the current language as giving the court discretion as to whether to grant\ndiscovery of defendant\'s statements. See United States v. Kaminsky, 275 F.Supp. 365 (S.D.N.Y.\n1967), denying discovery because the defendant did not demonstrate that his request for discovery\nwas warranted; United States v. Diliberto, 264 F.Supp. 181 (S.D.N.Y. 1967), holding that there\nmust be a showing of actual need before discovery would be granted; United States v. Louis\n159\n\n\x0cCarreau, Inc., 42 F.R.D. 408 (S.D.N.Y. 1967), holding that in the absence of a showing of good\ncause the government cannot be required to disclose defendant\'s prior statements in advance of\ntrial. In United States v. Louis Carreau, Inc., at p. 412, the court stated that if rule 16 meant that\nproduction of the statements was mandatory, the word \xe2\x80\x9cshall\xe2\x80\x9d would have been used instead of\n\xe2\x80\x9cmay.\xe2\x80\x9d See also United States v. Wallace, 272 F.Supp. 838 (S.D.N.Y. 1967); United States v.\nWood, 270 F.Supp. 963 (S.D.N.Y. 1967); United States v. Leighton, 265 F.Supp. 27 (S.D.N.Y.\n1967); United States v. Longarzo, 43 F.R.D. 395 (S.D.N.Y. 1967); Loux v. United States, 389 F.2d\n911 (9th Cir. 1968); and the discussion of discovery in Discovery in Criminal Cases, 44 F.R.D.\n481 (1968). Other courts have held that even though the current rules make discovery\ndiscretionary, the defendant need not show cause when he seeks to discover his own statements.\nSee United States v. Aadal, 280 F.Supp. 859 (S.D.N.Y. 1967); United States v. Federmann, 41\nF.R.D. 339 (S.D.N.Y. 1967); and United States v. Projansky, 44 F.R.D. 550 (S.D.N.Y. 1968).\nThe amendment making disclosure mandatory under the circumstances prescribed in\nsubdivision (a)(1)(A) resolves such ambiguity as may currently exist, in the direction of more\nliberal discovery. See C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7253 (1969, Supp.\n1971), Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo.L.J. 1276 (1966);\nFla.Stat.Ann. \xc2\xa7925.05 (Supp. 1971\xe2\x80\x931972); N.J.Crim.Prac.Rule 35\xe2\x80\x9311(a) (1967). This is done in\nthe view that broad discovery contributes to the fair and efficient administration of criminal justice\nby providing the defendant with enough information to make an informed decision as to plea; by\nminimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an\naccurate determination of the issue of guilt or innocence. This is the ground upon which the\nAmerican Bar Association Standards Relating to Discovery and Procedure Before Trial\n(Approved Draft, 1970) has unanimously recommended broader discovery. The United States\nSupreme Court has said that the pretrial disclosure of a defendant\'s statements \xe2\x80\x9cmay be the \xe2\x80\x98better\npractice.\xe2\x80\x99 \xe2\x80\x9d Cicenia v. La Gay, 357 U.S. 504, 511, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). See also\nLeland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); State v. Johnson, 28 N.J.\n133, 145 A.2d 313 (1958).\nThe requirement that the statement be disclosed prior to trial, rather than waiting until the\ntrial, also contributes to efficiency of administration. It is during the pretrial stage that the\ndefendant usually decides whether to plead guilty. See United States v. Projansky, supra. The\npretrial stage is also the time during which many objections to the admissibility of types of\nevidence ought to be made. Pretrial disclosure ought, therefore, to contribute both to an informed\nguilty plea practice and to a pretrial resolution of admissibility questions. See ABA, Standards\nRelating to Discovery and Procedure Before Trial \xc2\xa71.2 and Commentary pp. 40\xe2\x80\x9343 (Approved\nDraft, 1970).\nThe American Bar Association Standards mandate the prosecutor to make the required\ndisclosure even though not requested to do so by the defendant. The proposed draft requires the\ndefendant to request discovery, although obviously the attorney for the government may disclose\nwithout waiting for a request, and there are situations in which due process will require the\nprosecution, on its own, to disclose evidence \xe2\x80\x9chelpful\xe2\x80\x9d to the defense. Brady v. Maryland, 373\nU.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17\nL.Ed.2d 737 (1967).\nThe requirement in subdivision (a)(1)(A) is that the government produce \xe2\x80\x9cstatements\xe2\x80\x9d\nwithout further discussion of what \xe2\x80\x9cstatement\xe2\x80\x9d includes. There has been some recent controversy\nover what \xe2\x80\x9cstatements\xe2\x80\x9d are subject to discovery under the current rule. See Discovery in Criminal\nCases, 44 F.R.D. 481 (1968); C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7253, pp. 505\xe2\x80\x93\n160\n\n\x0c506 (1969, Supp. 1971). The kinds of \xe2\x80\x9cstatements\xe2\x80\x9d which have been held to be within the rule\ninclude \xe2\x80\x9csubstantially verbatim and contemporaneous\xe2\x80\x9d statements, United States v. Elife, 43\nF.R.D. 23 (S.D.N.Y. 1967); statements which reproduce the defendant\'s \xe2\x80\x9cexact words,\xe2\x80\x9d United\nStates v. Armantrout, 278 F.Supp. 517 (S.D.N.Y. 1968); a memorandum which was not verbatim\nbut included the substance of the defendant\'s testimony, United States v. Scharf, 267 F.Supp. 19\n(S.D.N.Y. 1967); Summaries of the defendant\'s statements, United States v. Morrison, 43 F.R.D.\n516 (N.D.Ill. 1967); and statements discovered by means of electronic surveillance, United States\nv. Black, 282 F.Supp. 35 (D.D.C. 1968). The court in United States v. Iovinelli, 276 F.Supp. 629,\n631 (N.D.Ill. 1967), declared that \xe2\x80\x9cstatements\xe2\x80\x9d as used in old rule 16 is not restricted to the\n\xe2\x80\x9csubstantially verbatim recital of an oral statement\xe2\x80\x9d or to statements which are a \xe2\x80\x9crecital of past\noccurrences.\xe2\x80\x9d\nThe Jencks Act, 18 U.S.C. \xc2\xa73500, defines \xe2\x80\x9cstatements\xe2\x80\x9d of government witnesses\ndiscoverable for purposes of cross-examination as: (1) a \xe2\x80\x9cwritten statement\xe2\x80\x9d signed or otherwise\napproved by a witness, (2) \xe2\x80\x9ca stenographic, mechanical, electrical, or other recording, or a\ntranscription thereof, which is a substantially verbatim recital of an oral statement made by said\nwitness to an agent of the government and recorded contemporaneously with the making of such\noral statement.\xe2\x80\x9d 18 U.S.C. \xc2\xa73500(e). The language of the Jencks Act has most often led to a\nrestrictive definition of \xe2\x80\x9cstatements,\xe2\x80\x9d confining \xe2\x80\x9cstatements\xe2\x80\x9d to the defendant\'s \xe2\x80\x9cown words.\xe2\x80\x9d See\nHanks v. United States, 388 F.2d 171 (10th Cir. 1968), and Augenblick v. United States, 377 F.2d\n586, 180 Ct.Cl. 131 (1967).\nThe American Bar Association\'s Standards Relating to Discovery and Procedure Before\nTrial (Approved Draft, 1970) do not attempt to define \xe2\x80\x9cstatements\xe2\x80\x9d because of a disagreement\namong members of the committee as to what the definition should be. The majority rejected the\nrestrictive definition of \xe2\x80\x9cstatements\xe2\x80\x9d contained in the Jencks Act, 18 U.S.C. \xc2\xa73500(e), in the view\nthat the defendant ought to be able to see his statement in whatever form it may have been\npreserved in fairness to the defendant and to discourage the practice, where it exists, of destroying\noriginal notes, after transforming them into secondary transcriptions, in order to avoid\ncross-examination based upon the original notes. See Campbell v. United States, 373 U.S. 487, 83\nS.Ct. 1356, 10 L.Ed.2d 501 (1963). The minority favored a restrictive definition of \xe2\x80\x9cstatements\xe2\x80\x9d in\nthe view that the use of other than \xe2\x80\x9cverbatim\xe2\x80\x9d statements would subject witnesses to unfair\ncross-examination. See American Bar Association\'s Standards Relating to Discovery and\nProcedure Before Trial pp. 61\xe2\x80\x9364 (Approved Draft, 1970). The draft of subdivision (a)(1)(A)\nleaves the matter of the meaning of the term unresolved and thus left for development on a\ncase-by-case basis.\nSubdivision (a)(1)(A) also provides for mandatory disclosure of a summary of any oral\nstatement made by defendant to a government agent which the attorney for the government intends\nto use in evidence. The reasons for permitting the defendant to discover his own statements seem\nobviously to apply to the substance of any oral statement which the government intends to use in\nevidence at the trial. See American Bar Association Standards Relating to Discovery and\nProcedure Before Trial \xc2\xa72.1(a)(ii) (Approved Draft, 1970). Certainly disclosure will facilitate the\nraising of objections to admissibility prior to trial. There have been several conflicting decisions\nunder the current rules as to whether the government must disclose the substance of oral statements\nof the defendant which it has in its possession. Cf. United States v. Baker, 262 F.Supp. 657\n(D.C.D.C. 1966); United States v. Curry, 278 F.Supp. 508 (N.D.Ill. 1967); United States v.\nMorrison, 43 F.R.D. 516 (ND.Ill. 1967); United States v. Reid, 43 F.R.D. 520 (ND.Ill. 1967);\nUnited States v. Armantrout, 278 F.Supp. 517 (S.D.N.Y. 1968); and United States v. Elife, 43\n161\n\n\x0cF.R.D. 23 (S.D.N.Y. 1967). There is, however, considerable support for the policy of disclosing\nthe substance of the defendant\'s oral statement. Many courts have indicated that this is a \xe2\x80\x9cbetter\npractice\xe2\x80\x9d than denying such disclosure. E.g., United States v. Curry, supra; Loux v. United States,\n389 F.2d 911 (9th Cir. 1968); and United States v. Baker, supra.\nSubdivision (a)(1)(A) also provides for mandatory disclosure of any \xe2\x80\x9crecorded testimony\xe2\x80\x9d\nwhich defendant gives before a grand jury if the testimony \xe2\x80\x9crelates to the offense charged.\xe2\x80\x9d The\npresent rule is discretionary and is applicable only to those of defendant\'s statements which are\n\xe2\x80\x9crelevant.\xe2\x80\x9d\nThe traditional rationale behind grand jury secrecy\xe2\x80\x94protection of witnesses\xe2\x80\x94does not\napply when the accused seeks discovery of his own testimony. Cf. Dennis v. United States, 384\nU.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); and Allen v. United States, 129 U.S.App.D.C. 61,\n390 F.2d 476 (1968). In interpreting the rule many judges have granted defendant discovery\nwithout a showing of need or relevance. United States v. Gleason, 259 F.Supp. 282 (S.D.N.Y.\n1966); United States v. Longarzo, 43 F.R.D. 395 (S.D.N.Y. 1967); and United States v. United\nConcrete Pipe Corp., 41 F.R.D. 538 (N.D.Tex. 1966). Making disclosure mandatory without a\nshowing of relevance conforms to the recommendation of the American Bar Association\nStandards Relating to Discovery and Procedure Before Trial \xc2\xa72.1(a)(iii) and Commentary pp. 64\xe2\x80\x93\n66 (Approved Draft, 1970). Also see Note, Discovery by a Criminal Defendant of His Own\nGrand-Jury Testimony, 68 Columbia L.Rev. 311 (1968).\nIn a situation involving a corporate defendant, statements made by present and former\nofficers and employees relating to their employment have been held discoverable as statements of\nthe defendant. United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969). The rule makes clear that\nsuch statements are discoverable if the officer or employee was \xe2\x80\x9cable legally to bind the defendant\nin respect to the activities involved in the charges.\xe2\x80\x9d\nSubdivision (a)(1)(B) allows discovery of the defendant\'s prior criminal record. A\ndefendant may be uncertain of the precise nature of his prior record and it seems therefore in the\ninterest of efficient and fair administration to make it possible to resolve prior to trial any disputes\nas to the correctness of the relevant criminal record of the defendant.\nSubdivision (a)(1)(C) gives a right of discovery of certain tangible objects under the\nspecified circumstances. Courts have construed the old rule as making disclosure discretionary\nwith the judge. Cf. United States v. Kaminsky, 275 F.Supp. 365 (S.D.N.Y. 1967); Gevinson v.\nUnited States, 358 F.2d 761 (5th Cir. 1966), cert. denied, 385 U.S. 823, 87 S.Ct. 51, 17 L.Ed.2d 60\n(1966); and United States v. Tanner, 279 F.Supp. 457 (N.D.Ill. 1967). The old rule requires a\n\xe2\x80\x9cshowing of materiality to the preparation of his defense and that the request is reasonable.\xe2\x80\x9d The\nnew rule requires disclosure if any one of three situations exists: (a) the defendant shows that\ndisclosure of the document or tangible object is material to the defense, (b) the government intends\nto use the document or tangible object in its presentation of its case in chief, or (c) the document or\ntangible object was obtained from or belongs to the defendant.\nDisclosure of documents and tangible objects which are \xe2\x80\x9cmaterial\xe2\x80\x9d to the preparation of the\ndefense may be required under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10\nL.Ed.2d 215 (1963), without an additional showing that the request is \xe2\x80\x9creasonable.\xe2\x80\x9d In Brady the\ncourt held that \xe2\x80\x9cdue process\xe2\x80\x9d requires that the prosecution disclose evidence favorable to the\naccused. Although the Advisory Committee decided not to codify the Brady Rule, the requirement\nthat the government disclose documents and tangible objects \xe2\x80\x9cmaterial to the preparation of his\ndefense\xe2\x80\x9d underscores the importance of disclosure of evidence favorable to the defendant.\nLimiting the rule to situations in which the defendant can show that the evidence is material\n162\n\n\x0cseems unwise. It may be difficult for a defendant to make this showing if he does not know what\nthe evidence is. For this reason subdivision (a)(1)(C) also contains language to compel disclosure\nif the government intends to use the property as evidence at the trial or if the property was obtained\nfrom or belongs to the defendant. See ABA Standards Relating to Discovery and Procedure Before\nTrial \xc2\xa72.1(a)(v) and Commentary pp. 68\xe2\x80\x9369 (Approved Draft, 1970). This is probably the result\nunder old rule 16 since the fact that the government intends to use the physical evidence at the trial\nis probably sufficient proof of \xe2\x80\x9cmateriality.\xe2\x80\x9d C. Wright, Federal Practice and Procedure: Criminal\n\xc2\xa7254 especially n. 70 at p. 513 (1969, Supp. 1971). But it seems desirable to make this explicit in\nthe rule itself.\nRequiring disclosure of documents and tangible objects which \xe2\x80\x9cwere obtained from or\nbelong to the defendant\xe2\x80\x9d probably is also making explicit in the rule what would otherwise be the\ninterpretation of \xe2\x80\x9cmateriality.\xe2\x80\x9d See C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7254 at p.\n510 especially n. 58 (1969, Supp. 1971).\nSubdivision (a)(1)(C) is also amended to add the word \xe2\x80\x9cphotographs\xe2\x80\x9d to the objects\npreviously listed. See ABA Standards Relating to Discovery and Procedure Before Trial\n\xc2\xa72.1(a)(v) (Approved Draft, 1970).\nSubdivision (a)(1)(D) makes disclosure of the reports of examinations and tests\nmandatory. This is the recommendation of the ABA Standards Relating to Discovery and\nProcedure Before Trial \xc2\xa72.1(a)(iv) and Commentary pp. 66\xe2\x80\x9368 (Approved Draft, 1970). The\nobligation of disclosure applies only to scientific tests or experiments \xe2\x80\x9cmade in connection with\nthe particular case.\xe2\x80\x9d So limited, mandatory disclosure seems justified because: (1) it is difficult to\ntest expert testimony at trial without advance notice and preparation; (2) it is not likely that such\nevidence will be distorted or misused if disclosed prior to trial; and (3) to the extent that a test may\nbe favorable to the defense, its disclosure is mandated under the rule of Brady v. Maryland, supra.\nSubdivision (a)(1)(E) is new. It provides for discovery of the names of witnesses to be\ncalled by the government and of the prior criminal record of these witnesses. Many states have\nstatutes or rules which require that the accused be notified prior to trial of the witnesses to be called\nagainst him. See, e.g., Alaska R.Crim.Proc. 7(c); Ariz.R.Crim.Proc. 153, 17 A.R.S. (1956);\nArk.Stat.Ann. \xc2\xa743\xe2\x80\x931001 (1947); Cal.Pen.Code \xc2\xa7995n (West 1957); Colo.Rev.Stat.Ann. \xc2\xa7\xc2\xa739\xe2\x80\x933\xe2\x80\x93\n6, 39\xe2\x80\x934\xe2\x80\x932 (1963); Fla.Stat.Ann. \xc2\xa7906.29 (1944); Idaho Code Ann. \xc2\xa719\xe2\x80\x931404 (1948); Ill.Rev.Stat.\nch. 38, \xc2\xa7114\xe2\x80\x939 (1970); Ind.Ann.Stat. \xc2\xa79\xe2\x80\x93903 (1856), IC 1971, 35\xe2\x80\x931\xe2\x80\x9316\xe2\x80\x933; Iowa Code Ann.\n\xc2\xa7772.3 (1950); Kan.Stat.Ann. \xc2\xa762\xe2\x80\x93931 (1964); Ky.R.Crim. Proc. 6.08 (1962); Mich.Stat.Ann.\n\xc2\xa728.980, M.C.L.A. \xc2\xa7767.40 (Supp.1971); Minn.Stat.Ann. \xc2\xa7628.08 (1947); Mo.Ann.Stat.\n\xc2\xa7545.070 (1953); Mont.Rev. Codes Ann. \xc2\xa795\xe2\x80\x931503 (Supp. 1969); Neb.Rev.Stat. \xc2\xa729\xe2\x80\x931602\n(1964); Nev.Rev.Stat. \xc2\xa7173.045 (1967); Okl.Stat. tet. 22, \xc2\xa7384 (1951); Ore.Rev.Stat. \xc2\xa7132.580\n(1969); Tenn. Code Ann. \xc2\xa740\xe2\x80\x931708 (1955); Utah Code Ann. \xc2\xa777\xe2\x80\x9320\xe2\x80\x933 (1953). For examples of\nthe ways in which these requirements are implemented, see State v. Mitchell, 181 Kan. 193, 310\nP.2d 1063 (1957); State v. Parr, 129 Mont. 175, 283 P.2d 1086 (1955); Phillips v. State, 157 Neb.\n419, 59 N.W. 598 (1953).\nWitnesses\xe2\x80\x99 prior statements must be made available to defense counsel after the witness\ntestifies on direct examination for possible impeachment purposes during trial: 18 U.S.C. \xc2\xa73500.\nThe American Bar Association\'s Standards Relating to Discovery and Procedure Before\nTrial \xc2\xa72.1(a)(i) (Approved Draft, 1970) require disclosure of both the names and the statements of\nprosecution witnesses. Subdivision (a)(1)(E) requires only disclosure, prior to trial, of names,\naddresses, and prior criminal record. It does not require disclosure of the witnesses\xe2\x80\x99 statements\nalthough the rule does not preclude the parties from agreeing to disclose statements prior to trial.\n163\n\n\x0cThis is done, for example, in courts using the so-called \xe2\x80\x9comnibus hearing.\xe2\x80\x9d\nDisclosure of the prior criminal record of witnesses places the defense in the same position\nas the government, which normally has knowledge of the defendant\'s record and the record of\nanticipated defense witnesses. In addition, the defendant often lacks means of procuring this\ninformation on his own. See American Bar Association Standards Relating to Discovery and\nProcedure Before Trial \xc2\xa72.1(a)(vi) (Approved Draft, 1970).\nA principal argument against disclosure of the identity of witnesses prior to trial has been\nthe danger to the witness, his being subjected either to physical harm or to threats designed to make\nthe witness unavailable or to influence him to change his testimony. Discovery in Criminal cases,\n44 F.R.D. 481, 499\xe2\x80\x93500 (1968); Ratnoff, The New Criminal Deposition Statute in Ohio\xe2\x80\x94Help or\nHindrance to Justice?, 19 Case Western Reserve L.Rev. 279, 284 (1968). See, e.g., United States v.\nEstep, 151 F.Supp. 668, 672\xe2\x80\x93673 (N.D. Tex. 1957):\nNinety percent of the convictions had in the trial court for sale and dissemination of\nnarcotic drugs are linked to the work and the evidence obtained by an informer. If that informer is\nnot to have his life protected there won\'t be many informers hereafter.\nSee also the dissenting opinion of Mr. Justice Clark in Roviaro v. United States, 353 U.S.\n53, 66 \xe2\x80\x9367, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Threats of market retaliation against witnesses in\ncriminal antitrust cases are another illustration. Bergen Drug Co. v. Parke, Davis & Company, 307\nF.2d 725 (3d Cir. 1962); and House of Materials, Inc. v. Simplicity Pattern Co., 298 F.2d 867 (2d\nCir. 1962). The government has two alternatives when it believes disclosure will create an undue\nrisk of harm to the witness: It can ask for a protective order under subdivision (d)(1). See ABA\nStandards Relating to Discovery and Procedure Before Trial \xc2\xa72.5(b) (Approved Draft, 1970). It\ncan also move the court to allow the perpetuation of a particular witness\'s testimony for use at trial\nif the witness is unavailable or later changes his testimony. The purpose of the latter alternative is\nto make pretrial disclosure possible and at the same time to minimize any inducement to use\nimproper means to force the witness either to not show up or to change his testimony before a jury.\nSee rule 15.\nSubdivision (a)(2) is substantially unchanged. It limits the discovery otherwise allowed by\nproviding that the government need not disclose \xe2\x80\x9creports, memoranda, or other internal\ngovernment documents made by the attorney for the government or other government agents in\nconnection with the investigation or prosecution of the case\xe2\x80\x9d or \xe2\x80\x9cstatements made by government\nwitnesses or prospective government witnesses.\xe2\x80\x9d The only proposed change is that the \xe2\x80\x9creports,\nmemoranda, or other internal government documents made by the attorney for the government\xe2\x80\x9d\nare included to make clear that the work product of the government attorney is protected. See C.\nWright, Federal Practice and Procedure: Criminal \xc2\xa7254 n. 92 (1969, Supp. 1971); United States v.\nRothman, 179 F.Supp. 935 (W.D.Pa. 1959); Note, \xe2\x80\x9cWork Product\xe2\x80\x9d in Criminal Discovery, 1966\nWash.U.L.Q. 321; American Bar Association, Standards Relating to Discovery and Procedure\nBefore Trial \xc2\xa72.6(a) (Approved Draft, 1970); cf. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385,\n91 L.Ed. 451 (1947). Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed2d 215 (1963),\nrequires the disclosure of evidence favorable to the defendant. This is, of course, not changed by\nthis rule.\nSubdivision (a)(3) is included to make clear that recorded proceedings of a grand jury are\nexplicitly dealt with in rule 6 and subdivision (a)(1)(A) of rule 16 and thus are not covered by other\nprovisions such as subdivision (a)(1)(C) which deals generally with discovery of documents in the\npossession, custody, or control of the government.\nSubdivision (a)(4) is designed to insure that the government will not be penalized if it\n164\n\n\x0cmakes a full disclosure of all potential witnesses and then decides not to call one or more of the\nwitnesses listed. This is not, however, intended to abrogate the defendant\'s right to comment\ngenerally upon the government\'s failure to call witnesses in an appropriate case.\nSubdivision (b) deals with the government\'s right to discovery of defense evidence or, put\nin other terms, with the extent to which a defendant is required to disclose its evidence to the\nprosecution prior to trial. Subdivision (b) replaces old subdivision (c).\nSubdivision (b) enlarges the right of government discovery in several ways: (1) it gives the\ngovernment the right to discovery of lists of defense witnesses as well as physical evidence and the\nresults of examinations and tests; (2) it requires disclosure if the defendant has the evidence under\nhis control and intends to use it at trial in his case in chief, without the additional burden, required\nby the old rule, of having to show, in behalf of the government, that the evidence is material and\nthe request reasonable; and (3) it gives the government the right to discovery without conditioning\nthat right upon the existence of a prior request for discovery by the defendant.\nAlthough the government normally has resources adequate to secure much of the evidence\nfor trial, there are situations in which pretrial disclosure of evidence to the government is in the\ninterest of effective and fair criminal justice administration. For example, the experimental\n\xe2\x80\x9comnibus hearing\xe2\x80\x9d procedure (see discussion in Advisory Committee Note to rule 12) is based\nupon an assumption that the defendant, as well as the government, will be willing to disclose\nevidence prior to trial.\nHaving reached the conclusion that it is desirable to require broader disclosure by the\ndefendant under certain circumstances, the Advisory Committee has taken the view that it is\npreferable to give the right of discovery to the government independently of a prior request for\ndiscovery by the defendant. This is the recommendation of the American Bar Association\nStandards Relating to Discovery and Procedure Before Trial, Commentary, pp. 43\xe2\x80\x9346 (Approved\nDraft, 1970). It is sometimes asserted that making the government\'s right to discovery conditional\nwill minimize the risk that government discovery will be viewed as an infringement of the\ndefendant\'s constitutional rights. See discussion in C. Wright, Federal Practice and Procedure:\nCriminal \xc2\xa7256 (1969, Supp.1971); Moore, Criminal Discovery, 19 Hastings L.J. 865 (1968);\nWilder, Prosecution Discovery and the Privilege Against Self-Incrimination, 6 Am.Cr.L.Q. 3\n(1967). There are assertions that prosecution discovery, even if conditioned upon the defendants\nbeing granted discovery, is a violation of the privilege. See statements of Mr. Justice Black and\nMr. Justice Douglas, 39 F.R.D. 69, 272, 277\xe2\x80\x93278 19 (1966); C. Wright, Federal Practice and\nProcedure: Criminal \xc2\xa7256 (1969, Supp. 1971). Several states require defense disclosure of an\nintended defense of alibi and, in some cases, a list of witnesses in support of an alibi defense,\nwithout making the requirement conditional upon prior discovery being given to the defense. E.g.,\nAriz.R.Crim.P. 162(B), 17 A.R.S. (1956); Ind.Ann.Stat. \xc2\xa79\xe2\x80\x931631 to 9\xe2\x80\x931633 (1956), IC 1971, 35\xe2\x80\x93\n5\xe2\x80\x931\xe2\x80\x931 to 35\xe2\x80\x935\xe2\x80\x931\xe2\x80\x933; Mich.Comp. Laws Ann. \xc2\xa7\xc2\xa7768.20, 768.21 (1968); N.Y. CPL \xc2\xa7250.20\n(McKinney\'s Consol.Laws, c. 11\xe2\x80\x93A, 1971); and Ohio Rev.Code Ann. \xc2\xa72945.58 (1954). State\ncourts have refused to hold these statutes violative of the privilege against self-incrimination. See\nState v. Thayer, 124 Ohio St. 1, 176 N.E. 656 (1931), and People v. Rakiec, 260 App.Div. 452, 23\nN.Y.S.2d 607, aff\'d, 289 N.Y. 306, 45 N.E.2d 812 (1942). See also rule 12.1 and Advisory\nCommittee Note thereto.\nSome state courts have held that a defendant may be required to disclose, in advance of\ntrial, evidence which he intends to use on his own behalf at trial without violating the privilege\nagainst self-incrimination. See Jones v. Superior Court of Nevada County, 58 Cal.2d 56, 22\nCal.Rptr. 879, 372 P.2d 919 (1962); People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16\n165\n\n\x0c(1963); Comment, The Self-Incrimination Privilege: Barrier to Criminal Discovery?, 51\nCalif.L.Rev. 135 (1963); Note, 76 Harv.L.Rev. 838 (1963). The courts in Jones v. Superior Court\nof Nevada County, supra, suggests that if mandatory disclosure applies only to those items which\nthe accused intends to introduce in evidence at trial, neither the incriminatory nor the involuntary\naspects of the privilege against self-incrimination are present.\nOn balance the Advisory Committee is of the view that an independent right of discovery\nfor both the defendant and the government is likely to contribute to both effective and fair\nadministration. See Louisell, Criminal Discovery and Self-Incrimination: Roger Traynor\nConfronts the Dilemma, 53 Calif.L.Rev. 89 (1965), for an analysis of the difficulty of weighing the\nvalue of broad discovery against the value which inheres in not requiring the defendant to disclose\nanything which might work to his disadvantage.\nSubdivision (b)(1)(A) provides that the defendant shall disclose any documents and\ntangible objects which he has in his possession, custody, or control and which he intends to\nintroduce in evidence in his case in chief.\nSubdivision (b)(1)(B) provides that the defendant shall disclose the results of physical or\nmental examinations and scientific tests or experiments if (a) they were made in connection with a\nparticular case; (b) the defendant has them under his control; and (c) he intends to offer them in\nevidence in his case in chief or which were prepared by a defense witness and the results or reports\nrelate to the witness\'s testimony. In cases where both prosecution and defense have employed\nexperts to conduct tests such as psychiatric examinations, it seems as important for the government\nto be able to study the results reached by defense experts which are to be called by the defendant as\nit does for the defendant to study those of government experts. See Schultz, Criminal Discovery by\nthe Prosecution: Frontier Developments and Some Proposals for the Future, 22\nN.Y.U.Intra.L.Rev. 268 (1967); American Bar Association, Standards Relating to Discovery and\nProcedure Before Trial \xc2\xa73.2 (Supp., Approved Draft, 1970).\nSubdivision (b)(1)(C) provides for discovery of a list of witnesses the defendant intends to\ncall in his case in chief. State cases have indicated that disclosure of a list of defense witnesses\ndoes not violate the defendant\'s privilege against self-incrimination. See Jones v. Superior Court\nof Nevada County, supra, and People v. Lopez, supra. The defendant has the same option as does\nthe government if it is believed that disclosure of the identity of a witness may subject that witness\nto harm or a threat of harm. The defendant can ask for a protective order under subdivision (d)(1)\nor can take a deposition in accordance with the terms of rule 15.\nSubdivision (b)(2) is unchanged, appearing as the last sentence of subdivision (c) of old\nrule 16.\nSubdivision (b)(3) provides that the defendant\'s failure to introduce evidence or call\nwitnesses shall not be admissible in evidence against him. In states which require pretrial\ndisclosure of witnesses\xe2\x80\x99 identity, the prosecution is not allowed to comment upon the defendant\'s\nfailure to call a listed witness. See O\'Connor v. State, 31 Wis.2d 684, 143 N.W.2d 489 (1966);\nPeople v. Mancini, 6 N.Y.2d 853, 188 N.Y.S.2d 559, 160 N.E.2d 91 (1959); and State v. Cocco, 73\nOhio App. 182, 55 N.E.2d 430 (1943). This is not, however, intended to abrogate the government\'s\nright to comment generally upon the defendant\'s failure to call witnesses in an appropriate case,\nother than the defendant\'s failure to testify.\nSubdivision (c) is a restatement of part of old rule 16(g).\nSubdivision (d)(1) deals with the protective order. Although the rule does not attempt to\nindicate when a protective order should be entered, it is obvious that one would be appropriate\nwhere there is reason to believe that a witness would be subject to physical or economic harm if his\n166\n\n\x0cidentity is revealed. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).\nThe language \xe2\x80\x9cby the judge alone\xe2\x80\x9d is not meant to be inconsistent with Alderman v. United States,\n394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In Alderman the court points out that there\nmay be appropriate occasions for the trial judge to decide questions relating to pretrial disclosure.\nSee Alderman v. United States, 394 U.S. at 182 n. 14, 89 S.Ct. 961.\nSubdivision (d)(2) is a restatement of part of old rule 16(g) and (d).\nOld subdivision (f) of rule 16 dealing with time of motions is dropped because rule 12(c)\nprovides the judge with authority to set the time for the making of pretrial motions including\nrequests for discovery. Rule 12 also prescribes the consequences which follow from a failure to\nmake a pretrial motion at the time fixed by the court. See rule 12(f).\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 16 of the Federal Rules of Criminal\nProcedure regulates discovery by the defendant of evidence in possession of the prosecution, and\ndiscovery by the prosecution of evidence in possession of the defendant. The present rule permits\nthe defendant to move the court to discover certain material. The prosecutor\'s discovery is limited\nand is reciprocal\xe2\x80\x94that is, if the defendant is granted discovery of certain items, then the\nprosecution may move for discovery of similar items under the defendant\'s control.\nAs proposed to be amended, the rule provides that the parties themselves will accomplish\ndiscovery\xe2\x80\x94no motion need be filed and no court order is necessary. The court will intervene only\nto resolve a dispute as to whether something is discoverable or to issue a protective order.\nThe proposed rule enlarges the scope of the defendant\'s discovery to include a copy of his\nprior criminal record and a list of the names and addresses, plus record of prior felony convictions,\nof all witnesses the prosecution intends to call during its case-in-chief. It also permits the\ndefendant to discover the substance of any oral statement of his which the prosecution intends to\noffer at trial, if the statement was given in response to interrogation by any person known by\ndefendant to be a government agent.\nProposed subdivision (a)(2) provides that Rule 16 does not authorize the defendant to\ndiscover \xe2\x80\x9creports, memoranda, or other internal government documents made by the attorney for\nthe government or other government agents in connection with the investigation or prosecution of\nthe case. . . .\xe2\x80\x9d\nThe proposed rule also enlarges the scope of the government\'s discovery of materials in the\ncustody of the defendant. The government is entitled to a list of the names and addresses of the\nwitnesses the defendant intends to call during his case-in-chief. Proposed subdivision (b)(2)\nprotects the defendant from having to disclose \xe2\x80\x9creports, memoranda, or other internal defense\ndocuments . . . made in connection with the investigation or defense of the case. . . .\xe2\x80\x9d\nSubdivision (d)(1) of the proposed rule permits the court to deny, restrict, or defer\ndiscovery by either party, or to make such other order as is appropriate. Upon request, a party may\nmake a showing that such an order is necessary. This showing shall be made to the judge alone if\nthe party so requests. If the court enters an order after such a showing, it must seal the record of the\nshowing and preserve it in the event there is an appeal.\nB. Committee Action. The Committee agrees that the parties should, to the maximum\npossible extent, accomplish discovery themselves. The court should become involved only when it\nis necessary to resolve a dispute or to issue an order pursuant to subdivision (d).\nPerhaps the most controversial amendments to this rule were those dealing with witness\n167\n\n\x0clists. Under present law, the government must turn over a witness list only in capital cases.\n[Section 3432 of title 18 of the United States Code provides: A person charged with treason or\nother capital offense shall at least three entire days before commencement of trial be furnished\nwith a copy of the indictment and a list of the veniremen, and of the witnesses to be produced on\nthe trial for proving the indictment, stating the place of abode of each venireman and witness.] The\ndefendant never needs to turn over a list of his witnesses. The proposed rule requires both the\ngovernment and the defendant to turn over witness lists in every case, capital or noncapital.\nMoreover, the lists must be furnished to the adversary party upon that party\'s request.\nThe proposed rule was sharply criticized by both prosecutors and defenders. The\nprosecutors feared that pretrial disclosure of prosecution witnesses would result in harm to\nwitnesses. The defenders argued that a defendant cannot constitutionally be compelled to disclose\nhis witnesses.\nThe Committee believes that it is desirable to promote greater pretrial discovery. As stated\nin the Advisory Committee Note,\nbroader discovery by both the defense and the prosecution will contribute to the fair and\nefficient administration of criminal justice by aiding in informed plea negotiations, by minimizing\nthe undesirable effect of surprise at trial, and by otherwise contributing to an accurate\ndetermination of the issue of guilt or innocence. . . .\nThe Committee, therefore, endorses the principle that witness lists are discoverable.\nHowever, the Committee has attempted to strike a balance between the narrow provisions of\nexisting law and the broad provisions of the proposed rule.\nThe Committee rule makes the procedures defendant-triggered. If the defendant asks for\nand receives a list of prosecution witnesses, then the prosecution may request a list of defense\nwitnesses. The witness lists need not be turned over until 3 days before trial. The court can modify\nthe terms of discovery upon a sufficient showing. Thus, the court can require disclosure of the\nwitness lists earlier than 3 days before trial, or can permit a party not to disclose the identity of a\nwitness before trial.\nThe Committee provision promotes broader discovery and its attendant values\xe2\x80\x94informed\ndisposition of cases without trial, minimizing the undesirable effect of surprise, and helping insure\nthat the issue of guilt or innocence is accurately determined. At the same time, it avoids the\nproblems suggested by both the prosecutors and the defenders.\nThe major argument advanced by prosecutors is the risk of danger to their witnesses if their\nidentities are disclosed prior to trial. The Committee recognizes that there may be a risk but\nbelieves that the risk is not as great as some fear that it is. Numerous states require the prosecutor to\nprovide the defendant with a list of prosecution witnesses prior to trial. [These States include\nAlaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Kansas,\nKentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oklahoma, Oregon,\nTennessee, and Utah. See Advisory Committee Note, House Document 93\xe2\x80\x93292, at 60.] The\nevidence before the Committee indicates that these states have not experienced unusual problems\nof witness intimidation. [See the comments of the Standing Committee on Criminal Law and\nProcedure of the State Bar of California in Hearings II, at 302.]\nSome federal jurisdictions have adopted an omnibus pretrial discovery procedure that calls\nupon the prosecutor to give the defendant its witness lists. One such jurisdiction is the Southern\nDistrict of California. The evidence before the Committee indicates that there has been no unusual\nproblems with witness intimidation in that district. Charles Sevilla, Chief Trial Attorney for the\nFederal Defenders of San Diego, Inc., which operates in the Southern District of California,\n168\n\n\x0ctestified as follows:\nThe Government in one of its statements to this committee indicated that providing the\ndefense with witness lists will cause coerced witness perjury. This does not happen. We receive\nGovernment witness lists as a matter of course in the Southern District, and it\'s a rare occasion\nwhen there is any overture by a defense witness or by a defendant to a Government witness. It\nsimply doesn\'t happen except on the rarest of occasion. When the Government has that fear it can\nresort to the protective order. [Hearings II, at 42.]\nMr. Sevilla\'s observations are corroborated by the views of the U.S. Attorney for the\nSouthern District of California:\nConcerning the modifications to Rule 16, we have followed these procedures informally in\nthis district for a number of years. We were one of the districts selected for the pilot projects of the\nOmnibus Hearing in 1967 or 1968. We have found that the courts in our district will not require us\nto disclose names of proposed witnesses when in our judgment to do so would not be advisable.\nOtherwise we routinely provide defense counsel with full discovery, including names and\naddresses of witnesses. We have not had any untoward results by following this program, having\nin mind that the courts will, and have, excused us from discovery where the circumstances warrant.\n[Hearings I, at 109.]\nMuch of the prosecutorial criticism of requiring the prosecution to give a list of its\nwitnesses to the defendant reflects an unwillingness to trust judges to exercise sound judgment in\nthe public interest. Prosecutors have stated that they frequently will open their files to defendants\nin order to induce pleas. [See testimony of Richard L. Thornburgh, United States Attorney for the\nWestern District of Pennsylvania, in Hearings I, at 150.]\nProsecutors are willing to determine on their own when they can do this without\njeopardizing the safety of witnesses. There is no reason why a judicial officer cannot exercise the\nsame discretion in the public interest.\nThe Committee is convinced that in the usual case there is no serious risk of danger to\nprosecution witnesses from pretrial disclosure of their identities. In exceptional instances, there\nmay be a risk of danger. The Committee rule, however, is capable of dealing with those\nexceptional instances while still providing for disclosure of witnesses in the usual case.\nThe Committee recognizes the force of the constitutional arguments advanced by\ndefenders. Requiring a defendant, upon request, to give to the prosecution material which may be\nincriminating, certainly raises very serious constitutional problems. The Committee deals with\nthese problems by having the defendant trigger the discovery procedures. Since the defendant has\nno constitutional right to discover any of the prosecution\'s evidence (unless it is exculpatory within\nthe meaning of Brady v. Maryland, 373 U.S. 83 (1963)), it is permissible to condition his access to\nnonexculpatory evidence upon his turning over a list of defense witnesses. Rule 16 currently\noperates in this manner.\nThe Committee also changed subdivisions (a)(2) and (b)(2), which set forth \xe2\x80\x9cwork\nproduct\xe2\x80\x9d exceptions to the general discovery requirements. The subsections proposed by the\nSupreme Court are cast in terms of the type of document involved (e. g., report), rather than in\nterms of the content (e. g., legal theory). The Committee recast these provisions by adopting\nlanguage from Rule 26(b)(3) of the Federal Rules of Civil Procedure.\nThe Committee notes that subdivision (a)(1)(C) permits the defendant to discover certain\nitems that \xe2\x80\x9cwere obtained from or belong to the defendant.\xe2\x80\x9d The Committee believes that, as\nindicated in the Advisory Committee Note [House Document 93\xe2\x80\x93292, at 59], items that \xe2\x80\x9cwere\nobtained from or belong to the defendant\xe2\x80\x9d are items that are material to the preparation of his\n169\n\n\x0cdefense.\nThe Committee added language to subdivision (a)(1)(B) to conform it to provisions in\nsubdivision (a)(1)(A). The rule as changed by the Committee requires the prosecutor to give the\ndefendant such copy of the defendant\'s prior criminal record as is within the prosecutor\'s\n\xe2\x80\x9cpossession, custody, or control, the existence of which is known, or by the exercise of due\ndiligence may become known\xe2\x80\x9d to the prosecutor. The Committee also made a similar conforming\nchange in subdivision (a)(1)(E), dealing with the criminal records of government witnesses. The\nprosecutor can ordinarily discharge his obligation under these two subdivisions, (a)(1)(B) and (E),\nby obtaining a copy of the F.B.I. \xe2\x80\x9crap sheet.\xe2\x80\x9d\nThe Committee made an additional change in subdivision (a)(1)(E). The proposed rule\nrequired the prosecutor to provide the defendant with a record of the felony convictions of\ngovernment witnesses. The major purpose for letting the defendant discover information about the\nrecord of government witnesses, is to provide him with information concerning the credibility of\nthose witnesses. Rule 609(a) of the Federal Rules of Evidence permits a party to attack the\ncredibility of a witness with convictions other than just felony convictions. The Committee,\ntherefore, changed subdivision (a)(1)(E) to require the prosecutor to turn over a record of all\ncriminal convictions, not just felony convictions.\nThe Committee changed subdivision (d)(1), which deals with protective orders. Proposed\n(d)(1) required the court to conduct an ex parte proceeding whenever a party so requested. The\nCommittee changed the mandatory language to permissive language. A Court may, not must,\nconduct an ex parte proceeding if a party so requests. Thus, if a party requests a protective or\nmodifying order and asks to make its showing ex parte, the court has two separate determinations\nto make. First, it must determine whether an ex parte proceeding is appropriate, bearing in mind\nthat ex parte proceedings are disfavored and not to be encouraged. [An ex parte proceeding would\nseem to be appropriate if any adversary proceeding would defeat the purpose of the protective or\nmodifying order. For example, the identity of a witness would be disclosed and the purpose of the\nprotective order is to conceal that witness\xe2\x80\x99 identity.] Second, it must determine whether a\nprotective or modifying order shall issue.\nConference Committee Notes, House Report No. 94\xe2\x80\x93414; 1975 Amendment\nRule 16 deals with pretrial discovery by the defendant and the government. The House and\nSenate versions of the bill differ on Rule 16 in several respects.\nA. Reciprocal vs. Independent Discovery for the Government.\xe2\x80\x94The House version of the\nbill provides that the government\'s discovery is reciprocal. If the defendant requires and receives\ncertain items from the government, then the government is entitled to get similar items from the\ndefendant. The Senate version of the bill gives the government an independent right to discover\nmaterial in the possession of the defendant.\nThe Conference adopts the House provisions.\nB. Rule 16(a)(1)(A).\xe2\x80\x94The House version permits an organization to discover relevant\nrecorded grand jury testimony of any witness who was, at the time of the acts charged or of the\ngrand jury proceedings, so situated as an officer or employee as to have been able legally to bind it\nin respect to the activities involved in the charges. The Senate version limits discovery of this\nmaterial to testimony of a witness who was, at the time of the grand jury proceeding, so situated as\nan officer or employee as to have been legally to bind the defendant in respect to the activities\ninvolved in the charges.\n170\n\n\x0cThe Conferees share a concern that during investigations, ex-employees and ex-officers of\npotential corporate defendants are a critical source of information regarding activities of their\nformer corporate employers. It is not unusual that, at the time of their testimony or interview, these\npersons may have interests which are substantially adverse to or divergent from the putative\ncorporate defendant. It is also not unusual that such individuals, though no longer sharing a\ncommunity of interest with the corporation, may nevertheless be subject to pressure from their\nformer employers. Such pressure may derive from the fact that the ex-employees or ex-officers\nhave remained in the same industry or related industry, are employed by competitors, suppliers, or\ncustomers of their former employers, or have pension or other deferred compensation\narrangements with former employers.\nThe Conferees also recognize that considerations of fairness require that a defendant\ncorporation or other legal entity be entitled to the grand jury testimony of a former officer or\nemployee if that person was personally involved in the conduct constituting the offense and was\nable legally to bind the defendant in respect to the conduct in which he was involved.\nThe Conferees decided that, on balance, a defendant organization should not be entitled to\nthe relevant grand jury testimony of a former officer or employee in every instance. However, a\ndefendant organization should be entitled to it if the former officer or employee was personally\ninvolved in the alleged conduct constituting the offense and was so situated as to have been able\nlegally to bind the defendant in respect to the alleged conduct. The Conferees note that, even in\nthose situations where the rule provides for disclosure of the testimony, the Government may,\nupon a sufficient showing, obtain a protective or modifying order pursuant to Rule 16(d)(1).\nThe Conference adopts a provision that permits a defendant organization to discover\nrelevant grant jury testimony of a witness who (1) was, at the time of his testimony, so situated as\nan officer or employee as to have been able legally to bind the defendant in respect to conduct\nconstituting the offense, or (2) was, at the time of the offense, personally involved in the alleged\nconduct constituting the offense and so situated as an officer or employee as to have been able\nlegally to bind the defendant in respect to that alleged conduct in which he was involved.\nC. Rules 16(a)(1)(E) and (b)(1)(C) (witness lists).\xe2\x80\x94The House version of the bill provides\nthat each party, the government and the defendant, may discover the names and addresses of the\nother party\'s witnesses 3 days before trial. The Senate version of the bill eliminates these\nprovisions, thereby making the names and addresses of a party\'s witnesses nondiscoverable. The\nSenate version also makes a conforming change in Rule 16(d)(1). The Conference adopts the\nSenate version.\nA majority of the Conferees believe it is not in the interest of the effective administration of\ncriminal justice to require that the government or the defendant be forced to reveal the names and\naddresses of its witnesses before trial. Discouragement of witnesses and improper contact directed\nat influencing their testimony, were deemed paramount concerns in the formulation of this policy.\nD. Rules 16(a)(2) and (b)(2).\xe2\x80\x94Rules 16(a)(2) and (b)(2) define certain types of materials\n(\xe2\x80\x9cwork product\xe2\x80\x9d) not to be discoverable. The House version defines work product to be \xe2\x80\x9cthe\nmental impressions, conclusions, opinions, or legal theories of the attorney for the government or\nother government agents.\xe2\x80\x9d This is parallel to the definition in the Federal Rules of Civil Procedure.\nThe Senate version returns to the Supreme Court\'s language and defines work product to be\n\xe2\x80\x9creports, memoranda, or other internal government documents.\xe2\x80\x9d This is the language of the\npresent rule.\nThe Conference adopts the Senate provision.\nThe Conferees note that a party may not avoid a legitimate discovery request merely\n171\n\n\x0cbecause something is labelled \xe2\x80\x9creport\xe2\x80\x9d, \xe2\x80\x9cmemorandum\xe2\x80\x9d, or \xe2\x80\x9cinternal document\xe2\x80\x9d. For example if a\ndocument qualifies as a statement of the defendant within the meaning of the Rule 16(a)(1)(A),\nthen the labelling of that document as \xe2\x80\x9creport\xe2\x80\x9d, \xe2\x80\x9cmemorandum\xe2\x80\x9d, or \xe2\x80\x9cinternal government\ndocument\xe2\x80\x9d will not shield that statement from discovery. Likewise, if the results of an experiment\nqualify as the results of a scientific test within the meaning of Rule 16(b)(1)(B), then the results of\nthat experiment are not shielded from discovery even if they are labelled \xe2\x80\x9creport\xe2\x80\x9d,\n\xe2\x80\x9cmemorandum\xe2\x80\x9d, or \xe2\x80\x9cinternal defense document\xe2\x80\x9d.\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nNote to Subdivision (a)(3). The added language is made necessary by the addition of Rule\n26.2 and new subdivision (i) of Rule 12, which contemplate the production of statements,\nincluding those made to a grand jury, under specified circumstances.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941991 Amendment\nThe amendment to Rule 16(a)(1)(A) expands slightly government disclosure to the defense\nof statements made by the defendant. The rule now requires the prosecution, upon request, to\ndisclose any written record which contains reference to a relevant oral statement by the defendant\nwhich was in response to interrogation, without regard to whether the prosecution intends to use\nthe statement at trial. The change recognizes that the defendant has some proprietary interest in\nstatements made during interrogation regardless of the prosecution\'s intent to make any use of the\nstatements.\nThe written record need not be a transcription or summary of the defendant\'s statement but\nmust only be some written reference which would provide some means for the prosecution and\ndefense to identify the statement. Otherwise, the prosecution would have the difficult task of\nlocating and disclosing the myriad oral statements made by a defendant, even if it had no intention\nof using the statements at trial. In a lengthy and complicated investigation with multiple\ninterrogations by different government agents, that task could become unduly burdensome.\nThe existing requirement to disclose oral statements which the prosecution intends to\nintroduce at trial has also been changed slightly. Under the amendment, the prosecution must also\ndisclose any relevant oral statement which it intends to use at trial, without regard to whether it\nintends to introduce the statement. Thus, an oral statement by the defendant which would only be\nused for impeachment purposes would be covered by the rule.\nThe introductory language to the rule has been modified to clarify that without regard to\nwhether the defendant\'s statement is oral or written, it must at a minimum be disclosed. Although\nthe rule does not specify the means for disclosing the defendant\'s statements, if they are in written\nor recorded form, the defendant is entitled to inspect, copy, or photograph them.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nNew subdivisions (a)(1)(E) and (b)(1)(C) expand federal criminal discovery by requiring\n172\n\n\x0cdisclosure of the intent to rely on expert opinion testimony, what the testimony will consist of, and\nthe bases of the testimony. The amendment is intended to minimize surprise that often results from\nunexpected expert testimony, reduce the need for continuances, and to provide the opponent with a\nfair opportunity to test the merit of the expert\'s testimony through focused cross-examination. See\nEads, Adjudication by Ambush: Federal Prosecutors\xe2\x80\x99 Use of Nonscientific Experts in a System of\nLimited Criminal Discovery, 67 N. C. L. Rev. 577, 622 (1989).\nLike other provisions in Rule 16, subdivision (a)(1)(E) requires the government to disclose\ninformation regarding its expert witnesses if the defendant first requests the information. Once the\nrequested information is provided, the government is entitled, under (b)(1)(C) to reciprocal\ndiscovery of the same information from the defendant. The disclosure is in the form of a written\nsummary and only applies to expert witnesses that each side intends to call. Although no specific\ntiming requirements are included, it is expected that the parties will make their requests and\ndisclosures in a timely fashion.\nWith increased use of both scientific and nonscientific expert testimony, one of counsel\'s\nmost basic discovery needs is to learn that an expert is expected to testify. See Gianelli, Criminal\nDiscovery, Scientific Evidence, and DNA, 44 Vand. L. Rev. 793 (1991); Symposium on Science and\nthe Rules of Legal Procedure, 101 F.R.D. 599 (1983). This is particularly important if the expert is\nexpected to testify on matters which touch on new or controversial techniques or opinions. The\namendment is intended to meet this need by first, requiring notice of the expert\'s qualifications\nwhich in turn will permit the requesting party to determine whether in fact the witness is an expert\nwithin the definition of Federal Rule of Evidence 702. Like Rule 702, which generally provides a\nbroad definition of who qualifies as an \xe2\x80\x9cexpert,\xe2\x80\x9d the amendment is broad in that it includes both\nscientific and nonscientific experts. It does not distinguish between those cases where the expert\nwill be presenting testimony on novel scientific evidence. The rule does not extend, however, to\nwitnesses who may offer only lay opinion testimony under Federal Rule of Evidence 701. Nor\ndoes the amendment extend to summary witnesses who may testify under Federal Rule of\nEvidence 1006 unless the witness is called to offer expert opinions apart from, or in addition to, the\nsummary evidence.\nSecond, the requesting party is entitled to a summary of the expected testimony. This\nprovision is intended to permit more complete pretrial preparation by the requesting party. For\nexample, this should inform the requesting party whether the expert will be providing only\nbackground information on a particular issue or whether the witness will actually offer an opinion.\nIn some instances, a generic description of the likely witness and that witness\'s qualifications may\nbe sufficient, e.g., where a DEA laboratory chemist will testify, but it is not clear which particular\nchemist will be available.\nThird, and perhaps most important, the requesting party is to be provided with a summary\nof the bases of the expert\'s opinion. Rule 16(a)(1)(D) covers disclosure and access to any results or\nreports of mental or physical examinations and scientific testing. But the fact that no formal\nwritten reports have been made does not necessarily mean that an expert will not testify at trial. At\nleast one federal court has concluded that that provision did not otherwise require the government\nto disclose the identify of its expert witnesses where no reports had been prepared. See, e.g.,\nUnited States v. Johnson, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is\nno right to witness list and Rule 16 was not implicated because no reports were made in the case).\nThe amendment should remedy that problem. Without regard to whether a party would be entitled\nto the underlying bases for expert testimony under other provisions of Rule 16, the amendment\nrequires a summary of the bases relied upon by the expert. That should cover not only written and\n173\n\n\x0coral reports, tests, reports, and investigations, but any information that might be recognized as a\nlegitimate basis for an opinion under Federal Rule of Evidence 703, including opinions of other\nexperts.\nThe amendments are not intended to create unreasonable procedural hurdles. As with other\ndiscovery requests under Rule 16, subdivision (d) is available to either side to seek ex parte a\nprotective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C).\nNotes of Advisory Committee on Rules\xe2\x80\x941994 Amendment\nThe amendment is intended to clarify that the discovery and disclosure requirements of the\nrule apply equally to individual and organizational defendants. See In re United States, 918 F.2d\n138 (11th Cir. 1990) (rejecting distinction between individual and organizational defendants).\nBecause an organizational defendant may not know what its officers or agents have said or done in\nregard to a charged offense, it is important that it have access to statements made by persons whose\nstatements or actions could be binding on the defendant. See also United States v. Hughes, 413\nF.2d 1244, 1251\xe2\x80\x9352 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of\ncorporations \xe2\x80\x9coften resembles the most complex civil cases, necessitating a vigorous probing of\nthe mass of detailed facts to seek out the truth\xe2\x80\x9d).\nThe amendment defines defendant in a broad, nonexclusive fashion. See also 18 U.S.C.\n\xc2\xa718 (the term \xe2\x80\x9corganization\xe2\x80\x9d includes a person other than an individual). And the amendment\nrecognizes that an organizational defendant could be bound by an agent\'s statement, see, e.g.,\nFederal Rule of Evidence 801 (d)(2), or be vicariously liable for an agent\'s actions. The\namendment contemplates that, upon request of the defendant, the Government will disclose any\nstatements within the purview of the rule and made by persons whom the government contends to\nbe among the classes of persons described in the rule. There is no requirement that the defense\nstipulate or admit that such persons were in a position to bind the defendant.\nNotes of Advisory Committee on Rules\xe2\x80\x941997 Amendment\nSubdivision (a)(1)(E). Under Rule 16(a)(1)(E), as amended in 1993, the defense is entitled\nto disclosure of certain information about expert witnesses which the government intends to call\nduring the trial. And if the government provides that information, it is entitled to reciprocal\ndiscovery under (b)(1)(C). This amendment is a parallel reciprocal disclosure provision which is\ntriggered by a government request for information concerning defense expert witnesses as to the\ndefendant\'s mental condition, which is provided for in an amendment to (b)(1)(C), infra.\nSubdivision (b)(1)(C). Amendments in 1993 to Rule 16 included provisions for pretrial\ndisclosure of information, including names and expected testimony of both defense and\ngovernment expert witnesses. Those disclosures are triggered by defense requests for the\ninformation. If the defense makes such requests and the government complies, the government is\nentitled to similar, reciprocal discovery. The amendment to Rule 16(b)(1)(C) provides that if the\ndefendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to\nshow the defendant\'s mental condition, the government may request the defense to disclose\ninformation about its expert witnesses. Although Rule 12.2 insures that the government will not be\nsurprised by the nature of the defense or that the defense intends to call an expert witness, that rule\nmakes no provision for discovery of the identity, the expected testimony, or the qualifications of\nthe expert witness. The amendment provides the government with the limited right to respond to\n174\n\n\x0cthe notice provided under Rule 12.2 by requesting more specific information about the expert. If\nthe government requests the specified information, and the defense complies, the defense is\nentitled to reciprocal discovery under an amendment to subdivision (a)(1)(E), supra.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 16 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nCurrent Rule 16(a)(1)(A) is now located in Rule 16(a)(1)(A), (B), and (C). Current Rule\n16(a)(1)(B), (C), (D), and (E) have been relettered.\nAmended Rule 16(b)(1)(B) includes a change that may be substantive in nature. Rule\n16(a)(1)(E) and 16(a)(1)(F) require production of specified information if the government intends\nto \xe2\x80\x9cuse\xe2\x80\x9d the information \xe2\x80\x9cin its case-in-chief at trial.\xe2\x80\x9d The Committee believed that the language in\nrevised Rule 16(b)(1)(B), which deals with a defendant\'s disclosure of information to the\ngovernment, should track the similar language in revised Rule 16(a)(1). In Rule 16(b)(1)(B)(ii),\nthe Committee changed the current provision which reads: \xe2\x80\x9cthe defendant intends to introduce as\nevidence\xe2\x80\x9d to the \xe2\x80\x9cdefendant intends to use the item . . .\xe2\x80\x9d The Committee recognized that this might\nconstitute a substantive change in the rule but believed that it was a necessary conforming change\nwith the provisions in Rule 16(a)(1)(E) and (F), noted supra, regarding use of evidence by the\ngovernment.\nIn amended Rule 16(d)(1), the last phrase in the current subdivision\xe2\x80\x94which refers to a\npossible appeal of the court\'s discovery order\xe2\x80\x94has been deleted. In the Committee\'s view, no\nsubstantive change results from that deletion. The language is unnecessary because the court,\nregardless of whether there is an appeal, will have maintained the record.\nFinally, current Rule 16(e), which addresses the topic of notice of alibi witnesses, has been\ndeleted as being unnecessarily duplicative of Rule 12.1.\nCommittee Notes on Rules-2013 Amendment\nSubdivision (a). Paragraph (a)(2) is amended to clarify that the 2002 restyling of Rule 16\ndid not change the protection afforded to government work product.\nPrior to restyling in 2002, Rule 16(a)(1)(C) required the government to allow the defendant\nto inspect and copy "books, papers, [and] documents" material to his defense. Rule 16(a)(2),\nhowever, stated that except as provided by certain enumerated paragraphs-not including Rule\n16(a)(1)(C)-Rule 16(a) did not authorize the discovery or inspection of reports, memoranda, or\nother internal government documents made by the attorney for the government. Reading these two\nprovisions together, the Supreme Court concluded that "a defendant may examine documents\nmaterial to his defense, but, under Rule 16(a)(2), he may not examine Government work product."\nUnited States v. Armstrong, 517 U.S. 456, 463 (1996).\nWith one exception not relevant here, the 2002 restyling of Rule 16 was intended to work\nno substantive change. Nevertheless, because restyled Rule 16(a)(2) eliminated the enumerated\nsubparagraphs of its successor and contained no express exception for the materials previously\ncovered by Rule 16(a)(1)(C) (redesigned as subparagraph (a)(1)(E)), some courts have been urged\nto construe the restyled rule as eliminating protection for government work product.\nCourt have uniformly declined to construe the restyling changes to Rule 16(a)(2) to effect a\n175\n\n\x0csubstantive alteration in the scope of protection previously afforded to government work product\nby that rule. Correctly recognizing that restyling was intended to effect no substantive change,\ncourts have invoked the doctrine of the scrivener\'s error to excuse confusion caused by the\nelimination of the enumerated subparagraphs from the restyled rules. See, e.g. United States v.\nRudolph, 224 F.R.D. 503, 504-11 (N.D. Ala. 2004), and United States v. Fort, 472 F.3d 1106,\n1110 n.2 (9th Cir. 2007) (adopting the Rudolph court\'s analysis).\nBy restoring the enumerated subparagraphs, the amendment makes it clear that a\ndefendant\'s pretrial access to books, papers, and documents under Rule 16(a)(1)(E) remains\nsubject to the limitations imposed by Rule 16(a)(2).\nChanges Made After Publication and Comment. No changes were made after publication\nand comment.\nReferences in Text\nThe Federal Rules of Evidence, referred to in subds. (a)(1)(G) and (b)(1)(C), are set out in\nthe Appendix to Title 28, Judiciary and Judicial Procedure.\nAmendment by Public Law\n2002 \xe2\x80\x94Subd. (a)(1)(G). Pub. L. 107\xe2\x80\x93273, \xc2\xa711019(b)(1), amended subpar. (G) generally.\nSubd. (b)(1)(C). Pub. L. 107\xe2\x80\x93273, \xc2\xa711019(b)(2), amended subpar. (C) generally.\n1975 \xe2\x80\x94Subd. (a)(1). Pub. L. 94\xe2\x80\x9364 amended subpars. (A), (B), and (D) generally, and\nstruck out subpar. (E).\nSubd. (a)(4). Pub. L. 94\xe2\x80\x93149 struck out par. (4) \xe2\x80\x9cFailure to Call Witness. The fact that a\nwitness\xe2\x80\x99 name is on a list furnished under this rule shall not be grounds for comment upon a failure\nto call the witness.\xe2\x80\x9d\nSubd. (b)(1). Pub. L. 94\xe2\x80\x9364 amended subpars. (A) and (B) generally, and struck out subpar.\n(C).\nSubd. (b)(3). Pub. L. 94\xe2\x80\x93149 struck out par. (3) \xe2\x80\x9cFailure to Call Witness. The fact that a\nwitness\xe2\x80\x99 name is on a list furnished under this rule shall not be grounds for a comment upon a\nfailure to call a witness.\xe2\x80\x9d\nSubd. (c). Pub. L. 94\xe2\x80\x9364 amended subd. (c) generally.\nSubd. (d)(1). Pub. L. 94\xe2\x80\x9364 amended par. (1) generally.\nEffective Date of 2002 Amendment\nPub. L. 107\xe2\x80\x93273, div. C, title I, \xc2\xa711019(c), Nov. 2, 2002, 116 Stat. 1826, provided that:\n\xe2\x80\x9cThe amendments made by subsection (b) [amending this rule] shall take effect on December 1,\n2002.\xe2\x80\x9d\nEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n176\n\n\x0cRule 17. Subpoena\n(a) Content. A subpoena must state the court\'s name and the title of the proceeding, include\nthe seal of the court, and command the witness to attend and testify at the time and place the\nsubpoena specifies. The clerk must issue a blank subpoena\xe2\x80\x94signed and sealed\xe2\x80\x94to the party\nrequesting it, and that party must fill in the blanks before the subpoena is served.\n(b) Defendant Unable to Pay. Upon a defendant\'s ex parte application, the court must order\nthat a subpoena be issued for a named witness if the defendant shows an inability to pay the\nwitness\'s fees and the necessity of the witness\'s presence for an adequate defense. If the court\norders a subpoena to be issued, the process costs and witness fees will be paid in the same manner\nas those paid for witnesses the government subpoenas.\n(c) Producing Documents and Objects.\n(1) In General. A subpoena may order the witness to produce any books, papers,\ndocuments, data, or other objects the subpoena designates. The court may direct the witness to\nproduce the designated items in court before trial or before they are to be offered in evidence.\nWhen the items arrive, the court may permit the parties and their attorneys to inspect all or part of\nthem.\n(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash\nor modify the subpoena if compliance would be unreasonable or oppressive.\n(3) Subpoena for Personal or Confidential Information About a Victim. After a complaint,\nindictment, or information is filed, a subpoena requiring the production of personal or confidential\ninformation about a victim may be served on a third party only by court order. Before entering the\norder and unless there are exceptional circumstances, the court must require giving notice to the\nvictim so that the victim can move to quash or modify the subpoena or otherwise object.\n(d) Service. A marshal, a deputy marshal, or any nonparty who is at least 18 years old may\nserve a subpoena. The server must deliver a copy of the subpoena to the witness and must tender to\nthe witness one day\'s witness-attendance fee and the legal mileage allowance. The server need not\ntender the attendance fee or mileage allowance when the United States, a federal officer, or a\nfederal agency has requested the subpoena.\n(e) Place of Service.\n(1) In the United States. A subpoena requiring a witness to attend a hearing or trial may be\nserved at any place within the United States.\n(2) In a Foreign Country. If the witness is in a foreign country, 28 U.S.C. \xc2\xa71783 governs\nthe subpoena\'s service.\n(f) Issuing a Deposition Subpoena.\n(1) Issuance. A court order to take a deposition authorizes the clerk in the district where the\ndeposition is to be taken to issue a subpoena for any witness named or described in the order.\n(2) Place. After considering the convenience of the witness and the parties, the court may\norder\xe2\x80\x94and the subpoena may require\xe2\x80\x94the witness to appear anywhere the court designates.\n(g) Contempt. The court (other than a magistrate judge) may hold in contempt a witness\nwho, without adequate excuse, disobeys a subpoena issued by a federal court in that district. A\nmagistrate judge may hold in contempt a witness who, without adequate excuse, disobeys a\nsubpoena issued by that magistrate judge as provided in 28 U.S.C. \xc2\xa7636(e).\n(h) Information Not Subject to a Subpoena. No party may subpoena a statement of a\nwitness or of a prospective witness under this rule. Rule 26.2 governs the production of the\nstatement.\n177\n\n\x0cNotes\n\n(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 24,\n1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x9364, \xc2\xa73(29), July 31, 1975, 89\nStat. 375; Apr. 30, 1979, eff. Dec. 1, 1980; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec.\n1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). This rule is substantially the same as Rule 45(a) of the Federal\nRules of Civil Procedure [28 U.S.C., Appendix].\nNote to Subdivision (b). This rule preserves the existing right of an indigent defendant to\nsecure attendance of witnesses at the expense of the Government, 28 U.S.C. [former] 656\n(Witnesses for indigent defendants). Under existing law, however, the right is limited to witnesses\nwho are within the district in which the court is held or within one hundred miles of the place of\ntrial. No procedure now exists whereby an indigent defendant can procure at Government expense\nthe attendance of witnesses found in another district and more than 100 miles of the place of trial.\nThis limitation is abrogated by the rule so that an indigent defendant will be able to secure the\nattendance of witnesses at the expense of the Government no matter where they are located. The\nshowing required by the rule to justify such relief is the same as that now exacted by 28 U.S.C.\n[former] 656.\nNote to Subdivision (c). This rule is substantially the same as Rule 45(b) of the Federal\nRules of Civil Procedure [28 U.S.C., Appendix].\nNote to Subdivision (d). This rule is substantially the same as Rule 45(c) of the Federal\nRules of Civil Procedure [28 U.S.C., Appendix]. The provision permitting persons other than the\nmarshal to serve the subpoena, and requiring the payment of witness fees in Government cases is\nnew matter.\nNote to Subdivision (e)(1). This rule continues existing law, 28 U.S.C. [former] 654\n(Witnesses; subpoenas; may run into another district). The rule is different in civil cases in that in\nsuch cases, unless a statute otherwise provides, a subpoena may be served only within the district\nor within 100 miles of the place of trial, 28 U.S.C. [former] 654; Rule 45(e)(1) of the Federal Rules\nof Civil Procedure [28 U.S.C., Appendix].\nNote to Subdivision (e)(2). This rule is substantially the same as Rule 45(e)(2) of the\nFederal Rules of Civil Procedure [28 U.S.C., Appendix]. See Blackmer v. United States, 284 U.S.\n421, upholding the validity of the statute referred to in the rule.\nNote to Subdivision (f). This rule is substantially the same as Rule 45(d) of the Federal\nRules of Civil Procedure [28 U.S.C, Appendix].\nNote to Subdivision (g). This rule is substantially the same as Rule 45(f) of the Federal\nRules of Civil Procedure [28 U.S.C, Appendix].\nNotes of Advisory Committee on Rules\xe2\x80\x941948 Amendment\nThe amendment is to substitute proper reference to Title 28 in place of the repealed act.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\n\n178\n\n\x0cSubdivision (b).\xe2\x80\x94Criticism has been directed at the requirement that an indigent\ndefendant disclose in advance the theory of his defense in order to obtain the issuance of a\nsubpoena at government expense while the government and defendants able to pay may have\nsubpoenas issued in blank without any disclosure. See Report of the Attorney General\'s\nCommittee on Poverty and the Administration of Criminal Justice (1963) p. 27. The Attorney\nGeneral\'s Committee also urged that the standard of financial inability to pay be substituted for\nthat of indigency. Id. at 40\xe2\x80\x9341. In one case it was held that the affidavit filed by an indigent\ndefendant under this subdivision could be used by the government at his trial for purposes of\nimpeachment. Smith v. United States, 312 F.2d 867 (D.C.Cir. 1962). There has also been doubt as\nto whether the defendant need make a showing beyond the face of his affidavit in order to secure\nissuance of a subpoena. Greenwell v. United States, 317 F.2d 108 (D.C.Cir. 1963).\nThe amendment makes several changes. The references to a judge are deleted since\napplications should be made to the court. An ex parte application followed by a satisfactory\nshowing is substituted for the requirement of a request or motion supported by affidavit. The court\nis required to order the issuance of a subpoena upon finding that the defendant is unable to pay the\nwitness fees and that the presence of the witness is necessary to an adequate defense.\nSubdivision (d).\xe2\x80\x94The subdivision is revised to bring it into conformity with 28 U.S.C.\n\xc2\xa71825.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivisions (a) and (g) are amended to reflect the existence of the \xe2\x80\x9cUnited States\nmagistrate,\xe2\x80\x9d a phrase defined in rule 54.\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nSubdivision (f)(2) is amended to provide that the court has discretion over the place at\nwhich the deposition is to be taken. Similar authority is conferred by Civil Rule 45(d)(2). See C.\nWright, Federal Practice and Procedure: Criminal \xc2\xa7278 (1969).\nOrdinarily the deposition should be taken at the place most convenient for the witness but,\nunder certain circumstances, the parties may prefer to arrange for the presence of the witness at a\nplace more convenient to counsel.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 17 of the Federal Rules of Criminal\nProcedure deals with subpoenas. Subdivision (f)(2) as proposed by the Supreme Court provides:\nThe witness whose deposition is to be taken may be required by subpoena to attend at any\nplace designated by the trial court.\nB. Committee Action. The Committee added language to the proposed amendment that\ndirects the court to consider the convenience of the witness and the parties when compelling a\nwitness to attend where a deposition will be taken.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nNote to Subdivision (h). This addition to rule 17 is necessary in light of proposed rule 26.2,\n179\n\n\x0cwhich deals with the obtaining of statements of government and defense witnesses.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 17 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nA potential substantive change has been made in Rule 17(c)(1); the word \xe2\x80\x9cdata\xe2\x80\x9d has been\nadded to the list of matters that may be subpoenaed. The Committee believed that inserting that\nterm will reflect the fact that in an increasingly technological culture, the information may exist in\na format not already covered by the more conventional list, such as a book or document.\nRule 17(g) has been amended to recognize the contempt powers of a court (other than a\nmagistrate judge) and a magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942008 Amendment\nSubdivision (c)(3). This amendment implements the Crime Victims\xe2\x80\x99 Rights Act, codified\nat 18 U.S.C. \xc2\xa73771(a)(8), which states that victims have a right to respect for their \xe2\x80\x9cdignity and\nprivacy.\xe2\x80\x9d The rule provides a protective mechanism when the defense subpoenas a third party to\nprovide personal or confidential information about a victim. Third party subpoenas raise special\nconcerns because a third party may not assert the victim\'s interests, and the victim may be unaware\nof the subpoena. Accordingly, the amendment requires judicial approval before service of a\nsubpoena seeking personal or confidential information about a victim from a third party. The\nphrase \xe2\x80\x9cpersonal or confidential information,\xe2\x80\x9d which may include such things as medical or school\nrecords, is left to case development.\nThe amendment provides a mechanism for notifying the victim, and makes it clear that a\nvictim may move to quash or modify the subpoena under Rule 17(c)(2)\xe2\x80\x94or object by other means\nsuch as a letter\xe2\x80\x94on the grounds that it is unreasonable or oppressive. The rule recognizes,\nhowever, that there may be exceptional circumstances in which this procedure may not be\nappropriate. Such exceptional circumstances would include, evidence that might be lost or\ndestroyed if the subpoena were delayed or a situation where the defense would be unfairly\nprejudiced by premature disclosure of a sensitive defense strategy. The Committee leaves to the\njudgment of the court a determination as to whether the judge will permit the question whether\nsuch exceptional circumstances exist to be decided ex parte and authorize service of the third-party\nsubpoena without notice to anyone.\nThe amendment applies only to subpoenas served after a complaint, indictment, or\n180\n\n\x0cinformation has been filed. It has no application to grand jury subpoenas. When the grand jury\nseeks the production of personal or confidential information, grand jury secrecy affords substantial\nprotection for the victim\'s privacy and dignity interests.\nChanges Made to Proposed Amendment Released for Public Comment. The proposed\namendment omits the language providing for ex parte issuance of a court order authorizing a\nsubpoena to a third party for private or confidential information about a victim. The last sentence\nof the amendment was revised to provide that unless there are exceptional circumstances the court\nmust give the victim notice before a subpoena seeking the victim\'s personal or confidential\ninformation can be served upon a third party. It was also revised to add the language \xe2\x80\x9cor otherwise\nobject\xe2\x80\x9d to make it clear that the victim\'s objection might be lodged by means other than a motion,\nsuch as a letter to the court.\nAmendment by Public Law\n1975 \xe2\x80\x94Subd. (f)(2). Pub. L. 94\xe2\x80\x9364 amended par. (2) generally.\nEffective Date of 1979 Amendment\nAmendment of this rule by addition of subd. (h) by order of the United States Supreme\nCourt of Apr. 30, 1979, effective Dec. 1, 1980, see section 1(1) of Pub. L. 96\xe2\x80\x9342, July 31, 1979, 93\nStat. 326, set out as a note under section 2074 of Title 28, Judiciary and Judicial Procedure.\nEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\nSupersedure\nProvision of subd. (d) of this rule that witness shall be tendered the fee for 1 day\'s\nattendance and mileage allowed by law as superseded by section 1825 of Title 28, Judiciary and\nJudicial Procedure, see such section and Reviser\'s Note thereunder.\n\nRule 17.1 Pretrial Conference\nOn its own, or on a party\'s motion, the court may hold one or more pretrial conferences to\npromote a fair and expeditious trial. When a conference ends, the court must prepare and file a\nmemorandum of any matters agreed to during the conference. The government may not use any\nstatement made during the conference by the defendant or the defendant\'s attorney unless it is in\nwriting and is signed by the defendant and the defendant\'s attorney.\nNotes\n(Added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29,\n2002, eff. Dec. 1, 2002.)\n181\n\n\x0cNotes of Advisory Committee on Rules\xe2\x80\x941966\nThis new rule establishes a basis for pretrial conferences with counsel for the parties in\ncriminal cases within the discretion of the court. Pretrial conferences are now being utilized to\nsome extent even in the absence of a rule. See, generally, Brewster, Criminal PreTrials\xe2\x80\x94Useful\nTechniques, 29 F.R.D. 442 (1962); Estes, PreTrial Conferences in Criminal Cases, 23 F.R.D. 560\n(1959); Kaufman, PreTrial in Criminal Cases, 23 F.R.D. 551 (1959); Kaufman, PreTrial in\nCriminal Cases, 42 J.Am.Jud.Soc. 150 (1959); Kaufman, The Appalachian Trial: Further\nObservations on PreTrial in Criminal Cases, 44 J.Am.Jud.Soc. 53 (1960); West, Criminal\nPreTrials\xe2\x80\x94Useful Techniques, 29 F.R.D. 436 (1962); Handbook of Recommended Procedures for\nthe Trial of Protracted Cases, 25 F.R.D. 399\xe2\x80\x93403, 468\xe2\x80\x93470 (1960). Cf. Mo.Sup.Ct. Rule 25.09;\nRules Governing the N.J. Courts, \xc2\xa73:5\xe2\x80\x933.\nThe rule is cast in broad language so as to accommodate all types of pretrial conferences.\nAs the third sentence suggests, in some cases it may be desirable or necessary to have the\ndefendant present. See Committee on Pretrial Procedure of the Judicial Conference of the United\nStates, Recommended Procedures in Criminal Pretrials, 37 F.R.D. 95 (1965).\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes\xe2\x80\x942002 Amendment\nThe language of Rule 17.1 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only, except as noted\nbelow.\nCurrent Rule 17.1 prohibits the court from holding a pretrial conference where the\ndefendant is not represented by counsel. It is unclear whether this would bar such a conference\nwhen the defendant invokes the constitutional right to self-representation. See Faretta v.\nCalifornia, 422 U.S. 806 (1975). The amended version makes clear that a pretrial conference may\nbe held in these circumstances. Moreover, the Committee believed that pretrial conferences might\nbe particularly useful in those cases where the defendant is proceeding pro se.\n\n182\n\n\x0cTITLE V. VENUE\nRule 18. Place of Prosecution and Trial\nUnless a statute or these rules permit otherwise, the government must prosecute an offense\nin a district where the offense was committed. The court must set the place of trial within the\ndistrict with due regard for the convenience of the defendant, any victim, and the witnesses, and\nthe prompt administration of justice.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29,\n2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. The Constitution of the United States, Article III. Section 2, Paragraph 3, provides:\nThe Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial\nshall be held in the State where the said Crimes shall have been committed; but when not\ncommitted within any State, the Trial shall be at such Place or Places as the Congress may by Law\nhave directed.\nAmendment VI provides:\nIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,\nby an impartial jury of the State and district wherein the crime shall have been committed, which\ndistrict shall have been previously ascertained by law *\n28 U.S.C. former \xc2\xa7114 (now \xc2\xa7\xc2\xa71393, 1441) provides:\nAll prosecutions for crimes or offenses shall be had within the division of such districts\nwhere the same were committed, unless the court, or the judge thereof, upon the application of the\ndefendant, shall order the cause to be transferred for prosecution to another division of the district.\nThe word \xe2\x80\x9cprosecutions,\xe2\x80\x9d as used in this statute, does not include the finding and return of\nan indictment. The prevailing practice of impaneling a grand jury for the entire district at a session\nin some division and of distributing the indictments among the divisions in which the offenses\nwere committed is deemed proper and legal, Salinger v. Loisel, 265 U.S. 224, 237. The court stated\nthat this practice is \xe2\x80\x9cattended with real advantages.\xe2\x80\x9d The rule is a restatement of existing law and is\nintended to sanction the continuance of this practice. For this reason, the rule requires that only the\ntrial be held in the division in which the offense was committed and permits other proceedings to\nbe had elsewhere in the same district.\n2. Within the framework of the foregoing constitutional provisions and the provisions of\nthe general statute, 28 U.S.C. 114 [now 1393, 1441], supra, numerous statutes have been enacted\nto regulate the venue of criminal proceedings, particularly in respect to continuing offenses and\noffenses consisting of several transactions occurring in different districts. Armour Packing Co. v.\nUnited States, 209 U.S. 56, 73 \xe2\x80\x9377; United States v. Johnson, 323 U.S. 273. These special venue\nprovisions are not affected by the rule. Among these statutes are the following:\nU.S.C., Title 8:\nSection 138 [see 1326, 1328, 1329] (Importation of aliens for immoral purposes; attempt\nto reenter after deportation; penalty)\n183\n\n\x0cU.S.C., Title 15:\nSection 78aa (Regulation of Securities Exchanges; jurisdiction of offenses and suits)\nSection 79y (Control of Public Utility Holding Companies; jurisdiction of offenses and\nsuits)\nSection 80a\xe2\x80\x9343 (Investment Companies; jurisdiction of offenses and suits)\nSection 80b\xe2\x80\x9314 (Investment Advisers; jurisdiction of offenses and suits)\nSection 298 (Falsely Stamped Gold or Silver, etc., violations of law; penalty; jurisdiction\nof prosecutions)\nSection 715i (Interstate Transportation of Petroleum Products; restraining violations; civil\nand criminal proceedings; jurisdiction of District Courts; review)\nSection 717u (Natural Gas Act; jurisdiction of offenses; enforcement of liabilities and\nduties)\nU.S.C., Title 18:\nSection 39 [now 5, 3241] (Enforcement of neutrality; United States defined; jurisdiction\nof offenses; prior offenses; partial invalidity of provisions)\nSection 336 [now 1302] (Lottery, or gift enterprise circulars not mailable; place of trial)\nSection 338a [now 876, 3239] (Mailing threatening communications)\nSection 338b [now 877, 3239] (Same; mailing in foreign country for delivery in the\nUnited States)\nSection 345 [now 1717] (Using or attempting to use mails for transmission of matter\ndeclared nonmailable by title; jurisdiction of offense)\nSection 396e [now 1762] (Transportation or importation of convict-made goods with\nintent to use in violation of local law; jurisdiction of violations)\nSection 401 [now 2421] (White slave traffic; jurisdiction of prosecutions)\nSection 408 [now 10, 2311 to 2313] (Motor vehicles; transportation, etc., of stolen\nvehicles)\nSection 408d [now 875, 3239] (Threatening communications in interstate commerce)\nSection 408e [now 1073] (Moving in interstate or foreign commerce to avoid prosecution\nfor felony or giving testimony)\nSection 409 [now 659, 660, 2117] (Larceny, etc., of goods in interstate or foreign\ncommerce; penalty)\nSection 412 [now 660] (Embezzlement, etc., by officers of carrier; jurisdiction; double\njeopardy)\nSection 418 [now 3237] (National Stolen Property Act; jurisdiction)\nSection 419d [now 3237] (Transportation of stolen cattle in interstate or foreign\ncommerce; jurisdiction of offense)\nSection 420d [now 1951] (Interference with trade and commerce by violence, threats, etc.,\njurisdiction of offenses)\nSection 494 [now 1654] (Arming vessel to cruise against citizen; trials)\nSection 553 [now 3236] (Place of committal of murder or manslaughter determined)\nU.S.C., Title 21:\nSection 17 (Introduction into, or sale in, State or Territory or District of Columbia of dairy\nor food products falsely labeled or branded; penalty; jurisdiction of prosecutions)\nSection 118 (Prevention of introduction and spread of contagion; duty of district\nattorneys)\nU.S.C., Title 28:\n184\n\n\x0cSection 101 [now 18 U.S.C. 3235 ] (Capital cases)\nSection 102 [now 18 U.S.C. 3238 ] (Offenses on the high seas)\nSection 103 [now 18 U.S.C. 3237 ] (Offenses begun in one district and completed in\nanother)\nSection 121 [now 18 U.S.C. 3240 ] (Creation of new district or division)\nU.S.C., Title 47:\nSection 33 (Submarine Cables; jurisdiction and venue of actions and offenses)\nSection 505 (Special Provisions Relating to Radio; venue of trials)\nU.S.C., Title 49:\nSection 41 [now 11902, 11903, 11915, 11916] (Legislation Supplementary to Interstate\nCommerce Act; liability of corporation carriers and agents; offenses and penalties\xe2\x80\x94(1) Liability\nof corporation common carriers; offenses; penalties; Jurisdiction)\nSection 623 [repealed] (Civil Aeronautics Act; venue and prosecution of offenses)\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe amendment eliminates the requirement that the prosecution shall be in a division in\nwhich the offense was committed and vests discretion in the court to fix the place of trial at any\nplace within the district with due regard to the convenience of the defendant and his witnesses.\nThe Sixth Amendment provides that the defendant shall have the right to a trial \xe2\x80\x9cby an\nimpartial jury of the State and district wherein the crime shall have been committed, which district\nshall have been previously ascertained by law. *\xe2\x80\x9d There is no constitutional right to trial within a\ndivision. See United States v. Anderson, 328 U.S. 699, 704, 705 (1946); Barrett v. United States,\n169 U.S. 218 (1898); Lafoon v. United States, 250 F.2d 958 (5th Cir. 1958); Carrillo v. Squier, 137\nF.2d 648 (9th Cir. 1943); McNealey v. Johnston, 100 F.2d 280, 282 (9th Cir. 1938). Cf. Platt v.\nMinnesota Mining and Manufacturing Co., 376 U.S. 240 (1964).\nThe former requirement for venue within the division operated in an irrational fashion.\nDivisions have been created in only half of the districts, and the differentiation between those\ndistricts with and those without divisions often bears no relationship to comparative size or\npopulation. In many districts a single judge is required to sit in several divisions and only brief and\ninfrequent terms may be held in particular divisions. As a consequence under the original rule\nthere was often undue delay in the disposition of criminal cases\xe2\x80\x94delay which was particularly\nserious with respect to defendants who had been unable to secure release on bail pending the\nholding of the next term of court.\nIf the court is satisfied that there exists in the place fixed for trial prejudice against the\ndefendant so great as to render the trial unfair, the court may, of course, fix another place of trial\nwithin the district (if there be such) where such prejudice does not exist. Cf. Rule 21 dealing with\ntransfers between districts.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nThis amendment is intended to eliminate an inconsistency between rule 18, which in its\npresent form has been interpreted not to allow trial in a division other than that in which the offense\nwas committed except as dictated by the convenience of the defendant and witnesses, Dupoint v.\nUnited States, 388 F.2d 39 (5th Cir. 1968), and the Speedy Trial Act of 1974. This Act provides:\nIn any case involving a defendant charged with an offense, the appropriate judicial officer,\n185\n\n\x0cat the earliest practicable time, shall, after consultation with the counsel for the defendant and the\nattorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or\nother short-term trial calendar at a place within the judicial district so as to assure a speedy trial.\n18 U.S.C. \xc2\xa73161(a). This provision is intended to \xe2\x80\x9cpermit the trial of a case at any place\nwithin the judicial district. This language was included in anticipation of problems which might\noccur in districts with statutory divisions, where it could be difficult to set trial outside the\ndivision.\xe2\x80\x9d H.R.Rep. No. 93\xe2\x80\x931508, 93d Cong., 2d Sess. 29 (1974).\nThe change does not offend the venue or vicinage provisions of the Constitution. Article\nIII, \xc2\xa72, clause 3 places venue (the geographical location of the trial) \xe2\x80\x9cin the State where the said\nCrimes shall have been committed,\xe2\x80\x9d while the Sixth Amendment defines the vicinage (the\ngeographical location of the jurors) as \xe2\x80\x9cthe State and district wherein the crime shall have been\ncommitted, which district shall have been previously ascertained by law.\xe2\x80\x9d The latter provision\nmakes \xe2\x80\x9cno reference to a division within a judicial district.\xe2\x80\x9d United States v. James, 528 F.2d 999\n(5th Cir. 1976). \xe2\x80\x9cIt follows a fortiori that when a district is not separated into divisions, * trial at\nany place within the district is allowable under the Sixth Amendment *.\xe2\x80\x9d United States v.\nFernandez, 480 F.2d 726 (2d Cir. 1973). See also Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976)\nand cases cited therein.\nNor is the change inconsistent with the Declaration of Policy in the Jury Selection and\nService Act of 1968, which reads:\nIt is the policy of the United States that all litigants in Federal courts entitled to trial by jury\nshall have the right to grand and petit juries selected at random from a fair cross section of the\ncommunity in the district or division wherein the court convenes.\n28 U.S.C. \xc2\xa71861. This language does not mean that the Act requires \xe2\x80\x9cthe trial court to\nconvene not only in the district but also in the division wherein the offense occurred,\xe2\x80\x9d as:\nThere is no hint in the statutory history that the Jury Selection Act was intended to do more\nthan provide improved judicial machinery so that grand and petit jurors would be selected at\nrandom by the use of objective qualification criteria to ensure a representative cross section of the\ndistrict or division in which the grand or petit jury sits. United States v. Cates, 485 F.2d 26 (1st Cir.\n1974).\nThe amendment to rule 18 does not eliminate either of the existing considerations which\nbear upon fixing the place of trial within a district, but simply adds yet another consideration in the\ninterest of ensuring compliance with the requirements of the Speedy Trial Act of 1974. The\namendment does not authorize the fixing of the place of trial for yet other reasons. Cf. United\nStates v. Fernandez, 480 F.2d 726 (2d Cir. 1973) (court in the exercise of its supervisory power\nheld improper the fixing of the place of trial \xe2\x80\x9cfor no apparent reason other than the convenience of\nthe judge\xe2\x80\x9d).\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 18 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nCommittee Notes on Rules\xe2\x80\x942008 Amendment\nThe rule requires the court to consider the convenience of victims\xe2\x80\x94as well as the\n186\n\n\x0cdefendant and witnesses\xe2\x80\x94in setting the place for trial within the district. The Committee\nrecognizes that the court has substantial discretion to balance any competing interests.\nChanges Made to Proposed Amendment Released for Public Comment. There were no\nchanges in the text of the rule. The Committee Note was amended to delete a statutory reference\nthat commentators found misleading, and to draw attention to the court\'s discretion to balance the\ncompeting interests, which may be more important as the court must consider a new set of\ninterests.\n\nRule 19. [Reserved]\nRule 20. Transfer for Plea and Sentence\n(a) Consent to Transfer. A prosecution may be transferred from the district where the\nindictment or information is pending, or from which a warrant on a complaint has been issued, to\nthe district where the defendant is arrested, held, or present if:\n(1) the defendant states in writing a wish to plead guilty or nolo contendere and to waive\ntrial in the district where the indictment, information, or complaint is pending, consents in writing\nto the court\'s disposing of the case in the transferee district, and files the statement in the transferee\ndistrict; and\n(2) the United States attorneys in both districts approve the transfer in writing.\n(b) Clerk\'s Duties. After receiving the defendant\'s statement and the required approvals, the\nclerk where the indictment, information, or complaint is pending must send the file, or a certified\ncopy, to the clerk in the transferee district.\n(c) Effect of a Not Guilty Plea. If the defendant pleads not guilty after the case has been\ntransferred under Rule 20(a), the clerk must return the papers to the court where the prosecution\nbegan, and that court must restore the proceeding to its docket. The defendant\'s statement that the\ndefendant wished to plead guilty or nolo contendere is not, in any civil or criminal proceeding,\nadmissible against the defendant.\n(d) Juveniles.\n(1) Consent to Transfer. A juvenile, as defined in 18 U.S.C. \xc2\xa75031, may be proceeded\nagainst as a juvenile delinquent in the district where the juvenile is arrested, held, or present if:\n(A) the alleged offense that occurred in the other district is not punishable by death or life\nimprisonment;\n(B) an attorney has advised the juvenile;\n(C) the court has informed the juvenile of the juvenile\'s rights\xe2\x80\x94including the right to be\nreturned to the district where the offense allegedly occurred\xe2\x80\x94and the consequences of waiving\nthose rights;\n(D) the juvenile, after receiving the court\'s information about rights, consents in writing to\nbe proceeded against in the transferee district, and files the consent in the transferee district;\n(E) the United States attorneys for both districts approve the transfer in writing; and\n(F) the transferee court approves the transfer.\n(2) Clerk\'s Duties. After receiving the juvenile\'s written consent and the required\napprovals, the clerk where the indictment, information, or complaint is pending or where the\nalleged offense occurred must send the file, or a certified copy, to the clerk in the transferee\ndistrict.\nNotes\n187\n\n\x0c(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x93\n64, \xc2\xa73(30), July 31, 1975, 89 Stat. 375; Apr. 28, 1982, eff. Aug. 1, 1982; Mar. 9, 1987, eff. Aug. 1,\n1987; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule introduces a new procedure in the interest of defendants who intend to plead\nguilty and are arrested in a district other than that in which the prosecution has been instituted. This\nrule would accord to a defendant in such a situation an opportunity to secure a disposition of the\ncase in the district where the arrest takes place, thereby relieving him of whatever hardship may be\ninvolved in a removal to the place where the prosecution is pending. In order to prevent possible\ninterference with the administration of justice, however, the consent of the United States attorneys\ninvolved is required.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nRule 20 has proved to be most useful. In some districts, however, literal compliance with\nthe procedures spelled out by the rule has resulted in unnecessary delay in the disposition of cases.\nThis delay has been particularly troublesome where the defendant has been arrested prior to the\nfiling of an indictment or information against him. See e.g., the procedure described in Donovan v.\nUnited States, 205 F.2d 557 (10th Cir. 1953). Furthermore, the benefit of the rule has not been\navailable to juveniles electing to be proceeded against under 18 U.S.C. \xc2\xa7\xc2\xa75031\xe2\x80\x935037. In an\nattempt to clarify and simplify the procedure the rule has been recast into four subdivisions.\nSubdivision (a).\xe2\x80\x94This subdivision is intended to apply to the situation in which an\nindictment or information is pending at the time at which the defendant indicates his desire to have\nthe transfer made. Two amendments are made to the present language of the rule. In the first\nsentence the words \xe2\x80\x9cor held\xe2\x80\x9d and \xe2\x80\x9cor is held\xe2\x80\x9d are added to make it clear that a person already in\nstate or federal custody within a district may request a transfer of federal charges pending against\nhim in another district. See 4 Barron, Federal Practice and Procedure 146 (1951). The words \xe2\x80\x9cafter\nreceiving a copy of the indictment or information\xe2\x80\x9d are deleted.\nThe defendant should be permitted, if he wishes, to initiate transfer proceedings under the\nRule without waiting for a copy of the indictment or information to be obtained. The defendant is\nprotected against prejudice by the fact that under subdivision (c) he can, in effect, rescind his\naction by pleading not guilty after the transfer has been completed.\nSubdivision (b).\xe2\x80\x94This subdivision is intended to apply to the situation in which no\nindictment or information is pending but the defendant has been arrested on a warrant issued upon\na complaint in another district. Under the procedure set out he may initiate the transfer proceedings\nwithout waiting for the filing of an indictment or information in the district where the complaint is\npending. Also it is made clear that the defendant may validate an information previously filed by\nwaiving indictment in open court when he is brought before the court to plead. See United States v.\nEast, 5 F.R.D. 389. (N.D. Ind. 1946); Potter v. United States, 36 F.R.D. 394 (W.D. Mo. 1965).\nHere again the defendant is fully protected by the fact that at the time of pleading in the transferee\ncourt he may then refuse to waive indictment and rescind the transfer by pleading not guilty.\nSubdivision (c).\xe2\x80\x94The last two sentences of the original rule are included here. The last\nsentence is amended to forbid use against the defendant of his statement that he wishes to plead\nguilty or nolo contendere whether or not he was represented by counsel when it was made. Since\n188\n\n\x0cunder the amended rule the defendant may make his statement prior to receiving a copy of the\nindictment or information, it would be unfair to permit use of that statement against him.\nSubdivision (d).\xe2\x80\x94Under 18 U.S.C. \xc2\xa75033 a juvenile who has committed an act in violation\nof the law of the United States in one district and is apprehended in another must be returned to the\ndistrict \xe2\x80\x9chaving cognizance of the alleged violation\xe2\x80\x9d before he can consent to being proceeded\nagainst as a juvenile delinquent. This subdivision will permit a juvenile after he has been advised\nby counsel and with the approval of the court and the United States attorney to consent to be\nproceeded against in the district in which he is arrested or held. Consent is required only of the\nUnited States attorney in the district of the arrest in order to permit expeditious handling of\njuvenile cases. If it is necessary to recognize special interests of particular districts where offenses\nare committed\xe2\x80\x94e.g., the District of Columbia with its separate Juvenile Court ( District of\nColumbia Code \xc2\xa711\xe2\x80\x931551(a))\xe2\x80\x94the Attorney General may do so through his Administrative\ncontrol over United States Attorneys.\nSubdivision (e).\xe2\x80\x94This subdivision is added to make it clear that a defendant who appears\nin one district in response to a summons issued in the district where the offense was committed\nmay initiate transfer proceedings under the rule.\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nRule 20 is amended to provide that a person \xe2\x80\x9cpresent\xe2\x80\x9d in a district other than the district in\nwhich he is charged with a criminal offense may, subject to the other provisions of rule 20, plead\nguilty in the district in which he is \xe2\x80\x9cpresent.\xe2\x80\x9d See rule 6(b), Rules of Procedure for the Trial of\nMinor Offenses Before Magistrates.\nUnder the former rule, practice was to have the district in which the offense occurred issue\na bench warrant authorizing the arrest of the defendant in the district in which he was located. This\nis a procedural complication which serves no interest of either the government or the defense and\ntherefore can properly be dispensed with.\nMaking the fact that a defendant is \xe2\x80\x9cpresent\xe2\x80\x9d in the district an adequate basis for allowing\nhim to plead guilty there makes it unnecessary to retain subdivision (e) which makes appearance in\nresponse to a summons equivalent to an arrest. Dropping (e) will eliminate some minor ambiguity\ncreated by that subdivision. See C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7322 n. 26, p.\n612 (1969, Supp. 1971).\nThere are practical advantages which will follow from the change. In practice a person may\nturn himself in in a district other than that in which the prosecution is pending. It may be more\nconvenient to have him plead in the district in which he is present rather than having him or the\ngovernment incur the expense of his return to the district in which the charge is pending.\nThe danger of \xe2\x80\x9cforum shopping\xe2\x80\x9d can be controlled by the requirement that both United\nStates Attorneys agree to the handling of the case under provisions of this rule.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 20 of the Federal Rules of Criminal\nProcedure deals with transferring a defendant from one district to another for the purpose of\npleading and being sentenced. It deals with the situation where a defendant is located in one district\n(A) and is charged with a crime in another district (B). Under the present rule, if such a defendant\ndesires to waive trial and plead guilty or nolo contendere, a judge in district B would issue a bench\n189\n\n\x0cwarrant for the defendant, authorizing his arrest in district A and his transport to district B for the\npurpose of pleading and being sentenced.\nThe Supreme Court amendments permit the defendant in the above example to plead guilty\nor nolo contendere in district A, if the United States Attorneys for districts A and B consent.\nB. Committee Action. The Committee has added a conforming amendment to subdivision\n(d), which establishes procedures for dealing with defendants who are juveniles.\nNotes of Advisory Committee on Rules\xe2\x80\x941982 Amendment\nThis amendment to subdivision (b) is intended to expedite transfer proceedings under Rule\n20. At present, considerable delay\xe2\x80\x94sometimes as long as three or four weeks\xe2\x80\x94occurs in\nsubdivision (b) cases, that is, where no indictment or information is pending. This time is spent on\nthe transmittal of defendant\'s statement to the district where the complaint is pending, the filing of\nan information or return of an indictment there, and the transmittal of papers in the case from that\ndistrict to the district where the defendant is present. Under the amendment, the defendant, by also\nwaiving venue, would make it possible for charges to be filed in the district of his arrest or\npresence. This would advance the interests of both the prosecution and defendant in a timely entry\nof a plea of guilty. No change has been made in the requirement that the transfer occur with the\nconsent of both United States attorneys.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 20 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nNew Rule 20(d)(2) applies to juvenile cases and has been added to parallel a similar\nprovision in new Rule 20(b). The new provision provides that after the court has determined that\nthe provisions in Rule 20(d)(1) have been completed and the transfer is approved, the file (or\ncertified copy) must be transmitted from the original court to the transferee court.\nAmendment by Public Law\n1975 \xe2\x80\x94Subd. (d). Pub. L. 94\xe2\x80\x9364 amended subd. (d) generally.\nEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\nRule 21. Transfer for Trial\n190\n\n\x0c(a) For Prejudice. Upon the defendant\'s motion, the court must transfer the proceeding\nagainst that defendant to another district if the court is satisfied that so great a prejudice against the\ndefendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial\nthere.\n(b) For Convenience. Upon the defendant\'s motion, the court may transfer the proceeding,\nor one or more counts, against that defendant to another district for the convenience of the parties,\nany victim, and the witnesses, and in the interest of justice.\n(c) Proceedings on Transfer. When the court orders a transfer, the clerk must send to the\ntransferee district the file, or a certified copy, and any bail taken. The prosecution will then\ncontinue in the transferee district.\n(d) Time to File a Motion to Transfer. A motion to transfer may be made at or before\narraignment or at any other time the court or these rules prescribe.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29,\n2002, eff. Dec. 1, 2002; Apr. 28, 2010, eff. Dec. 1, 2010.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivisions (a) and (b). 1. This rule introduces an addition to existing law.\n\xe2\x80\x9cLawyers not thoroughly familiar with Federal practice are somewhat astounded to learn that they\nmay not move for a change of venue, even if they are able to demonstrate that public feeling in the\nvicinity of the crime may render impossible a fair and impartial trial. This seems to be a defect in\nthe federal law, which the proposed rules would cure.\xe2\x80\x9d Homer Cummings, 29 A.B.A.Jour. 655;\nMedalie, 4 Lawyers Guild R. (3)1, 5.\n2. The rule provides for two kinds of motions that may be made by the defendant for a\nchange of venue. The first is a motion on the ground that so great a prejudice exists against the\ndefendant that he cannot obtain a fair and impartial trial in the district or division where the case is\npending. Express provisions to a similar effect are found in many State statutes. See, e.g., Ala.\nCode (1940), Title 15, sec. 267; Cal.Pen.Code (Deering, 1941), sec. 1033; Conn.Gen.Stat. (1930),\nsec. 6445; Mass.Gen.Laws (1932) c. 277, sec. 51 (in capital cases); N.Y. Code of Criminal\nProcedure, sec. 344. The second is a motion for a change of venue in cases involving an offense\nalleged to have been committed in more than one district or division. In such cases the court, on\ndefendant\'s motion, will be authorized to transfer the case to another district or division in which\nthe commission of the offense is charged, if the court is satisfied that it is in the interest of justice to\ndo so. The effect of this provision would be to modify the existing practice under which in such\ncases the Government has the final choice of the jurisdiction where the prosecution should be\nconducted. The matter will now be left in the discretion of the court.\n3. The rule provides for a change of venue only on defendant\'s motion and does not extend\nthe same right to the prosecution, since the defendant has a constitutional right to a trial in the\ndistrict where the offense was committed. Constitution of the United States, Article III, Sec. 2, Par.\n3; Amendment VI. By making a motion for a change of venue, however, the defendant waives this\nconstitutional right.\n4. This rule is in addition to and does not supersede existing statutes enabling a party to\nsecure a change of judge on the ground of personal bias or prejudice, 28 U.S.C. 25 [now 144]; or\nenabling the defendant to secure a change of venue as of right in certain cases involving offenses\n191\n\n\x0ccommitted in more than one district, 18 U.S.C. 338a(d) [now 876, 3239] (Mailing threatening\ncommunications); Id. sec. 403d(d) [now 875, 3239] (Threatening communications in interstate\ncommerce).\nNote to Subdivision (c). Cf. 28 U.S.C. 114 [now 1393, 1441] and Rule 20, supra.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nSubdivision (a).\xe2\x80\x94All references to divisions are eliminated in accordance with the\namendment to Rule 18 eliminating division venue. The defendant is given the right to a transfer\nonly when he can show that he cannot obtain a fair and impartial trial at any place fixed by law for\nholding court in the district. Transfers within the district to avoid prejudice will be within the\npower of the judge to fix the place of trial as provided in the amendments to Rule 18. It is also\nmade clear that on a motion to transfer under this subdivision the court may select the district to\nwhich the transfer may be made. Cf. United States v. Parr, 17 F.R.D. 512, 519 (S.D.Tex. (1955);\nParr v. United States, 351 U.S. 513 (1956).\nSubdivision (b).\xe2\x80\x94The original rule limited change of venue for reasons other than\nprejudice in the district to those cases where venue existed in more than one district. Upon\noccasion, however, convenience of the parties and witnesses and the interest of justice would best\nbe served by trial in a district in which no part of the offense was committed. See, e.g., Travis v.\nUnited States, 364 U.S. 631 (1961), holding that the only venue of a charge of making or filing a\nfalse non-Communist affidavit required by \xc2\xa79(h) of the National Labor Relations Act is in\nWashington, D.C. even though all the relevant witnesses may be located at the place where the\naffidavit was executed and mailed. See also Barber, Venue in Federal Criminal Cases: A Plea for\nReturn to Principle, 42 Tex.L.Rev. 39 (1963); Wright, Proposed Changes in Federal Civil,\nCriminal and Appellate Procedure, 35 F.R.D. 317, 329 (1964). The amendment permits a transfer\nin any case on motion of the defendant on a showing that it would be for the convenience of parties\nand witnesses, and in the interest of justice. Cf. 28 U.S.C. \xc2\xa71404(a), stating a similar standard for\ncivil cases. See also Platt v. Minnesota Min. & Mfg. Co., 376 U.S.C. 240 (1964). Here, as in\nsubdivision (a), the court may select the district to which the transfer is to be made. The\namendment also makes it clear that the court may transfer all or part of the offenses charged in a\nmulti-count indictment or information. Cf. United States v. Choate, 276 F.2d 724 (5th Cir. 1960).\nReferences to divisions are eliminated in accordance with the amendment to Rule 18.\nSubdivision (c).\xe2\x80\x94The reference to division is eliminated in accordance with the\namendment to Rule 18.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 21 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nAmended Rule 21(d) consists of what was formerly Rule 22. The Committee believed that\nthe substance of Rule 22, which addressed the issue of the timing of motions to transfer, was more\n192\n\n\x0cappropriate for inclusion in Rule 21.\nCommittee Notes on Rules\xe2\x80\x942010 Amendment\nSubdivision (b). This amendment requires the court to consider the convenience of victims\n\xe2\x80\x94 as well as the convenience of the parties and witnesses and the interests of justice \xe2\x80\x94 in\ndetermining whether to transfer all or part of the proceeding to another district for trial. The\nCommittee recognizes that the court has substantial discretion to balance any competing interests.\nChanges Made to Proposed Amendment Released for Public Comment.\nNo changes were made after the amendment was released for public comment.\n\nRule 22. [Transferred]\nNotes\n\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nRule 22 has been abrogated. The substance of the rule is now located in Rule 21(d).\n\n193\n\n\x0cTITLE VI. TRIAL\nRule 23. Jury or Nonjury Trial\n(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:\n(1) the defendant waives a jury trial in writing;\n(2) the government consents; and\n(3) the court approves.\n(b) Jury Size.\n(1) In General. A jury consists of 12 persons unless this rule provides otherwise.\n(2) Stipulation for a Smaller Jury. At any time before the verdict, the parties may, with the\ncourt\'s approval, stipulate in writing that:\n(A) the jury may consist of fewer than 12 persons; or\n(B) a jury of fewer than 12 persons may return a verdict if the court finds it necessary to\nexcuse a juror for good cause after the trial begins.\n(3) Court Order for a Jury of 11. After the jury has retired to deliberate, the court may\npermit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court\nfinds good cause to excuse a juror.\n(c) Nonjury Trial. In a case tried without a jury, the court must find the defendant guilty or\nnot guilty. If a party requests before the finding of guilty or not guilty, the court must state its\nspecific findings of fact in open court or in a written decision or opinion.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Pub. L. 95\xe2\x80\x9378, \xc2\xa72(b), July 30, 1977, 91 Stat.\n320; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. This rule is a formulation of the constitutional guaranty of trial\nby jury, Constitution of the United States, Article III, Sec. 2, Par. 3: \xe2\x80\x9cThe Trial of all Crimes,\nexcept in Cases of Impeachment, shall be by Jury *\xe2\x80\x9d; Amendment VI: \xe2\x80\x9cIn all criminal\nprosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury\n*.\xe2\x80\x9d The right to a jury trial, however, does not apply to petty offenses, District of Columbia v.\nClawans, 300 U.S. 617; Schick v. United States, 195 U.S. 65; Frankfurter and Corcoran, 39\nHarv.L.R. 917. Cf. Rule 38(a) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix].\n2. The provision for a waiver of jury trial by the defendant embodies existing practice, the\nconstitutionality of which has been upheld, Patton v. United States, 281 U.S. 276; Adams v. United\nStates ex rel. McCann, 317 U.S. 269; Cf. Rules 38 and 39 of Federal Rules of Civil Procedure [28\nU.S.C., Appendix]. Many States by express statutory provision permit waiver of jury trial in\ncriminal cases. See A.L.I. Code of Criminal Procedure Commentaries, pp. 807\xe2\x80\x93811.\nNote to Subdivision (b). This rule would permit either a stipulation before the trial that the\ncase be tried by a jury composed of less than 12 or a stipulation during the trial consenting that the\ncase be submitted to less than 12 jurors. The second alternative is useful in case it becomes\nnecessary during the trial to excuse a juror owing to illness or for some other cause and no alternate\njuror is available. The rule is a restatement of existing practice, the constitutionality of which was\n194\n\n\x0capproved in Patton v. United States, 281 U.S. 276.\nNote to Subdivision (c). This rule changes existing law in so far as it requires the court in a\ncase tried without a jury to make special findings of fact if requested. Cf. Connecticut practice,\nunder which a judge in a criminal case tried by the court without a jury makes findings of fact,\nState v. Frost, 105 Conn. 326.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThis amendment adds to the rule a provision added to Civil Rule 52(a) in 1946.\nNotes of Advisory Committee on Rules\xe2\x80\x941977 Amendment\nThe amendment to subdivision (b) makes it clear that the parties, with the approval of the\ncourt, may enter into an agreement to have the case decided by less than twelve jurors if one or\nmore jurors are unable or disqualified to continue. For many years the Eastern District of Virginia\nhas used a form entitled, \xe2\x80\x9cWaiver of Alternate Jurors.\xe2\x80\x9d In a substantial percentage of cases the\nform is signed by the defendant, his attorney, and the Assistant United States Attorney in advance\nof trial, generally on the morning of trial. It is handled automatically by the courtroom deputy clerk\nwho, after completion, exhibits it to the judge.\nThis practice would seem to be authorized by existing rule 23(b), but there has been some\ndoubt as to whether the pretrial stipulation is effective unless again agreed to by a defendant at the\ntime a juror or jurors have to be excused. See 8 J. Moore, Federal Practice 23.04 (2d. ed. Cipes,\n1969); C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7373 (1969). The proposed\namendment is intended to make clear that the pretrial stipulation is an effective waiver, which need\nnot be renewed at the time the incapacity or disqualification of the juror becomes known.\nIn view of the fact that a defendant can make an effective pretrial waiver of trial by jury or\nby a jury of twelve, it would seem to follow that he can also effectively waive trial by a jury of\ntwelve in situations where a juror or jurors cannot continue to serve.\nAs has been the practice under rule 23(b), a stipulation addressed to the possibility that\nsome jurors may later be excused need not be open-ended. That is, the stipulation may be\nconditioned upon the jury not being reduced below a certain size. See, e.g., Williams v. United\nStates, 332 F.2d 36 (7th Cir. 1964) (agreement to proceed if no more than 2 jurors excused for\nillness); Rogers v. United States, 319 F.2d 5 (7th Cir. 1963) (same).\nSubdivision (c) is changed to make clear the deadline for making a request for findings of\nfact and to provide that findings may be oral. The oral findings, of course, become a part of the\nrecord, as findings of fact are essential to proper appellate review on a conviction resulting from a\nnonjury trial. United States v. Livingston, 459 F.2d 797 (3d Cir. 1972).\nThe meaning of current subdivision (c) has been in some doubt because there is no time\nspecified within which a defendant must make a \xe2\x80\x9crequest\xe2\x80\x9d that the court \xe2\x80\x9cfind the facts specially.\xe2\x80\x9d\nSee, e.g., United States v. Rivera, 444 F.2d 136 (2d Cir. 1971), where the request was not made\nuntil the sentence had been imposed. In the opinion the court said:\nThis situation might have raised the interesting and apparently undecided question of when\na request for findings under Fed. R. Crim. P. 23 (c) is too late, since Rivera\'s request was not made\nuntil the day after sentence was imposed. See generally Benchwick v. United States, 297 F.2d 330,\n335 (9th Cir. 1961); United States v. Morris, 263 F.2d 594 (7th Cir. 1959).\nNotes of Committee on the Judiciary, Senate Report No. 95\xe2\x80\x93354; 1977 Amendments\n195\n\n\x0cProposed by the Supreme Court\nSubsection (b) of section 2 of the bill simply approves the Supreme Court proposed\nchanges in subdivisions (b) and (c) of rule 23 for the reasons given by the Advisory Committee on\nRules of Practice and Procedure to the Judicial Conference.\nCongressional Approval of Proposed 1977 Amendments\nSection 2(b) of Pub. L. 95\xe2\x80\x9378 provided that: \xe2\x80\x9cThe amendments proposed by the Supreme\nCourt [in its order of Apr. 26, 1977] to subdivisions (b) and (c) of rule 23 of such Rules of Criminal\nProcedure [subd. (b) and (c) of this rule] are approved.\xe2\x80\x9d\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nNote to Subdivision (b). The amendment to subdivision (b) addresses a situation which\ndoes not occur with great frequency but which, when it does occur, may present a most difficult\nissue concerning the fair and efficient administration of justice. This situation is that in which, after\nthe jury has retired to consider its verdict and any alternate jurors have been discharged, one of the\njurors is seriously incapacitated or otherwise found to be unable to continue service upon the jury.\nThe problem is acute when the trial has been a lengthy one and consequently the remedy of\nmistrial would necessitate a second expenditure of substantial prosecution, defense and court\nresources. See, e.g., United States v. Meinster, 484 F.Supp. 442 (S.D.Fla. 1980), aff\'d sub nom.\nUnited States v. Phillips, 664 F.2d 971 (5th Cir. 1981) (juror had heart attack during deliberations\nafter \xe2\x80\x9cwell over four months of trial\xe2\x80\x9d); United States v. Barone, 83 F.R.D. 565 (S.D. Fla. 1979)\n(juror removed upon recommendation of psychiatrist during deliberations after \xe2\x80\x9capproximately six\nmonths of trial\xe2\x80\x9d).\nIt is the judgment of the Committee that when a juror is lost during deliberations, especially\nin circumstances like those in Barone and Meinster, it is essential that there be available a course\nof action other than mistrial. Proceeding with the remaining 11 jurors, though heretofore\nimpermissible under rule 23(b) absent stipulation by the parties and approval of the court, United\nStates v. Taylor, 507 F.2d 166 (5th Cir. 1975), is constitutionally permissible. In Williams v.\nFlorida, 399 U.S. 78 (1970), the Court concluded\nthe fact that the jury at common law was composed of precisely 12 is an historical accident,\nunnecessary to effect the purposes of the jury system and wholly without significance \xe2\x80\x9cexcept to\nmystics.\xe2\x80\x9d * To read the Sixth Amendment as forever codifying a feature so incidental to the real\npurpose of the Amendment is to ascribe a blind formalism to the Framers which would require\nconsiderably more evidence than we have been able to discover in the history and language of the\nConstitution or in the reasoning of our past decisions. * Our holding does no more than leave\nthese considerations to Congress and the States, unrestrained by an interpretation of the Sixth\nAmendment which would forever dictate the precise number which can constitute a jury.\nWilliams held that a six-person jury was constitutional because such a jury had the\n\xe2\x80\x9cessential feature of a jury,\xe2\x80\x9d i.e., \xe2\x80\x9cthe interposition between the accused and his accuser of the\ncommon-sense judgment of a group of laymen, and in the community participation and shared\nresponsibility which results from that group\'s determination of guilt or innocence,\xe2\x80\x9d necessitating\nonly a group \xe2\x80\x9clarge enough to promote group deliberation, free from outside attempts at\n196\n\n\x0cintimidation, and to provide a fair possibility for obtaining a representative cross section of the\ncommunity.\xe2\x80\x9d This being the case, quite clearly the occasional use of a jury of slightly less than 12,\nas contemplated by the amendment to rule 23(b), is constitutional. Though the alignment of the\nCourt and especially the separate opinion by Justice Powell in Apodoca v. Oregon, 406 U.S. 404\n(1972), makes it at best uncertain whether less-than-unanimous verdicts would be constitutionally\npermissible in federal trials, it hardly follows that a requirement of unanimity of a group slightly\nless than 12 is similarly suspect.\nThe Meinster case clearly reflects the need for a solution other than mistrial. There twelve\ndefendants were named in a 36-count, 100-page indictment for RICO offenses and related\nviolations, and the trial lasted more than four months. Before the jury retired for deliberations, the\ntrial judge inquired of defense counsel whether they would now agree to a jury of less than 12\nshould a juror later be unable to continue during the deliberations which were anticipated to be\nlengthy. All defense counsel rejected that proposal. When one juror was excused a day later after\nsuffering a heart attack, all defense counsel again rejected the proposal that deliberations continue\nwith the remaining 11 jurors. Thus, the solution now provided in rule 23(b), stipulation to a jury of\nless than 12, was not possible in that case, just as it will not be possible in any case in which\ndefense counsel believe some tactical advantage will be gained by retrial. Yet, to declare a mistrial\nat that point would have meant that over four months of trial time would have gone for naught and\nthat a comparable period of time would have to be expended on retrial. For a variety of reasons, not\nthe least of which is the impact such a retrial would have upon that court\'s ability to comply with\nspeedy trial limits in other cases, such a result is most undesirable.\nThat being the case, it is certainly understandable that the trial judge in Meinster (as in\nBarone) elected to substitute an alternate juror at that point. Given the rule 23(b) bar on a verdict of\nless than 12 absent stipulation, United States v. Taylor, supra, such substitution seemed the least\nobjectionable course of action. But in terms of what change in the Federal Rules of Criminal\nProcedure is to be preferred in order to facilitate response to such situations in the future, the\njudgment of the Advisory Committee is that it is far better to permit the deliberations to continue\nwith a jury of 11 than to make a substitution at that point.\nIn rejecting the substitution-of-juror alternative, the Committee\'s judgment is in accord\nwith that of most commentators and many courts.\nThere have been proposals that the rule should be amended to permit an alternate to be\nsubstituted if a regular juror becomes unable to perform his duties after the case has been\nsubmitted to the jury. An early draft of the original Criminal Rules had contained such a provision,\nbut it was withdrawn when the Supreme Court itself indicated to the Advisory Committee on\nCriminal Rules doubts as to the desirability and constitutionality of such a procedure. These doubts\nare as forceful now as they were a quarter century ago. To permit substitution of an alternate after\ndeliberations have begun would require either that the alternate participate though he has missed\npart of the jury discussion, or that he sit in with the jury in every case on the chance he might be\nneeded. Either course is subject to practical difficulty and to strong constitutional objection.\nWright, Federal Practice and Procedure, \xc2\xa7388 (1969). See also Moore, Federal Practice\npar. 24.05 (2d ed. Cipes 1980) (\xe2\x80\x9cThe inherent coercive effect upon an alternate who joins a jury\nleaning heavily toward a guilty verdict may result in the alternate reaching a premature guilty\nverdict\xe2\x80\x9d); 3 ABA Standards for Criminal Justice \xc2\xa715\xe2\x80\x932.7, commentary (2d ed. 1980) (\xe2\x80\x9cIt is not\ndesirable to allow a juror who is unfamiliar with the prior deliberations to suddenly join the group\nand participate in the voting without the benefit of earlier group discussion\xe2\x80\x9d); United States v.\nLamb, 529 F.2d 1153 (9th Cir. 1975); People v. Ryan, 19 N.Y.2d 100, 224 N.E.2d 710 (1966).\n197\n\n\x0cCompare People v. Collins, 17 Cal.3d 687, 131 Cal.Rptr. 782, 522 P.2d 742 (1976); Johnson v.\nState, 267 Ind. 256, 396 N.E.2d 623 (1977).\nThe central difficulty with substitution, whether viewed only as a practical problem or a\nquestion of constitutional dimensions (procedural due process under the Fifth Amendment or jury\ntrial under the Sixth Amendment), is that there does not appear to be any way to nullify the impact\nof what has occurred without the participation of the new juror. Even were it required that the jury\n\xe2\x80\x9creview\xe2\x80\x9d with the new juror their prior deliberations or that the jury upon substitution start\ndeliberations anew, it still seems likely that the continuing jurors would be influenced by the\nearlier deliberations and that the new juror would be somewhat intimidated by the others by virtue\nof being a newcomer to the deliberations. As for the possibility of sending in the alternates at the\nvery beginning with instructions to listen but not to participate until substituted, this scheme is\nlikewise attended by practical difficulties and offends \xe2\x80\x9cthe cardinal principle that the deliberations\nof the jury shall remain private and secret in every case.\xe2\x80\x9d United States v. Virginia Erection Corp.,\n335 F.2d 868 (4th Cir. 1964).\nThe amendment provides that if a juror is excused after the jury has retired to consider its\nverdict, it is within the discretion of the court whether to declare a mistrial or to permit\ndeliberations to continue with 11 jurors. If the trial has been brief and not much would be lost by\nretrial, the court might well conclude that the unusual step of allowing a jury verdict by less than\n12 jurors absent stipulation should not be taken. On the other hand, if the trial has been protracted\nthe court is much more likely to opt for continuing with the remaining 11 jurors.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 23 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nIn current Rule 23(b), the term \xe2\x80\x9cjust cause\xe2\x80\x9d has been replaced with the more familiar term\n\xe2\x80\x9cgood cause,\xe2\x80\x9d that appears in other rules. No change in substance is intended.\nEffective Date of 1977 Amendment\nAmendment of this rule by order of the United States Supreme Court on Apr. 26, 1976,\napproved by Pub. L. 95\xe2\x80\x9378, effective Oct. 1, 1977, see section 4 of Pub. L. 95\xe2\x80\x9378, set out as an\nEffective Date of Pub. L. 95\xe2\x80\x9378 note under section 2074 of Title 28, Judiciary and Judicial\nProcedure.\n\nRule 24. Trial Jurors\n(a) Examination.\n(1) In General. The court may examine prospective jurors or may permit the attorneys for\nthe parties to do so.\n(2) Court Examination. If the court examines the jurors, it must permit the attorneys for the\nparties to:\n(A) ask further questions that the court considers proper; or\n(B) submit further questions that the court may ask if it considers them proper.\n(b) Peremptory Challenges. Each side is entitled to the number of peremptory challenges to\nprospective jurors specified below. The court may allow additional peremptory challenges to\n198\n\n\x0cmultiple defendants, and may allow the defendants to exercise those challenges separately or\njointly.\n(1) Capital Case. Each side has 20 peremptory challenges when the government seeks the\ndeath penalty.\n(2) Other Felony Case. The government has 6 peremptory challenges and the defendant or\ndefendants jointly have 10 peremptory challenges when the defendant is charged with a crime\npunishable by imprisonment of more than one year.\n(3) Misdemeanor Case. Each side has 3 peremptory challenges when the defendant is\ncharged with a crime punishable by fine, imprisonment of one year or less, or both.\n(c) Alternate Jurors.\n(1) In General. The court may impanel up to 6 alternate jurors to replace any jurors who are\nunable to perform or who are disqualified from performing their duties.\n(2) Procedure.\n(A) Alternate jurors must have the same qualifications and be selected and sworn in the\nsame manner as any other juror.\n(B) Alternate jurors replace jurors in the same sequence in which the alternates were\nselected. An alternate juror who replaces a juror has the same authority as the other jurors.\n(3) Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to\ndeliberate. The court must ensure that a retained alternate does not discuss the case with anyone\nuntil that alternate replaces a juror or is discharged. If an alternate replaces a juror after\ndeliberations have begun, the court must instruct the jury to begin its deliberations anew.\n(4) Peremptory Challenges. Each side is entitled to the number of additional peremptory\nchallenges to prospective alternate jurors specified below. These additional challenges may be\nused only to remove alternate jurors.\n(A) One or Two Alternates. One additional peremptory challenge is permitted when one or\ntwo alternates are impaneled.\n(B) Three or Four Alternates. Two additional peremptory challenges are permitted when\nthree or four alternates are impaneled.\n(C) Five or Six Alternates. Three additional peremptory challenges are permitted when five\nor six alternates are impaneled.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 26,\n1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). This rule is similar to Rule 47(a) of the Federal Rules of Civil\nProcedure [28 U.S.C., Appendix] and also embodies the practice now followed by many Federal\ncourts in criminal cases. Uniform procedure in civil and criminal cases on this point seems\ndesirable.\nNote to Subdivision (b). This rule embodies existing law, 28 U.S.C. 424 [now 1870]\n(Challenges), with the following modifications. In capital cases the number of challenges is\nequalized as between the defendant and the United States so that both sides have 20 challenges,\nwhich only the defendant has at present. While continuing the existing rule that multiple\ndefendants are deemed a single party for purposes of challenges, the rule vests in the court\n199\n\n\x0cdiscretion to allow additional peremptory challenges to multiple defendants and to permit such\nchallenges to be exercised separately or jointly. Experience with cases involving numerous\ndefendants indicates the desirability of this modification.\nNote to Subdivision (c). This rule embodies existing law, 28 U.S.C. [former] 417a\n(Alternate jurors), as well as the practice prescribed for civil cases by Rule 47(b) of the Federal\nRules of Civil Procedure [28 U.S.C., Appendix], except that the number of possible alternate\njurors that may be impaneled is increased from two to four, with a corresponding adjustment of\nchallenges.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nExperience has demonstrated that four alternate jurors may not be enough for some lengthy\ncriminal trials. See e.g., United States v. Bentvena, 288 F.2d 442 (2d Cir. 1961); Reports of the\nProceedings of the Judicial Conference of the United States, 1961, p. 104. The amendment to the\nfirst sentence increases the number authorized from four to six. The fourth sentence is amended to\nprovide an additional peremptory challenge where a fifth or sixth alternate juror is used.\nThe words \xe2\x80\x9cor are found to be\xe2\x80\x9d are added to the second sentence to make clear that an\nalternate juror may be called in the situation where it is first discovered during the trial that a juror\nwas unable or disqualified to perform his duties at the time he was sworn. See United States v.\nGoldberg, 330 F.2d 30 (3rd Cir. 1964), cert. den. 377 U.S. 953 (1964).\nCongressional Disapproval of Proposed 1977 Amendment\nSection 2(c) of Pub. L. 95\xe2\x80\x9378, July 30, 1977, 91 Stat. 320, effective Oct. 1, 1977, provided\nthat: \xe2\x80\x9cThe amendment proposed by the Supreme Court [in its order of Apr. 26, 1977] to rule 24 of\nsuch Rules of Criminal Procedure is disapproved and shall not take effect.\xe2\x80\x9d\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x941999 Amendment\nAs currently written, Rule 24(c) explicitly requires the court to discharge all of the alternate\njurors\xe2\x80\x94who have not been selected to replace other jurors\xe2\x80\x94when the jury retires to deliberate.\nThat requirement is grounded on the concern that after the case has been submitted to the jury, its\ndeliberations must be private and inviolate. United States v. Houlihan, 92 F.3d 1271, 1285 (1st Cir.\n1996), citing United States v. Virginia Election Corp., 335 F.2d 868, 872 (4th Cir. 1964).\nRule 23(b) provides that in some circumstances a verdict may be returned by eleven jurors.\nIn addition, there may be cases where it is better to retain the alternates when the jury retires,\ninsulate them from the deliberation process, and have them available should one or more vacancies\noccur in the jury. That might be especially appropriate in a long, costly, and complicated case. To\nthat end the Committee believed that the court should have the discretion to decide whether to\nretain or discharge the alternates at the time the jury retires to deliberate and to use Rule 23(b) to\nproceed with eleven jurors or to substitute a juror or jurors with alternate jurors who have not been\ndischarged.\n200\n\n\x0cIn order to protect the sanctity of the deliberative process, the rule requires the court to take\nappropriate steps to insulate the alternate jurors. That may be done, for example, by separating the\nalternates from the deliberating jurors and instructing the alternate jurors not to discuss the case\nwith any other person until they replace a regular juror. See, e.g., United States v. Olano, 507 U.S.\n725 (1993) (not plain error to permit alternate jurors to sit in during deliberations); United States v.\nHoulihan, 92 F.3d 1271, 1286\xe2\x80\x9388 (1st Cir. 1996) (harmless error to retain alternate jurors in\nviolation of Rule 24(c); in finding harmless error the court cited the steps taken by the trial judge to\ninsulate the alternates). If alternates are used, the jurors must be instructed that they must begin\ntheir deliberations anew.\nFinally, subsection (c) has been reorganized and restyled.\nGAP Report\xe2\x80\x94Rule 24(c). The final sentence of Rule 24(c) was moved from the\ncommittee note to the rule to emphasize that if an alternate replaces a juror during deliberations,\nthe court shall instruct the jury to begin its deliberations anew.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 24 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nIn restyling Rule 24(a), the Committee deleted the language that authorized the defendant\nto conduct voir dire of prospective jurors. The Committee believed that the current language was\npotentially ambiguous and could lead one incorrectly to conclude that a defendant, represented by\ncounsel, could personally conduct voir dire or additional voir dire. The Committee believed that\nthe intent of the current provision was to permit a defendant to participate personally in voir dire\nonly if the defendant was acting pro se. Amended Rule 24(a) refers only to attorneys for the\nparties, i.e., the defense counsel and the attorney for the government, with the understanding that if\nthe defendant is not represented by counsel, the court may still, in its discretion, permit the\ndefendant to participate in voir dire. In summary, the Committee intends no change in practice.\nFinally, the rule authorizes the court in multi-defendant cases to grant additional\nperemptory challenges to the defendants. If the court does so, the prosecution may request\nadditional challenges in a multi-defendant case, not to exceed the total number available to the\ndefendants jointly. The court, however, is not required to equalize the number of challenges where\nadditional challenges are granted to the defendant.\n\nRule 25. Judge\'s Disability\n(a) During Trial. Any judge regularly sitting in or assigned to the court may complete a jury\ntrial if:\n(1) the judge before whom the trial began cannot proceed because of death, sickness, or\nother disability; and\n(2) the judge completing the trial certifies familiarity with the trial record.\n(b) After a Verdict or Finding of Guilty.\n(1) In General. After a verdict or finding of guilty, any judge regularly sitting in or\nassigned to a court may complete the court\'s duties if the judge who presided at trial cannot\nperform those duties because of absence, death, sickness, or other disability.\n(2) Granting a New Trial. The successor judge may grant a new trial if satisfied that:\n(A) a judge other than the one who presided at the trial cannot perform the post-trial duties;\n201\n\n\x0cor\n(B) a new trial is necessary for some other reason.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29,\n2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule is similar to Rule 63 of the Federal Rules of Civil Procedure [28 U.S.C.,\nAppendix]. See also, 28 U.S.C. [former] 776 (Bill of exceptions; authentication; signing of by\njudge).\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nIn September, 1963, the Judicial Conference of the United States approved a\nrecommendation of its Committee on Court Administration that provision be made for substitution\nof a judge who becomes disabled during trial. The problem has become serious because of the\nincrease in the number of long criminal trials. See 1963 Annual Report of the Director of the\nAdministrative Office of the United States Courts, p. 114, reporting a 25% increase in criminal\ntrials lasting more than one week in fiscal year 1963 over 1962.\nSubdivision (a).\xe2\x80\x94The amendment casts the rule into two subdivisions and in subdivision\n(a) provides for substitution of a judge during a jury trial upon his certification that he has\nfamiliarized himself with the record of the trial. For similar provisions see Alaska Rules of Crim.\nProc., Rule 25; California Penal Code, \xc2\xa71053.\nSubdivision (b).\xe2\x80\x94The words \xe2\x80\x9cfrom the district\xe2\x80\x9d are deleted to permit the local judge to act\nin those situations where a judge who has been assigned from within the district to try the case is, at\nthe time for sentence, etc., back at his regular place of holding court which may be several hundred\nmiles from the place of trial. It is not intended, of course, that substitutions shall be made where the\njudge who tried the case is available within a reasonable distance from the place of trial.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 25 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nRule 25(b)(2) addresses the possibility of a new trial when a judge determines that no other\njudge could perform post-trial duties or when the judge determines that there is some other reason\nfor doing so. The current rule indicates that those reasons must be \xe2\x80\x9cappropriate.\xe2\x80\x9d The Committee,\nhowever, believed that a better term would be \xe2\x80\x9cnecessary,\xe2\x80\x9d because that term includes notions of\nmanifest necessity. No change in meaning or practice is intended.\n202\n\n\x0cRule 26. Taking Testimony\nIn every trial the testimony of witnesses must be taken in open court, unless otherwise\nprovided by a statute or by rules adopted under 28 U.S.C. \xc2\xa7\xc2\xa72072\xe2\x80\x932077.\nNotes\n(As amended Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. This rule contemplates the development of a uniform body of rules of evidence to be\napplicable in trials of criminal cases in the Federal courts. It is based on Funk v. United States, 290\nU.S. 371, and Wolfle v. United States, 291 U.S. 7, which indicated that in the absence of statute the\nFederal courts in criminal cases are not bound by the State law of evidence, but are guided by\ncommon law principles as interpreted by the Federal courts \xe2\x80\x9cin the light of reason and experience.\xe2\x80\x9d\nThe rule does not fetter the applicable law of evidence to that originally existing at common law. It\nis contemplated that the law may be modified and adjusted from time to time by judicial decisions.\nSee Homer Cummings, 29 A.B.A.Jour. 655; Vanderbilt, 29 A.B.A.Jour. 377; Holtzoff, 12 George\nWashington L.R. 119, 131\xe2\x80\x93132; Holtzoff, 3 F.R.D. 445, 453; Howard, 51 Yale L.Jour. 763;\nMedalie, 4 Lawyers Guild R. (3)1, 5\xe2\x80\x936.\n2. This rule differs from the corresponding rule for civil cases ( Federal Rules of Civil\nProcedure, Rule 43(a) [28 U.S.C., Appendix]), in that this rule contemplates a uniform body of\nrules of evidence to govern in criminal trials in the Federal courts, while the rule for civil cases\nprescribes partial conformity to State law and, therefore, results in a divergence as between various\ndistricts. Since in civil actions in which Federal jurisdiction is based on diversity of citizenship, the\nState substantive law governs the rights of the parties, uniformity of rules of evidence among\ndifferent districts does not appear necessary. On the other hand, since all Federal crimes are\nstatutory and all criminal prosecutions in the Federal courts are based on acts of Congress, uniform\nrules of evidence appear desirable if not essential in criminal cases, as otherwise the same facts\nunder differing rules of evidence may lead to a conviction in one district and to an acquittal in\nanother.\n3. This rule expressly continues existing statutes governing the admissibility of evidence\nand the competency and privileges of witnesses. Among such statutes are the following:\nU.S.C., Title 8:\nSection 138 [see 1326, 1328, 1329] (Importation of aliens for immoral purposes; attempt\nto re-enter after deportation; penalty)\nU.S.C., Title 28:\nSection 632 [now 18 U.S.C. 3481 ] (Competency of witnesses governed by State laws;\ndefendants in criminal cases)\nSection 633 [former] (Competency of witnesses governed by State laws; husband or wife\nof defendant in prosecution for bigamy)\nSection 634 [former] (Testimony of witnesses before Congress)\nSection 638 [now 1731] (Comparison of handwriting to determine genuineness)\nSection 695 [now 1732] (Admissibility)\nSection 695a [now 18 U.S.C. 3491 ] (Foreign documents)\n203\n\n\x0cU.S.C., Title 46:\nSection 193 (Bills of lading to be issued; contents)\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nThe first sentence is retained, with appropriate narrowing of the title, since its subject is not\ncovered in the Rules of Evidence. The second sentence is deleted because the Rules of Evidence\ngovern admissibility of evidence, competency of witnesses, and privilege. The language is\nbroadened, however, to take account of the Rules of Evidence and any other rules adopted by the\nSupreme Court.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 26 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nRule 26 is amended, by deleting the word \xe2\x80\x9corally,\xe2\x80\x9d to accommodate witnesses who are not\nable to present oral testimony in open court and may need, for example, a sign language\ninterpreter. The change conforms the rule, in that respect, to Federal Rule of Civil Procedure 43.\nEffective Date of Amendment Proposed November 20, 1972\nAmendment of this rule embraced by the order entered by the Supreme Court of the United\nStates on November 20, 1972, effective on the 180th day beginning after January 2, 1975, see\nsection 3 of Pub. L. 93\xe2\x80\x93595, Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of\nTitle 28, Judiciary and Judicial Procedure.\n\nRule 26.1 Foreign Law Determination\nA party intending to raise an issue of foreign law must provide the court and all parties with\nreasonable written notice. Issues of foreign law are questions of law, but in deciding such issues a\ncourt may consider any relevant material or source\xe2\x80\x94including testimony\xe2\x80\x94without regard to the\nFederal Rules of Evidence.\nNotes\n(Added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff. July 1, 1975; Apr. 29,\n2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941966\nThe original Federal Rules of Criminal Procedure did not contain a provision explicitly\nregulating the determination of foreign law. The resolution of issues of foreign law, when relevant\nin federal criminal proceedings, falls within the general compass of Rule 26 which provides for\napplication of \xe2\x80\x9cthe [evidentiary] principles of the common law as they may be interpreted by the\ncourts of the United States in the light of reason and experience.\xe2\x80\x9d See Green, Preliminary Report\non the Advisability and Feasibility of Developing Uniform Rules of Evidence for the United States\n204\n\n\x0cDistrict Courts 6\xe2\x80\x937, 17\xe2\x80\x9318 (1962). Although traditional \xe2\x80\x9ccommonlaw\xe2\x80\x9d methods for determining\nforeign-country law have proved inadequate, the courts have not developed more appropriate\npractices on the basis of this flexible rule. Cf. Green, op. cit. supra at 26\xe2\x80\x9328. On the inadequacy of\ncommonlaw procedures for determining foreign law, see, e.g., Nussbaum, Proving the Law of\nForeign Countries, 3 Am.J.Comp.L. 60 (1954).\nProblems of foreign law that must be resolved in accordance with the Federal Rules of\nCriminal Procedure are most likely to arise in places such as Washington, D.C., the Canal Zone,\nGuam, and the Virgin Islands, where the federal courts have general criminal jurisdiction.\nHowever, issues of foreign law may also arise in criminal proceedings commenced in other federal\ndistricts. For example, in an extradition proceeding, reasonable ground to believe that the person\nsought to be extradited is charged with, or was convicted of, a crime under the laws of the\ndemanding state must generally be shown. See Factor v. Laubenheimer, 290 U.S. 276 (1933);\nFernandez v. Phillips, 268 U.S. 311 (1925); Bishop International Law: Cases and Materials (2d ed.\n1962). Further, foreign law may be invoked to justify non-compliance with a subpoena duces\ntecum, Application of Chase Manhattan Bank, 297 F.2d 611 (2d Cir. 1962), and under certain\ncircumstances, as a defense to prosecution. Cf. American Banana Co. v. United Fruit Co., 213\nU.S. 347 (1909). The content of foreign law may also be relevant in proceedings arising under 18\nU.S.C. \xc2\xa7\xc2\xa71201, 2312\xe2\x80\x932317.\nRule 26.1 is substantially the same as Civil Rule 44.1. A full explanation of the merits and\npracticability of the rule appear in the Advisory Committee\'s Note to Civil Rule 44.1. It is\nnecessary here to add only one comment to the explanations there made. The second sentence of\nthe rule frees the court from the restraints of the ordinary rules of evidence in determining foreign\nlaw. This freedom, made necessary by the peculiar nature of the issue of foreign law, should not\nconstitute an unconstitutional deprivation of the defendant\'s rights to confrontation of witnesses.\nThe issue is essentially one of law rather than of fact. Furthermore, the cases have held that the\nSixth Amendment does not serve as a rigid barrier against the development of reasonable and\nnecessary exceptions to the hearsay rule. See Kay v. United States, 255 F.2d 476, 480 (4th Cir.\n1958), cert. den., 358 U.S. 825 (1958); Matthews v. United States, 217 F.2d 409, 418 (5th Cir.\n1954); United States v. Leathers, 135 F.2d 507 (2d Cir. 1943); and cf., Painter v. Texas, 85 S.Ct.\n1065 (1965); Douglas v. Alabama, 85 S.Ct. 1074 (1965).\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSince the purpose is to free the judge, in determining foreign law, from restrictive\nevidentiary rules, the reference is made to the Rules of Evidence generally.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 26.1 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only.\nReferences in Text\nThe Federal Rules of Evidence, referred to in text, are set out in the Appendix to Title 28,\nJudiciary and Judicial Procedure.\n205\n\n\x0cEffective Date of Amendment Proposed November 20, 1972\nAmendment of this rule embraced by the order entered by the Supreme Court of the United\nStates on November 20, 1972, effective on the 180th day beginning after January 2, 1975, see\nsection 3 of Pub. L. 93\xe2\x80\x93595, Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of\nTitle 28, Judiciary and Judicial Procedure.\n\nRule 26.2 Producing a Witness\'s Statement\n(a) Motion to Produce. After a witness other than the defendant has testified on direct\nexamination, the court, on motion of a party who did not call the witness, must order an attorney\nfor the government or the defendant and the defendant\'s attorney to produce, for the examination\nand use of the moving party, any statement of the witness that is in their possession and that relates\nto the subject matter of the witness\'s testimony.\n(b) Producing the Entire Statement. If the entire statement relates to the subject matter of\nthe witness\'s testimony, the court must order that the statement be delivered to the moving party.\n(c) Producing a Redacted Statement. If the party who called the witness claims that the\nstatement contains information that is privileged or does not relate to the subject matter of the\nwitness\'s testimony, the court must inspect the statement in camera. After excising any privileged\nor unrelated portions, the court must order delivery of the redacted statement to the moving party.\nIf the defendant objects to an excision, the court must preserve the entire statement with the\nexcised portion indicated, under seal, as part of the record.\n(d) Recess to Examine a Statement. The court may recess the proceedings to allow time for\na party to examine the statement and prepare for its use.\n(e) Sanction for Failure to Produce or Deliver a Statement. If the party who called the\nwitness disobeys an order to produce or deliver a statement, the court must strike the witness\'s\ntestimony from the record. If an attorney for the government disobeys the order, the court must\ndeclare a mistrial if justice so requires.\n(f) \xe2\x80\x9cStatement\xe2\x80\x9d Defined. As used in this rule, a witness\'s \xe2\x80\x9cstatement\xe2\x80\x9d means:\n(1) a written statement that the witness makes and signs, or otherwise adopts or approves;\n(2) a substantially verbatim, contemporaneously recorded recital of the witness\'s oral\nstatement that is contained in any recording or any transcription of a recording; or\n(3) the witness\'s statement to a grand jury, however taken or recorded, or a transcription of\nsuch a statement.\n(g) Scope. This rule applies at trial, at a suppression hearing under Rule 12, and to the\nextent specified in the following rules:\n(1) Rule 5.1(h) (preliminary hearing);\n(2) Rule 32(i)(2) (sentencing);\n(3) Rule 32.1(e) (hearing to revoke or modify probation or supervised release);\n(4) Rule 46(j) (detention hearing); and\n(5) Rule 8 of the Rules Governing Proceedings under 28 U.S.C. \xc2\xa72255.\nNotes\n(Added Apr. 30, 1979, eff. Dec. 1, 1980; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22,\n1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)\n206\n\n\x0cNotes of Advisory Committee on Rules\xe2\x80\x941979\nS. 1437, 95th Cong., 1st Sess. (1977), would place in the criminal rules the substance of\nwhat is now 18 U.S.C. \xc2\xa73500 (the Jencks Act). Underlying this and certain other additions to the\nrules contemplated by S. 1437 is the notion that provisions which are purely procedural in nature\nshould appear in the Federal Rules of Criminal Procedure rather than in Title 18. See Reform of the\nFederal Criminal Laws, Part VI: Hearings on S. 1, S. 716, and S. 1400, Subcomm. on Criminal\nLaws and Procedures, Senate Judiciary Comm., 93rd Cong., 1st Sess. (statement of Judge Albert\nB. Maris, at page 5503). Rule 26.2 is identical to the S.1437 rule except as indicated by the marked\nadditions and deletions. As those changes show, rule 26.2 provides for production of the\nstatements of defense witnesses at trial in essentially the same manner as is now provided for with\nrespect to the statements of government witnesses. Thus, the proposed rule reflects these two\njudgments: (i) that the subject matter\xe2\x80\x94production of the statements of witnesses\xe2\x80\x94is more\nappropriately dealt with in the criminal rules; and (ii) that in light of United States v. Nobles, 422\nU.S. 225 (1975), it is important to establish procedures for the production of defense witnesses\xe2\x80\x99\nstatements as well. The rule is not intended to discourage the practice of voluntary disclosure at an\nearlier time so as to avoid delays at trial.\nIn Nobles, defense counsel sought to introduce the testimony of a defense investigator who\nprior to trial had interviewed prospective prosecution witnesses and had prepared a report\nembodying the essence of their conversation. When the defendant called the investigator to\nimpeach eyewitness testimony identifying the defendant as the robber, the trial judge granted the\nprosecutor the right to inspect those portions of the investigator\'s report relating to the witnesses\xe2\x80\x99\nstatements, as a potential basis for cross-examination of the investigator. When the defense\ndeclined to produce the report, the trail judge refused to permit the investigator to testify. The\nSupreme Court unanimously upheld the trail court\'s actions, finding that neither the Fifth nor Sixth\nAmendments nor the attorney work product doctrine prevented disclosure of such a document at\ntrial. Noting \xe2\x80\x9cthe federal judiciary\'s inherent power to require the prosecution to produce the\npreviously recorded statements of its witnesses so that the defense may get the full benefit of\ncross-examinations and the truth-finding process may be enhanced,\xe2\x80\x9d the Court rejected the notion\n\xe2\x80\x9cthat the Fifth amendment renders criminal discovery \xe2\x80\x98basically a one-way street,\xe2\x80\x99 \xe2\x80\x9d and thus\nconcluded that \xe2\x80\x9cin a proper case, the prosecution can call upon that same power for production of\nwitness statements that facilitate \xe2\x80\x98full disclosure of all the [relevant] facts.\xe2\x80\x99 \xe2\x80\x9d\nThe rule, consistent with the reasoning in Nobles, is designed to place the disclosure of\nprior relevant statements of a defense witness in the possession of the defense on the same legal\nfooting as is the disclosure of prior statements of prosecution witnesses in the hands of the\ngovernment under the Jencks Act, 18 U.S.C. \xc2\xa73500 (which S. 1437 would replace with the rule set\nout therein). See United States v. Pulvirenti, 408 F.Supp. 12 (E.D.Mich. 1976), holding that under\nNobles \xe2\x80\x9c[t]he obligation [of disclosure] placed on the defendant should be the reciprocal of that\nplaced upon the government * [as] defined by the Jencks Act.\xe2\x80\x9d Several state courts have\nlikewise concluded that witness statements in the hands of the defense at trial should be disclosed\non the same basis that prosecution witness statements are disclosed, in order to promote the\nconcept of the trail as a search for truth. See, e.g., People v. Sanders, 110 Ill.App.2d 85, 249\nN.E.2d 124 (1969); State v. Montague, 55 N.J. 371, 262 A.2d 398 (1970); People v. Damon, 24\nN.Y.2d 256, 299 N.Y.S.2d 830, 247 N.E.2d 651 (1959).\nThe rule, with minor exceptions, makes the procedure identical for both prosecution and\n207\n\n\x0cdefense witnesses, including the provision directing the court, whenever a claim is made that\ndisclosure would be improper because the statement contains irrelevant matter, to examine the\nstatements in camera and excise such matter as should not be disclosed. This provision acts as a\nsafeguard against abuse and will enable a defendant who believes that a demand is being\nimproperly made to secure a swift and just resolution of the issue.\nThe treatment as to defense witnesses of necessity differs slightly from the treatment as to\nprosecution witnesses in terms of the sanction for a refusal to comply with the court\'s disclosure\norder. Under the Jencks Act and the rule proposed in S. 1437, if the prosecution refuses to abide by\nthe court\'s order, the court is required to strike the witness\'s testimony unless in its discretion it\ndetermines that the more serious sanction of a mistrial in favor of the accused is warranted. Under\nthis rule, if a defendant refuses to comply with the court\'s disclosure order, the court\'s only\nalternative is to enter an order striking or precluding the testimony of the witness, as was done in\nNobles.\nUnder subdivision (a) of the rule, the motion for production may be made by \xe2\x80\x9ca party who\ndid not call the witness.\xe2\x80\x9d Thus, it also requires disclosure of statements in the possession of either\nparty when the witness is called neither by the prosecution nor the defense but by the court\npursuant to the Federal Rules of Evidence. Present law does not deal with this situation, which\nconsistency requires be treated in an identical manner as the disclosure of statements of witnesses\ncalled by a party to the case.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nNew subdivision (g) recognizes other contemporaneous amendments in the Rules of\nCriminal Procedure which extend the application of Rule 26.2 to other proceedings. Those\nchanges are thus consistent with the extension of Rule 26.2 in 1983 to suppression hearings\nconducted under Rule 12. See Rule 12(i).\nIn extending Rule 26.2 to suppression hearings in 1983, the Committee offered several\nreasons. First, production of witness statements enhances the ability of the court to assess the\nwitnesses\xe2\x80\x99 credibility and thus assists the court in making accurate factual determinations at\nsuppression hearings. Second, because witnesses testifying at a suppression hearing may not\nnecessarily testify at the trial itself, waiting until after a witness testifies at trial before requiring\nproduction of that witness\'s statement would be futile. Third, the Committee believed that it would\nbe feasible to leave the suppression issue open until trial, where Rule 26.2 would then be\napplicable. Finally, one of the central reasons for requiring production of statements at suppression\nhearings was the recognition that by its nature, the results of a suppression hearing have a profound\nand ultimate impact on the issues presented at trial.\nThe reasons given in 1983 for extending Rule 26.2 to a suppression hearing are equally\ncompelling with regard to other adversary type hearings which ultimately depend on accurate and\nreliable information. That is, there is a continuing need for information affecting the credibility of\nwitnesses who present testimony. And that need exists without regard to whether the witness is\npresenting testimony at a pretrial hearing, at a trial, or at a post-trial proceeding.\nAs noted in the 1983 Advisory Committee Note to Rule 12(i), the courts have generally\n208\n\n\x0cdeclined to extend the Jencks Act, 18 U.S.C. \xc2\xa73500, beyond the confines of actual trial testimony.\nThat result will be obviated by the addition of Rule 26.2(g) and amendments to the Rules noted in\nthat new subdivision.\nAlthough amendments to Rules 32, 32.1, 46, and Rule 8 of the Rules Governing\nProceedings under 28 U.S.C. \xc2\xa72255 specifically address the requirement of producing a witness\'s\nstatement, Rule 26.2 has become known as the central \xe2\x80\x9crule\xe2\x80\x9d requiring production of statements.\nThus, the references in the Rule itself will assist the bench and bar in locating other Rules which\ninclude similar provisions.\nThe amendment to Rule 26.2 and the other designated Rules is not intended to require\nproduction of a witness\'s statement before the witness actually testifies.\nMinor conforming amendments have been made to subsection (d) to reflect that Rule 26.2\nwill be applicable to proceedings other than the trial itself. And language has been added to\nsubsection (c) to recognize explicitly that privileged matter may be excised from the witness\'s\nprior statement.\nCommittee Notes on Rules\xe2\x80\x941998 Amendment\nThe amendment to subdivision (g) mirrors similar amendments made in 1993 to this rule\nand to other Rules of Criminal Procedure which extended the application of Rule 26.2 to other\nproceedings, both pretrial and post-trial. This amendment extends the requirement of producing a\nwitness\xe2\x80\x99 statement to preliminary examinations conducted under Rule 5.1.\nSubdivision (g)(1) has been amended to reflect changes to Rule 32.\nChanges Made to Rule 26.2 After Publication (\xe2\x80\x9cGAP Report\xe2\x80\x9d). The Committee made no\nchanges to the published draft.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 26.2 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only, except as noted\nbelow.\nCurrent Rule 26.2(c) states that if the court withholds a portion of a statement, over the\ndefendant\'s objection, \xe2\x80\x9cthe attorney for the government\xe2\x80\x9d must preserve the statement. The\nCommittee believed that the better rule would be for the court to simply seal the entire statement as\na part of the record, in the event that there is an appeal.\nAlso, the terminology in Rule 26.2(c) has been changed. The rule now speaks in terms of a\n\xe2\x80\x9credacted\xe2\x80\x9d statement instead of an \xe2\x80\x9cexcised\xe2\x80\x9d statement. No change in practice is intended.\nFinally, the list of proceedings in Rule 26.2(g) has been placed in rule-number order.\nReferences in Text\nThe Rules Governing Proceedings under 28 U.S.C. \xc2\xa72255, referred to in subd. (g)(5), are\nset out under section 2255 of Title 28, Judiciary and Judicial Procedure.\nEffective Date of Rule\n\n209\n\n\x0cThis rule added by order of the United States Supreme Court of Apr. 30, 1979, effective\nDec. 1, 1980, see section 1(1) of Pub. L. 96\xe2\x80\x9342, July 31, 1979, 93 Stat. 326, set out as a note under\nsection 2074 of Title 28, Judiciary and Judicial Procedure.\n\nRule 26.3 Mistrial\nBefore ordering a mistrial, the court must give each defendant and the government an\nopportunity to comment on the propriety of the order, to state whether that party consents or\nobjects, and to suggest alternatives.\nNotes\n(Added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941993\nRule 26.3 is a new rule designed to reduce the possibility of an erroneously ordered mistrial\nwhich could produce adverse and irretrievable consequences. The Rule is not designed to change\nthe substantive law governing mistrials. Instead it is directed at providing both sides an\nopportunity to place on the record their views about the proposed mistrial order. In particular, the\ncourt must give each side an opportunity to state whether it objects or consents to the order.\nSeveral cases have held that retrial of a defendant was barred by the Double Jeopardy\nClause of the Constitution because the trial court had abused its discretion in declaring a mistrial.\nSee United States v. Dixon, 913 F.2d 1305 (8th Cir. 1990); United States v. Bates, 917 F.2d 388\n(9th Cir. 1990). In both cases the appellate courts concluded that the trial court had acted\nprecipitately and had failed to solicit the parties\xe2\x80\x99 views on the necessity of a mistrial and the\nfeasibility of any alternative action. The new Rule is designed to remedy that situation.\nThe Committee regards the Rule as a balanced and modest procedural device that could\nbenefit both the prosecution and the defense. While the Dixon and Bates decisions adversely\naffected the government\'s interest in prosecuting serious crimes, the new Rule could also benefit\ndefendants. The Rule ensures that a defendant has the opportunity to dissuade a judge from\ndeclaring a mistrial in a case where granting one would not be an abuse of discretion, but the\ndefendant believes that the prospects for a favorable outcome before that particular court, or jury,\nare greater than they might be upon retrial.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 26.3 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only.\n\nRule 27. Proving an Official Record\nA party may prove an official record, an entry in such a record, or the lack of a record or\nentry in the same manner as in a civil action.\nNotes\n\n210\n\n\x0c(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule incorporates by reference Rule 44 of the Federal Rules of Civil Procedure, 28\nU.S.C., Appendix, which provided a simple and uniform method of proving public records and\nentry or lack of entry therein. The rule does not supersede statutes regulating modes of proof in\nrespect to specific official records. In such cases parties have the option of following the general\nrule or the pertinent statute. Among the many statutes are:\nU.S.C., Title 28:\nSection 661 [now 1733] (Copies of department or corporation records and papers;\nadmissibility; seal)\nSection 662 [now 1733] (Same; in office of General Counsel of the Treasury)\nSection 663 [now 1733] (Instruments and papers of Comptroller of Currency;\nadmissibility)\nSection 664 [now 1733] (Organization certificates of national banks; admissibility)\nSection 665 [now 1733] (Transcripts from books of Treasury in suits against delinquents;\nadmissibility)\nSection 666 [now 1733] (Same; certificate by Secretary or Assistant Secretary)\nSection 668 [now 18 U.S.C. 3497 ] (Same; indictments for embezzlement of public\nmoneys)\nSection 669 [former] (Copies of returns in returns office admissible)\nSection 670 [now 1743] (Admissibility of copies of statements of demands by Post Office\nDepartment)\nSection 671 [now 1733] (Admissibility of copies of post office records and statement of\naccounts)\nSection 672 [see 1733] (Admissibility of copies of records in General Land Office)\nSection 673 [now 1744] (Admissibility of copies of records, and so forth, of Patent\nOffice)\nSection 674 [now 1745] (Copies of foreign letters patent as prima facie evidence)\nSection 675 [former] (Copies of specifications and drawings of patents admissible)\nSection 676 [now 1736] (Extracts from Journals of Congress admissible when injunction\nof secrecy removed)\nSection 677 [now 1740] (Copies of records in offices of United States consuls admissible)\nSection 678 [former] (Books and papers in certain district courts)\nSection 679 [former] (Records in clerks\xe2\x80\x99 offices, western district of North Carolina)\nSection 680 [former] (Records in clerks\xe2\x80\x99 offices of former district of California)\nSection 681 [now 1734] (Original records lost or destroyed; certified copy admissible)\nSection 682 [now 1734] (Same; when certified copy not obtainable)\nSection 685 [now 1735] (Same; certified copy of official papers)\nSection 687 [now 1738] (Authentication of legislative acts; proof of judicial proceedings\nof State)\nSection 688 [now 1739] (Proofs of records in offices not pertaining to courts)\nSection 689 [now 1742] (Copies of foreign records relating to land titles)\nSection 695a\xe2\x80\x93695h [now 18 U.S.C. 3491 \xe2\x80\x933496; 22 U.S.C. 1204; 1741] (Foreign\ndocuments)\n211\n\n\x0cU.S.C., Title 1:\nSection 30 [now 112] (Statutes at Large; contents; admissibility in evidence)\nSection 30a [now 113] (\xe2\x80\x9cLittle and Brown\'s\xe2\x80\x9d edition of laws and treaties competent\nevidence of Acts of Congress)\nSection 54 [now 204] (Codes and Supplements as establishing prima facie the Laws of\nUnited States and District of Columbia, citation of Codes and Supplements)\nSection 55 [now 209] (Copies of Supplements to Code of Laws of United States and of\nDistrict of Columbia Code and Supplements; conclusive evidence of original)\nU.S.C., Title 5:\nSection 490 [see 28 U.S.C. 1733 ] (Records of Department of Interior; authenticated\ncopies as evidence)\nU.S.C., Title 8:\nSection 717(b) [see 1435, 1482] (Former citizens of United States excepted from certain\nrequirements; citizenship lost by spouse\'s alienage or loss of United States citizenship, or by\nentering armed forces of foreign state or acquiring its nationality)\nSection 727(g) [see 1443] (Administration of naturalization laws; rules and regulations;\ninstruction in citizenship; forms; oaths; depositions; documents in evidence; photographic studio)\nU.S.C., Title 15:\nSection 127 [see 1057(e)] (Trade-marks; copies of records as evidence)\nU.S.C., Title 20:\nSection 52 (Smithsonian Institution; evidence of title to site and buildings)\nU.S.C., Title 25:\nSection 6 (Bureau of Indian Affairs; seal; authenticated and certified documents;\nevidence)\nU.S.C., Title 31:\nSection 46 [see 704] (Laws governing General Accounting Office; copies of books,\nrecords, etc., thereof as evidence)\nU.S.C., Title 38:\nSection 11g [see 302] (Seal of Veterans\xe2\x80\x99 Administration; authentication of copies of\nrecords)\nU.S.C., Title 43:\nSection 57 (Authenticated copies or extracts from records as evidence)\nSection 58 (Transcripts from records of Louisiana)\nSection 59 (Official papers in office of surveyor general in California; papers; copies)\nSection 83 (Transcripts of records as evidence)\nU.S.C., Title 44:\nSection 300h [now 2112] (National Archives; seal; reproduction of archives; fee;\nadmissibility in evidence of reproductions)\nSection 307 [now 1507] (Filing document as constructive notice; publication in Register\nas presumption of validity; judicial notice; citation)\nU.S.C., Title 47:\nSection 412 (Documents filed with Federal Communications Commission as public\nrecords; prima facie evidence; confidential records)\nU.S.C., Title 49:\nSection 16 [now 10303] (Orders of Commission and enforcement thereof;\nforfeitures\xe2\x80\x94(13) copies of schedules, tariffs, contracts, etc., kept as public records; evidence)\n212\n\n\x0cCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 27 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\n\nRule 28. Interpreters\nThe court may select, appoint, and set the reasonable compensation for an interpreter. The\ncompensation must be paid from funds provided by law or by the government, as the court may\ndirect.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, eff. July 1, 1975; Apr. 29,\n2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThe power of the court to call its own witnesses, though rarely invoked, is recognized in the\nFederal courts, Young v. United States, 107 F.2d 490 (C.C.A. 5th); Litsinger v. United States, 44\nF.2d 45 (C.C.A. 7th). This rule provides a procedure whereby the court may, if it chooses, exercise\nthis power in connection with expert witnesses. The rule is based, in part, on the Uniform Expert\nTestimony Act, drafted by the Commissioners on Uniform State Laws, Hand Book of the National\nConference of Commissioners on Uniform State Laws (1937), 337; see, also, Wigmore\xe2\x80\x94\nEvidence, 3d Ed., sec. 563; A.L.I. Code of Criminal Procedure, secs. 307\xe2\x80\x93309; National\nCommission on Law of Observance and Enforcement\xe2\x80\x94 Report on Criminal Procedure, 37.\nSimilar provisions are found in the statutes of a number of States: Wisconsin\xe2\x80\x94 Wis.Stat. (1941),\nsec. 357.12; Indiana\xe2\x80\x94Ind.Stat.Ann. (Burns, 1933), sec. 9\xe2\x80\x931702; California\xe2\x80\x94Cal.Pen.Code\n(Deering, 1941), sec. 1027.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nSubdivision (a).\xe2\x80\x94The original rule is made a separate subdivision. The amendment\npermits the court to inform the witness of his duties in writing since it often constitutes an\nunnecessary inconvenience and expense to require the witness to appear in court for such purpose.\nSubdivision (b).\xe2\x80\x94This new subdivision authorizes the court to appoint and provide for the\ncompensation of interpreters. General language is used to give discretion to the court to appoint\ninterpreters in all appropriate situations. Interpreters may be needed to interpret the testimony of\nnon-English speaking witnesses or to assist non-English speaking defendants in understanding the\nproceedings or in communicating with assigned counsel. Interpreters may also be needed where a\nwitness or a defendant is deaf.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivision (a). This subdivision is stricken, since the subject of court-appointed expert\n213\n\n\x0cwitnesses is covered in Evidence Rule 706 in detail.\nSubdivision (b). The provisions of subdivision (b) are retained. Although Evidence Rule\n703 specifies the qualifications of interpreters and the form of oath to be administered to them, it\ndoes not cover their appointment or compensation.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 28 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nEffective Date of Amendment Proposed November 20, 1972\nAmendment of this rule embraced by the order entered by the Supreme Court of the United\nStates on November 20, 1972, effective on the 180th day beginning after January 2, 1975, see\nsection 3 of Pub. L. 93\xe2\x80\x93595, Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of\nTitle 28, Judiciary and Judicial Procedure.\n\nRule 29. Motion for a Judgment of Acquittal\n(a) Before Submission to the Jury. After the government closes its evidence or after the\nclose of all the evidence, the court on the defendant\'s motion must enter a judgment of acquittal of\nany offense for which the evidence is insufficient to sustain a conviction. The court may on its own\nconsider whether the evidence is insufficient to sustain a conviction. If the court denies a motion\nfor a judgment of acquittal at the close of the government\'s evidence, the defendant may offer\nevidence without having reserved the right to do so.\n(b) Reserving Decision. The court may reserve decision on the motion, proceed with the\ntrial (where the motion is made before the close of all the evidence), submit the case to the jury,\nand decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or\nis discharged without having returned a verdict. If the court reserves decision, it must decide the\nmotion on the basis of the evidence at the time the ruling was reserved.\n(c) After Jury Verdict or Discharge.\n(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a\nmotion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is\nlater.\n(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside\nthe verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a\njudgment of acquittal.\n(3) No Prior Motion Required. A defendant is not required to move for a judgment of\nacquittal before the court submits the case to the jury as a prerequisite for making such a motion\nafter jury discharge.\n(d) Conditional Ruling on a Motion for a New Trial.\n(1) Motion for a New Trial. If the court enters a judgment of acquittal after a guilty verdict,\nthe court must also conditionally determine whether any motion for a new trial should be granted if\nthe judgment of acquittal is later vacated or reversed. The court must specify the reasons for that\ndetermination.\n(2) Finality. The court\'s order conditionally granting a motion for a new trial does not\n214\n\n\x0caffect the finality of the judgment of acquittal.\n(3) Appeal.\n(A) Grant of a Motion for a New Trial. If the court conditionally grants a motion for a new\ntrial and an appellate court later reverses the judgment of acquittal, the trial court must proceed\nwith the new trial unless the appellate court orders otherwise.\n(B) Denial of a Motion for a New Trial. If the court conditionally denies a motion for a new\ntrial, an appellee may assert that the denial was erroneous. If the appellate court later reverses the\njudgment of acquittal, the trial court must proceed as the appellate court directs.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Pub. L. 99\xe2\x80\x93646, \xc2\xa754(a), Nov. 10, 1986, 100\nStat. 3607; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff.\nDec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. The purpose of changing the name of a motion for a directed\nverdict to a motion for judgment of acquittal is to make the nomenclature accord with the realities.\nThe change of nomenclature, however, does not modify the nature of the motion or enlarge the\nscope of matters that may be considered.\n2. The second sentence is patterned on New York Code of Criminal Procedure, sec. 410.\n3. The purpose of the third sentence is to remove the doubt existing in a few jurisdictions\non the question whether the defendant is deemed to have rested his case if he moves for a directed\nverdict at the close of the prosecution\'s case. The purpose of the rule is expressly to preserve the\nright of the defendant to offer evidence in his own behalf, if such motion is denied. This is a\nrestatement of the prevailing practice, and is also in accord with the practice prescribed for civil\ncases by Rule 50(a) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix].\nNote to Subdivision (b). This rule is in substance similar to Rule 50(b) of the Federal Rules\nof Civil Procedure, 28 U.S.C., Appendix, and permits the court to render judgment for the\ndefendant notwithstanding a verdict of guilty. Some Federal courts have recognized and approved\nthe use of a judgment non obstante veredicto for the defendant in a criminal case, Ex parte United\nStates, 101 F.2d 870 (C.C.A. 7th), affirmed by an equally divided court, United States v. Stone,\n308 U.S. 519. The rule sanctions this practice.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nSubdivision (a).\xe2\x80\x94A minor change has been made in the caption.\nSubdivision (b).\xe2\x80\x94The last three sentences are deleted with the matters formerly covered\nby them transferred to the new subdivision (c).\nSubdivision (c).\xe2\x80\x94The new subdivision makes several changes in the former procedure. A\nmotion for judgment of acquittal may be made after discharge of the jury whether or not a motion\nwas made before submission to the jury. No legitimate interest of the government is intended to be\nprejudiced by permitting the court to direct an acquittal on a post-verdict motion. The\nconstitutional requirement of a jury trial in criminal cases is primarily a right accorded to the\ndefendant. Cf. Adams v. United States, ex rel. McCann, 317 U.S. 269 (1942); Singer v. United\nStates, 380 U.S. 24 (1965); Note, 65 Yale L.J. 1032 (1956).\n215\n\n\x0cThe time in which the motion may be made has been changed to 7 days in accordance with\nthe amendment to Rule 45(a) which by excluding Saturday from the days to be counted when the\nperiod of time is less than 7 days would make 7 days the normal time for a motion required to be\nmade in 5 days. Also the court is authorized to extend the time as is provided for motions for new\ntrial (Rule 33) and in arrest of judgment (Rule 34).\nReferences in the original rule to the motion for a new trial as an alternate to the motion for\njudgment of acquittal and to the power of the court to order a new trial have been eliminated.\nMotions for new trial are adequately covered in Rule 33. Also the original wording is subject to the\ninterpretation that a motion for judgment of acquittal gives the court power to order a new trial\neven though the defendant does not wish a new trial and has not asked for one.\nNotes of Advisory Committee on Rules\xe2\x80\x941994 Amendment\nThe amendment permits the reservation of a motion for a judgment of acquittal made at the\nclose of the government\'s case in the the same manner as the rule now permits for motions made at\nthe close of all of the evidence. Although the rule as written did not permit the court to reserve such\nmotions made at the end of the government\'s case, trial courts on occasion have nonetheless\nreserved ruling. See, e.g., United States v. Bruno, 873 F.2d 555 (2d Cir.), cert. denied, 110 S.Ct.\n125 (1989); United States v. Reifsteck, 841 F.2d 701 (6th Cir. 1988). While the amendment will\nnot affect a large number of cases, it should remove the dilemma in those close cases in which the\ncourt would feel pressured into making an immediate, and possibly erroneous, decision or\nviolating the rule as presently written by reserving its ruling on the motion.\nThe amendment also permits the trial court to balance the defendant\'s interest in an\nimmediate resolution of the motion against the interest of the government in proceeding to a\nverdict thereby preserving its right to appeal in the event a verdict of guilty is returned but is then\nset aside by the granting of a judgment of acquittal. Under the double jeopardy clause the\ngovernment may appeal the granting of a motion for judgment of acquittal only if there would be\nno necessity for another trial, i.e., only where the jury has returned a verdict of guilty. United\nStates v. Martin Linen Supply Co., 430 U.S. 564 (1977). Thus, the government\'s right to appeal a\nRule 29 motion is only preserved where the ruling is reserved until after the verdict.\nIn addressing the issue of preserving the government\'s right to appeal and at the same time\nrecognizing double jeopardy concerns, the Supreme Court observed:\nWe should point out that it is entirely possible for a trial court to reconcile the public\ninterest in the Government\'s right to appeal from an erroneous conclusion of law with the\ndefendant\'s interest in avoiding a second prosecution. In United States v. Wilson, 420 U.S. 332\n(1975), the court permitted the case to go to the jury, which returned a verdict of guilty, but it\nsubsequently dismissed the indictment for preindictment delay on the basis of evidence adduced at\ntrial. Most recently in United States v. Ceccolini, 435 U.S. 268 (1978), we described similar action\nwith approval: \xe2\x80\x98The District Court had sensibly made its finding on the factual question of guilt or\ninnocence, and then ruled on the motion to suppress; a reversal of these rulings would require no\nfurther proceeding in the District Court, but merely a reinstatement of the finding of guilt.\xe2\x80\x99 Id. at\n271.\nUnited States v. Scott, 437 U.S. 82, 100 n. 13 (1978). By analogy, reserving a ruling on a\nmotion for judgment of acquittal strikes the same balance as that reflected by the Supreme Court in\nScott.\nReserving a ruling on a motion made at the end of the government\'s case does pose\n216\n\n\x0cproblems, however, where the defense decides to present evidence and run the risk that such\nevidence will support the government\'s case. To address that problem, the amendment provides\nthat the trial court is to consider only the evidence submitted at the time of the motion in making its\nruling, whenever made. And in reviewing a trial court\'s ruling, the appellate court would be\nsimilarly limited.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 29 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nIn Rule 29(a), the first sentence abolishing \xe2\x80\x9cdirected verdicts\xe2\x80\x9d has been deleted because it\nis unnecessary. The rule continues to recognize that a judge may sua sponte enter a judgment of\nacquittal.\nRule 29(c)(1) addresses the issue of the timing of a motion for judgment of acquittal. The\namended rule now includes language that the motion must be made within 7 days after a guilty\nverdict or after the judge discharges the jury, whichever occurs later. That change reflects the fact\nthat in a capital case or in a case involving criminal forfeiture, for example, the jury may not be\ndischarged until it has completed its sentencing duties. The court may still set another time for the\ndefendant to make or renew the motion, if it does so within the 7-day period.\nCommittee Notes on Rules\xe2\x80\x942005 Amendment\nRule 29(c) has been amended to remove the requirement that the court must act within\nseven days after a guilty verdict or after the court discharges the jury, if it sets another time for\nfiling a motion for a judgment of acquittal. This amendment parallels similar changes to Rules 33\nand 34. Further, a conforming amendment has been made to Rule 45(b)(2).\nCurrently, Rule 29(c) requires the defendant to move for a judgment of acquittal within\nseven days of the guilty verdict, or after the court discharges the jury, whichever occurs later, or\nsome other time set by the court in an order issued within that same seven-day period. Similar\nprovisions exist in Rules 33 and 34. Courts have held that the seven-day rule is jurisdictional.\nThus, if a defendant files a request for an extension of time to file a motion for a judgment of\nacquittal within the seven-day period, the court must rule on that motion or request within the same\nseven-day period. If for some reason the court does not rule on the request within the seven days, it\nloses jurisdiction to act on the underlying substantive motion. See, e.g., United States v. Smith, 331\nU.S. 469, 473 \xe2\x80\x93474 (1947) (rejecting argument that trial court had power to grant new trial on its\nown motion after expiration of time in Rule 33); United States v. Marquez, 291 F.3d 23, 27\xe2\x80\x9328\n(D.C. Cir. 2002) (citing language of Rule 33, and holding that \xe2\x80\x9cdistrict court forfeited the power to\nact when it failed to . . . fix a new time for filing a motion for a new trial within seven days of the\nverdict\xe2\x80\x9d).\nAssuming that the current rule was intended to promote finality, there is nothing to prevent\nthe court from granting a significant extension of time, so long as it does so within the seven-day\nperiod. Thus, the Committee believed that the rule should be amended to be consistent with all of\nthe other timing requirements in the rules, which do not force the court to act on a motion to extend\nthe time for filing within a particular period of time or lose jurisdiction to do so.\nAccordingly, the amendment deletes the language regarding the court\'s acting within seven\n217\n\n\x0cdays to set the time for filing. Read in conjunction with the conforming amendment to Rule 45(b),\nthe defendant is still required to file a timely motion for a judgment of acquittal under Rule 29\nwithin the seven-day period specified. The defendant may, under Rule 45, seek an extension of\ntime to file the underlying motion as long as the defendant does so within the seven-day period.\nBut the court itself is not required to act on that motion within any particular time. Further, under\nRule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion within the\nspecified time, the court may nonetheless consider that untimely motion if the court determines\nthat the failure to file it on time was the result of excusable neglect.\nChanges Made After Publication and Comment. The Committee made no substantive\nchanges to Rule 29 following publication.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nFormer Rules 29, 33, and 34 adopted 7-day periods for their respective motions. This\nperiod has been expanded to 14 days. Experience has proved that in many cases it is not possible to\nprepare a satisfactory motion in 7 days, even under the former rule that excluded intermediate\nSaturdays, Sundays, and legal holidays. This led to frequent requests for continuances, and the\nfiling of bare bones motions that required later supplementation. The 14-day period\xe2\x80\x94including\nintermediate Saturdays, Sundays, and legal holidays as provided by Rule 45(a)\xe2\x80\x94sets a more\nrealistic time for the filing of these motions.\nAmendment by Public Law\n1986 \xe2\x80\x94Subd. (d). Pub. L. 99\xe2\x80\x93646 added subd. (d).\nEffective Date of 1986 Amendment\nSection 54(b) of Pub. L. 99\xe2\x80\x93646 provided that: \xe2\x80\x9cThe amendments made by this section\n[amending this rule] shall take effect 30 days after the date of the enactment of this Act [Nov. 10,\n1986].\xe2\x80\x9d\n\nRule 29.1 Closing Argument\nClosing arguments proceed in the following order:\n(a) the government argues;\n(b) the defense argues; and\n(c) the government rebuts.\nNotes\n(Added Apr. 22, 1974, eff. Dec. 1, 1975; amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941974\nThis rule is designed to control the order of closing argument. It reflects the Advisory\nCommittee\'s view that it is desirable to have a uniform federal practice. The rule is drafted in the\nview that fair and effective administration of justice is best served if the defendant knows the\n218\n\n\x0carguments actually made by the prosecution in behalf of conviction before the defendant is faced\nwith the decision whether to reply and what to reply.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court, Rule 29.1 is a new rule that was added to\nregulate closing arguments. It prescribes that the government shall make its closing argument and\nthen the defendant shall make his. After the defendant has argued, the government is entitled to\nreply in rebuttal.\nB. Committee Action. The Committee endorses and adopts this proposed rule in its\nentirety. The Committee believes that as the Advisory Committee Note has stated, fair and\neffective administration of justice is best served if the defendant knows the arguments actually\nmade by the prosecution in behalf of conviction before the defendant is faced with the decision\nwhether to reply and what to reply. Rule 29.1 does not specifically address itself to what happens if\nthe prosecution waives its initial closing argument. The Committee is of the view that the\nprosecutor, when he waives his initial closing argument, also waives his rebuttal. [See the remarks\nof Senior United States Circuit Judge J. Edward Lumbard in Hearings II, at 207.]\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 29.1 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only.\nEffective Date\nThis rule effective Dec. 1, 1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule\n4 of these rules.\n\nRule 30. Jury Instructions\n(a) In General. Any party may request in writing that the court instruct the jury on the law\nas specified in the request. The request must be made at the close of the evidence or at any earlier\ntime that the court reasonably sets. When the request is made, the requesting party must furnish a\ncopy to every other party.\n(b) Ruling on a Request. The court must inform the parties before closing arguments how it\nintends to rule on the requested instructions.\n(c) Time for Giving Instructions. The court may instruct the jury before or after the\narguments are completed, or at both times.\n(d) Objections to Instructions. A party who objects to any portion of the instructions or to a\nfailure to give a requested instruction must inform the court of the specific objection and the\ngrounds for the objection before the jury retires to deliberate. An opportunity must be given to\nobject out of the jury\'s hearing and, on request, out of the jury\'s presence. Failure to object in\naccordance with this rule precludes appellate review, except as permitted under Rule 52(b).\nNotes\n\n219\n\n\x0c(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25,\n1988, eff. Aug. 1, 1988; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule corresponds to Rule 51 of the Federal Rules of Civil Procedure [28 U.S.C.,\nAppendix], the second sentence alone being new. It seemed appropriate that on a point such as\ninstructions to juries there should be no difference in procedure between civil and criminal cases.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe amendment requires the court, on request of any party, to require the jury to withdraw\nin order to permit full argument of objections to instructions.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nIn its current form, Rule 30 requires that the court instruct the jury after the arguments of\ncounsel. In some districts, usually where the state practice is otherwise, the parties prefer to\nstipulate to instruction before closing arguments. The purpose of the amendment is to give the\ncourt discretion to instruct the jury before or after closing arguments, or at both times. The\namendment will permit courts to continue instructing the jury after arguments as Rule 30 had\npreviously required. It will also permit courts to instruct before arguments in order to give the\nparties an opportunity to argue to the jury in light of the exact language used by the court. See\ngenerally Raymond, Merits and Demerits of the Missouri System in Instructing Juries, 5 St. Louis\nU.L.J. 317 (1959). Finally, the amendment plainly indicates that the court may instruct both before\nand after arguments, which assures that the court retains power to remedy omissions in\npre-argument instructions or to add instructions necessitated by the arguments.\nNotes of Advisory Committee on Rules\xe2\x80\x941988 Amendment\nThe amendment is technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 30 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nRule 30(a) reflects a change in the timing of requests for instructions. As currently written,\nthe trial court may not direct the parties to file such requests before trial without violating Rules 30\nand 57. While the amendment falls short of requiring all requests to be made before trial in all\ncases, the amendment permits a court to do so in a particular case or as a matter of local practice\nunder local rules promulgated under Rule 57. The rule does not preclude the practice of permitting\nthe parties to supplement their requested instructions during the trial.\nRule 30(d) clarifies what, if anything, counsel must do to preserve a claim of error\nregarding an instruction or failure to instruct. The rule retains the requirement of a\ncontemporaneous and specific objection (before the jury retires to deliberate). As the Supreme\n220\n\n\x0cCourt recognized in Jones v. United States, 527 U.S. 373 (1999), read literally, current Rule 30\ncould be construed to bar any appellate review absent a timely objection when in fact a court may\nconduct a limited review under a plain error standard. The amendment does not address the issue\nof whether objections to the instructions must be renewed after the instructions are given, in order\nto preserve a claim of error. No change in practice is intended by the amendment.\n\nRule 31. Jury Verdict\n(a) Return. The jury must return its verdict to a judge in open court. The verdict must be\nunanimous.\n(b) Partial Verdicts, Mistrial, and Retrial.\n(1) Multiple Defendants. If there are multiple defendants, the jury may return a verdict at\nany time during its deliberations as to any defendant about whom it has agreed.\n(2) Multiple Counts. If the jury cannot agree on all counts as to any defendant, the jury may\nreturn a verdict on those counts on which it has agreed.\n(3) Mistrial and Retrial. If the jury cannot agree on a verdict on one or more counts, the\ncourt may declare a mistrial on those counts. The government may retry any defendant on any\ncount on which the jury could not agree.\n(c) Lesser Offense or Attempt. A defendant may be found guilty of any of the following:\n(1) an offense necessarily included in the offense charged;\n(2) an attempt to commit the offense charged; or\n(3) an attempt to commit an offense necessarily included in the offense charged, if the\nattempt is an offense in its own right.\n(d) Jury Poll. After a verdict is returned but before the jury is discharged, the court must on\na party\'s request, or may on its own, poll the jurors individually. If the poll reveals a lack of\nunanimity, the court may direct the jury to deliberate further or may declare a mistrial and\ndischarge the jury.\nNotes\n(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 17,\n2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). This rule is a restatement of existing law and practice. It does not\nembody any regulation of sealed verdicts, it being contemplated that this matter would be\ngoverned by local practice in the various district courts. The rule does not affect the existing\nstatutes relating to qualified verdicts in cases in which capital punishment may be imposed, 18\nU.S.C. 408a [now 1201] (Kidnapped persons); sec. 412a [now 1992] (Wrecking trains); sec. 567\n[now 1111] (Verdicts; qualified verdicts).\nNote to Subdivision (b). This rule is a restatement of existing law, 18 U.S.C. [former] 566\n(Verdicts; several joint defendants).\nNote to Subdivision (c). This rule is a restatement of existing law, 18 U.S.C. [former] 565\n(Verdicts; less offense than charged).\nNote to Subdivision (d). This rule is a restatement of existing law and practice, Mackett v.\nUnited States, 90 F.2d 462, 465 (C.C.A. 7th); Bruce v. Chestnut Farms Chevy Chase Dairy, 126\n221\n\n\x0cF.2d 224, App.D.C.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivision (e) is new. It is intended to provide procedural implementation of the recently\nenacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX, \xc2\xa71963,\nand the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, \xc2\xa7408(a)(2).\nThe assumption of the draft is that the amount of the interest or property subject to criminal\nforfeiture is an element of the offense to be alleged and proved. See Advisory Committee Note to\nrule 7(c)(2).\nAlthough special verdict provisions are rare in criminal cases, they are not unknown. See\nUnited States v. Spock, 416 F. 2d 165 (1st Cir. 1969), especially footnote 41 where authorities are\nlisted.\nCommittee Notes on Rules\xe2\x80\x941998 Amendment\nThe right of a party to have the jury polled is an \xe2\x80\x9cundoubted right.\xe2\x80\x9d Humphries v. District\nof Columbia, 174 U.S. 190, 194 (1899). Its purpose is to determine with certainty that \xe2\x80\x9ceach of the\njurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict\nto which he does not fully assent.\xe2\x80\x9d Id.\nCurrently, Rule 31(d) is silent on the precise method of polling the jury. Thus, a court in its\ndiscretion may conduct the poll collectively or individually. As one court has noted, although the\nprevailing view is that the method used is a matter within the discretion of the trial court, United\nStates v. Miller, 59 F.3d 417, 420 (3d Cir. 1995) (citing cases), the preference, nonetheless of the\nappellate and trial courts, seems to favor individual polling. Id. (citing cases). That is the position\ntaken in the American Bar Association Standards for Criminal Justice \xc2\xa715\xe2\x80\x934.5. Those sources\nfavoring individual polling observe that conducting a poll of the jurors collectively saves little time\nand does not always adequately insure that an individual juror who has been forced to join the\nmajority during deliberations will voice dissent from a collective response. On the other hand, an\nadvantage to individual polling is the \xe2\x80\x9clikelihood that it will discourage post-trial efforts to\nchallenge the verdict on allegations of coercion on the part of some of the jurors.\xe2\x80\x9d Miller, Id. at 420\n(citing Audette v. Isaksen Fishing Corp., 789 F.2d 956, 961, n. 6 (1st Cir. 1986)).\nThe Committee is persuaded by the authorities and practice that there are advantages of\nconducting an individual poll of the jurors. Thus, the rule requires that the jurors be polled\nindividually when a polling is requested, or when polling is directed sua sponte by the court. The\namendment, however, leaves to the court the discretion as to whether to conduct a separate poll for\neach defendant, each count of the indictment or complaint, or on other issues.\nChanges Made to Rule 31 After Publication (\xe2\x80\x9cGAP Report\xe2\x80\x9d). The Committee changed the\nrule to require that any polling of the jury must be done before the jury is discharged and it\nincorporated suggested style changes submitted by the Style Subcommittee.\nCommittee Notes on Rules\xe2\x80\x942000 Amendment\nThe rule is amended to reflect the creation of new Rule 32.2, which now governs criminal\nforfeiture procedures.\nGAP Report\xe2\x80\x94Rule 31. The Committee made no changes to the published draft\n222\n\n\x0camendment to Rule 31.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 31 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nRule 31(b) has been amended to clarify that a jury may return partial verdicts, either as to\nmultiple defendants or multiple counts, or both. See, e.g., United States v. Cunningham, 145 F.3d\n1385, 1388\xe2\x80\x9390 (D.C. Cir. 1998) (partial verdicts on multiple defendants and counts). No change in\npractice is intended.\n\n223\n\n\x0cTITLE VII. POST-CONVICTION PROCEDURES\nRule 32. Sentencing and Judgment\n(a) [Reserved. ]\n(b) Time of Sentencing.\n(1) In General. The court must impose sentence without unnecessary delay.\n(2) Changing Time Limits. The court may, for good cause, change any time limits\nprescribed in this rule.\n(c) Presentence Investigation.\n(1) Required Investigation.\n(A) In General. The probation officer must conduct a presentence investigation and submit\na report to the court before it imposes sentence unless:\n(i) 18 U.S.C. \xc2\xa73593 (c) or another statute requires otherwise; or\n(ii) the court finds that the information in the record enables it to meaningfully exercise its\nsentencing authority under 18 U.S.C. \xc2\xa73553, and the court explains its finding on the record.\n(B) Restitution. If the law permits restitution, the probation officer must conduct an\ninvestigation and submit a report that contains sufficient information for the court to order\nrestitution.\n(2) Interviewing the Defendant. The probation officer who interviews a defendant as part\nof a presentence investigation must, on request, give the defendant\'s attorney notice and a\nreasonable opportunity to attend the interview.\n(d) Presentence Report.\n(1) Applying the Advisory Sentencing Guidelines. The presentence report must:\n(A) identify all applicable guidelines and policy statements of the Sentencing Commission;\n(B) calculate the defendant\'s offense level and criminal history category;\n(C) state the resulting sentencing range and kinds of sentences available;\n(D) identify any factor relevant to:\n(i) the appropriate kind of sentence, or\n(ii) the appropriate sentence within the applicable sentencing range; and\n(E) identify any basis for departing from the applicable sentencing range.\n(2) Additional Information. The presentence report must also contain the following:\n(A) the defendant\'s history and characteristics, including:\n(i) any prior criminal record;\n(ii) the defendant\'s financial condition; and\n(iii) any circumstances affecting the defendant\'s behavior that may be helpful in imposing\nsentence or in correctional treatment;\n(B) information that assesses any financial, social, psychological, and medical impact on\nany victim;\n(C) when appropriate, the nature and extent of nonprison programs and resources available\nto the defendant;\n(D) when the law provides for restitution, information sufficient for a restitution order;\n(E) if the court orders a study under 18 U.S.C. \xc2\xa73552 (b), any resulting report and\nrecommendation;\n(F) a statement of whether the government seeks forfeiture under Rule 32.2 and any other\nlaw; and\n224\n\n\x0c(G) any other information that the court requires, including information relevant to the\nfactors under 18 U.S.C. \xc2\xa73553 (a).\n(3) Exclusions. The presentence report must exclude the following:\n(A) any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program;\n(B) any sources of information obtained upon a promise of confidentiality; and\n(C) any other information that, if disclosed, might result in physical or other harm to the\ndefendant or others.\n(e) Disclosing the Report and Recommendation.\n(1) Time to Disclose. Unless the defendant has consented in writing, the probation officer\nmust not submit a presentence report to the court or disclose its contents to anyone until the\ndefendant has pleaded guilty or nolo contendere, or has been found guilty.\n(2) Minimum Required Notice. The probation officer must give the presentence report to\nthe defendant, the defendant\'s attorney, and an attorney for the government at least 35 days before\nsentencing unless the defendant waives this minimum period.\n(3) Sentence Recommendation. By local rule or by order in a case, the court may direct the\nprobation officer not to disclose to anyone other than the court the officer\'s recommendation on the\nsentence.\n(f) Objecting to the Report.\n(1) Time to Object. Within 14 days after receiving the presentence report, the parties must\nstate in writing any objections, including objections to material information, sentencing guideline\nranges, and policy statements contained in or omitted from the report.\n(2) Serving Objections. An objecting party must provide a copy of its objections to the\nopposing party and to the probation officer.\n(3) Action on Objections. After receiving objections, the probation officer may meet with\nthe parties to discuss the objections. The probation officer may then investigate further and revise\nthe presentence report as appropriate.\n(g) Submitting the Report. At least 7 days before sentencing, the probation officer must\nsubmit to the court and to the parties the presentence report and an addendum containing any\nunresolved objections, the grounds for those objections, and the probation officer\'s comments on\nthem.\n(h) Notice of Possible Departure from Sentencing Guidelines. Before the court may depart\nfrom the applicable sentencing range on a ground not identified for departure either in the\npresentence report or in a party\'s prehearing submission, the court must give the parties reasonable\nnotice that it is contemplating such a departure. The notice must specify any ground on which the\ncourt is contemplating a departure.\n(i) Sentencing.\n(1) In General. At sentencing, the court:\n(A) must verify that the defendant and the defendant\'s attorney have read and discussed the\npresentence report and any addendum to the report;\n(B) must give to the defendant and an attorney for the government a written summary\nof\xe2\x80\x94or summarize in camera\xe2\x80\x94any information excluded from the presentence report under Rule\n32(d)(3) on which the court will rely in sentencing, and give them a reasonable opportunity to\ncomment on that information;\n(C) must allow the parties\xe2\x80\x99 attorneys to comment on the probation officer\'s determinations\nand other matters relating to an appropriate sentence; and\n(D) may, for good cause, allow a party to make a new objection at any time before sentence\n225\n\n\x0cis imposed.\n(2) Introducing Evidence; Producing a Statement. The court may permit the parties to\nintroduce evidence on the objections. If a witness testifies at sentencing, Rule 26.2(a)\xe2\x80\x93(d) and (f)\napplies. If a party fails to comply with a Rule 26.2 order to produce a witness\'s statement, the court\nmust not consider that witness\'s testimony.\n(3) Court Determinations. At sentencing, the court:\n(A) may accept any undisputed portion of the presentence report as a finding of fact;\n(B) must\xe2\x80\x94for any disputed portion of the presentence report or other controverted\nmatter\xe2\x80\x94rule on the dispute or determine that a ruling is unnecessary either because the matter will\nnot affect sentencing, or because the court will not consider the matter in sentencing; and\n(C) must append a copy of the court\'s determinations under this rule to any copy of the\npresentence report made available to the Bureau of Prisons.\n(4) Opportunity to Speak.\n(A) By a Party. Before imposing sentence, the court must:\n(i) provide the defendant\'s attorney an opportunity to speak on the defendant\'s behalf;\n(ii) address the defendant personally in order to permit the defendant to speak or present\nany information to mitigate the sentence; and\n(iii) provide an attorney for the government an opportunity to speak equivalent to that of\nthe defendant\'s attorney.\n(B) By a Victim. Before imposing sentence, the court must address any victim of the crime\nwho is present at sentencing and must permit the victim to be reasonably heard.\n(C) In Camera Proceedings. Upon a party\'s motion and for good cause, the court may hear\nin camera any statement made under Rule 32(i)(4).\n(j) Defendant\'s Right to Appeal.\n(1) Advice of a Right to Appeal.\n(A) Appealing a Conviction. If the defendant pleaded not guilty and was convicted, after\nsentencing the court must advise the defendant of the right to appeal the conviction.\n(B) Appealing a Sentence. After sentencing\xe2\x80\x94regardless of the defendant\'s plea\xe2\x80\x94the court\nmust advise the defendant of any right to appeal the sentence.\n(C) Appeal Costs. The court must advise a defendant who is unable to pay appeal costs of\nthe right to ask for permission to appeal in forma pauperis.\n(2) Clerk\'s Filing of Notice. If the defendant so requests, the clerk must immediately\nprepare and file a notice of appeal on the defendant\'s behalf.\n(k) Judgment.\n(1) In General. In the judgment of conviction, the court must set forth the plea, the jury\nverdict or the court\'s findings, the adjudication, and the sentence. If the defendant is found not\nguilty or is otherwise entitled to be discharged, the court must so order. The judge must sign the\njudgment, and the clerk must enter it.\n(2) Criminal Forfeiture. Forfeiture procedures are governed by Rule 32.2.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22,\n1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x9364, \xc2\xa73(31)\xe2\x80\x93(34), July 31, 1975, 89 Stat. 376; Apr. 30, 1979,\neff. Aug. 1, 1979, and Dec. 1, 1980; Pub. L. 97\xe2\x80\x93291, \xc2\xa73, Oct. 12, 1982, 96 Stat. 1249; Apr. 28,\n1983, eff. Aug. 1, 1983; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7215(a), Oct. 12, 1984, 98 Stat. 2014; Pub. L. 99\xe2\x80\x93\n646, \xc2\xa725(a), Nov. 10, 1986, 100 Stat. 3597; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff.\n226\n\n\x0cDec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff.\nDec. 1, 1994; Pub. L. 103\xe2\x80\x93322, title XXIII, \xc2\xa7230101(b), Sept. 13, 1994, 108 Stat. 2078; Apr. 23,\n1996, eff. Dec. 1, 1996; Pub. L. 104\xe2\x80\x93132, title II, \xc2\xa7207(a), Apr. 24, 1996, 110 Stat. 1236; Apr. 17,\n2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 23,\n2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 26, 2011, eff. Dec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). This rule is substantially a restatement of existing procedure. Rule\nI of the Criminal Appeals Rules of 1933, 292 U.S. 661. See Rule 43 relating to the presence of the\ndefendant.\nNote to Subdivision (b). This rule is substantially a restatement of existing procedure. Rule\nI of the Criminal Appeals Rules of 1933, 292 U.S. 661.\nNote to Subdivision (c). The purpose of this provision is to encourage and broaden the use\nof presentence investigations, which are now being utilized to good advantage in many cases. See,\n\xe2\x80\x9cThe Presentence Investigation\xe2\x80\x9d published by Administrative Office of the United States Courts,\nDivision of Probation.\nNote to Subdivision (d). This rule modifies existing practice by abrogating the ten-day\nlimitation on a motion for leave to withdraw a plea of guilty. See Rule II (4) of the Criminal\nAppeals Rules of 1933, 292 U.S. 661.\nNote to Subdivision (e). See 18 U.S.C. 724 et seq. [now 3651 et seq.].\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nSubdivision (a)(1).\xe2\x80\x94The amendment writes into the rule the holding of the Supreme Court\nthat the court before imposing sentence must afford an opportunity to the defendant personally to\nspeak in his own behalf. See Green v. United States, 365 U.S. 301 (1961); Hill v. United States,\n368 U.S. 424 (1962). The amendment also provides an opportunity for counsel to speak on behalf\nof the defendant.\nSubdivision (a)(2).\xe2\x80\x94This amendment is a substantial revision and a relocation of the\nprovision originally found in Rule 37(a)(2): \xe2\x80\x9cWhen a court after trial imposes sentence upon a\ndefendant not represented by counsel, the defendant shall be advised of his right to appeal and if he\nso requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.\xe2\x80\x9d\nThe court is required to advise the defendant of his right to appeal in all cases which have gone to\ntrial after plea of not guilty because situations arise in which a defendant represented by counsel at\nthe trial is not adequately advised by such counsel of his right to appeal. Trial counsel may not\nregard his responsibility as extending beyond the time of imposition of sentence. The defendant\nmay be removed from the courtroom immediately upon sentence and held in custody under\ncircumstances which make it difficult for counsel to advise him. See, e.g., Hodges v. United States,\n368 U.S. 139 (1961). Because indigent defendants are most likely to be without effective\nassistance of counsel at this point in the proceedings, it is also provided that defendants be notified\nof the right of a person without funds to apply for leave to appeal in forma pauperis. The provision\nis added here because this rule seems the most appropriate place to set forth a procedure to be\nfollowed by the court at the time of sentencing.\nSubdivision (c)(2).\xe2\x80\x94It is not a denial of due process of law for a court in sentencing to rely\non a report of a presentence investigation without disclosing such report to the defendant or giving\n227\n\n\x0chim an opportunity to rebut it. Williams v. New York, 337 U.S. 241 (1949); Williams v. Oklahoma,\n358 U.S. 576 (1959). However, the question whether as a matter of policy the defendant should be\naccorded some opportunity to see and refute allegations made in such reports has been the subject\nof heated controversy. For arguments favoring disclosure, see Tappan, Crime, Justice, and\nCorrection, 558 (1960); Model Penal Code, 54\xe2\x80\x9355 (Tent. Draft No. 2, 1954); Thomsen,\nConfidentiality of the Presentence Report: A Middle Position, 28 Fed.Prob., March 1964, p. 8;\nWyzanski, A Trial Judge\'s Freedom and Responsibility, 65 Harv.L.Rev. 1281, 1291\xe2\x80\x932 (1952);\nNote, Employment of Social Investigation Reports in Criminal and Juvenile Proceedings, 58\nColum.L.Rev. 702 (1958); cf. Kadish, The Advocate and the Expert: Counsel in the\nPeno-Correctional Process, 45 Minn.L.Rev. 803, 806, (1961). For arguments opposing disclosure,\nsee Barnett and Gronewold, Confidentiality of the Presentence Report, 26 Fed.Prob. March 1962,\np. 26; Judicial Conference Committee on Administration of the Probation System, Judicial\nOpinion on Proposed Change in Rule 32(c) of the Federal Rules of Criminal Procedure\xe2\x80\x94a Survey\n(1964); Keve, The Probation Officer Investigates, 6\xe2\x80\x9315 (1960); Parsons, The Presentence\nInvestigation Report Must be Preserved as a Confidential Document, 28 Fed.Prob. March 1964, p.\n3; Sharp, The Confidential Nature of Presentence Reports, 5 Cath.U.L.Rev. 127 (1955); Wilson, A\nNew Arena is Emerging to Test the Confidentiality of Presentence Reports, 25 Fed.Prob. Dec.\n1961, p. 6; Federal Judge\'s Views on Probation Practices, 24 Fed.Prob. March 1960, p. 10.\nIn a few jurisdictions the defendant is given a right of access to the presentence report. In\nEngland and California a copy of the report is given to the defendant in every case. English\nCriminal Justice Act of 1948, 11 & 12 Geo. 6, c. 58, \xc2\xa743; Cal.Pen.C. \xc2\xa71203. In Alabama the\ndefendant has a right to inspect the report. Ala. Code, Title 42, \xc2\xa723. In Ohio and Virginia the\nprobation officer reports in open court and the defendant is given the right to examine him on his\nreport. Ohio Rev. Code, \xc2\xa72947.06; Va. Code, \xc2\xa753\xe2\x80\x93278.1. The Minnesota Criminal Code of 1963,\n\xc2\xa7609.115(4), provides that any presentence report \xe2\x80\x9cshall be open for inspection by the prosecuting\nattorney and the defendant\'s attorney prior to sentence and on the request of either of them a\nsummary hearing in chambers shall be held on any matter brought in issue, but confidential\nsources of information shall not be disclosed unless the court otherwise directs.\xe2\x80\x9d Cf. Model Penal\nCode \xc2\xa77.07(5) (P.O.D. 1962): \xe2\x80\x9cBefore imposing sentence, the Court shall advise the defendant or\nhis counsel of the factual contents and the conclusions of any presentence investigation or\npsychiatric examination and afford fair opportunity, if the defendant so requests, to controvert\nthem. The sources of confidential information need not, however, be disclosed.\xe2\x80\x9d\nPractice in the federal courts is mixed, with a substantial minority of judges permitting\ndisclosure while most deny it. See the recent survey prepared for the Judicial Conference of the\nDistrict of Columbia by the Junior Bar Section of the Bar Association of the District of Columbia,\nreported in Conference Papers on Discovery in Federal Criminal Cases, 33 F.R.D. 101, 125\xe2\x80\x93127\n(1963). See also Gronewold, Presentence Investigation Practices in the Federal Probation System,\nFed.Prob. Sept. 1958, pp. 27, 31. For divergent judicial opinions see Smith v. United States, 223\nF.2d 750, 754 (5th Cir. 1955) (supporting disclosure); United States v. Durham, 181 F.Supp. 503\n(D.D.C. 1960) (supporting secrecy).\nSubstantial objections to compelling disclosure in every case have been advanced by\nfederal judges, including many who in practice often disclose all or parts of presentence reports.\nSee Judicial Conference Committee on the Administration of the Probation System, Judicial\nOpinion on Proposed Change in Rule 32(c) of the Federal Rules of Criminal Procedure\xe2\x80\x94A Survey\n(1964). Hence, the amendment goes no further than to make it clear that courts may disclose all or\npart of the presentence report to the defendant or to his counsel. It is hoped that courts will make\n228\n\n\x0cincreasing use of their discretion to disclose so that defendants generally may be given full\nopportunity to rebut or explain facts in presentence reports which will be material factors in\ndetermining sentences. For a description of such a practice in one district, see Thomsen,\nConfidentiality of the Presentence Report: A Middle Position, 28 Fed.Prob., March 1964, p. 8.\nIt is also provided that any material disclosed to the defendant or his counsel shall be\ndisclosed to the attorney for the government. Such disclosure will permit the government to\nparticipate in the resolution of any factual questions raised by the defendant.\nSubdivision (f).\xe2\x80\x94This new subdivision writes into the rule the procedure which the cases\nhave derived from the provision in 18 U.S.C. \xc2\xa73653 that a person arrested for violation of\nprobation \xe2\x80\x9cshall be taken before the court\xe2\x80\x9d and that thereupon the court may revoke the probation.\nSee Escoe v. Zerbst, 295 U.S. 490 (1935); Brown v. United States, 236 F.2d 253 (9th Cir. 1956)\ncertiorari denied 356 U.S. 922 (1958). Compare Model Penal Code \xc2\xa7301.4 (P.O.D. 1962); Hink,\nThe Application of Constitutional Standards of Protection to Probation, 29 U.Chi.L.Rev. 483\n(1962).\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivision (b)(2) is new. It is intended to provide procedural implementation of the\nrecently enacted criminal forfeiture provisions of the Organized Crime Control Act of 1970, Title\nIX, \xc2\xa71963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II,\n\xc2\xa7408(a)(2).\n18 U.S.C. \xc2\xa71963 (c) provides for property seizure and disposition. In part it states:\n(c) Upon conviction of a person under this section, the court shall authorize the Attorney\nGeneral to seize all property or other interest declared forfeited under this section upon such terms\nand conditions as the court shall deem proper.\nAlthough not specifically provided for in the Comprehensive Drug Abuse Prevention and\nControl Act of 1970, the provision of Title II, \xc2\xa7408(a)(2) forfeiting \xe2\x80\x9cprofits\xe2\x80\x9d or \xe2\x80\x9cinterest\xe2\x80\x9d will need\nto be implemented procedurally, and therefore new rule 32(b)(2) will be applicable also to that\nlegislation.\nFor a brief discussion of the procedural implications of a criminal forfeiture, see Advisory\nCommittee Note to rule 7(c)(2).\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nSubdivision (a)(1) is amended by deleting the reference to commitment or release pending\nsentencing. This issue is dealt with explicitly in the proposed revision of rule 46(c).\nSubdivision (a)(2) is amended to make clear that there is no duty on the court to advise the\ndefendant of the right to appeal after sentence is imposed following a plea of guilty or nolo\ncontendere.\nTo require the court to advise the defendant of a right to appeal after a plea of guilty,\naccepted pursuant to the increasingly stringent requirements of rule 11, is likely to be confusing to\nthe defendant. See American Bar Association Standards Relating to Criminal Appeals \xc2\xa72.1(b)\n(Approved Draft, 1970), limiting the court\'s duty to advice to \xe2\x80\x9ccontested cases.\xe2\x80\x9d\nThe Advisory Committee is of the opinion that such advice, following a sentence imposed\nafter a plea of guilty, will merely tend to build false hopes and encourage frivolous appeals, with\nthe attendant expense to the defendant or the taxpayers.\n229\n\n\x0cFormer rule 32(a)(2) imposes a duty only upon conviction after \xe2\x80\x9ctrial on a plea of not\nguilty.\xe2\x80\x9d The few federal cases dealing with the question have interpreted rule 32(a)(2) to say that\nthe court has no duty to advise defendant of his right to appeal after conviction following a guilty\nplea. Burton v. United States, 307 F.Supp. 448, 450 (D.Ariz. 1970); Alaway v. United States, 280\nF.Supp. 326, 336 (C.D.Calif. 1968); Crow v. United States, 397 F.2d 284, 285 (10th Cir. 1968).\nPrior to the 1966 amendment of rule 32, the court\'s duty was even more limited. At that\ntime [rule 37(a)(2)] the court\'s duty to advise was limited to those situations in which sentence was\nimposed after trial upon a not guilty plea of a defendant not represented by counsel. 8A J. Moore,\nFederal Practice 32.01[3] (2d ed. Cipes 1969); C. Wright, Federal Practice and Procedure:\nCriminal \xc2\xa7528 (1969); 5 L. Orfield, Criminal Procedure Under the Federal Rules \xc2\xa732:11 (1967).\nWith respect to appeals in forma pauperis, see appellate rule 24.\nSubdivision (c)(1) makes clear that a presentence report is required except when the court\notherwise directs for reasons stated of record. The requirement of reasons on the record for not\nhaving a presentence report is intended to make clear that such a report ought to be routinely\nrequired except in cases where there is a reason for not doing so. The presentence report is of great\nvalue for correctional purposes and will serve as a valuable aid in reviewing sentences to the extent\nthat sentence review may be authorized by future rule change. For an analysis of the current rule as\nit relates to the situation in which a presentence investigation is required, see C. Wright, Federal\nPractice and Procedure: Criminal \xc2\xa7522 (1969); 8A J. Moore, Federal Practice 32.03[1] (2d ed.\nCipes 1969).\nSubdivision (c)(1) is also changed to permit the judge, after obtaining defendant\'s consent,\nto see the presentence report in order to decide whether to accept a plea agreement, and also to\nexpedite the imposition of sentence in a case in which the defendant has indicated that he may\nplead guilty or nolo contendere.\nFormer subdivision (c)(1) provides that \xe2\x80\x9cThe report shall not be submitted to the court *\nunless the defendant has pleaded guilty *.\xe2\x80\x9d This precludes a judge from seeing a presentence\nreport prior to the acceptance of the plea of guilty. L. Orfield, Criminal Procedure Under the\nFederal Rules \xc2\xa732:35 (1967); 8A J. Moore, Federal Practice 32.03[2], p. 32\xe2\x80\x9322 (2d ed. Cipes\n1969); C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7523, p. 392 (1969); Gregg v. United\nStates, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969).\nBecause many plea agreements will deal with the sentence to be imposed, it will be\nimportant, under rule 11, for the judge to have access to sentencing information as a basis for\ndeciding whether the plea agreement is an appropriate one.\nIt has been suggested that the problem be dealt with by allowing the judge to indicate\napproval of the plea agreement subject to the condition that the information in the presentence\nreport is consistent with what he has been told about the case by counsel. See American Bar\nAssociation, Standards Relating to Pleas of Guilty \xc2\xa73.3 (Approved Draft, 1963); President\'s\nCommission on Law Enforcement and Administration of Justice. The Challenge of Crime in a\nFree Society 136 (1967).\nAllowing the judge to see the presentence report prior to his decision as to whether to\naccept the plea agreement is, in the view of the Advisory Committee, preferable to a conditional\nacceptance of the plea. See Enker, Perspectives on Plea Bargaining, Appendix A of President\'s\nCommission on Law Enforcement and Administration of Justice, Task Force Report: The Courts\nat 117 (1967). It enables the judge to have all of the information available to him at the time he is\ncalled upon to decide whether or not to accept the plea of guilty and thus avoids the necessity of a\nsubsequent appearance whenever the information is such that the judge decides to reject the plea\n230\n\n\x0cagreement.\nThere is presently authority to have a presentence report prepared prior to the acceptance\nof the plea of guilty. In Gregg v. United States, 394 U.S. 489, 491, 89 S.Ct. 1134 22 L.Ed.2d 442\n(1969), the court said that the \xe2\x80\x9clanguage [of rule 32] clearly permits the preparation of a\npresentence report before guilty plea or conviction *.\xe2\x80\x9d In footnote 3 the court said:\nThe history of the rule confirms this interpretation. The first Preliminary Draft of the rule\nwould have required the consent of the defendant or his attorney to commence the investigation\nbefore the determination of guilt. Advisory Committee on Rules of Criminal Procedure, Fed.Rules\nCrim.Proc., Preliminary Draft 130, 133 (1943). The Second Preliminary Draft omitted this\nrequirement and imposed no limitation on the time when the report could be made and submitted\nto the court. Advisory Committee on Rules of Criminal Procedure, Fed.Rules Crim.Proc. Second\nPreliminary Draft 126\xe2\x80\x93128 (1944). The third and final draft, which was adopted as Rule 32, was\nevidently a compromise between those who opposed any time limitation, and those who preferred\nthat the entire investigation be conducted after determination of guilt. See 5 L. Orfield, Criminal\nProcedure Under the Federal Rules \xc2\xa732.2 (1967).\nWhere the judge rejects the plea agreement after seeing the presentence report, he should\nbe free to recuse himself from later presiding over the trial of the case. This is left to the discretion\nof the judge. There are instances involving prior convictions where a judge may have seen a\npresentence report, yet can properly try a case on a plea of not guilty. Webster v. United States, 330\nF.Supp. 1080 (D.C., 1971). Unlike the situation in Gregg v. United States, subdivision (e)(3)\nprovides for disclosure of the presentence report to the defendant, and this will enable counsel to\nknow whether the information thus made available to the judge is likely to be prejudicial. Presently\ntrial judges who decide pretrial motions to suppress illegally obtained evidence are not, for that\nreason alone, precluded from presiding at a later trial.\nSubdivision (c)(3)(A) requires disclosure of presentence information to the defense,\nexclusive of any recommendation of sentence. The court is required to disclose the report to\ndefendant or his counsel unless the court is of the opinion that disclosure would seriously interfere\nwith rehabilitation, compromise confidentiality, or create risk of harm to the defendant or others.\nAny recommendation as to sentence should not be disclosed as it may impair the\neffectiveness of the probation officer if the defendant is under supervision on probation or parole.\nThe issue of disclosure of presentence information to the defense has been the subject of\nrecommendations from the Advisory Committee in 1944, 1962, 1964, and 1966. The history is\ndealt with in considerable detail in C. Wright, Federal Practice and Procedure: Criminal \xc2\xa7524\n(1969), and 8A J. Moore, Federal Practice 32.03[4] (2d ed. Cipes 1969).\nIn recent years, three prestigious organizations have recommended that the report be\ndisclosed to the defense. See American Bar Association, Standards Relating to Sentencing\nAlternatives and Procedures \xc2\xa74.4 (Approved Draft, 1968); American Law Institute Model Penal\nCode \xc2\xa77.07(5) (P.O.D. 1962); National Council on Crime and Delinquency, Model Sentencing\nAct \xc2\xa74 (1963). This is also the recommendation of the President\'s Commission on Law\nEnforcement and Administration of Justice. The Challenge of Crime in a Free Society (1967) at p.\n145.\nIn the absence of compelling reasons for nondisclosure of special information, the\ndefendant and his counsel should be permitted to examine the entire presentence report.\nThe arguments for and against disclosure are well known and are effectively set forth in\nAmerican Bar Association Standards Relating to Sentencing Alternatives and Procedures, \xc2\xa74.4\nCommentary at pp. 214\xe2\x80\x93225 (Approved Draft, 1968). See also Lehrich, The Use and Disclosure of\n231\n\n\x0cPresentence Reports in the United States, 47 F.R.D. 225 (1969).\nA careful account of existing practices in Detroit, Michigan and Milwaukee, Wisconsin is\nfound in R. Dawson, Sentencing (1969).\nMost members of the federal judiciary have, in the past, opposed compulsory disclosure.\nSee the view of District Judge Edwin M. Stanley, American Bar Association Standards Relating to\nSentencing Alternatives and Procedures. Appendix A. (Appendix A also contains the results of a\nsurvey of all federal judges showing that the clear majority opposed disclosure.)\nThe Advisory Committee is of the view that accuracy of sentencing information is\nimportant not only to the defendant but also to effective correctional treatment of a convicted\noffender. The best way of insuring accuracy is disclosure with an opportunity for the defendant\nand counsel to point out to the court information thought by the defense to be inaccurate,\nincomplete, or otherwise misleading. Experience in jurisdictions which require disclosure does not\nlend support to the argument that disclosure will result in less complete presentence reports or the\nargument that sentencing procedures will become unnecessarily protracted. It is not intended that\nthe probation officer would be subjected to any rigorous examination by defense counsel, or that\nhe will even be sworn to testify. The proceedings may be very informal in nature unless the court\norders a full hearing.\nSubdivision (c)(3)(B) provides for situations in which the sentencing judge believes that\ndisclosure should not be made under the criteria set forth in subdivision (c)(3)(A). He may disclose\nonly a summary of that factual information \xe2\x80\x9cto be relied on in determining sentence.\xe2\x80\x9d This is\nsimilar to the proposal of the American Bar Association Standards Relating to Sentencing\nAlternatives and Procedures \xc2\xa74.4(b) and Commentary at pp. 216\xe2\x80\x93224.\nSubdivision (c)(3)(D) provides for the return of disclosed presentence reports to insure that\nthey do not become available to unauthorized persons. See National Council on Crime and\nDelinquency, Model Sentencing Act \xc2\xa74 (1963): \xe2\x80\x9cSuch reports shall be part of the record but shall\nbe sealed and opened only on order of the court.\xe2\x80\x9d\nSubdivision (c)(3)(E) makes clear that diagnostic studies under 18 U.S.C. \xc2\xa7\xc2\xa74208 (b),\n5010(c), or 5034 are covered by this rule and also that 18 U.S.C. \xc2\xa74252 is included within the\ndisclosure provisions of subdivision (c). Section 4252 provides for the presentence examination of\nan \xe2\x80\x9celigible offender\xe2\x80\x9d who is believed to be an addict to determine whether \xe2\x80\x9che is an addict and is\nlikely to be rehabilitated through treatment.\xe2\x80\x9d\nBoth the Organized Crime Control Act of 1970 [\xc2\xa73775(b)] and the Comprehensive Drug\nAbuse Prevention and Control Act of 1970 [\xc2\xa7409(b)] have special provisions for presentence\ninvestigation in the implementation of the dangerous special offender provision. It is however,\nunnecessary to incorporate them by reference in rule 32 because each contains a specific provision\nrequiring disclosure of the presentence report. The judge does have authority to withhold some\ninformation \xe2\x80\x9cin extraordinary cases\xe2\x80\x9d provided notice is given the parties and the court\'s reasons for\nwithholding information are made part of the record.\nSubdivision (e) is amended to clarify the meaning.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court Rule 32 of the Federal Rules of Criminal\nProcedure deals with sentencing matters.\nProposed subdivision (a)(2) provides that the court is not dutybound to advise the\ndefendant of a right to appeal when the sentence is imposed following a plea of guilty or nolo\n232\n\n\x0ccontendere.\nProposed subdivision (e) provides that the probation service must make a presentence\ninvestigation and report unless the court orders otherwise \xe2\x80\x9cfor reasons stated on the record.\xe2\x80\x9d The\npresentence report will not be submitted to the court until after the defendant pleads nolo\ncontendere or guilty, or is found guilty, unless the defendant consents in writing. Upon the\ndefendant\'s request, the court must permit the defendant to read the presentence report, except for\nthe recommendation as to sentence. However, the court may decline to let the defendant read the\nreport if it contains (a) diagnostic opinion that might seriously disrupt a rehabilitation program, (b)\nsources of information obtained upon a promise of confidentiality, or (c) any other information\nthat, if disclosed, might result in harm to the defendant or other persons. The court must give the\ndefendant an opportunity to comment upon the presentence report. If the court decides that the\ndefendant should not see the report, then it must provide the defendant, orally or in writing, a\nsummary of the factual information in the report upon which it is relying in determining sentence.\nNo party may keep the report or make copies of it.\nB. Committee Action. The Committee added language to subdivision (a)(1) to provide that\nthe attorney for the government may speak to the court at the time of sentencing. The language\ndoes not require that the attorney for the government speak but permits him to do so if he wishes.\nThe Committee recast the language of subdivision (c)(1), which defines when presentence\nreports must be obtained. The Committee\'s provision makes it more difficult to dispense with a\npresentence report. It requires that a presentence report be made unless (a) the defendant waives it,\nor (b) the court finds that the record contains sufficient information to enable the meaningful\nexercise of sentencing discretion and explains this finding on the record. The Committee believes\nthat presentence reports are important aids to sentencing and should not be dispensed with easily.\nThe Committee added language to subdivision (c)(3)(A) that permits a defendant to offer\ntestimony or information to rebut alleged factual inaccuracies in the presentence report. Since the\npresentence report is to be used by the court in imposing sentence and since the consequence of\nany significant inaccuracy can be very serious to the defendant, the Committee believes that it is\nessential that the presentence report be completely accurate in every material respect. The\nCommittee\'s addition to subdivision (c)(3)(A) will help insure the accuracy of the presentence\nreport.\nThe Committee added language to subdivision (c)(3)(D) that gives the court the discretion\nto permit either the prosecutor or the defense counsel to retain a copy of the presentence report.\nThere may be situations when it would be appropriate for either or both of the parties to retain the\npresentence report. The Committee believes that the rule should give the court the discretion in\nsuch situations to permit the parties to retain their copies.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nNote to Subdivision (c)(3)(E). The amendment to rule 32(c)(3)(E) is necessary in light of\nrecent changes in the applicable statutes.\nNote to Subdivision (f). This subdivision is abrogated. The subject matter is now dealt with\nin greater detail in proposed new rule 32.1.\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nNote to Subdivision (a)(1). Subdivision (a)(1) has been amended so as to impose upon the\n233\n\n\x0csentencing court the additional obligation of determining that the defendant and his counsel have\nhad an opportunity to read the presentence investigation report or summary thereof. This change is\nconsistent with the amendment of subdivision (c)(3), discussed below, providing for disclosure of\nthe report (or, in the circumstances indicated, a summary thereof) to both defendant and his\ncounsel without request. This amendment is also consistent with the findings of a recent empirical\nstudy that under present rule 32 meaningful disclosure is often lacking and \xe2\x80\x9cthat some form of\njudicial prodding is necessary to achieve full disclosure.\xe2\x80\x9d Fennell & Hall, Due Process at\nSentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal\nCourts, 93 Harv.L.Rev. 1613, 1651 (1980):\nThe defendant\'s interest in an accurate and reliable presentence report does not cease with\nthe imposition of sentence. Rather, these interests are implicated at later stages in the correctional\nprocess by the continued use of the presentence report as a basic source of information in the\nhandling of the defendant. If the defendant is incarcerated, the presentence report accompanies\nhim to the correctional institution and provides background information for the Bureau of Prisons\xe2\x80\x99\nclassification summary, which, in turn, determines the defendant\'s classification within the\nfacility, his ability to obtain furloughs, and the choice of treatment programs. The presentence\nreport also plays a crucial role during parole determination. Section 4207 of the Parole\nCommission and Reorganization Act directs the parole hearing examiner to consider, if available,\nthe presentence report as well as other records concerning the prisoner. In addition to its general\nuse as background at the parole hearing, the presentence report serves as the primary source of\ninformation for calculating the inmate\'s parole guideline score.\nThough it is thus important that the defendant be aware now of all these potential uses, the\nAdvisory Committee has considered but not adopted a requirement that the trial judge specifically\nadvise the defendant of these matters. The Committee believes that this additional burden should\nnot be placed upon the trial judge, and that the problem is best dealt with by a form attached to the\npresentence report, to be signed by the defendant, advising of these potential uses of the report.\nThis suggestion has been forwarded to the Probation Committee of the Judicial Conference.\nNote to Subdivision (c)(3)(A), (B) & (C). Three important changes are made in subdivision\n(c)(3): disclosure of the presentence report is no longer limited to those situations in which a\nrequest is made; disclosure is now provided to both defendant and his counsel; and disclosure is\nnow required a reasonable time before sentencing. These changes have been prompted by findings\nin a recent empirical study that the extent and nature of disclosure of the presentence investigation\nreport in federal courts under current rule 32 is insufficient to ensure accuracy of sentencing\ninformation. In 14 districts, disclosure is made only on request, and such requests are received in\nfewer than 50% of the cases. Forty-two of 92 probation offices do not provide automatic notice to\ndefendant or counsel of the availability of the report; in 18 districts, a majority of the judges do not\nprovide any notice of the availability of the report, and in 20 districts such notice is given only on\nthe day of sentencing. In 28 districts, the report itself is not disclosed until the day of sentencing in\na majority of cases. Thirty-one courts generally disclose the report only to counsel and not to the\ndefendant, unless the defendant makes a specific request. Only 13 districts disclose the\npresentence report to both defendant and counsel prior to the day of sentencing in 90% or more of\nthe cases. Fennell & Hall, supra, at 1640\xe2\x80\x9349.\nThese findings make it clear that rule 32 in its present form is failing to fulfill its purpose.\nUnless disclosure is made sufficiently in advance of sentencing to permit the assertion and\nresolution of claims of inaccuracy prior to the sentencing hearing, the submission of additional\ninformation by the defendant when appropriate, and informed comment on the presentence report,\n234\n\n\x0cthe purpose of promoting accuracy by permitting the defendant to contest erroneous information is\ndefeated. Similarly, if the report is not made available to the defendant and his counsel in a timely\nfashion, and if disclosure is only made on request, their opportunity to review the report may be\ninadequate. Finally, the failure to disclose the report to the defendant, or to require counsel to\nreview the report with the defendant, significantly reduces the likelihood that false statements will\nbe discovered, as much of the content of the presentence report will ordinarily be outside the\nknowledge of counsel.\nThe additional change to subdivision (c)(3)(C) is intended to make it clear that the\ngovernment\'s right to disclosure does not depend upon whether the defendant elects to exercise his\nright to disclosure.\nNote to Subdivision (c)(3)(D). Subdivision (c)(3)(D) is entirely new. It requires the\nsentencing court, as to each matter controverted, either to make a finding as to the accuracy of the\nchallenged factual proposition or to determine that no reliance will be placed on that proposition at\nthe time of sentencing. This new provision also requires that a record of this action accompany any\ncopy of the report later made available to the Bureau of Prisons or Parole Commission.\nAs noted above, the Bureau of Prisons and the Parole Commission make substantial use of\nthe presentence investigation report. Under current practice, this can result in reliance upon\nassertions of fact in the report in the making of critical determinations relating to custody or parole.\nFor example, it is possible that the Bureau or Commission, in the course of reaching a decision on\nsuch matters as institution assignment, eligibility for programs, or computation of salient factors,\nwill place great reliance upon factual assertions in the report which are in fact untrue and which\nremained unchallenged at the time of the sentencing because defendant or his counsel deemed the\nerror unimportant in the sentencing context (e.g., where the sentence was expected to conform to\nan earlier plea agreement, or where the judge said he would disregard certain controverted matter\nin setting the sentence).\nThe first sentence of new subdivision (c)(3)(D) is intended to ensure that a record is made\nas to exactly what resolution occurred as to controverted matter. The second sentence is intended\nto ensure that this record comes to the attention of the Bureau or Commission when these agencies\nutilize the presentence investigation report. In current practice, \xe2\x80\x9cless than one-fourth of the district\ncourts (twenty of ninety-two) communicate to the correctional agencies the defendant\'s challenges\nto information in the presentence report and the resolution of these challenges.\xe2\x80\x9d Fennell & Hall,\nsupra, at 1680.\nNew subdivision (c)(3)(D) does not impose an onerous burden. It does not even require the\npreparation of a transcript. As is now the practice in some courts, these findings and\ndeterminations can be simply entered onto a form which is then appended to the report.\nNote to Subdivision (c)(3)(E) & (F). Former subdivisions (c)(3)(D) and (E) have been\nrenumbered as (c)(3)(E) and (F). The only change is in the former, necessitated because disclosure\nis now to defendant and his counsel.\nThe issue of access to the presentence report at the institution was discussed by the\nAdvisory Committee, but no action was taken on that matter because it was believed to be beyond\nthe scope of the rule-making power. Rule 32 in its present form does not speak to this issue, and\nthus the Bureau of Prisons and the Parole Commission are free to make provision for disclosure to\ninmates and their counsel.\nNote to Subdivision (d). The amendment to Rule 32(d) is intended to clarify (i) the standard\napplicable to plea withdrawal under this rule, and (ii) the circumstances under which the\nappropriate avenue of relief is other than a withdrawal motion under this rule. Both of these\n235\n\n\x0cmatters have been the source of considerable confusion under the present rule. In its present form,\nthe rule declares that a motion to withdraw a plea of guilty or nolo contendere may be made only\nbefore sentence is imposed, but then states the standard for permitting withdrawal after sentence.\nIn fact, \xe2\x80\x9cthere is no limitation upon the time within which relief thereunder may, after sentencing,\nbe sought.\xe2\x80\x9d United States v. Watson, 548 F.2d 1058 (D.C.Cir. 1977). It has been critically stated\nthat \xe2\x80\x9cthe Rule offers little guidance as to the applicable standard for a presentence withdrawal of\nplea,\xe2\x80\x9d United States v. Michaelson, 552 F.2d 472 (2d Cir. 1977), and that as a result \xe2\x80\x9cthe contours\nof [the presentence] standard are not easily defined.\xe2\x80\x9d Bruce v. United States, 379 F.2d 113\n(D.C.Cir. 1967).\nBy replacing the \xe2\x80\x9cmanifest injustice\xe2\x80\x9d standard with a requirement that, in cases to which it\napplied, the defendant must (unless taking a direct appeal) proceed under 28 U.S.C. \xc2\xa72255, the\namendment avoids language which has been a cause of unnecessary confusion. Under the\namendment, a defendant who proceeds too late to come under the more generous \xe2\x80\x9cfair and just\nreason\xe2\x80\x9d standard must seek relief under \xc2\xa72255, meaning the applicable standard is that stated in\nHill v. United States, 368 U.S. 424 (1962): \xe2\x80\x9ca fundamental defect which inherently results in a\ncomplete miscarriage of justice\xe2\x80\x9d or \xe2\x80\x9can omission inconsistent with the rudimentary demands of\nfair procedure.\xe2\x80\x9d\nSome authority is to be found to the effect that the rule 32(d) \xe2\x80\x9cmanifest injustice\xe2\x80\x9d standard\nis indistinguishable from the \xc2\xa72255 standard. In United States v. Hamilton, 553 F.2d 63 (10th Cir.\n1977), for example, the court, after first concluding defendant was not entitled to relief under the\n\xc2\xa72255 \xe2\x80\x9cmiscarriage of justice\xe2\x80\x9d test, then held that \xe2\x80\x9c[n]othing is to be gained by the invocation of\nRule 32(d)\xe2\x80\x9d and its manifest injustice\xe2\x80\x9d standard. Some courts, however, have indicated that the\nrule 32(d) standard provides a somewhat broader basis for relief than \xc2\xa72255. United States v.\nDabdoub-Diaz, 599 F.2d 96 (5th Cir. 1979); United States v. Watson, 548 F.2d 1058 (D.C.Cir.\n1977): Meyer v. United States, 424 F.2d 1181 (8th Cir.1970); United States v. Kent, 397 F.2d 446\n(7th Cir. 1968). It is noteworthy, however, that in Dabdoub-Diaz, Meyer and Kent the defendant\ndid not prevail under either \xc2\xa72255 or Rule 32(d), and that in Watson, though the \xc2\xa72255 case was\nremanded for consideration as a 32(d) motion, defendant\'s complaint (that he was not advised of\nthe special parole term, though the sentence he received did not exceed that he was warned about\nby the court) was one as to which relief had been denied even upon direct appeal from the\nconviction. United States v. Peters, No. 77\xe2\x80\x931700 (4th Cir. Dec. 22, 1978).\nIndeed, it may more generally be said that the results in \xc2\xa72255 and 32(d) guilty plea cases\nhave been for the most part the same. Relief has often been granted or recognized as available via\neither of these routes for essentially the same reasons: that there exists a complete constitutional\nbar to conviction on the offense charged, Brooks v. United States, 424 F.2d 425 (5th Cir. 1970)\n(\xc2\xa72255), United States v. Bluso, 519 F.2d 473 (4th Cir. 1975) (Rule 32); that the defendant was\nincompetent at the time of his plea, United States v. Masthers, 539 F.2d 721 (D.C.Cir. 1976)\n(\xc2\xa72255), Kienlen v. United States, 379 F.2d 20 (10th Cir. 1967) (Rule 32); and that the bargain the\nprosecutor made with defendant was not kept, Walters v. Harris, 460 F.2d 988 (4th Cir. 1972)\n(\xc2\xa72255), United States v. Hawthorne, 502 F.2d 1183 (3rd Cir. 1974) (Rule 32). Perhaps even more\nsignificant is the fact that relief has often been denied under like circumstances whichever of the\ntwo procedures was used: a mere technical violation of Rule 11, United States v. Timmreck, 441\nU.S. 780 (1979) (\xc2\xa72255), United States v. Saft, 558 F.2d 1073 (2d Cir. 1977) (Rule 32); the mere\nfact defendants expected a lower sentence, United States v. White, 572 F.2d 1007 (4th Cir. 1978)\n(\xc2\xa72255), Masciola v. United States, 469 F.2d 1057 (3rd Cir. 1972) (Rule 32); or mere familial\ncoercion, Wojtowicz v. United States, 550 F.2d 786 (2d Cir. 1977) (\xc2\xa72255), United States v.\n236\n\n\x0cBartoli, 572 F.2d 188 (8th Cir. 1978) (Rule 32).\nThe one clear instance in which a Rule 32(d) attack might prevail when a \xc2\xa72255 challenge\nwould not is present in those circuits which have reached the questionable result that postsentence\nrelief under 32(d) is available not merely upon a showing of a \xe2\x80\x9cmanifest injustice\xe2\x80\x9d but also for any\ndeviation from literal compliance with Rule 11. United States v. Cantor, 469 F.2d 435 (3d Cir.\n1972). See Advisory Committee Note to Rule 11(h), noting the unsoundness of that position.\nThe change in Rule 32(d), therefore, is at best a minor one in terms of how postsentence\nmotions to withdraw pleas will be decided. It avoids the confusion which now obtains as to\nwhether a \xc2\xa72255 petition must be assumed to also be a 32(d) motion and, if so, whether this bears\nsignificantly upon how the matter should be decided. See, e.g., United States v. Watson, supra. It\nalso avoids the present undesirable situation in which the mere selection of one of two highly\nsimilar avenues of relief, rule 32(d) or \xc2\xa72255, may have significant procedural consequences, such\nas whether the government can take an appeal from the district court\'s adverse ruling (possible\nunder \xc2\xa72255 only). Moreover, because \xc2\xa72255 and Rule 32(d) are properly characterized as the\n\xe2\x80\x9ctwo principal procedures for collateral attack of a federal plea conviction,\xe2\x80\x9d Borman, The Hidden\nRight to Direct Appeal From a Federal Conviction, 64 Cornell L.Rev. 319, 327 (1979), this\namendment is also in keeping with the proposition underlying the Supreme Court\'s decision in\nUnited States v. Timmreck, supra, namely, that \xe2\x80\x9cthe concern with finality served by the limitation\non collateral attack has special force with respect to convictions based on guilty pleas.\xe2\x80\x9d The\namendment is likewise consistent with ALI Code of Pre-Arraignment Procedure \xc2\xa7350.9 (1975)\n(\xe2\x80\x9cAllegations of noncompliance with the procedures provided in Article 350 shall not be a basis\nfor review of a conviction after the appeal period for such conviction has expired, unless such\nreview is required by the Constitution of the United States or of this State or otherwise by the law\nof this State other than Article 350\xe2\x80\x9d); ABA Standards Relating to the Administration of Criminal\nJustice \xc2\xa714\xe2\x80\x932.1 (2d ed. 1978) (using \xe2\x80\x9cmanifest injustice\xe2\x80\x9d standard, but listing six specific\nillustrations each of which would be basis for relief under \xc2\xa72255); Unif.R.Crim.P. 444(e)\n(Approved Draft, 1974) (using \xe2\x80\x9cinterest of justice\xe2\x80\x9d test, but listing five specific illustrations each\nof which would be basis for relief under \xc2\xa72255).\nThe first sentence of the amended rule incorporates the \xe2\x80\x9cfair and just\xe2\x80\x9d standard which the\nfederal courts, relying upon dictum in Kercheval v. United States, 274 U.S. 220 (1927), have\nconsistently applied to presentence motions. See, e.g., United States v. Strauss, 563 F.2d 127 (4th\nCir. 1977); United States v. Bradin, 535 F.2d 1039 (8th Cir. 1976); United States v. Barker, 514\nF.2d 208 (D.C.Cir. 1975). Under the rule as amended, it is made clear that the defendant has the\nburden of showing a \xe2\x80\x9cfair and just\xe2\x80\x9d reason for withdrawal of the plea. This is consistent with the\nprevailing view, which is that \xe2\x80\x9cthe defendant has the burden of satisfying the trial judge that there\nare valid grounds for withdrawal,\xe2\x80\x9d see United States v. Michaelson, supra, and cases cited therein.\n(Illustrative of a reason which would meet this test but would likely fall short of the \xc2\xa72255 test is\nwhere the defendant now wants to pursue a certain defense which he for good reason did not put\nforward earlier, United States v. Barker, supra.)\nAlthough \xe2\x80\x9cthe terms \xe2\x80\x98fair and just\xe2\x80\x99 lack any pretense of scientific exactness,\xe2\x80\x9d United States\nv. Barker, supra, guidelines have emerged in the appellate cases for applying this standard.\nWhether the movant has asserted his legal innocence is an important factor to be weighed, United\nStates v. Joslin, 434 F.2d 526 (D.C.Cir. 1970), as is the reason why the defenses were not put\nforward at the time of original pleading. United States v. Needles, 472 F.2d 652 (2d Cir. 1973). The\namount of time which has passed between the plea and the motion must also be taken into account.\nA swift change of heart is itself strong indication that the plea was entered in haste and\n237\n\n\x0cconfusion *. By contrast, if the defendant has long delayed his withdrawal motion, and has had\nthe full benefit of competent counsel at all times, the reasons given to support withdrawal must\nhave considerably more force.\nUnited States v. Barker, supra.\nIf the defendant establishes such a reason, it is then appropriate to consider whether the\ngovernment would be prejudiced by withdrawal of the plea. Substantial prejudice may be present\nfor a variety of reasons. See United States v. Jerry, 487 F.2d 600 (3d Cir. 1973) (physical evidence\nhad been discarded); United States v. Vasquez-Velasco, 471 F.2d 294 (9th Cir. 1973) (death of\nchief government witness); United States v. Lombardozzi, 436 F.2d 878 (2d Cir. 1971) (other\ndefendants with whom defendant had been joined for trial had already been tried in a lengthy trial);\nFarnsworth v. Sanford, 115 F.2d 375 (5th Cir. 1940) (prosecution had dismissed 52 witnesses who\nhad come from all over the country and from overseas bases).\nThere is currently some disparity in the manner in which presentence motions to withdraw\na guilty plea are dealt with. Some courts proceed as if any desire to withdraw the plea before\nsentence is \xe2\x80\x9cfair and just\xe2\x80\x9d so long as the government fails to establish that it would be prejudiced\nby the withdrawal. Illustrative is United States v. Savage, 561 F.2d 554 (4th Cir. 1977), where the\ndefendant pleaded guilty pursuant to a plea agreement that the government would recommend a\nsentence of 5 years. At the sentencing hearing, the trial judge indicated his unwillingness to follow\nthe government\'s recommendation, so the defendant moved to withdraw his plea. That motion was\ndenied. On appeal, the court held that there had been no violation of Rule 11, in that refusal to\naccept the government\'s recommendation does not constitute a rejection of the plea agreement. But\nthe court then proceeded to hold that absent any showing of prejudice by the government, \xe2\x80\x9cthe\ndefendant should be allowed to withdraw his plea\xe2\x80\x9d; only upon such a showing by the government\nmust the court \xe2\x80\x9cweigh the defendant\'s reasons for seeking to withdraw his plea against the\nprejudice which the government will suffer.\xe2\x80\x9d The other view is that there is no occasion to inquire\ninto the matter of prejudice unless the defendant first shows a good reason for being allowed to\nwithdraw his plea. As stated in United States v. Saft, 558 F.2d 1073 (2d Cir. 1977): \xe2\x80\x9cThe\nGovernment is not required to show prejudice when a defendant has shown no sufficient grounds\nfor permitting withdrawal of a guilty plea, although such prejudice may be considered by the\ndistrict court in exercising its discretion.\xe2\x80\x9d The second sentence of the amended rule, by requiring\nthat the defendant show a \xe2\x80\x9cfair and just\xe2\x80\x9d reason, adopts the Saft position and rejects that taken in\nSavage.\nThe Savage position, as later articulated in United States v. Strauss, supra, is that the\n\xe2\x80\x9csounder view, supported by both the language of the rule and by the reasons for it, would be to\nallow withdrawal of the plea prior to sentencing unless the prosecution has been substantially\nprejudiced by reliance upon the defendant\'s plea.\xe2\x80\x9d (Quoting 2 C. Wright, Federal Practice and\nProcedure \xc2\xa7538, at 474\xe2\x80\x9375 (1969). Although that position may once have been sound, this is no\nlonger the case in light of the recent revisions of Rule 11. Rule 11 now provides for the placing of\nplea agreements on the record, for full inquiry into the voluntariness of the plea, for detailed advice\nto the defendant concerning his rights and the consequences of his plea and a determination that\nthe defendant understands these matters, and for a determination of the accuracy of the plea. Given\nthe great care with which pleas are taken under this revised Rule 11, there is no reason to view\npleas so taken as merely \xe2\x80\x9ctentative,\xe2\x80\x9d subject to withdrawal before sentence whenever the\ngovernment cannot establish prejudice.\nWere withdrawal automatic in every case where the defendant decided to alter his tactics\nand present his theory of the case to the jury, the guilty plea would become a mere gesture, a\n238\n\n\x0ctemporary and meaningless formality reversible at the defendant\'s whim. In fact, however, a guilty\nplea is no such trifle, but \xe2\x80\x9ca grave and solemn act,\xe2\x80\x9d which is \xe2\x80\x9caccepted only with care and\ndiscernment.\xe2\x80\x9d\nUnited States v. Barker, supra, quoting from Brady v. United States, 397 U.S. 742 (1970).\nThe facts of the Savage case reflect the wisdom of this position. In Savage, the defendant\nhad entered into a plea agreement whereby he agreed to plead guilty in exchange for the\ngovernment\'s promise to recommend a sentence of 5 years, which the defendant knew was not\nbinding on the court. Yet, under the approach taken in Savage, the defendant remains free to\nrenege on his plea bargain, notwithstanding full compliance therewith by the attorney for the\ngovernment, if it later appears to him from the presentence report or the comments of the trial\njudge or any other source that the court will not follow the government\'s recommendation. Having\nbargained for a recommendation pursuant to Rule 11(e)(1)(B), the defendant should not be\nentitled, in effect, to unilaterally convert the plea agreement into a Rule 11(e)(1)(C) type of\nagreement (i.e., one with a guarantee of a specific sentence which, if not given, permits withdrawal\nof the plea).\nThe first sentence of subdivision (d) provides that the motion, to be judged under the more\nliberal \xe2\x80\x9cfair and just reason\xe2\x80\x9d test, must have been made before sentence is imposed, imposition of\nsentence is suspended, or disposition is had under 18 U.S.C. \xc2\xa74205 (c). The latter of these has been\nadded to the rule to make it clear that the lesser standard also governs prior to the second stage of\nsentencing when the judge, pursuant to that statute, has committed the defendant to the custody of\nthe Attorney General for study pending final disposition. Several circuits have left this issue open,\ne.g., United States v. McCoy, 477 F.2d 550 (5th Cir. 1973); Callaway v. United States, 367 F.2d\n140 (10th Cir. 1966); while some have held that a withdrawal motion filed between tentative and\nfinal sentencing should be judged against the presentence standard, United States v. Barker, 514\nF.2d 208 (D.C.Cir. 1975); United States v. Thomas, 415 F.2d 1216 (9th Cir. 1969).\nInclusion of the \xc2\xa74205(c) situation under the presentence standard is appropriate. As\nexplained in Barker:\nTwo reasons of policy have been advanced to explain the near-presumption which Rule\n32(d) erects against postsentence withdrawal motions. The first is that postsentence withdrawal\nsubverts the \xe2\x80\x9cstability\xe2\x80\x9d of \xe2\x80\x9cfinal judgments.\xe2\x80\x9d * The second reason is that the postsentence\nwithdrawal motion often constitutes a veiled attack on the judge\'s sentencing decision; to grant\nsuch motions in lenient fashion might\nundermine respect for the courts and fritter away the time and painstaking effort devoted to\nthe sentence process.\n* Concern for the \xe2\x80\x9cstability of final judgments\xe2\x80\x9d has little application to withdrawal\nmotions filed between tentative and final sentencing under Section 4208(b) [now 4205(c)]. The\npoint at which a defendant\'s judgment of conviction becomes \xe2\x80\x9cfinal\xe2\x80\x9d for purposes of\nappeal\xe2\x80\x94whether at tentative or at final sentencing\xe2\x80\x94is wholly within the defendant\'s discretion.\n* Concern for the integrity of the sentencing process is, however, another matter. The major point,\nin our view, is that tentative sentencing under Section 4208(b) [now 4205(c)] leaves the defendant\nignorant of his final sentence. He will therefore be unlikely to use a withdrawal motion as an\noblique attack on the judge\'s sentencing policy. The relative leniency of the \xe2\x80\x9cfair and just\xe2\x80\x9d standard\nis consequently not out of place.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\n\n239\n\n\x0cThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941989 Amendment\nThe amendment to subdivision (a)(1) is intended to clarify that the court is expected to\nproceed without unnecessary delay, and that it may be necessary to delay sentencing when an\napplicable sentencing factor cannot be resolved at the time set for sentencing. Often, the factor will\nrelate to a defendant\'s agreement to cooperate with the government. But, other factors may be\ncapable of resolution if the court delays sentencing while additional information is generated. As\ncurrently written, the rule might imply that a delay requested by one party or suggested by the\ncourt sua sponte might be unreasonable. The amendment rids the rule of any such implication and\nprovides the sentencing court with desirable discretion to assure that relevant factors are\nconsidered and accurately resolved. In exercising this discretion, the court retains under the\namendment the authority to refuse to delay sentencing when a delay is inappropriate under the\ncircumstances.\nIn amending subdivision (c)(1), the Committee conformed the rule to the current practice\nin some courts: i.e., to permit the defendant and the prosecutor to see a presentence report prior to\na plea of guilty if the court, with the written consent of the defendant, receives the report at that\ntime. The amendment permits, but does not require, disclosure of the report with the written\nconsent of the defendant.\nThe amendment to change the \xe2\x80\x9creasonable time\xe2\x80\x9d language in subdivision (c)(3)(A) to at\nleast 10 days prior to sentencing, unless the defendant waives the minimum period, conforms the\nrule to 18 U.S.C. 3552 (d). Nothing in the statue [sic] or the rule prohibits a court from requiring\ndisclosure at an earlier time before sentencing. The inclusion of a specific waiver provision is\nintended to conform the rule to the statute and is not intended to suggest that waiver of other rights\nis precluded when no specific waiver provision is set forth in a rule or portion thereof.\nThe language requiring the court to provide the defendant and defense counsel with a copy\nof the presentence report complements the abrogation of subdivision (E), which had required the\ndefense to return the probation report. Because a defendant or the government may seek to appeal\na sentence, an option that is permitted under some circumstances, there will be cases in which the\ndefendant has a need for the presentence report during the preparation of, or the response to, an\nappeal. This is one reason why the Committee decided that the defendant should not be required to\nreturn the nonconfidential portions of the presentence report that have been disclosed. Another\nreason is that district courts may find it desirable to adopt portions of the presentence report when\nmaking findings of fact under the guidelines. They would be inhibited unnecessarily from relying\non careful, accurate presentence reports if such reports could not be retained by defendants. A third\nreason why defendant should be able to retain the reports disclosed to them is that the Supreme\nCourt\'s decision in United States Department of Justice v. Julian, 486 U.S. 1 (1988), 108 S.Ct.\n1606 (1988), suggests that defendants will routinely be able to secure their reports through\nFreedom of Information Act suits. No public interest is served by continuing to require the return\nof reports, and unnecessary FOIA litigation should be avoided as a result of the amendment to\nRule 32.\nThe amended rule does not direct whether the defendant or the defendant\'s lawyer should\nretain the presentence report. In exceptional cases where retention of a report in a local detention\nfacility might pose a danger to persons housed there, the district judge may direct that the\ndefendant not personally retain a copy of the report until the defendant has been transferred to the\n240\n\n\x0cfacility where the sentence will be served.\nBecause the parties need not return the presentence report to the probation officer, the\nSolicitor General should be able to review the report in deciding whether to permit the United\nStates to appeal a sentence under the Sentencing Reform Act of 1984, 18 U.S.C. \xc2\xa73551 et seq.\nAlthough the Committee was concerned about the potential unfairness of having\nconfidential or diagnostic material included in presentence reports but not disclosed to a defendant\nwho might be adversely affected by such material, it decided not to recommend at this time a\nchange in the rule which would require complete disclosure. Some diagnostic material might be\nparticularly useful when a court imposes probation, and might well be harmful to the defendant if\ndisclosed. Moreover, some of this material might assist correctional officials in prescribing\ntreatment programs for an incarcerated defendant. Information provided by confidential sources\nand information posing a possible threat of harm to third parties was particularly troubling to the\nCommittee, since this information is often extremely negative and thus potentially harmful to a\ndefendant. The Committee concluded, however, that it was preferable to permit the probation\nofficer to include this information in a report so that the sentencing court may determine whether is\n[it] ought to be disclosed to the defendant. If the court determines that it should not be disclosed, it\nwill have to decide whether to summarize the contents of the information or to hold that no finding\nas to the undisclosed information will be made because such information will not be taken into\naccount in sentencing. Substantial due process problems may arise if a court attempts to\nsummarize information in a presentence report, the defendant challenges the information, and the\ncourt attempts to make a finding as to the accuracy of the information without disclosing to the\ndefendant the source of the information or the details placed before the court. In deciding not to\nrequire disclosure of everything in a presentence report, the Committee made no judgment that\nfindings could validly be made based upon nondisclosed information.\nFinally, portions of the rule were gender-neutralized.\nNotes of Advisory Committee on Rules\xe2\x80\x941991 Amendment\nThe amendments are technical. No substantive changes are intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe original subdivision (e) has been deleted due to statutory changes affecting the\nauthority of a court to grant probation. See 18 U.S.C. 3561 (a). Its replacement is one of a number\nof contemporaneous amendments extending Rule 26.2 to hearings and proceedings other than the\ntrial itself. The amendment to Rule 32 specifically codifies the result in cases such as United States\nv. Rosa, 891 F.2d 1074 (3d. Cir. 1989). In that case the defendant pleaded guilty to a drug offense.\nDuring sentencing the defendant unsuccessfully attempted to obtain Jencks Act materials relating\nto a co-accused who testified as a government witness at sentencing. In concluding that the trial\ncourt erred in not ordering the government to produce its witness\'s statement, the court stated:\nWe believe the sentence imposed on a defendant is the most critical stage of criminal\nproceedings, and is, in effect, the \xe2\x80\x9cbottom-line\xe2\x80\x9d for the defendant, particularly where the defendant\nhas pled guilty. This being so, we can perceive no purpose in denying the defendant the ability to\neffectively cross-examine a government witness where such testimony may, if accepted, and\nsubstantially to the defendant\'s sentence. In such a setting, we believe that the rationale of Jencks v.\nUnited States . . . and the purpose of the Jencks Act would be disserved if the government at such a\n241\n\n\x0cgrave stage of a criminal proceeding could deprive the accused of material valuable not only to the\ndefense but to his very liberty. Id. at 1079.\nThe court added that the defendant had not been sentenced under the new Sentencing\nGuidelines and that its decision could take on greater importance under those rules. Under\nGuideline sentencing, said the court, the trial judge has less discretion to moderate a sentence and\nis required to impose a sentence based upon specific factual findings which need not be established\nbeyond a reasonable doubt. Id at n. 3.\nAlthough the Rosa decision decided only the issue of access by the defendant to Jencks\nmaterial, the amendment parallels Rules 26.2 (applying Jencks Act to trial) and 12(i) (applying\nJencks Act to suppression hearing) in that both the defense and the prosecution are entitled to\nJencks material.\nProduction of a statement is triggered by the witness\'s oral testimony. The sanction\nprovision rests on the assumption that the proponent of the witness\'s testimony has deliberately\nelected to withhold relevant material.\nNotes of Advisory Committee on Rules\xe2\x80\x941994 Amendment\nThe amendments to Rule 32 are intended to accomplish two primary objectives. First, the\namendments incorporate elements of a \xe2\x80\x9cModel Local Rule for Guideline Sentencing\xe2\x80\x9d which was\nproposed by the Judicial Conference Committee on Probation Administration in 1987. That model\nrule and the accompanying report were prepared to assist trial judges in implementing guideline\nsentencing mandated by the Sentencing Reform Act of 1984. See Committee on the Admin. of the\nProbation Sys., Judicial Conference of the U.S., Recommended Procedures for Guideline\nSentencing and Commentary: Model Local Rule for Guideline Sentencing, Reprinted in T.\nHutchinson & D. Yellen, Federal Sentencing Law and Practice, app. 8, at 431 (1989). It was\nanticipated that sentencing hearings would become more complex due to the new fact finding\nrequirements imposed by guideline sentencing methodology. See U.S.S.G. \xc2\xa76A1.2. Accordingly,\nthe model rule focused on preparation of the presentence report as a means of identifying and\nnarrowing the issues to be decided at the sentencing hearing.\nSecond, in the process of effecting those amendments, the rule was reorganized. Over time,\nnumerous amendments to the rule had created a sort of hodge podge; the reorganization represents\nan attempt to reflect an appropriate sequential order in the sentencing procedures.\nSubdivision (a). Subdivision (a) retains the general mandate that sentence be imposed\nwithout unnecessary delay thereby permitting the court to regulate the time to be allowed for the\nprobation officer to complete the presentence investigation and submit the report. The only\nrequirement is that sufficient time be allowed for completion of the process prescribed by\nsubdivision (b)(6) unless the time periods established in the subdivision are shortened or\nlengthened by the court for good cause. Such limits are not intended to create any new substantive\nright for the defendant or the Government which would entitle either to relief if a time limit\nprescribed in the rule is not kept.\nThe remainder of subdivision (a), which addressed the sentencing hearing, is now located\nin subdivision (c).\nSubdivision (b). Subdivision (b) (formerly subdivision (c)), which addresses the\npresentence investigation, has been modified in several respects.\nFirst, subdivision (b)(2) is a new provision which provides that, on request, defense\ncounsel is entitled to notice and a reasonable opportunity to be present at any interview of the\n242\n\n\x0cdefendant conducted by the probation officer. Although the courts have not held that presentence\ninterviews are a critical stage of the trial for purposes of the Sixth Amendment right to counsel, the\namendment reflects case law which has indicated that requests for counsel to be present should be\nhonored. See, e.g., United States v. Herrera-Figueroa, 918 F.2d 1430, 1437 (9th Cir. 1990) (court\nrelied on its supervisory power to hold that probation officers must honor request for counsel\'s\npresence); United States v. Tisdale, 952 F.2d 934, 940 (6th Cir. 1992) (court agreed with rule\nrequiring probation officers to honor defendant\'s request for attorney or request from attorney not\nto interview defendant in absence of counsel). The Committee believes that permitting counsel to\nbe present during such interviews may avoid unnecessary misunderstandings between the\nprobation officer and the defendant. The rule does not further define the term \xe2\x80\x9cinterview.\xe2\x80\x9d The\nCommittee intended for the provision to apply to any communication initiated by the probation\nofficer where he or she is asking the defendant to provide information which will be used in\npreparation of the presentence investigation. Spontaneous or unplanned encounters between the\ndefendant and the probation officer would normally not fall within the purview of the rule. The\nCommittee also believed that the burden should rest on defense counsel, having received notice, to\nrespond as promptly as possible to enable timely completion of the presentence report.\nSubdivision (b)(6), formerly (c)(3), includes several changes which recognize the key role\nthe presentence report is playing under guideline sentencing. The major thrust of these changes is\nto address the problem of resolving objections by the parties to the probation officer\'s presentence\nreport. Subdivision (b)(6)(A) now provides that the probation officer must present the presentence\nreport to the parties not later than 35 days before the sentencing hearing (rather than 10 days before\nimposition of the sentence) in order to provide some additional time to the parties and the\nprobation officer to attempt to resolve objections to the report. There has been a slight change in\nthe practice of deleting from the copy of the report given to the parties certain information\nspecified in (b)(6)(A). Under that new provision (changing former subdivision (c)(3)(A)), the\ncourt has the discretion (in an individual case or in accordance with a local rule) to direct the\nprobation officer to withhold any final recommendation concerning the sentence. Otherwise, the\nrecommendation, if any, is subject to disclosure. The prior practice of not disclosing confidential\ninformation, or other information which might result in harm to the defendant or other persons, is\nretained in (b)(5).\nNew subdivisions (b)(6)(B), (C), and (D) now provide explicit deadlines and guidance on\nresolving disputes about the contents of the presentence report. The amendments are intended to\nprovide early resolution of such disputes by (1) requiring the parties to provide the probation\nofficer with a written list of objections to the report within 14 days of receiving the report; (2)\npermitting the probation officer to meet with the defendant, the defendant\'s counsel, and the\nattorney for the Government to discuss objections to the report, conduct an additional\ninvestigation, and to make revisions to the report as deemed appropriate; (3) requiring the\nprobation officer to submit the report to the court and the parties not later than 7 days before the\nsentencing hearing, noting any unresolved disputes; and (4) permitting the court to treat the report\nas its findings of fact, except for the parties\xe2\x80\x99 unresolved objections. Although the rule does not\nexplicitly address the question of whether counsel\'s objections to the report are to be filed with the\ncourt, there is nothing in the rule which would prohibit a court from requiring the parties to file\ntheir original objections or have them included as an addendum to the presentence report.\nThis procedure, which generally mirrors the approach in the Model Local Rule for\nGuideline Sentencing, supra, is intended to maximize judicial economy by providing for more\norderly sentencing hearings while also providing fair opportunity for both parties to review, object\n243\n\n\x0cto, and comment upon, the probation officer\'s report in advance of the sentencing hearing. Under\nthe amendment, the parties would still be free at the sentencing hearing to comment on the\npresentence report, and in the discretion of the court, to introduce evidence concerning their\nobjections to the report.\nSubdivision (c). Subdivision (c) addresses the imposition of sentence and makes no major\nchanges in current practice. The provision consists largely of material formerly located in\nsubdivision (a). Language formerly in (a)(1) referring to the court\'s disclosure to the parties of the\nprobation officer\'s determination of the sentencing classifications and sentencing guideline range\nis now located in subdivisions (b)(4)(B) and (c)(1). Likewise, the brief reference in former (a)(1) to\nthe ability of the parties to comment on the probation officer\'s determination of sentencing\nclassifications and sentencing guideline range is now located in (c)(1) and (c)(3).\nSubdivision (c)(1) is not intended to require that resolution of objections and imposition of\nthe sentence occur at the same time or during the same hearing. It requires only that the court rule\non any objections before sentence is imposed. In considering objections during the sentencing\nhearing, the court may in its discretion, permit the parties to introduce evidence. The rule speaks in\nterms of the court\'s discretion, but the Sentencing Guidelines specifically provide that the court\nmust provide the parties with a reasonable opportunity to offer information concerning a\nsentencing factor reasonably in dispute. See U.S.S.G. \xc2\xa76A1.3(a). Thus, it may be an abuse of\ndiscretion not to permit the introduction of additional evidence. Although the rules of evidence do\nnot apply to sentencing proceedings, see Fed. R. Evid. 1101(d)(3), the court clearly has discretion\nin determining the mode, timing, and extent of the evidence offered. See, e.g., United States v.\nZuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990) (trial court did not err in denying defendant\'s late\nrequest to introduce rebuttal evidence by way of cross-examination).\nSubdivision (c)(1) (formerly subdivision (c)(3)(D)) indicates that the court need not\nresolve controverted matters which will \xe2\x80\x9cnot be taken into account in, or will not affect,\nsentencing.\xe2\x80\x9d The words \xe2\x80\x9cwill not affect\xe2\x80\x9d did not exist in the former provision but were added in the\nrevision in recognition that there might be situations, due to overlaps in the sentencing ranges,\nwhere a controverted matter would not alter the sentence even if the sentencing range were\nchanged.\nThe provision for disclosure of a witness\xe2\x80\x99 statements, which was recently proposed as an\namendment to Rule 32 as new subdivision (e), is now located in subdivision (c)(2).\nSubdivision (c)(3) includes minor changes. First, if the court intends to rely on information\notherwise excluded from the presentence report under subdivision (b)(5), that information is to be\nsummarized in writing and submitted to the defendant and the defendant\'s counsel. Under the\nformer provision in (c)(3)(A), such information could be summarized orally. Once the information\nis presented, the defendant and the defendant\'s counsel are to be given a reasonable opportunity to\ncomment; in appropriate cases, that may require a continuance of the sentencing proceedings.\nSubdivision (c)(5), concerning notification of the right to appeal, was formerly included in\nsubdivision (a)(2). Although the provision has been rewritten, the Committee intends no\nsubstantive change in practice. That is, the court may, but is not required to, advise a defendant\nwho has entered a guilty plea, nolo contendere plea or a conditional guilty plea of any right to\nappeal (such as an appeal challenging jurisdiction). However, the duty to advise the defendant in\nsuch cases extends only to advice on the right to appeal any sentence imposed.\nSubdivision (d). Subdivision (d), dealing with entry of the court\'s judgment, is former\nsubdivision (b).\nSubdivision (e). Subdivision (e), which addresses the topic of withdrawing pleas, was\n244\n\n\x0cformerly subdivision (d). Both provisions remain the same except for minor stylistic changes.\nUnder present practice, the court may permit, but is not required to hear, victim allocution\nbefore imposing sentence. The Committee considered, but rejected, a provision which would have\nrequired the court to hear victim allocution at sentencing.\nNotes of Advisory Committee on Rules\xe2\x80\x941996 Amendment\nSubdivision (d)(2). A provision for including a verdict of criminal forfeiture as a part of the\nsentence was added in 1972 to Rule 32. Since then, the rule has been interpreted to mean that any\nforfeiture order is a part of the judgment of conviction and cannot be entered before sentencing.\nSee, e.g., United States v. Alexander, 772 F.Supp. 440 (D. Minn. 1990).\nDelaying forfeiture proceedings, however, can pose real problems, especially in light of the\nimplementation of the Sentencing Reform Act in 1987 and the resulting delays between verdict\nand sentencing in complex cases. First, the government\'s statutory right to discover the location of\nproperty subject to forfeiture is triggered by entry of an order of forfeiture. See 18 U.S.C. \xc2\xa71963\n(k) and 21 U.S.C. \xc2\xa7853 (m). If that order is delayed until sentencing, valuable time may be lost in\nlocating assets which may have become unavailable or unusable. Second, third persons with an\ninterest in the property subject to forfeiture must also wait to petition the court to begin ancillary\nproceedings until the forfeiture order has been entered. See 18 U.S.C. \xc2\xa71963 ( l) and 21 U.S.C.\n\xc2\xa7853 (m). And third, because the government cannot actually seize the property until an order of\nforfeiture is entered, it may be necessary for the court to enter restraining orders to maintain the\nstatus quo.\nThe amendment to Rule 32 is intended to address these concerns by specifically\nrecognizing the authority of the court to enter a preliminary forfeiture order before sentencing.\nEntry of an order of forfeiture before sentencing rests within the discretion of the court, which may\ntake into account anticipated delays in sentencing, the nature of the property, and the interests of\nthe defendant, the government, and third persons.\nThe amendment permits the court to enter its order of forfeiture at any time before\nsentencing. Before entering the order of forfeiture, however, the court must provide notice to the\ndefendant and a reasonable opportunity to be heard on the question of timing and form of any order\nof forfeiture.\nThe rule specifies that the order, which must ultimately be made a part of the sentence and\nincluded in the judgment, must contain authorization for the Attorney General to seize the property\nin question and to conduct appropriate discovery and to begin any necessary ancillary proceedings\nto protect third parties who have an interest in the property.\nCongressional Modification of Proposed 1994 Amendment\nSection 230101(a) of Pub. L. 103\xe2\x80\x93322 [set out as a note under section 2074 of Title 28,\nJudiciary and Judicial Procedure] provided that the amendment proposed by the Supreme Court [in\nits order of Apr. 29, 1994] affecting rule 32 of the Federal Rules of Criminal Procedure [this rule]\nwould take effect on Dec. 1, 1994, as otherwise provided by law, and as amended by section\n230101(b) of Pub. L. 103\xe2\x80\x93322. See 1994 Amendment note below.\nCommittee Notes on Rules\xe2\x80\x942000 Amendment\n\n245\n\n\x0cThe rule is amended to reflect the creation of new Rule 32.2, which now governs criminal\nforfeiture procedures.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 32 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nThe rule has been completely reorganized to make it easier to follow and apply. For\nexample, the definitions in the rule have been moved to the first section and the sequencing of the\nsections generally follows the procedure for presentencing and sentencing procedures.\nRevised Rule 32(a) contains definitions that currently appear in Rule 32(f). One\nsubstantive change was made in Rule 32(a)(2). The Committee expanded the definition of victims\nof crimes of violence or sexual abuse to include victims of child pornography under 18 U.S.C.\n\xc2\xa7\xc2\xa72251 \xe2\x80\x932257 (child pornography and related offenses). The Committee considered those victims\nto be similar to victims of sexual offenses under 18 U.S.C. \xc2\xa7\xc2\xa72241 \xe2\x80\x932248, who already possess\nthat right.\nRevised Rule 32(d) has been amended to more clearly set out the contents of the\npresentence report concerning the application of the Sentencing Guidelines.\nCurrent Rule 32(e), which addresses the ability of a defendant to withdraw a guilty plea,\nhas been moved to Rule 11(e).\nRule 32(h) is a new provision that reflects Burns v. United States, 501 U.S. 129, 138\xe2\x80\x9339\n(1991). In Burns, the Court held that, before a sentencing court could depart upward on a ground\nnot previously identified in the presentence report as a ground for departure, Rule 32 requires the\ncourt to give the parties reasonable notice that it is contemplating such a ruling and to identify the\nspecific ground for the departure. The Court also indicated that because the procedural\nentitlements in Rule 32 apply equally to both parties, it was equally appropriate to frame the issue\nas whether notice is required before the sentencing court departs either upward or downward. Id. at\n135, n.4.\nRevised Rule 32(i)(3) addresses changes to current Rule 32(c)(1). Under the current rule,\nthe court is required to \xe2\x80\x9crule on any unresolved objections to the presentence report.\xe2\x80\x9d The rule does\nnot specify, however, whether that provision should be read literally to mean every objection that\nmight have been made to the report or only on those objections that might in some way actually\naffect the sentence. The Committee believed that a broad reading of the current rule might place an\nunreasonable burden on the court without providing any real benefit to the sentencing process.\nRevised Rule 32(i)(3) narrows the requirement for court findings to those instances when the\nobjection addresses a \xe2\x80\x9ccontroverted matter.\xe2\x80\x9d If the objection satisfies that criterion, the court must\neither make a finding on the objection or decide that a finding is not required because the matter\nwill not affect sentencing or that the matter will not be considered at all in sentencing.\nRevised Rule 32(i)(4)(B) provides for the right of certain victims to address the court\nduring sentencing. As noted, supra, revised Rule 32(a)(2) expands the definition of victims to\ninclude victims of crimes under 18 U.S.C. \xc2\xa7\xc2\xa72251 \xe2\x80\x9357 (child pornography and related offenses).\nThus, they too will now be permitted to address the court.\nRevised Rule 32(i)(1)(B) is intended to clarify language that currently exists in Rule\n32(h)(3), that the court must inform both parties that the court will rely on information not in the\npresentence report and provide them with an opportunity to comment on the information.\n246\n\n\x0cRule 32(i)(4)(C) includes a change concerning who may request an in camera proceeding.\nUnder current Rule 32(c)(4), the parties must file a joint motion for an in camera proceeding to\nhear the statements by defense counsel, the defendant, the attorney for the government, or any\nvictim. Under the revised rule, any party may move (for good cause) that the court hear in camera\nany statement\xe2\x80\x94by a party or a victim\xe2\x80\x94made under revised Rule 32(i)(4).\nFinally, the Committee considered, but did not adopt, an amendment that would have\nrequired the court to rule on any \xe2\x80\x9cunresolved objection to a material matter\xe2\x80\x9d in the presentence\nreport, whether or not the court will consider it in imposing an appropriate sentence. The\namendment was considered because an unresolved objection that has no impact on determining a\nsentence under the Sentencing Guidelines may affect other important postsentencing decisions.\nFor example, the Bureau of Prisons consults the presentence report in deciding where a defendant\nwill actually serve his or her sentence of confinement. See A Judicial Guide to the Federal Bureau\nof Prisons, 11 (United States Department of Justice, Federal Bureau of Prisons 1995) (noting that\nthe \xe2\x80\x9cBureau relies primarily on the Presentence Investigator Report . . .\xe2\x80\x9d). And as some courts have\nrecognized, Rule 32 was intended to guard against adverse consequences of a statement in the\npresentence report that the court may have been found to be false. United States v. Velasquez, 748\nF.2d 972, 974 (8th Cir. 1984) (rule designed to protect against evil that false allegation that\ndefendant was notorious alien smuggler would affect defendant for years to come); see also United\nStates v. Brown, 715 F.2d 387, 389 n.2 (5th Cir. 1983) (sentencing report affects \xe2\x80\x9cplace of\nincarceration, chances for parole, and relationships with social service and correctional agencies\nafter release from prison\xe2\x80\x9d).\nTo avoid unduly burdening the court, the Committee elected not to require resolution of\nobjections that go only to service of sentence. However, because of the presentence report\'s critical\nrole in postsentence administration, counsel may wish to point out to the court those matters that\nare typically considered by the Bureau of Prisons in designating the place of confinement. For\nexample, the Bureau considers:\nthe type of offense, the length of sentence, the defendant\'s age, the defendant\'s release\nresidence, the need for medical or other special treatment, and any placement recommendation\nmade by the court.\nA Judicial Guide to the Federal Bureau of Prisons, supra, at 11. Further, a question as to\nwhether or not the defendant has a \xe2\x80\x9cdrug problem\xe2\x80\x9d could have an impact on whether the defendant\nwould be eligible for prison drug abuse treatment programs. 18 U.S.C. \xc2\xa73621 (e) (Substance abuse\ntreatment).\nIf counsel objects to material in the presentence report that could affect the defendant\'s\nservice of sentence, the court may resolve the objection, but is not required to do so.\nCommittee Notes on Rules\xe2\x80\x942007 Amendment\nSubdivision (d). The amendment conforms Rule 32(d) to the Supreme Court\'s decision in\nUnited States v. Booker, 543 U.S. 220 (2005). Booker held that the provision of the federal\nsentencing statute that makes the Guidelines mandatory, 18 U.S.C. \xc2\xa73553 (b)(1), violates the Sixth\nAmendment right to jury trial. With this provision severed and excised, the Court held, the\nSentencing Reform Act \xe2\x80\x9cmakes the Guidelines effectively advisory,\xe2\x80\x9d and \xe2\x80\x9crequires a sentencing\ncourt to consider Guidelines ranges, see 18 U.S.C.A. \xc2\xa73553 (a)(4) (Supp. 2004), but it permits the\ncourt to tailor the sentence in light of other statutory concerns as well, see \xc2\xa73553(a) (Supp. 2004).\xe2\x80\x9d\nId. at 245\xe2\x80\x9346. Amended subdivision (d)(2)(F) makes clear that the court can instruct the probation\n247\n\n\x0coffice to gather and include in the presentence report any information relevant to the factors\narticulated in \xc2\xa73553(a). The rule contemplates that a request can be made either by the court as a\nwhole requiring information affecting all cases or a class of cases, or by an individual judge in a\nparticular case.\nChanges Made to Proposed Amendment Released for Public Comment. The Committee\nrevised the text of subdivision (d) in response to public comments. In subdivision (d), the\nCommittee revised the title to include the word \xe2\x80\x9cAdvisory\xe2\x80\x9d in order better to reflect the guidelines\xe2\x80\x99\nrole under the Booker decision. It withdrew proposed subdivisions (k) and (h).\nProposed subdivision (h) would have expanded the sentencing court\'s obligation to give\nnotice to the parties when it intends to rely on grounds not identified in either the presentence\nreport or the parties\xe2\x80\x99 submissions. The amendment was intended to respond to the courts\xe2\x80\x99\nexpanded discretion under Booker. In light of a number of recent decisions in the lower courts\nconsidering the proper scope of this obligation in light of Booker, the proposed amendment was\nwithdrawn for further study.\nSubdivision (k), which would have required that courts use a specified judgment and\nstatement of reasons form, was withdrawn because of the passage of \xc2\xa7735 of the USA Patriot\nImprovement and Reauthorization Act. This legislation amended 28 U.S.C. \xc2\xa7994 (w) to impose a\nstatutory requirement that sentencing information for each case be provided on \xe2\x80\x9cthe written\nstatement of reasons form issued by the Judicial Conference and approved by the United States\nSentencing Commission.\xe2\x80\x9d The Criminal Law Committee, which had previously requested that the\nuniform collection of sentencing information be addressed by an amendment to the rules,\nwithdrew that request in light of the enactment of the statutory requirement.\nFinally, here\xe2\x80\x94as in the other Booker rules\xe2\x80\x94the Committee deleted the reference in the\nCommittee Note to the Fifth Amendment from the description of the Supreme Court\'s decision in\nBooker.\nCommittee Notes on Rules\xe2\x80\x942008 Amendment\nSubdivision (a). The Crime Victims\xe2\x80\x99 Rights Act, codified as 18 U.S.C. \xc2\xa73771 (e), adopted\na new definition of the term \xe2\x80\x9ccrime victim.\xe2\x80\x9d The new statutory definition has been incorporated in\nan amendment to Rule 1, which supersedes the provisions that have been deleted here.\nSubdivision (c)(1). This amendment implements the victim\'s statutory right under the\nCrime Victims\xe2\x80\x99 Rights Act to \xe2\x80\x9cfull and timely restitution as provided in law.\xe2\x80\x9d See 18 U.S.C.\n\xc2\xa73771(a)(6). Whenever the law permits restitution, the presentence investigation report should\ncontain information permitting the court to determine whether restitution is appropriate.\nSubdivision (d)(2)(B). This amendment implements the Crime Victims\xe2\x80\x99 Rights Act,\ncodified at 18 U.S.C. \xc2\xa73771. The amendment makes it clear that victim impact information should\nbe treated in the same way as other information contained in the presentence report. It deletes\nlanguage requiring victim impact information to be \xe2\x80\x9cverified\xe2\x80\x9d and \xe2\x80\x9cstated in a nonargumentative\nstyle\xe2\x80\x9d because that language does not appear in the other subparagraphs of Rule 32(d)(2).\nSubdivision (i)(4). The deleted language, referring only to victims of crimes of violence or\nsexual abuse, has been superseded by the Crime Victims\xe2\x80\x99 Rights Act, 18 U.S.C. \xc2\xa73771 (e). The act\ndefines the term \xe2\x80\x9ccrime victim\xe2\x80\x9d without limiting it to certain crimes, and provides that crime\nvictims, so defined, have a right to be reasonably heard at all public court proceedings regarding\nsentencing. A companion amendment to Rule 1(b) adopts the statutory definition as the definition\nof the term \xe2\x80\x9cvictim\xe2\x80\x9d for purposes of the Federal Rules of Criminal Procedure, and explains who\n248\n\n\x0cmay raise the rights of a victim, so the language in this subdivision is no longer needed.\nSubdivision (i)(4) has also been amended to incorporate the statutory language of the\nCrime Victims\xe2\x80\x99 Rights Act, which provides that victims have the right \xe2\x80\x9cto be reasonably heard\xe2\x80\x9d in\njudicial proceedings regarding sentencing. See 18 U.S.C. \xc2\xa73771(a)(4). The amended rule provides\nthat the judge must speak to any victim present in the courtroom at sentencing. Absent unusual\ncircumstances, any victim who is present should be allowed a reasonable opportunity to speak\ndirectly to the judge.\nChanges Made to Proposed Amendment Released for Public Comment. No changes were\nmade in the text of the rule. In response to public comments, the Committee Note was amended to\nmake it clear that absent unusual circumstances any victim who is in the courtroom should have a\nreasonable opportunity to speak directly to the judge.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nSubdivision (d)(2)(G). Rule 32.2(a) requires that the indictment or information provide\nnotice to the defendant of the government\'s intent to seek forfeiture as part of the sentence. The\namendment provides that the same notice be provided as part of the presentence report to the court.\nThis will ensure timely consideration of the issues concerning forfeiture as part of the sentencing\nprocess.\nChanges Made to Proposed Amendment Released for Public Comment. No changes were\nmade to the proposed amendment to Rule 32.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivision (d)(2). This technical and conforming amendment reorders two subparagraphs\ndescribing the information that may be included in the presentence report so that the provision\nauthorizing the inclusion of any other information the court requires appears at the end of the\nparagraph. It also rephrases renumbered subdivision (d)(2)(F) for stylistic purposes.\nAmendment by Public Law\n1996 \xe2\x80\x94Subd. (b)(1). Pub. L. 104\xe2\x80\x93132, \xc2\xa7207(a)(1), inserted at end \xe2\x80\x9cNotwithstanding the\npreceding sentence, a presentence investigation and report, or other report containing information\nsufficient for the court to enter an order of restitution, as the court may direct, shall be required in\nany case in which restitution is required to be ordered.\xe2\x80\x9d\nSubd. (b)(4)(F) to (H). Pub. L. 104\xe2\x80\x93132, \xc2\xa7207(a)(2), added subd. (b)(4)(F), and\nredesignated former subds. (b)(4)(F) and (b)(4)(G) as (b)(4)(G) and (b)(4)(H), respectively.\n1994 \xe2\x80\x94Subd. (c)(3)(D). Pub. L. 103\xe2\x80\x93322, \xc2\xa7230101(b)(4), substituted \xe2\x80\x9copportunity\nequivalent to that of the defendant\'s counsel\xe2\x80\x9d for \xe2\x80\x9cequivalent opportunity\xe2\x80\x9d.\nSubd. (c)(3)(E). Pub. L. 103\xe2\x80\x93322, \xc2\xa7230101(b)(1)\xe2\x80\x93(3), added subd. (c)(3)(E).\nSubd. (c)(4). Pub. L. 103\xe2\x80\x93322, \xc2\xa7230101(b)(5), (6), substituted \xe2\x80\x9c(D), and (E)\xe2\x80\x9d for \xe2\x80\x9cand (D)\xe2\x80\x9d\nand inserted \xe2\x80\x9cthe victim,\xe2\x80\x9d before \xe2\x80\x9cor the attorney for the Government.\xe2\x80\x9d.\nSubd. (f). Pub. L. 103\xe2\x80\x93322, \xc2\xa7230101(b)(7), added subd. (f).\n1986 \xe2\x80\x94Subd. (c)(2)(B). Pub. L. 99\xe2\x80\x93646 substituted \xe2\x80\x9cfrom\xe2\x80\x9d for \xe2\x80\x9cthan\xe2\x80\x9d.\n1984 \xe2\x80\x94Subd. (a)(1). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(1), substituted new subd. (a)(1) for former\nsubd. (a)(1) which read as follows:\n249\n\n\x0c\xe2\x80\x9c(a) Sentence.\n\xe2\x80\x9c(1) Imposition of Sentence. Sentence shall be imposed without unreasonable delay. Before\nimposing sentence the court shall\n\xe2\x80\x9c(A) determine that the defendant and the defendant\'s counsel have had the opportunity to\nread and discuss the presentence investigation report made available pursuant to subdivision\n(c)(3)(A) or summary thereof made available pursuant to subdivision (c)(3)(B);\n\xe2\x80\x9c(B) afford counsel an opportunity to speak on behalf of the defendant; and\n\xe2\x80\x9c(C) address the defendant personally and ask the defendant if the defendant wishes to\nmake a statement in the defendant\'s own behalf and to present any information in mitigation of\npunishment.\nThe attorney for the government shall have an equivalent opportunity to speak to the\ncourt.\xe2\x80\x9d\nSubd. (a)(2). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(2), inserted \xe2\x80\x9c, including any right to appeal the\nsentence,\xe2\x80\x9d after \xe2\x80\x9cright to appeal\xe2\x80\x9d in first sentence.\nPub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(3), inserted \xe2\x80\x9c, except that the court shall advise the defendant of\nany right to appeal his sentence\xe2\x80\x9d after \xe2\x80\x9cnolo contendere\xe2\x80\x9d in second sentence.\nSubd. (c)(1). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(4), amended first sentence generally. Prior to\namendment, first sentence read as follows: \xe2\x80\x9cThe probation service of the court shall make a\npresentence investigation and report to the court before the imposition of sentence or the granting\nof probation unless, with the permission of the court, the defendant waives a presentence\ninvestigation and report, or the court finds that there is in the record information sufficient to\nenable the meaningful exercise of sentencing discretion, and the court explains this finding on the\nrecord.\xe2\x80\x9d\nSubd. (c)(2). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(5), amended subd. (c)(2) generally. Prior to\namendment, subd. (c)(2) read as follows:\n\xe2\x80\x9c(2) Report. The presentence report shall contain\xe2\x80\x94\n\xe2\x80\x9c(A) any prior criminal record of the defendant;\n\xe2\x80\x9c(B) a statement of the circumstances of the commission of the offense and circumstances\naffecting the defendant\'s behavior;\n\xe2\x80\x9c(C) information concerning any harm, including financial, social, psychological, and\nphysical harm, done to or loss suffered by any victim of the offense; and\n\xe2\x80\x9c(D) any other information that may aid the court in sentencing, including the restitution\nneeds of any victim of the offense.\xe2\x80\x9d\nSubd. (c)(3)(A). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(6), which directed the substitution of \xe2\x80\x9c, including\nthe information required by subdivision (c)(2) but not including any final recommendation as to\nsentence,\xe2\x80\x9d for \xe2\x80\x9cexclusive of any recommendations as to sentence\xe2\x80\x9d, was executed by substituting\nthe quotation for \xe2\x80\x9cexclusive of any recommendation as to sentence\xe2\x80\x9d to reflect the probable intent\nof Congress.\nSubd. (c)(3)(D). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(7), struck out \xe2\x80\x9cor the Parole Commission\xe2\x80\x9d before\nperiod at end.\nSubd. (c)(3)(F). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(8), substituted \xe2\x80\x9cpursuant to 18 U.S.C. \xc2\xa73552 (b)\xe2\x80\x9d\nfor \xe2\x80\x9cor the Parole Commission pursuant to 18 U.S.C. \xc2\xa7\xc2\xa74205 (c), 4252, 5010(e), or 5037(c)\xe2\x80\x9d.\nSubd. (d). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(a)(9), struck out \xe2\x80\x9cimposition of sentence is suspended, or\ndisposition is had under 18 U.S.C. \xc2\xa74205(c),\xe2\x80\x9d after \xe2\x80\x9cis imposed,\xe2\x80\x9d.\n1982 \xe2\x80\x94Subdiv. (c)(2). Pub. L. 97\xe2\x80\x93291 substituted provision directing that the presentence\nreport contain any prior criminal record of the defendant, a statement of the circumstances of the\n250\n\n\x0ccommission of the offense and circumstances affecting the defendant\'s behavior, information\nconcerning any harm, including financial, social, psychological, and physical harm, done to or loss\nsuffered by any victim of the offense, and any other information that may aid the court in\nsentencing, including the restitution need of any victim of the offense, for provision requiring that\nthe report of the presentence investigation shall contain any prior criminal record of the defendant\nand such information about his characteristics, his financial condition and the circumstances\naffecting his behavior as might be helpful in imposing sentence or in granting probation or in the\ncorrectional treatment of the defendant, and such other information as might be required by the\ncourt.\n1975 \xe2\x80\x94Pub. L. 94\xe2\x80\x9364 amended subds. (a)(1) and (c)(1), (3)(A), (D) generally.\nEffective Date of 1996 Amendment\nAmendment by Pub. L. 104\xe2\x80\x93132 to be effective, to extent constitutionally permissible, for\nsentencing proceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see\nsection 211 of Pub. L. 104\xe2\x80\x93132, set out as a note under section 2248 of this title.\nEffective Date of 1994 Amendment\nAmendment by Pub. L. 103\xe2\x80\x93322 effective Dec. 1, 1994, see section 230101(c) of Pub. L.\n103\xe2\x80\x93322, set out as a Victim\'s Right of Allocution in Sentencing note under section 2074 of Title\n28, Judiciary and Judicial Procedure.\nEffective Date of 1986 Amendment\nSection 25(b) of Pub. L. 99\xe2\x80\x93646 provided that: \xe2\x80\x9cThe amendment made by subsection (a)\nshall take effect on the taking effect of the amendment made by section 215(a)(5) of the\nComprehensive Crime Control Act of 1984 [\xc2\xa7215(a)(5) of Pub. L. 98\xe2\x80\x93473, effective Nov. 1,\n1987].\xe2\x80\x9d\nEffective Date of 1984 Amendment\nAmendment by Pub. L. 98\xe2\x80\x93473 effective Nov. 1, 1987, and applicable only to offenses\ncommitted after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98\xe2\x80\x93473, set\nout as an Effective Date note under section 3551 of this title.\nEffective Date of 1982 Amendment\nAmendment by Pub. L. 97\xe2\x80\x93291 effective Oct. 14, 1982, see section 9(a) of Pub. L. 97\xe2\x80\x93291\nset out as an Effective Date note under section 1512 of this title.\nEffective Date of 1979 Amendment\nAmendment of this rule by abrogation of subd. (f) by order of the United States Supreme\nCourt of Apr. 30, 1979, effective Dec. 1, 1980, see section 1(1) of Pub. L. 96\xe2\x80\x9342, July 31, 1979, 93\nStat. 326, set out as a note under section 2074 of Title 28, Judiciary and Judicial Procedure.\n251\n\n\x0cEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\nRule 32.1 Revoking or Modifying Probation or Supervised Release\n(a) Initial Appearance.\n(1) Person In Custody. A person held in custody for violating probation or supervised\nrelease must be taken without unnecessary delay before a magistrate judge.\n(A) If the person is held in custody in the district where an alleged violation occurred, the\ninitial appearance must be in that district.\n(B) If the person is held in custody in a district other than where an alleged violation\noccurred, the initial appearance must be in that district, or in an adjacent district if the appearance\ncan occur more promptly there.\n(2) Upon a Summons. When a person appears in response to a summons for violating\nprobation or supervised release, a magistrate judge must proceed under this rule.\n(3) Advice. The judge must inform the person of the following:\n(A) the alleged violation of probation or supervised release;\n(B) the person\'s right to retain counsel or to request that counsel be appointed if the person\ncannot obtain counsel; and\n(C) the person\'s right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1).\n(4) Appearance in the District With Jurisdiction. If the person is arrested or appears in the\ndistrict that has jurisdiction to conduct a revocation hearing\xe2\x80\x94either originally or by transfer of\njurisdiction\xe2\x80\x94the court must proceed under Rule 32.1(b)\xe2\x80\x93(e).\n(5) Appearance in a District Lacking Jurisdiction. If the person is arrested or appears in a\ndistrict that does not have jurisdiction to conduct a revocation hearing, the magistrate judge must:\n(A) if the alleged violation occurred in the district of arrest, conduct a preliminary hearing\nunder Rule 32.1(b) and either:\n(i) transfer the person to the district that has jurisdiction, if the judge finds probable cause\nto believe that a violation occurred; or\n(ii) dismiss the proceedings and so notify the court that has jurisdiction, if the judge finds\nno probable cause to believe that a violation occurred; or\n(B) if the alleged violation did not occur in the district of arrest, transfer the person to the\ndistrict that has jurisdiction if:\n(i) the government produces certified copies of the judgment, warrant, and warrant\napplication, or produces copies of those certified documents by reliable electronic means; and\n(ii) the judge finds that the person is the same person named in the warrant.\n(6) Release or Detention. The magistrate judge may release or detain the person under 18\nU.S.C. \xc2\xa73143(a)(1) pending further proceedings. The burden of establishing by clear and\nconvincing evidence that the person will not flee or pose a danger to any other person or to the\ncommunity rests with the person.\n(b) Revocation.\n(1) Preliminary Hearing.\n252\n\n\x0c(A) In General. If a person is in custody for violating a condition of probation or\nsupervised release, a magistrate judge must promptly conduct a hearing to determine whether there\nis probable cause to believe that a violation occurred. The person may waive the hearing.\n(B) Requirements. The hearing must be recorded by a court reporter or by a suitable\nrecording device. The judge must give the person:\n(i) notice of the hearing and its purpose, the alleged violation, and the person\'s right to\nretain counsel or to request that counsel be appointed if the person cannot obtain counsel;\n(ii) an opportunity to appear at the hearing and present evidence; and\n(iii) upon request, an opportunity to question any adverse witness, unless the judge\ndetermines that the interest of justice does not require the witness to appear.\n(C) Referral. If the judge finds probable cause, the judge must conduct a revocation\nhearing. If the judge does not find probable cause, the judge must dismiss the proceeding.\n(2) Revocation Hearing. Unless waived by the person, the court must hold the revocation\nhearing within a reasonable time in the district having jurisdiction. The person is entitled to:\n(A) written notice of the alleged violation;\n(B) disclosure of the evidence against the person;\n(C) an opportunity to appear, present evidence, and question any adverse witness unless the\ncourt determines that the interest of justice does not require the witness to appear;\n(D) notice of the person\'s right to retain counsel or to request that counsel be appointed if\nthe person cannot obtain counsel; and\n(E) an opportunity to make a statement and present any information in mitigation.\n(c) Modification.\n(1) In General. Before modifying the conditions of probation or supervised release, the\ncourt must hold a hearing, at which the person has the right to counsel and an opportunity to make\na statement and present any information in mitigation.\n(2) Exceptions. A hearing is not required if:\n(A) the person waives the hearing; or\n(B) the relief sought is favorable to the person and does not extend the term of probation or\nof supervised release; and\n(C) an attorney for the government has received notice of the relief sought, has had a\nreasonable opportunity to object, and has not done so.\n(d) Disposition of the Case. The court\'s disposition of the case is governed by 18 U.S.C.\n\xc2\xa73563 and \xc2\xa73565 (probation) and \xc2\xa73583 (supervised release).\n(e) Producing a Statement. Rule 26.2(a)\xe2\x80\x93(d) and (f) applies at a hearing under this rule. If a\nparty fails to comply with a Rule 26.2 order to produce a witness\'s statement, the court must not\nconsider that witness\'s testimony.\nNotes\n(Added Apr. 30, 1979, eff. Dec. 1, 1980; amended Pub. L. 99\xe2\x80\x93646, \xc2\xa712(b), Nov. 10, 1986,\n100 Stat. 3594; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991,\neff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005,\neff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 28, 2010, eff. Dec. 1, 2010.)\nNotes of Advisory Committee on Rules\xe2\x80\x941979\nNote to Subdivision (a)(1). Since Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v.\n253\n\n\x0cScarpelli, 411 U.S. 778 (1973), it is clear that a probationer can no longer be denied due process in\nreliance on the dictum in Escoe v. Zerbst, 295 U.S. 490, 492 (1935), that probation is an \xe2\x80\x9cact of\ngrace.\xe2\x80\x9d See Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81\nHarv.L.Rev. 1439 (1968); President\'s Commission on Law Enforcement and Administration of\nJustice. Task Force Report: Corrections 86 (1967).\nSubdivision (a)(1) requires, consistent with the holding in Scarpelli, that a prompt\npreliminary hearing must be held whenever \xe2\x80\x9ca probationer is held in custody on the ground that he\nhas violated a condition of his probation.\xe2\x80\x9d See 18 U.S.C. \xc2\xa73653 regarding arrest of the probationer\nwith or without a warrant. If there is to be a revocation hearing but there has not been a holding in\ncustody for a probation violation, there need not be a preliminary hearing. It was the fact of such a\nholding in custody \xe2\x80\x9cwhich prompted the Court to determine that a preliminary as well as a final\nrevocation hearing was required to afford the petitioner due process of law.\xe2\x80\x9d United States v.\nTucker, 524 F.2d 77 (5th Cir. 1975). Consequently, a preliminary hearing need not be held if the\nprobationer was at large and was not arrested but was allowed to appear voluntarily, United States\nv. Strada, 503 F.2d 1081 (8th Cir. 1974), or in response to a show cause order which \xe2\x80\x9cmerely\nrequires his appearance in court,\xe2\x80\x9d United States v. Langford, 369 F.Supp. 1107 (N.D.Ill. 1973); if\nthe probationer was in custody pursuant to a new charge, Thomas v. United States, 391 F.Supp.\n202 (W.D.Pa. 1975), or pursuant to a final conviction of a subsequent offense, United States v.\nTucker, supra; or if he was arrested but obtained his release.\nSubdivision (a)(1)(A), (B) and (C) list the requirements for the preliminary hearing, as\ndeveloped in Morrissey and made applicable to probation revocation cases in Scarpelli. Under (A),\nthe probationer is to be given notice of the hearing and its purpose and of the alleged violation of\nprobation. \xe2\x80\x9cAlthough the allegations in a motion to revoke probation need not be as specific as an\nindictment, they must be sufficient to apprise the probationer of the conditions of his probation\nwhich he is alleged to have violated, as well as the dates and events which support the charge.\xe2\x80\x9d\nKartman v. Parratt, 397 F.Supp. 531 (D.Nebr. 1975). Under (B), the probationer is permitted to\nappear and present evidence in his own behalf. And under (C), upon request by the probationer,\nadverse witnesses shall be made available for questioning unless the magistrate determines that the\ninformant would be subjected to risk or harm if his identity were disclosed.\nSubdivision (a)(1)(D) provides for notice to the probationer of his right to be represented\nby counsel at the preliminary hearing. Although Scarpelli did not impose as a constitutional\nrequirement a right to counsel in all instances, under 18 U.S.C. \xc2\xa73006A(b) a defendant is entitled\nto be represented by counsel whenever charged \xe2\x80\x9cwith a violation of probation.\xe2\x80\x9d\nThe federal magistrate (see definition in rule 54(c)) is to keep a record of what transpires at\nthe hearing and, if he finds probable cause of a violation, hold the probationer for a revocation\nhearing. The probationer may be released pursuant to rule 46(c) pending the revocation hearing.\nNote to Subdivision (a)(2). Subdivision (a)(2) mandates a final revocation hearing within a\nreasonable time to determine whether the probationer has, in fact, violated the conditions of his\nprobation and whether his probation should be revoked. Ordinarily this time will be measured\nfrom the time of the probable cause finding (if a preliminary hearing was held) or of the issuance of\nan order to show cause. However, what constitutes a reasonable time must be determined on the\nfacts of the particular case, such as whether the probationer is available or could readily be made\navailable. If the probationer has been convicted of and is incarcerated for a new crime, and that\nconviction is the basis of the pending revocation proceedings, it would be relevant whether the\nprobationer waived appearance at the revocation hearing.\nThe hearing required by rule 32.1(a)(2) is not a formal trial; the usual rules of evidence\n254\n\n\x0cneed not be applied. See Morrissey v. Brewer, supra (\xe2\x80\x9cthe process should be flexible enough to\nconsider evidence including letters, affidavits, and other material that would not be admissible in\nan adversary criminal trial\xe2\x80\x9d); Rule 1101(d)(e) of the Federal Rules of Evidence (rules not\napplicable to proceedings \xe2\x80\x9cgranting or revoking probation\xe2\x80\x9d). Evidence that would establish guilt\nbeyond a reasonable doubt is not required to support an order revoking probation. United States v.\nFrancischine, 512 F.2d 827 (5th Cir. 1975). This hearing may be waived by the probationer.\nSubdivisions (a)(2)(A)\xe2\x80\x93(E) list the rights to which a probationer is entitled at the final\nrevocation hearing. The final hearing is less a summary one because the decision under\nconsideration is the ultimate decision to revoke rather than a mere determination of probable\ncause. Thus, the probationer has certain rights not granted at the preliminary hearing: (i) the notice\nunder (A) must by written; (ii) under (B) disclosure of all the evidence against the probationer is\nrequired; and (iii) under (D) the probationer does not have to specifically request the right to\nconfront adverse witnesses, and the court may not limit the opportunity to question the witnesses\nagainst him.\nUnder subdivision (a)(2)(E) the probationer must be given notice of his right to be\nrepresented by counsel. Although Scarpelli holds that the Constitution does not compel counsel in\nall probation revocation hearings, under 18 U.S.C. \xc2\xa73006A(b) a defendant is entitled to be\nrepresented by counsel whenever charged \xe2\x80\x9cwith a violation of probation.\xe2\x80\x9d\nRevocation of probation is proper if the court finds a violation of the conditions of\nprobation and that such violation warrants revocation. Revocation followed by imprisonment is an\nappropriate disposition if the court finds on the basis of the original offense and the intervening\nconduct of the probationer that:\n(i) confinement is necessary to protect the public from further criminal activity by the\noffender; or\n(ii) the offender is in need of correctional treatment which can most effectively be provided\nif he is confined; or\n(iii) it would unduly depreciate the seriousness of the violation if probation were not\nrevoked.\nSee American Bar Association, Standards Relating to Probation \xc2\xa75.1 (Approved Draft,\n1970).\nIf probation is revoked, the probationer may be required to serve the sentence originally\nimposed, or any lesser sentence, and if imposition of sentence was suspended he may receive any\nsentence which might have been imposed. 18 U.S.C. \xc2\xa73653. When a split sentence is imposed\nunder 18 U.S.C. \xc2\xa73651 and probation is subsequently revoked, the probationer is entitled to credit\nfor the time served in jail but not for the time he was on probation. Thomas v. United States, 327\nF.2d 795 (10th Cir.), cert, denied 377 U.S. 1000 (1964); Schley v. Peyton, 280 F.Supp. 307\n(W.D.Va. 1968).\nNote to Subdivision (b). Subdivision (b) concerns proceedings on modification of\nprobation (as provided for in 18 U.S.C. \xc2\xa73651). The probationer should have the right to apply to\nthe sentencing court for a clarification or change of conditions. American Bar Association,\nStandards Relating to Probation \xc2\xa73.1(c) (Approved Draft, 1970). This avenue is important for two\nreasons: (1) the probationer should be able to obtain resolution of a dispute over an ambiguous\nterm or the meaning of a condition without first having to violate it; and (2) in cases of neglect,\noverwork, or simply unreasonableness on the part of the probation officer, the probationer should\nhave recourse to the sentencing court when a condition needs clarification or modification.\nProbation conditions should be subject to modification, for the sentencing court must be\n255\n\n\x0cable to respond to changes in the probationer\'s circumstances as well as new ideas and methods of\nrehabilitation. See generally ABA Standards, supra, \xc2\xa73.3. The Sentencing court is given the\nauthority to shorten the term or end probation early upon its own motion without a hearing. And\nwhile the modification of probation is a part of the sentencing procedure, so that the probationer is\nordinarily entitled to a hearing and presence of counsel, a modification favorable to the probationer\nmay be accomplished without a hearing in the presence of defendant and counsel. United States v.\nBailey, 343 F.Supp. 76 (W.D.Mo. 1971).\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941989 Amendment\nThe amendments recognize that convicted defendants may be on supervised release as well\nas on probation. See 18 U.S.C. \xc2\xa7\xc2\xa73583, and 3624(e).\nNotes of Advisory Committee on Rules\xe2\x80\x941991 Amendment\nThe amendment is technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe addition of subdivision (c) is one of several amendments that extend Rule 26.2 to\nRules 32(f), 32.1, 46, and Rule 8 of the Rules Governing Proceedings under 28 U.S.C. \xc2\xa72255. As\nnoted in the Committee Note to Rule 26.2, the primary reason for extending that Rule to other\nhearings and proceedings rests heavily upon the compelling need for accurate information\naffecting the witnesses\xe2\x80\x99 credibility. While that need is certainly clear in a trial on the merits, it is\nequally compelling, if not more so, in other pretrial and post-trial proceedings in which both the\nprosecution and defense have high interests at stake. In the case of revocation or modification of\nprobation or supervised release proceedings, not only is the defendant\'s liberty interest at stake, the\ngovernment has a stake in protecting the interests of the community.\nRequiring production of witness statements at hearings conducted under Rule 32.1 will\nenhance the procedural due process which the rule now provides and which the Supreme Court\nrequired in Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon v. Scarpelli, 411 U.S. 778\n(1973). Access to prior statements of a witness will enhance the ability of both the defense and\nprosecution to test the credibility of the other side\'s witnesses under Rule 32.1(a)(1), (a)(2), and (b)\nand thus will assist the court in assessing credibility.\nA witness\'s statement must be produced only if the witness testifies.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 32.1 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only, except as noted\nbelow.\n256\n\n\x0cRule 32.1 has been completely revised and expanded. The Committee believed that it was\nimportant to spell out more completely in this rule the various procedural steps that must be met\nwhen dealing with a revocation or modification of probation or supervised release. To that end,\nsome language formerly located in Rule 40 has been moved to revised Rule 32.1. Throughout the\nrule, the terms \xe2\x80\x9cmagistrate judge,\xe2\x80\x9d and \xe2\x80\x9ccourt\xe2\x80\x9d (see revised Rule 1(b) (Definitions)) are used to\nreflect that in revocation cases, initial proceedings in both felony and misdemeanor cases will\nnormally be conducted before a magistrate judge, although a district judge may also conduct them.\nBut a district judge must make the revocation decision if the offense of conviction was a felony.\nSee 18 U.S.C. \xc2\xa73401(i) (recognizing that district judge may designate a magistrate judge to\nconduct a hearing and submit proposed findings of fact and recommendations).\nRevised Rule 32.1(a)(1)\xe2\x80\x93(4) is new material. Presently, there is no provision in the rules for\nconducting initial appearances for defendants charged with violating probation or supervised\nrelease\xe2\x80\x94although some districts apply such procedures. Although the rule labels these\nproceedings as initial appearances, the Committee believed that it was best to separate those\nproceedings from Rule 5 proceedings, because the procedures differ for persons who are charged\nwith violating conditions of probation or supervised release.\nThe Committee is also aware that, in some districts, it is not the practice to have an initial\nappearance for a revocation of probation or supervised release proceeding. Although Rule 32.1(a)\nwill require such an appearance, nothing in the rule prohibits a court from combining the initial\nappearance proceeding, if convened consistent with the \xe2\x80\x9cwithout unnecessary delay\xe2\x80\x9d time\nrequirement of the rule, with the preliminary hearing under Rule 32.1(b).\nRevised Rule 32.1(a)(5) is derived from current Rule 40(d).\nRevised Rule 32.1(a)(6), which is derived from current Rule 46(c), provides that the\ndefendant bears the burden of showing that he or she will not flee or pose a danger pending a\nhearing on the revocation of probation or supervised release. The Committee believes that the new\nlanguage is not a substantive change because it makes no change in practice.\nRule 32.1(b)(1)(B)(iii) and Rule 32.1(b)(2)(C) address the ability of a releasee to question\nadverse witnesses at the preliminary and revocation hearings. Those provisions recognize that the\ncourt should apply a balancing test at the hearing itself when considering the releasee\'s asserted\nright to cross-examine adverse witnesses. The court is to balance the person\'s interest in the\nconstitutionally guaranteed right to confrontation against the government\'s good cause for denying\nit. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 489 (1972); United States v. Comito, 177 F.3d\n1166 (9th Cir. 1999); United States v. Walker, 117 F.3d 417 (9th Cir. 1997); United States v.\nZentgraf, 20 F.3d 906 (8th Cir. 1994).\nRule 32.1(c)(2)(A) permits the person to waive a hearing to modify the conditions of\nprobation or supervised release. Although that language is new to the rule, the Committee believes\nthat it reflects current practice.\nThe remainder of revised Rule 32.1 is derived from the current Rule 32.1.\nCommittee Notes on Rules\xe2\x80\x942005 Amendment\nThe amendments to Rule 32.1(b) and (c) are intended to address a gap in the rule. As noted\nby the court in United States v. Frazier, 283 F.3d 1242 (11th Cir. 2002) (per curiam), there is no\nexplicit provision in current Rule 32.1 for allocution rights for a person upon revocation of\nsupervised release. In that case the court noted that several circuits had concluded that the right to\nallocution in Rule 32 extended to supervised release revocation hearings. See United States v.\n257\n\n\x0cPatterson, 128 F.3d 1259, 1261 (8th Cir. 1997) (Rule 32 right to allocution applies); United States\nv. Rodriguez, 23 F.3d 919, 921 (5th Cir. 1997) (right of allocution, in Rule 32, applies at revocation\nproceeding). But the court agreed with the Sixth Circuit that the allocution right in Rule 32 was not\nincorporated into Rule 32.1. See United States v. Waters, 158 F.3d 933 (6th Cir. 1998) (allocution\nright in Rule 32 does not apply to revocation proceedings). The Frazier court observed that the\nproblem with the incorporation approach is that it would require application of other provisions\nspecifically applicable to sentencing proceedings under Rule 32, but not expressly addressed in\nRule 32.1. 283 F.3d at 1245. The court, however, believed that it would be \xe2\x80\x9cbetter practice\xe2\x80\x9d for\ncourts to provide for allocution at revocation proceedings and stated that \xe2\x80\x9c[t]he right of allocution\nseems both important and firmly embedded in our jurisprudence.\xe2\x80\x9d Id.\nThe amended rule recognizes the importance of allocution and now explicitly recognizes\nthat right at Rule 32.1(b)(2) revocation hearings, and extends it as well to Rule 32.1(c)(1)\nmodification hearings where the court may decide to modify the terms or conditions of the\ndefendant\'s probation. In each instance the court is required to give the defendant the opportunity\nto make a statement and present any mitigating information.\nChanges Made After Publication and Comment. The Committee made no changes to Rule\n32.1 following publication.\nCommittee Notes on Rules\xe2\x80\x942006 Amendment\nSubdivision (a)(5)(B)(i). Rule 32.1(a)(5)(B)(i) has been amended to permit the magistrate\njudge to accept a judgment, warrant, and warrant application by reliable electronic means.\nCurrently, the rule requires the government to produce certified copies of those documents. This\namendment parallels similar changes to Rules 5 and 41.\nThe amendment reflects a number of significant improvements in technology. First,\nreceiving documents by facsimile has become very commonplace and many courts are now\nequipped to receive filings by electronic means, and indeed, some courts encourage or require that\ncertain documents be filed by electronic means. Second, the technology has advanced to the state\nwhere such filings could be sent from, and received at, locations outside the courthouse. Third,\nelectronic media can now provide improved quality of transmission and security measures. In\nshort, in a particular case, using electronic media to transmit a document might be just as reliable\nand efficient as using a facsimile.\nThe term \xe2\x80\x9celectronic\xe2\x80\x9d is used to provide some flexibility to the rule and make allowance for\nfurther technological advances in transmitting data. The Committee envisions that the term\n\xe2\x80\x9celectronic\xe2\x80\x9d would include use of facsimile transmissions.\nThe rule requires that if electronic means are to be used to transmit a warrant to the\nmagistrate judge, the means used be \xe2\x80\x9creliable.\xe2\x80\x9d While the rule does not further define that term, the\nCommittee envisions that a court or magistrate judge would make that determination as a local\nmatter. In deciding whether a particular electronic means, or media, would be reliable, the court\nmight consider first, the expected quality and clarity of the transmission. For example, is it\npossible to read the contents of the warrant in its entirety, as though it were the original or a clean\nphotocopy? Second, the court may wish to consider whether security measures are available to\ninsure that the transmission is not compromised. In this regard, most courts are now equipped to\nrequire that certain documents contain a digital signature, or some other similar system for\nrestricting access. Third, the court may consider whether there are reliable means of preserving the\ndocument for later use.\n258\n\n\x0cChanges Made After Publication and Comment.\nThe Committee made minor clarifying changes in the published rule at the suggestion of\nthe Style Committee.\nCommittee Notes on Rules\xe2\x80\x942010 Amendment\nSubdivision (a)(6). This amendment is designed to end confusion regarding the\napplicability of 18 U.S.C. \xc2\xa7 3143(a) to release or detention decisions involving persons on\nprobation or supervised release, and to clarify the burden of proof in such proceedings. Confusion\nregarding the applicability of \xc2\xa7 3143(a) arose because several subsections of the statute are ill\nsuited to proceedings involving the revocation of probation or supervised release. See United\nStates v. Mincey, 482 F. Supp. 2d 161 (D. Mass. 2007). The amendment makes clear that only\nsubsection 3143(a)(1) is applicable in this context.\nThe current rule provides that the person seeking release must bear the burden of\nestablishing that he or she will not flee or pose a danger but does not specify the standard of proof\nthat must be met. The amendment incorporates into the rule the standard of clear and convincing\nevidence.\nChanges Made to Proposed Amendment Released for Public Comment.\nNo changes were made after the amendment was released for public comment.\nAmendment by Public Law\n1986 \xe2\x80\x94Subd. (b). Pub. L. 99\xe2\x80\x93646 inserted \xe2\x80\x9cto be\xe2\x80\x9d after \xe2\x80\x9crelief\xe2\x80\x9d and inserted provision\nrelating to objection from the attorney for the government after notice of the proposed relief and\nextension of the term of probation as not favorable to the probationer for the purposes of this rule.\nEffective Date of 1986 Amendment\nSection 12(c)(2) of Pub. L. 99\xe2\x80\x93646 provided that: \xe2\x80\x9cThe amendments made by subsection\n(b) [amending this rule] shall take effect 30 days after the date of enactment of this Act [Nov. 10,\n1986].\xe2\x80\x9d\nEffective Date of Rule\nThis rule added by order of the United States Supreme Court of Apr. 30, 1979, effective\nDec. 1, 1980, see section 1(1) of Pub. L. 96\xe2\x80\x9342, July 31, 1979, 93 Stat. 326, set out as a note under\nsection 2074 of Title 28, Judiciary and Judicial Procedure.\n\nRule 32.2 Criminal Forfeiture\n(a) Notice to the Defendant. A court must not enter a judgment of forfeiture in a criminal\nproceeding unless the indictment or information contains notice to the defendant that the\ngovernment will seek the forfeiture of property as part of any sentence in accordance with the\napplicable statute. The notice should not be designated as a count of the indictment or information.\nThe indictment or information need not identify the property subject to forfeiture or specify the\namount of any forfeiture money judgment that the government seeks.\n(b) Entering a Preliminary Order of Forfeiture.\n259\n\n\x0c(1) Forfeiture Phase of the Trial.\n(A) Forfeiture Determinations. As soon as practical after a verdict or finding of guilty, or\nafter a plea of guilty or nolo contendere is accepted, on any count in an indictment or information\nregarding which criminal forfeiture is sought, the court must determine what property is subject to\nforfeiture under the applicable statute. If the government seeks forfeiture of specific property, the\ncourt must determine whether the government has established the requisite nexus between the\nproperty and the offense. If the government seeks a personal money judgment, the court must\ndetermine the amount of money that the defendant will be ordered to pay.\n(B) Evidence and Hearing. The court\'s determination may be based on evidence already in\nthe record, including any written plea agreement, and on any additional evidence or information\nsubmitted by the parties and accepted by the court as relevant and reliable. If the forfeiture is\ncontested, on either party\'s request the court must conduct a hearing after the verdict or finding of\nguilty.\n(2) Preliminary Order.\n(A) Contents of a Specific Order. If the court finds that property is subject to forfeiture, it\nmust promptly enter a preliminary order of forfeiture setting forth the amount of any money\njudgment, directing the forfeiture of specific property, and directing the forfeiture of any substitute\nproperty if the government has met the statutory criteria. The court must enter the order without\nregard to any third party\'s interest in the property. Determining whether a third party has such an\ninterest must be deferred until any third party files a claim in an ancillary proceeding under Rule\n32.2(c).\n(B) Timing. Unless doing so is impractical, the court must enter the preliminary order\nsufficiently in advance of sentencing to allow the parties to suggest revisions or modifications\nbefore the order becomes final as to the defendant under Rule 32.2(b)(4).\n(C) General Order. If, before sentencing, the court cannot identify all the specific property\nsubject to forfeiture or calculate the total amount of the money judgment, the court may enter a\nforfeiture order that:\n(i) lists any identified property;\n(ii) describes other property in general terms; and\n(iii) states that the order will be amended under Rule 32.2(e)(1) when additional specific\nproperty is identified or the amount of the money judgment has been calculated.\n(3) Seizing Property. The entry of a preliminary order of forfeiture authorizes the Attorney\nGeneral (or a designee) to seize the specific property subject to forfeiture; to conduct any\ndiscovery the court considers proper in identifying, locating, or disposing of the property; and to\ncommence proceedings that comply with any statutes governing third-party rights. The court may\ninclude in the order of forfeiture conditions reasonably necessary to preserve the property\'s value\npending any appeal.\n(4) Sentence and Judgment.\n(A) When Final. At sentencing\xe2\x80\x94or at any time before sentencing if the defendant\nconsents\xe2\x80\x94the preliminary forfeiture order becomes final as to the defendant. If the order directs\nthe defendant to forfeit specific property, it remains preliminary as to third parties until the\nancillary proceeding is concluded under Rule 32.2(c).\n(B) Notice and Inclusion in the Judgment. The court must include the forfeiture when\norally announcing the sentence or must otherwise ensure that the defendant knows of the forfeiture\nat sentencing. The court must also include the forfeiture order, directly or by reference, in the\njudgment, but the court\'s failure to do so may be corrected at any time under Rule 36.\n260\n\n\x0c(C) Time to Appeal. The time for the defendant or the government to file an appeal from the\nforfeiture order, or from the court\'s failure to enter an order, begins to run when judgment is\nentered. If the court later amends or declines to amend a forfeiture order to include additional\nproperty under Rule 32.2(e), the defendant or the government may file an appeal regarding that\nproperty under Federal Rule of Appellate Procedure 4 (b). The time for that appeal runs from the\ndate when the order granting or denying the amendment becomes final.\n(5) Jury Determination.\n(A) Retaining the Jury. In any case tried before a jury, if the indictment or information\nstates that the government is seeking forfeiture, the court must determine before the jury begins\ndeliberating whether either party requests that the jury be retained to determine the forfeitability of\nspecific property if it returns a guilty verdict.\n(B) Special Verdict Form. If a party timely requests to have the jury determine forfeiture,\nthe government must submit a proposed Special Verdict Form listing each property subject to\nforfeiture and asking the jury to determine whether the government has established the requisite\nnexus between the property and the offense committed by the defendant.\n(6) Notice of the Forfeiture Order.\n(A) Publishing and Sending Notice. If the court orders the forfeiture of specific property,\nthe government must publish notice of the order and send notice to any person who reasonably\nappears to be a potential claimant with standing to contest the forfeiture in the ancillary\nproceeding.\n(B) Content of the Notice. The notice must describe the forfeited property, state the times\nunder the applicable statute when a petition contesting the forfeiture must be filed, and state the\nname and contact information for the government attorney to be served with the petition.\n(C) Means of Publication; Exceptions to Publication Requirement. Publication must take\nplace as described in Supplemental Rule G(4)(a)(iii) of the Federal Rules of Civil Procedure, and\nmay be by any means described in Supplemental Rule G(4)(a)(iv). Publication is unnecessary if\nany exception in Supplemental Rule G(4)(a)(i) applies.\n(D) Means of Sending the Notice. The notice may be sent in accordance with Supplemental\nRules G(4)(b)(iii)\xe2\x80\x93(v) of the Federal Rules of Civil Procedure.\n(7) Interlocutory Sale. At any time before entry of a final forfeiture order, the court, in\naccordance with Supplemental Rule G(7) of the Federal Rules of Civil Procedure, may order the\ninterlocutory sale of property alleged to be forfeitable.\n(c) Ancillary Proceeding; Entering a Final Order of Forfeiture.\n(1) In General. If, as prescribed by statute, a third party files a petition asserting an interest\nin the property to be forfeited, the court must conduct an ancillary proceeding, but no ancillary\nproceeding is required to the extent that the forfeiture consists of a money judgment.\n(A) In the ancillary proceeding, the court may, on motion, dismiss the petition for lack of\nstanding, for failure to state a claim, or for any other lawful reason. For purposes of the motion, the\nfacts set forth in the petition are assumed to be true.\n(B) After disposing of any motion filed under Rule 32.2(c)(1)(A) and before conducting a\nhearing on the petition, the court may permit the parties to conduct discovery in accordance with\nthe Federal Rules of Civil Procedure if the court determines that discovery is necessary or\ndesirable to resolve factual issues. When discovery ends, a party may move for summary judgment\nunder Federal Rule of Civil Procedure 56.\n(2) Entering a Final Order. When the ancillary proceeding ends, the court must enter a\nfinal order of forfeiture by amending the preliminary order as necessary to account for any\n261\n\n\x0cthird-party rights. If no third party files a timely petition, the preliminary order becomes the final\norder of forfeiture if the court finds that the defendant (or any combination of defendants convicted\nin the case) had an interest in the property that is forfeitable under the applicable statute. The\ndefendant may not object to the entry of the final order on the ground that the property belongs, in\nwhole or in part, to a codefendant or third party; nor may a third party object to the final order on\nthe ground that the third party had an interest in the property.\n(3) Multiple Petitions. If multiple third-party petitions are filed in the same case, an order\ndismissing or granting one petition is not appealable until rulings are made on all the petitions,\nunless the court determines that there is no just reason for delay.\n(4) Ancillary Proceeding Not Part of Sentencing. An ancillary proceeding is not part of\nsentencing.\n(d) Stay Pending Appeal. If a defendant appeals from a conviction or an order of forfeiture,\nthe court may stay the order of forfeiture on terms appropriate to ensure that the property remains\navailable pending appellate review. A stay does not delay the ancillary proceeding or the\ndetermination of a third party\'s rights or interests. If the court rules in favor of any third party while\nan appeal is pending, the court may amend the order of forfeiture but must not transfer any\nproperty interest to a third party until the decision on appeal becomes final, unless the defendant\nconsents in writing or on the record.\n(e) Subsequently Located Property; Substitute Property.\n(1) In General. On the government\'s motion, the court may at any time enter an order of\nforfeiture or amend an existing order of forfeiture to include property that:\n(A) is subject to forfeiture under an existing order of forfeiture but was located and\nidentified after that order was entered; or\n(B) is substitute property that qualifies for forfeiture under an applicable statute.\n(2) Procedure. If the government shows that the property is subject to forfeiture under Rule\n32.2(e)(1), the court must:\n(A) enter an order forfeiting that property, or amend an existing preliminary or final order\nto include it; and\n(B) if a third party files a petition claiming an interest in the property, conduct an ancillary\nproceeding under Rule 32.2(c).\n(3) Jury Trial Limited. There is no right to a jury trial under Rule 32.2(e).\nNotes\n(Added Apr. 17, 2000, eff. Dec. 1, 2000; amended Apr. 29, 2002, eff. Dec. 1, 2002; Mar.\n26, 2009, eff. Dec. 1, 2009.)\nCommittee Notes on Rules\xe2\x80\x942000\nRule 32.2 consolidates a number of procedural rules governing the forfeiture of assets in a\ncriminal case. Existing Rules 7(c)(2), 31(e) and 32(d)(2) are also amended to conform to the new\nrule. In addition, the forfeiture-related provisions of Rule 38(e) are stricken.\nSubdivision (a). Subdivision (a) is derived from Rule 7(c)(2) which provides that\nnotwithstanding statutory authority for the forfeiture of property following a criminal conviction,\nno forfeiture order may be entered unless the defendant was given notice of the forfeiture in the\nindictment or information. As courts have held, subdivision (a) is not intended to require that an\nitemized list of the property to be forfeited appear in the indictment or information itself. The\n262\n\n\x0csubdivision reflects the trend in caselaw interpreting present Rule 7(c). Under the most recent\ncases, Rule 7(c) sets forth a requirement that the government give the defendant notice that it will\nbe seeking forfeiture in accordance with the applicable statute. It does not require a substantive\nallegation in which the property subject to forfeiture, or the defendant\'s interest in the property,\nmust be described in detail. See United States v. DeFries, 129 F.3d 1293 (D.C.Cir. 1997) (it is not\nnecessary to specify in either the indictment or a bill of particulars that the government is seeking\nforfeiture of a particular asset, such as the defendant\'s salary; to comply with Rule 7(c), the\ngovernment need only put the defendant on notice that it will seek to forfeit everything subject to\nforfeiture under the applicable statute, such as all property \xe2\x80\x9cacquired or maintained\xe2\x80\x9d as a result of a\nRICO violation). See also United States v. Moffitt, Zwerling & Kemler, P.C., 83 F.3d 660, 665 (4th\nCir. 1996), aff\'g 846 F. Supp. 463 (E.D. Va. 1994) (Moffitt I) (indictment need not list each asset\nsubject to forfeiture; under Rule 7(c), this can be done with bill of particulars); United States v.\nVoigt, 89 F.3d 1050 (3rd Cir. 1996) (court may amend order of forfeiture at any time to include\nsubstitute assets).\nSubdivision (b). Subdivision (b) replaces Rule 31(e) which provides that the jury in a\ncriminal case must return a special verdict \xe2\x80\x9cas to the extent of the interest or property subject to\nforfeiture.\xe2\x80\x9d See United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995) (Rule 31(e) only applies to\njury trials; no special verdict required when defendant waives right to jury on forfeiture issues).\nOne problem under Rule 31(e) concerns the scope of the determination that must be made\nprior to entering an order of forfeiture. This issue is the same whether the determination is made by\nthe court or by the jury.\nAs mentioned, the current rule requires the jury to return a special verdict \xe2\x80\x9cas to the extent\nof the interest or property subject to forfeiture.\xe2\x80\x9d Some courts interpret this to mean only that the\njury must answer \xe2\x80\x9cyes\xe2\x80\x9d or \xe2\x80\x9cno\xe2\x80\x9d when asked if the property named in the indictment is subject to\nforfeiture under the terms of the forfeiture statute\xe2\x80\x94 e.g. was the property used to facilitate a drug\noffense? Other courts also ask the jury if the defendant has a legal interest in the forfeited property.\nStill other courts, including the Fourth Circuit, require the jury to determine the extent of the\ndefendant\'s interest in the property vis a vis third parties. See United States v. Ham, 58 F.3d 78 (4th\nCir. 1995) (case remanded to the district court to impanel a jury to determine, in the first instance,\nthe extent of the defendant\'s forfeitable interest in the subject property).\nThe notion that the \xe2\x80\x9cextent\xe2\x80\x9d of the defendant\'s interest must be established as part of the\ncriminal trial is related to the fact that criminal forfeiture is an in personam action in which only\nthe defendant\'s interest in the property may be forfeited. United States v. Riley, 78 F.3d 367 (8th\nCir. 1996). When the criminal forfeiture statutes were first enacted in the 1970\'s, it was clear that a\nforfeiture of property other than the defendant\'s could not occur in a criminal case, but there was no\nmechanism designed to limit the forfeiture to the defendant\'s interest. Accordingly, Rule 31(e) was\ndrafted to make a determination of the \xe2\x80\x9cextent\xe2\x80\x9d of the defendant\'s interest part of the verdict.\nThe problem is that third parties who might have an interest in the forfeited property are not\nparties to the criminal case. At the same time, a defendant who has no interest in property has no\nincentive, at trial, to dispute the government\'s forfeiture allegations. Thus, it was apparent by the\n1980\'s that Rule 31(e) was an inadequate safeguard against the inadvertent forfeiture of property in\nwhich the defendant held no interest.\nIn 1984, Congress addressed this problem when it enacted a statutory scheme whereby\nthird party interests in criminally forfeited property are litigated by the court in an ancillary\nproceeding following the conclusion of the criminal case and the entry of a preliminary order of\nforfeiture. See 21 U.S.C. \xc2\xa7853(n); 18 U.S.C. \xc2\xa71963 (l). Under this scheme, the court orders the\n263\n\n\x0cforfeiture of the defendant\'s interest in the property\xe2\x80\x94whatever that interest may be\xe2\x80\x94in the\ncriminal case. At that point, the court conducts a separate proceeding in which all potential third\nparty claimants are given an opportunity to challenge the forfeiture by asserting a superior interest\nin the property. This proceeding does not involve relitigation of the forfeitability of the property;\nits only purpose is to determine whether any third party has a legal interest in the forfeited\nproperty.\nThe notice provisions regarding the ancillary proceeding are equivalent to the notice\nprovisions that govern civil forfeitures. Compare 21 U.S.C. \xc2\xa7853(n)(1) with 19 U.S.C. \xc2\xa71607(a);\nsee United States v. Bouler, 927 F. Supp. 911 (W.D.N.C. 1996) (civil notice rules apply to\nancillary criminal proceedings). Notice is published and sent to third parties that have a potential\ninterest. See United States v. BCCI Holdings (Luxembourg) S.A. (In re Petition of Indosuez Bank),\n916 F. Supp. 1276 (D.D.C. 1996) (discussing steps taken by government to provide notice of\ncriminal forfeiture to third parties). If no one files a claim, or if all claims are denied following a\nhearing, the forfeiture becomes final and the United States is deemed to have clear title to the\nproperty. 21 U.S.C. \xc2\xa7853(n)(7); United States v. Hentz, 1996 WL 355327 (E.D. Pa. June 20, 1996)\n(once third party fails to file a claim in the ancillary proceeding, government has clear title under\n\xc2\xa7853(n)(7) and can market the property notwithstanding third party\'s name on the deed).\nThus, the ancillary proceeding has become the forum for determining the extent of the\ndefendant\'s forfeitable interest in the property. This allows the court to conduct a proceeding in\nwhich all third party claimants can participate and which ensures that the property forfeited\nactually belongs to the defendant.\nSince the enactment of the ancillary proceeding statutes, the requirement in Rule 31(e) that\nthe court (or jury) determine the extent of the defendant\'s interest in the property as part of the\ncriminal trial has become an unnecessary anachronism that leads more often than not to\nduplication and a waste of judicial resources. There is no longer any reason to delay the conclusion\nof the criminal trial with a lengthy hearing over the extent of the defendant\'s interest in property\nwhen the same issues will have to be litigated a second time in the ancillary proceeding if someone\nfiles a claim challenging the forfeiture. For example, in United States v. Messino, 917 F. Supp.\n1307 (N.D. Ill. 1996), the court allowed the defendant to call witnesses to attempt to establish that\nthey, not he, were the true owners of the property. After the jury rejected this evidence and the\nproperty was forfeited, the court conducted an ancillary proceeding in which the same witnesses\nlitigated their claims to the same property.\nA more sensible procedure would be for the court, once it (or a jury) determines that\nproperty was involved in the criminal offense for which the defendant has been convicted, to order\nthe forfeiture of whatever interest a defendant may have in the property without having to\ndetermine exactly what that interest is. If third parties assert that they have an interest in all or part\nof the property, those interests can be adjudicated at one time in the ancillary proceeding.\nThis approach would also address confusion that occurs in multi-defendant cases where it\nis clear that each defendant should forfeit whatever interest he may have in the property used to\ncommit the offense, but it is not at all clear which defendant is the actual owner of the property. For\nexample, suppose A and B are codefendants in a drug and money laundering case in which the\ngovernment seeks to forfeit property involved in the scheme that is held in B\'s name but of which\nA may be the true owner. It makes no sense to invest the court\'s time in determining which of the\ntwo defendants holds the interest that should be forfeited. Both defendants should forfeit whatever\ninterest they may have. Moreover, if under the current rule the court were to find that A is the true\nowner of the property, then B would have the right to file a claim in the ancillary proceeding where\n264\n\n\x0che may attempt to recover the property despite his criminal conviction. United States v. Real\nProperty in Waterboro, 64 F.3d 752 (1st Cir. 1995) (codefendant in drug/money laundering case\nwho is not alleged to be the owner of the property is considered a third party for the purpose of\nchallenging the forfeiture of the other codefendant\'s interest).\nThe new rule resolves these difficulties by postponing the determination of the extent of\nthe defendant\'s interest until the ancillary proceeding. As provided in (b)(1), the court, as soon as\npracticable after the verdict or finding of guilty in the criminal case, would determine if the\nproperty was subject to forfeiture in accordance with the applicable statute, e.g., whether the\nproperty represented the proceeds of the offense, was used to facilitate the offense, or was involved\nin the offense in some other way. The determination could be made based on the evidence in the\nrecord from the criminal trial or the facts set forth in a written plea agreement submitted to the\ncourt at the time of the defendant\'s guilty plea, or the court could hold a hearing to determine if the\nrequisite relationship existed between the property and the offense. Subdivision (b)(2) provides\nthat it is not necessary to determine at this stage what interest any defendant might have in the\nproperty. Instead, the court would order the forfeiture of whatever interest each defendant might\nhave in the property and conduct the ancillary proceeding.\nSubdivision (b)(1) recognizes that there are different kinds of forfeiture judgments in\ncriminal cases. One type is a personal judgment for a sum of money; another is a judgment\nforfeiting a specific asset. See, e.g., United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996)\n(government is entitled to a personal money judgment equal to the amount involved in the money\nlaundering offense, as well as order forfeiting specific assets involved in, or traceable to, the\noffense; in addition, if the statutory requirements are met, the government may be entitled to forfeit\nsubstitute assets); United States v. Cleveland, 1997 WL 537707 (E.D. La. Aug. 26, 1997),\nmodified, 1997 WL 602186 (E.D. La. Sept. 29, 1997) (government entitled to a money judgment\nequal to the amount of money defendant laundered in money laundering case). The finding the\ncourt is required to make will depend on the nature of the forfeiture judgment. A number of cases\nhave approved use of money judgment forfeitures. The Committee takes no position on the\ncorrectness of those rulings.\nTo the extent that the government is seeking forfeiture of a particular asset, such as the\nmoney on deposit in a particular bank account that is alleged to be the proceeds of a criminal\noffense, or a parcel of land that is traceable to that offense, the court must find that the government\nhas established the requisite nexus between the property and the offense. To the extent that the\ngovernment is seeking a money judgment, such as a judgment for the amount of money derived\nfrom a drug trafficking offense or the amount involved in a money laundering offense where the\nactual property subject to forfeiture has not been found or is unavailable, the court must determine\nthe amount of money that the defendant should be ordered to forfeit.\nThe court may make the determination based on evidence in the record, or on additional\nevidence submitted by the defendant or evidence submitted by the government in support of the\nmotion for the entry of a judgment of forfeiture. The defendant would have no standing to object to\nthe forfeiture on the ground that the property belonged to someone else.\nUnder subdivision (b)(2), if the court finds that property is forfeitable, it must enter a\npreliminary order of forfeiture. It also recognizes that any determination of a third person\'s interest\nin the property is deferred until an ancillary proceeding, if any, is held under subdivision (c).\nSubdivision (b)(3) replaces Rule 32(d)(2) (effective December 1996). It provides that once\nthe court enters a preliminary order of forfeiture directing the forfeiture of whatever interest each\ndefendant may have in the forfeited property, the government may seize the property and\n265\n\n\x0ccommence an ancillary proceeding to determine the interests of any third party. The subdivision\nalso provides that the Attorney General may designate someone outside of the Department of\nJustice to seize forfeited property. This is necessary because in cases in which the lead\ninvestigative agency is in the Treasury Department, for example, the seizure of the forfeited\nproperty is typically handled by agencies other than the Department of Justice.\nIf no third party files a claim, the court, at the time of sentencing, will enter a final order\nforfeiting the property in accordance with subdivision (c)(2), discussed infra. If a third party files a\nclaim, the order of forfeiture will become final as to the defendant at the time of sentencing but will\nbe subject to amendment in favor of a third party pending the conclusion of the ancillary\nproceeding.\nBecause the order of forfeiture becomes final as to the defendant at the time of sentencing,\nhis right to appeal from that order begins to run at that time. As courts have held, because the\nancillary hearing has no bearing on the defendant\'s right to the property, the defendant has no right\nto appeal when a final order is, or is not, amended to recognize third party rights. See, e.g., United\nStates v. Christunas, 126 F.3d 765 (6th Cir. 1997) (preliminary order of forfeiture is final as to the\ndefendant and is immediately appealable).\nBecause it is not uncommon for sentencing to be postponed for an extended period to allow\na defendant to cooperate with the government in an ongoing investigation, the rule would allow the\norder of forfeiture to become final as to the defendant before sentencing, if the defendant agrees to\nthat procedure. Otherwise, the government would be unable to dispose of the property until the\nsentencing took place.\nSubdivision (b)(4) addresses the right of either party to request that a jury make the\ndetermination of whether any property is subject to forfeiture. The provision gives the defendant,\nin all cases where a jury has returned a guilty verdict, the option of asking that the jury be retained\nto hear additional evidence regarding the forfeitability of the property. The only issue for the jury\nin such cases would be whether the government has established the requisite nexus between the\nproperty and the offense. For example, if the defendant disputes the government\'s allegation that a\nparcel of real property is traceable to the offense, the defendant would have the right to request that\nthe jury hear evidence on that issue, and return a special verdict, in a bifurcated proceeding that\nwould occur after the jury returns the guilty verdict. The government would have the same option\nof requesting a special jury verdict on this issue, as is the case under current law. See Rule 23(a)\n(trial by jury may be waived only with the consent of the government).\nWhen Rule 31(e) was promulgated, it was assumed that criminal forfeiture was akin to a\nseparate criminal offense on which evidence would be presented and the jury would have to return\na verdict. In Libretti v. United States, 516 U.S. 29 (1995), however, the Supreme Court held that\ncriminal forfeiture constitutes an aspect of the sentence imposed in a criminal case and that the\ndefendant has no constitutional right to have the jury determine any part of the forfeiture. The\nspecial verdict requirement in Rule 31(e), the Court said, is in the nature of a statutory right that\ncan be modified or repealed at any time.\nEven before Libretti, lower courts had determined that criminal forfeiture is a sentencing\nmatter and concluded that criminal trials therefore should be bifurcated so that the jury first returns\na verdict on guilt or innocence and then returns to hear evidence regarding the forfeiture. In the\nsecond part of the bifurcated proceeding, the jury is instructed that the government must establish\nthe forfeitability of the property by a preponderance of the evidence. See United States v. Myers,\n21 F.3d 826 (8th Cir. 1994) (preponderance standard applies because criminal forfeiture is part of\nthe sentence in money laundering cases); United States v. Voigt, 89 F.3d 1050 (3rd Cir. 1996)\n266\n\n\x0c(following Myers); United States v. Smith, 966 F.2d 1045, 1050\xe2\x80\x9353 (6th Cir. 1992) (same for drug\ncases); United States v. Bieri, 21 F.3d 819 (8th Cir. 1994) (same).\nAlthough an argument could be made under Libretti, that a jury trial is no longer\nappropriate on any aspect of the forfeiture issue, which is a part of sentencing, the Committee\ndecided to retain the right for the parties, in a trial held before a jury, to have the jury determine\nwhether the government has established the requisite statutory nexus between the offense and the\nproperty to be forfeited. The jury, however, would not have any role in determining whether a\ndefendant had an interest in the property to be forfeited. This is a matter for the ancillary\nproceeding which, by statute, is conducted \xe2\x80\x9cbefore the court alone, without a jury.\xe2\x80\x9d See 21 U.S.C.\n\xc2\xa7853(n)(2).\nSubdivision (c). Subdivision (c) sets forth a set of rules governing the conduct of the\nancillary proceeding. When the ancillary hearing provisions were added to 18 U.S.C. \xc2\xa71963 and\n21 U.S.C. \xc2\xa7853 in 1984, Congress apparently assumed that the proceedings under the new\nprovisions would involve simple questions of ownership that could, in the ordinary case, be\nresolved in 30 days. See 18 U.S.C. \xc2\xa71963 (l)(4). Presumably for that reason, the statute contains no\nprocedures governing motions practice or discovery such as would be available in an ordinary civil\ncase. Subdivision (c)(1) makes clear that no ancillary proceeding is required to the extent that the\norder of forfeiture consists of a money judgment. A money judgment is an in personam judgment\nagainst the defendant and not an order directed at specific assets in which any third party could\nhave any interest.\nExperience has shown that ancillary hearings can involve issues of enormous complexity\nthat require years to resolve. See United States v. BCCI Holdings (Luxembourg) S.A., 833 F. Supp.\n9 (D.D.C. 1993) (ancillary proceeding involving over 100 claimants and $451 million); United\nStates v. Porcelli, CR\xe2\x80\x9385\xe2\x80\x9300756 (CPS), 1992 U.S. Dist. LEXIS 17928 (E.D.N.Y. Nov. 5, 1992)\n(litigation over third party claim continuing 6 years after RICO conviction). In such cases,\nprocedures akin to those available under the Federal Rules of Civil Procedure should be available\nto the court and the parties to aid in the efficient resolution of the claims.\nBecause an ancillary hearing is connected to a criminal case, it would not be appropriate to\nmake the Civil Rules applicable in all respects. The amendment, however, describes several\nfundamental areas in which procedures analogous to those in the Civil Rules may be followed.\nThese include the filing of a motion to dismiss a claim, conducting discovery, disposing of a claim\non a motion for summary judgment, and appealing a final disposition of a claim. Where applicable,\nthe amendment follows the prevailing case law on the issue. See, e.g., United States v. Lavin, 942\nF.2d 177 (3rd Cir. 1991) (ancillary proceeding treated as civil case for purposes of applying Rules\nof Appellate Procedure); United States v. BCCI Holdings (Luxembourg) S.A. (In re Petitions of\nGeneral Creditors), 919 F. Supp. 31 (D.D.C. 1996) (\xe2\x80\x9cIf a third party fails to allege in its petition all\nelements necessary for recovery, including those relating to standing, the court may dismiss the\npetition without providing a hearing\xe2\x80\x9d); United States v. BCCI (Holdings) Luxembourg S.A. (In re\nPetition of Department of Private Affairs), 1993 WL 760232 (D.D.C. Dec. 8, 1993) (applying\ncourt\'s inherent powers to permit third party to obtain discovery from defendant in accordance\nwith civil rules). The provision governing appeals in cases where there are multiple claims is\nderived from Fed. R. Civ. P. 54 (b). See also United States v. BCCI Holdings (Luxembourg) S.A.\n(Petition of Banque Indosuez), 961 F. Supp. 282 (D.D.C. 1997) (in resolving motion to dismiss\ncourt assumes all facts pled by third party petitioner to be true, applying Rule 12(b)(6) and denying\ngovernment\'s motion because whether claimant had superior title turned on factual dispute;\ngovernment acted reasonably in not making any discovery requests in ancillary proceeding until\n267\n\n\x0ccourt ruled on its motion to dismiss).\nSubdivision (c)(2) provides for the entry of a final order of forfeiture at the conclusion of\nthe ancillary proceeding. Under this provision, if no one files a claim in the ancillary proceeding,\nthe preliminary order would become the final order of forfeiture, but the court would first have to\nmake an independent finding that at least one of the defendants had an interest in the property such\nthat it was proper to order the forfeiture of the property in a criminal case. In making that\ndetermination, the court may rely upon reasonable inferences. For example, the fact that the\ndefendant used the property in committing the crime and no third party claimed an interest in the\nproperty may give rise to the inference that the defendant had a forfeitable interest in the property.\nThis subdivision combines and preserves two established tenets of current law. One is that\ncriminal forfeitures are in personam actions that are limited to the property interests of the\ndefendant. (This distinguishes criminal forfeiture, which is imposed as part of the defendant\'s\nsentence, from civil forfeiture which may be pursued as an action against the property in rem\nwithout regard to who the owner may be.) The other tenet of current law is that if a third party has\nnotice of the forfeiture but fails to file a timely claim, his or her interests are extinguished, and may\nnot be recognized when the court enters the final order of forfeiture. See United States v. Hentz,\n1996 WL 355327 (E.D. Pa. June 20, 1996) (once third party fails to file a claim in the ancillary\nproceeding, government has clear title under 21 U.S.C. \xc2\xa7853(n)(7) and can market the property\nnotwithstanding third party\'s name on the deed). In the rare event that a third party claims that he or\nshe was not afforded adequate notice of a criminal forfeiture action, the person may file a motion\nunder Rule 60(b) of the Federal Rules of Civil Procedure to reopen the ancillary proceeding. See\nUnited States v. Bouler, 927 F. Supp. 911 (W.D.N.C. 1996) (Rule 60(b) is the proper means by\nwhich a third party may move to reopen an ancillary proceeding).\nIf no third parties assert their interests in the ancillary proceeding, the court must\nnonetheless determine that the defendant, or combination of defendants, had an interest in the\nproperty. Criminal defendants may be jointly and severally liable for the forfeiture of the entire\nproceeds of the criminal offense. See United States v. Hurley, 63 F.3d 1 (1st Cir. 1995)\n(government can collect the proceeds only once, but subject to that cap, it can collect from any\ndefendant so much of the proceeds as was foreseeable to that defendant); United States v.\nCleveland, 1997 WL 602186 (E.D. La. Sept. 29, 1997) (same); United States v. McCarroll, 1996\nWL 355371 at *9 (N.D. Ill. June 25, 1996) (following Hurley), aff\'d sub nom. United States v.\nJarrett, 133 F.3d 519 (7th Cir. 1998); United States v. DeFries, 909 F. Supp. 13, 19\xe2\x80\x9320 (D.D.C.\n1995) (defendants are jointly and severally liable even where government is able to determine\nprecisely how much each defendant benefitted from the scheme), rev\'d on other grounds, 129 F.3d\n1293 (D.C. Cir. 1997). Therefore, the conviction of any of the defendants is sufficient to support\nthe forfeiture of the entire proceeds of the offense, even if the defendants have divided the money\namong themselves.\nAs noted in (c)(4), the ancillary proceeding is not considered a part of sentencing. Thus, the\nFederal Rules of Evidence would apply to the ancillary proceeding, as is the case currently.\nSubdivision (d). Subdivision (d) replaces the forfeiture provisions of Rule 38(e) which\nprovide that the court may stay an order of forfeiture pending appeal. The purpose of the provision\nis to ensure that the property remains intact and unencumbered so that it may be returned to the\ndefendant in the event the appeal is successful. Subdivision (d) makes clear, however, that a\ndistrict court is not divested of jurisdiction over an ancillary proceeding even if the defendant\nappeals his or her conviction. This allows the court to proceed with the resolution of third party\nclaims even as the appellate court considers the appeal. Otherwise, third parties would have to\n268\n\n\x0cawait the conclusion of the appellate process even to begin to have their claims heard. See United\nStates v. Messino, 907 F. Supp. 1231 (N.D. Ill. 1995) (the district court retains jurisdiction over\nforfeiture matters while an appeal is pending).\nFinally, subdivision (d) provides a rule to govern what happens if the court determines that\na third-party claim should be granted but the defendant\'s appeal is still pending. The defendant is\nbarred from filing a claim in the ancillary proceeding. See 18 U.S.C. \xc2\xa71963 (l)(2); 21 U.S.C.\n\xc2\xa7853(n)(2). Thus, the court\'s determination, in the ancillary proceeding, that a third party has an\ninterest in the property superior to that of the defendant cannot be binding on the defendant. So, in\nthe event that the court finds in favor of the third party, that determination is final only with respect\nto the government\'s alleged interest. If the defendant prevails on appeal, he or she recovers the\nproperty as if no conviction or forfeiture ever took place. But if the order of forfeiture is affirmed,\nthe amendment to the order of forfeiture in favor of the third party becomes effective.\nSubdivision (e). Subdivision (e) makes clear, as courts have found, that the court retains\njurisdiction to amend the order of forfeiture at any time to include subsequently located property\nwhich was originally included in the forfeiture order and any substitute property. See United States\nv. Hurley, 63 F.3d 1 (1st Cir. 1995) (court retains authority to order forfeiture of substitute assets\nafter appeal is filed); United States v. Voigt, 89 F.3d 1050 (3rd Cir. 1996) (following Hurley).\nThird parties, of course, may contest the forfeiture of substitute assets in the ancillary proceeding.\nSee United States v. Lester, 85 F.3d 1409 (9th Cir. 1996).\nSubdivision (e)(1) makes clear that the right to a bifurcated jury trial to determine whether\nthe government has established the requisite nexus between the property and the offense, see\n(b)(4), does not apply to the forfeiture of substitute assets or to the addition of newly-discovered\nproperty to an existing order of forfeiture. It is well established in the case law that the forfeiture of\nsubstitute assets is solely an issue for the court. See United States v. Hurley, 63 F.3d 1 (1st Cir.\n1995) (court retains authority to order forfeiture of substitute assets after appeal is filed); United\nStates v. Voigt, 89 F.3d 1050 (3d Cir. 1996) (following Hurley; court may amend order of\nforfeiture at any time to include substitute assets); United States v. Thompson, 837 F. Supp. 585\n(S.D.N.Y. 1993) (court, not jury, orders forfeiture of substitute assets). As a practical matter,\ncourts have also determined that they, not the jury, must determine the forfeitability of assets\ndiscovered after the trial is over and the jury has been dismissed. See United States v. Saccoccia,\n898 F. Supp. 53 (D.R.I. 1995) (government may conduct post-trial discovery to determine location\nand identity of forfeitable assets; post-trial discovery resulted in discovery of gold bars buried in\ndefendant\'s mother\'s backyard several years after the entry of an order directing the defendant to\nforfeit all property, up to $137 million, involved in his money laundering offense).\nGAP Report\xe2\x80\x94Rule 32.2. The Committee amended the rule to clarify several key points.\nFirst, subdivision (b) was redrafted to make it clear that if no third party files a petition to assert\nproperty rights, the trial court must determine whether the defendant has an interest in the property\nto be forfeited and the extent of that interest. As published, the rule would have permitted the trial\njudge to order the defendant to forfeit the property in its entirety if no third party filed a claim.\nSecond, Rule 32.2(c)(4) was added to make it clear that the ancillary proceeding is not a\npart of sentencing.\nThird, the Committee clarified the procedures to be used if the government (1) discovers\nproperty subject to forfeiture after the court has entered an order of forfeiture and (2) seeks the\nforfeiture of \xe2\x80\x9csubstitute\xe2\x80\x9d property under a statute authorizing such substitution.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\n\n269\n\n\x0cThe language of Rule 32.2 has been amended as part of the general restyling of the\nCriminal Rules to make them more easily understood and to make style and terminology\nconsistent throughout the rules. These changes are intended to be stylistic only.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nSubdivision (a). The amendment responds to some uncertainty regarding the form of the\nrequired notice that the government will seek forfeiture as part of the sentence, making it clear that\nthe notice should not be designated as a separate count in an indictment or information. The\namendment also makes it clear that the indictment or information need only provide general notice\nthat the government is seeking forfeiture, without identifying the specific property being sought.\nThis is consistent with the 2000 Committee Note, as well as many lower court decisions.\nAlthough forfeitures are not charged as counts, the federal judiciary\'s Case Management\nand Electronic Case Files system should note that forfeiture has been alleged so as to assist the\nparties and the court in tracking the subsequent status of forfeiture allegations.\nThe court may direct the government to file a bill of particulars to inform the defendant of\nthe identity of the property that the government is seeking to forfeit or the amount of any money\njudgment sought if necessary to enable the defendant to prepare a defense or to avoid unfair\nsurprise. See, e.g., United States v. Moffitt, Zwerdling, & Kemler, P.C., 83 F.3d 660, 665 (4th Cir.\n1996) (holding that the government need not list each asset subject to forfeiture in the indictment\nbecause notice can be provided in a bill of particulars); United States v. Vasquez-Ruiz, 136 F.\nSupp. 2d 941, 944 (N.D. Ill. 2001) (directing the government to identify in a bill of particulars, at\nleast 30 days before trial, the specific items of property, including substitute assets, that it claims\nare subject to forfeiture); United States v. Best, 657 F. Supp. 1179, 1182 (N.D. Ill. 1987) (directing\nthe government to provide a bill of particulars apprising the defendants as to the time periods\nduring which they obtained the specified classes of property through their alleged racketeering\nactivity and the interest in each of these properties that was allegedly obtained unlawfully). See\nalso United States v. Columbo, 2006 WL 2012511 * 5 & n.13 (S.D. N.Y. 2006) (denying motion\nfor bill of particulars and noting that government proposed sending letter detailing basis for\nforfeiture allegations).\nSubdivision (b)(1). Rule 32.2(b)(1) sets forth the procedure for determining if property is\nsubject to forfeiture. Subparagraph (A) is carried forward from the current Rule without change.\nSubparagraph (B) clarifies that the parties may submit additional evidence relating to the\nforfeiture in the forfeiture phase of the trial, which may be necessary even if the forfeiture is not\ncontested. Subparagraph (B) makes it clear that in determining what evidence or information\nshould be accepted, the court should consider relevance and reliability. Finally, subparagraph (B)\nrequires the court to hold a hearing when forfeiture is contested. The Committee foresees that in\nsome instances live testimony will be needed to determine the reliability of proffered information.\nCf. Rule 32.1(b)(1)(B)(iii) (providing the defendant in a proceeding for revocation of probation or\nsupervised release with the opportunity, upon request, to question any adverse witness unless the\njudge determines this is not in the interest of justice).\nSubdivision (b)(2)(A). Current Rule 32.2(b) provides the procedure for issuing a\npreliminary forfeiture order once the court finds that the government has established the nexus\nbetween the property and the offense (or the amount of the money judgment). The amendment\nmakes clear that the preliminary order may include substitute assets if the government has met the\n270\n\n\x0cstatutory criteria.\nSubdivision (b)(2)(B). This new subparagraph focuses on the timing of the preliminary\nforfeiture order, stating that the court should issue the order \xe2\x80\x9csufficiently in advance of sentencing\nto allow the parties to suggest revisions or modifications before the order becomes final.\xe2\x80\x9d Many\ncourts have delayed entry of the preliminary order until the time of sentencing. This is undesirable\nbecause the parties have no opportunity to advise the court of omissions or errors in the order\nbefore it becomes final as to the defendant (which occurs upon oral announcement of the sentence\nand the entry of the criminal judgment). Once the sentence has been announced, the rules give the\nsentencing court only very limited authority to correct errors or omissions in the preliminary\nforfeiture order. Pursuant to Rule 35(a), the district court may correct a sentence, including an\nincorporated forfeiture order, within seven days after oral announcement of the sentence. During\nthe seven-day period, corrections are limited to those necessary to correct \xe2\x80\x9carithmetical, technical,\nor other clear error.\xe2\x80\x9d See United States v. King, 368 F. Supp. 2d 509, 512\xe2\x80\x9313 (D.S.C. 2005).\nCorrections of clerical errors may also be made pursuant to Rule 36. If the order contains errors or\nomissions that do not fall within Rules 35(a) or 36, and the court delays entry of the preliminary\nforfeiture order until the time of sentencing, the parties may be left with no alternative to an appeal,\nwhich is a waste of judicial resources. The amendment requires the court to enter the preliminary\norder in advance of sentencing to permit time for corrections, unless it is not practical to do so in an\nindividual case.\nSubdivision (b)(2)(C). The amendment explains how the court is to reconcile the\nrequirement that it make the forfeiture order part of the sentence with the fact that in some cases\nthe government will not have completed its post-conviction investigation to locate the forfeitable\nproperty by the time of sentencing. In that case the court is authorized to issue a forfeiture order\ndescribing the property in \xe2\x80\x9cgeneral\xe2\x80\x9d terms, which order may be amended pursuant to Rule\n32.2(e)(1) when additional specific property is identified.\nThe authority to issue a general forfeiture order should be used only in unusual\ncircumstances and not as a matter of course. For cases in which a general order was properly\nemployed, see United States v. BCCI Holdings (Luxembourg), 69 F. Supp. 2d 36 (D.D.C. 1999)\n(ordering forfeiture of all of a large, complex corporation\'s assets in the United States, permitting\nthe government to continue discovery necessary to identify and trace those assets); United States v.\nSaccoccia, 898 F. Supp. 53 (D.R.I. 1995) (ordering forfeiture of up to a specified amount of\nlaundered drug proceeds so that the government could continue investigation which led to the\ndiscovery and forfeiture of gold bars buried by the defendant in his mother\'s back yard).\nSubdivisions (b)(3) and (4). The amendment moves the language explaining when the\nforfeiture order becomes final as to the defendant to new subparagraph (b)(4)(A), where it is\ncoupled with new language explaining that the order is not final as to third parties until the\ncompletion of the ancillary proceedings provided for in Rule 32.2(c).\nNew subparagraphs (B) and (C) are intended to clarify what the district court is required to\ndo at sentencing, and to respond to conflicting decisions in the courts regarding the application of\nRule 36 to correct clerical errors. The new subparagraphs add considerable detail regarding the\noral announcement of the forfeiture at sentencing, the reference to the forfeiture order in the\njudgment and commitment order, the availability of Rule 36 to correct the failure to include the\nforfeiture order in the judgment and commitment order, and the time to appeal.\nNew subparagraph (C) clarifies the time for appeals concerning forfeiture by the defendant\nor government from two kinds of orders: the original judgment of conviction and later orders\namending or refusing to amend the judgment under Rule 32.2(e) to add additional property. This\n271\n\n\x0cprovision does not address appeals by the government or a third party from orders in ancillary\nproceedings under Rule 32.2(c).\nSubdivision (b)(5)(A). The amendment clarifies the procedure for requesting a jury\ndetermination of forfeiture. The goal is to avoid an inadvertent waiver of the right to a jury\ndetermination, while also providing timely notice to the court and to the jurors themselves if they\nwill be asked to make the forfeiture determination. The amendment requires that the court\ndetermine whether either party requests a jury determination of forfeiture in cases where the\ngovernment has given notice that it is seeking forfeiture and a jury has been empaneled to\ndetermine guilt or innocence. The rule requires the court to make this determination before the jury\nretires. Jurors who know that they may face an additional task after they return their verdict will be\nmore accepting of the additional responsibility in the forfeiture proceeding, and the court will be\nbetter able to plan as well.\nAlthough the rule permits a party to make this request just before the jury retires, it is\ndesirable, when possible, to make the request earlier, at the time when the jury is empaneled. This\nallows the court to plan, and also allows the court to tell potential jurors what to expect in terms of\ntheir service.\nSubdivision (b)(5)(B) explains that \xe2\x80\x9cthe government must submit a proposed Special\nVerdict Form listing each property subject to forfeiture.\xe2\x80\x9d Use of such a form is desirable, and the\ngovernment is in the best position to draft the form.\nSubdivisions (b)(6) and (7). These provisions are based upon the civil forfeiture provisions\nin Supplemental Rule G of the Federal Rules of Civil Procedure, which are also incorporated by\ncross reference. The amendment governs such mechanical and technical issues as the manner of\npublishing notice of forfeiture to third parties and the interlocutory sale of property, bringing\npractice under the Criminal Rules into conformity with the Civil Rules.\nChanges Made to Proposed Amendment Released for Public Comment. The proposed\namendment to Rule 32.2 was modified to use the term \xe2\x80\x9cproperty\xe2\x80\x9d throughout. As published, the\nproposed amendment used the terms property and asset(s) interchangeably. No difference in\nmeaning was intended, and in order to avoid confusion, a single term was used consistently\nthroughout. The term \xe2\x80\x9cforfeiture order\xe2\x80\x9d was substituted, where possible, for the wordier \xe2\x80\x9corder of\nforfeiture.\xe2\x80\x9d Other small stylistic changes (such as the insertion of \xe2\x80\x9cthe\xe2\x80\x9d in subpart titles) were also\nmade to conform to the style conventions.\nIn new subpart (b)(4)(C), dealing with the time for appeals, the words \xe2\x80\x9cthe defendant or the\ngovernment\xe2\x80\x9d were substituted for the phrase \xe2\x80\x9ca party.\xe2\x80\x9d This portion of the rule addresses only\nappeals from the original judgment of conviction and later orders amending or refusing to amend\nthe judgment under Rule 32.2(e) to add additional property. Only the defendant and the\ngovernment are parties at this stage of the proceedings. This portion of the rule does not address\nappeals by the government or a third party from orders in ancillary proceedings under Rule\n32.2(c). This point was also clarified in the Committee note.\nAdditionally, two other changes were made to the Committee Note: a reference to the use\nof the ECF system to aid the court and parties in tracking the status of forfeiture allegations, and an\nadditional illustrative case.\nReferences in Text\nThe Supplemental Rules of the Federal Rules of Civil Procedure, referred to in subd.\n(b)(6)(C), (D), (7), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.\n272\n\n\x0cThe Federal Rules of Civil Procedure, referred to in subd. (c)(1)(B), are set out in the\nAppendix to Title 28, Judiciary and Judicial Procedure.\n\nRule 33. New Trial\n(a) Defendant\'s Motion. Upon the defendant\'s motion, the court may vacate any judgment\nand grant a new trial if the interest of justice so requires. If the case was tried without a jury, the\ncourt may take additional testimony and enter a new judgment.\n(b) Time to File.\n(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered\nevidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending,\nthe court may not grant a motion for a new trial until the appellate court remands the case.\n(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly\ndiscovered evidence must be filed within 14 days after the verdict or finding of guilty.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 24,\n1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26,\n2009, eff. Dec. 1, 2009.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule enlarges the time limit for motions for new trial on the ground of newly\ndiscovered evidence, from 60 days to two years; and for motions for new trial on other grounds\nfrom three to five days. Otherwise, it substantially continues existing practice. See Rule II of the\nCriminal Appeals Rules of 1933, 292 U.S. 661. Cf. Rule 59(a) of the Federal Rules of Civil\nProcedure [28 U.S.C., Appendix].\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe amendments to the first two sentences make it clear that a judge has no power to order\na new trial on his own motion, that he can act only in response to a motion timely made by a\ndefendant. Problems of double jeopardy arise when the court acts on its own motion. See United\nStates v. Smith, 331 U.S. 469 (1947). These amendments do not, of course, change the power\nwhich the court has in certain circumstances, prior to verdict or finding of guilty, to declare a\nmistrial and order a new trial on its own motion. See e.g., Gori v. United States, 367 U.S. 364\n(1961); Downum v. United States, 372 U.S. 734 (1963); United States v. Tateo, 377 U.S. 463\n(1964). The amendment to the last sentence changes the time in which the motion may be made to\n7 days. See the Advisory Committee\'s Note to Rule 29.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x941998 Amendment\n\n273\n\n\x0cAs currently written, the time for filing a motion for new trial on the ground of newly\ndiscovered evidence runs from the \xe2\x80\x9cfinal judgment.\xe2\x80\x9d The courts, in interpreting that language,\nhave uniformly concluded that that language refers to the action of the Court of Appeals. See, e.g.,\nUnited States v. Reyes, 49 F.3d 63, 66 (2d Cir. 1995)(citing cases). It is less clear whether that\naction is the appellate court\'s judgment or the issuance of its mandate. In Reyes, the court\nconcluded that it was the latter event. In either case, it is clear that the present approach of using the\nappellate court\'s final judgment as the triggering event can cause great disparity in the amount of\ntime available to a defendant to file timely a motion for new trial. This would be especially true if,\nas noted by the Court in Reyes, supra at 67, an appellate court stayed its mandate pending review\nby the Supreme Court. See also Herrera v. Collins, 506 U.S. 390, 410 \xe2\x80\x93412 (1993) (noting\ndivergent treatment by States of time for filing motions for new trial).\nIt is the intent of the Committee to remove that element of inconsistency by using the trial\ncourt\'s verdict or finding of guilty as the triggering event. The change also furthers internal\nconsistency within the rule itself; the time for filing a motion for new trial on any other ground\ncurrently runs from that same event.\nFinally, the time to file a motion for new trial based upon newly discovered evidence is\nincreased to three years to compensate for what would have otherwise resulted in less time than\nthat currently contemplated in the rule for filing such motions.\nChanges Made to Rule 33 After Publication (\xe2\x80\x9cGAP Report\xe2\x80\x9d). The Advisory Committee\nchanged the proposed amendment to require that any motions for new trials based upon newly\ndiscovered evidence must be filed within three years, instead of two years, from the date of the\nverdict. The Committee also incorporated changes offered by the Style Subcommittee.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 33 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nCommittee Notes on Rules\xe2\x80\x942005 Amendment\nRule 33(b)(2) has been amended to remove the requirement that the court must act within\nseven days after a verdict or finding of guilty if it sets another time for filing a motion for a new\ntrial. This amendment parallels similar changes to Rules 29 and 34. Further, a conforming\namendment has been made to Rule 45(b)(2).\nCurrently, Rule 33(b)(2) requires the defendant to move for a new trial within seven days\nafter the verdict or the finding of guilty verdict, or within some other time set by the court in an\norder issued during that same seven-day period. Similar provisions exist in Rules 29 and 34.\nCourts have held that the seven-day rule is jurisdictional. Thus, if a defendant files a request for an\nextension of time to file a motion for a new trial within the seven-day period, the court must rule on\nthat motion or request within the same seven-day period. If for some reason the court does not rule\non the request within the seven days, it loses jurisdiction to act on the underlying substantive\nmotion. See, e.g., United States v. Smith, 331 U.S. 469, 473 \xe2\x80\x93474 (1947) (rejecting argument that\ntrial court had power to grant new trial on its own motion after expiration of time in Rule 33);\nUnited States v. Marquez, 291 F.3d 23, 27\xe2\x80\x9328 (D.C. Cir. 2002) (citing language of Rule 33, and\nholding that \xe2\x80\x9cdistrict court forfeited the power to act when it failed to . . . fix a new time for a filing\n274\n\n\x0ca motion for new trial [sic] within seven days of the verdict\xe2\x80\x9d).\nAssuming that the current rule was intended to promote finality, there is nothing to prevent\nthe court from granting the defendant a significant extension of time, so long as it does so within\nthe seven-day period. Thus, the Committee believed that the rule should be amended to be\nconsistent with all of the other timing requirements in the rules, which do not force the court to act\non a motion to extend the time for filing within a particular period of time or lose jurisdiction to do\nso.\nAccordingly, the amendment deletes the language regarding the court\'s acting within seven\ndays to set the time for filing. Read in conjunction with the conforming amendment to Rule 45(b),\nthe defendant is still required to file a timely motion for a new trial under Rule 33(b)(2) within the\nseven-day period specified. The defendant may, under Rule 45, seek an extension of time to file\nthe underlying motion as long as the defendant does so within the seven-day period. But the court\nitself is not required to act on that motion within any particular time. Further, under Rule\n45(b)(1)(B), if for some reason the defendant fails to file the underlying motion for new trial\nwithin the specified time, the court may nonetheless consider that untimely underlying motion if\nthe court determines that the failure to file it on time was the result of excusable neglect.\nChanges Made After Publication and Comment. The Committee made no substantive\nchanges to Rule 33 following publication.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nFormer Rules 29, 33, and 34 adopted 7-day periods for their respective motions. This\nperiod has been expanded to 14 days. Experience has proved that in many cases it is not possible to\nprepare a satisfactory motion in 7 days, even under the former rule that excluded intermediate\nSaturdays, Sundays, and legal holidays. This led to frequent requests for continuances, and the\nfiling of bare bones motions that required later supplementation. The 14-day period\xe2\x80\x94including\nintermediate Saturdays, Sundays, and legal holidays as provided by Rule 45(a)\xe2\x80\x94sets a more\nrealistic time for the filing of these motions.\n\nRule 34. Arresting Judgment\n(a) In General. Upon the defendant\'s motion or on its own, the court must arrest judgment if\nthe court does not have jurisdiction of the charged offense. if:\n(1) the indictment or information does not charge an offense; or\n(2) the court does not have jurisdiction of the charged offense.\n(b) Time to File. The defendant must move to arrest judgment within 14 days after the\ncourt accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25,\n2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 25, 2014, eff. Dec. 1, 2014.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule continues existing law except that it enlarges the time for making motions in\n275\n\n\x0carrest of judgment from 3 days to 5 days. See Rule II (2) of Criminal Appeals Rules of 1933, 292\nU.S.C. 661.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe words \xe2\x80\x9con motion of a defendant\xe2\x80\x9d are added to make clear here, as in Rule 33, that the\ncourt may act only pursuant to a timely motion by the defendant.\nThe amendment to the second sentence is designed to clarify an ambiguity in the rule as\noriginally drafted. In Lott v. United States, 367 U.S. 421 (1961) the Supreme Court held that when\na defendant pleaded nolo contendere the time in which a motion could be made under this rule did\nnot begin to run until entry of the judgment. The Court held that such a plea was not a\n\xe2\x80\x9cdetermination of guilty.\xe2\x80\x9d No reason of policy appears to justify having the time for making this\nmotion commence with the verdict or finding of guilt but not with the acceptance of the plea of\nnolo contendere or the plea of guilty. The amendment changes the result in the Lott case and makes\nthe periods uniform. The amendment also changes the time in which the motion may be made to 7\ndays. See the Advisory Committee\'s Note to Rule 29.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 34 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nCommittee Notes on Rules\xe2\x80\x942005 Amendment\nRule 34(b) has been amended to remove the requirement that the court must act within\nseven days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo\ncontendere if it sets another time for filing a motion to arrest a judgment. The amendment parallels\nsimilar amendments to Rules 29 and 33. Further, a conforming amendment has been made to Rule\n45(b).\nCurrently, Rule 34(b) requires the defendant to move to arrest judgment within seven days\nafter the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere, or\nwithin some other time set by the court in an order issued by the court within that same seven-day\nperiod. Similar provisions exist in Rules 29 and 33. Courts have held that the seven-day rule is\njurisdictional. Thus, if a defendant files a request for an extension of time to file a motion to arrest\njudgment within the seven-day period, the judge must rule on that motion or request within the\nsame seven-day period. If for some reason the court does not rule on the request within the seven\ndays, the court loses jurisdiction to act on the underlying substantive motion, if it is not filed within\nthe seven days. See, e.g., United States v. Smith, 331 U.S. 469, 473 \xe2\x80\x93474 (1947) (rejecting\nargument that trial court had power to grant new trial on its own motion after expiration of time in\nRule 33); United States v. Marquez, 291 F.3d 23, 27\xe2\x80\x9328 (D.C. Cir. 2002) (citing language of Rule\n33, and holding that \xe2\x80\x9cdistrict court forfeited the power to act when it failed to . . . fix a new time for\nfiling a motion for a new trial within seven days of the verdict\xe2\x80\x9d).\nAssuming that the current rule was intended to promote finality, there is nothing to prevent\nthe court from granting the defendant a significant extension of time, so long as it does so within\nthe seven-day period. Thus, the Committee believed that the rule should be amended to be\n276\n\n\x0cconsistent with all of the other timing requirements in the rules, which do not force the court to rule\non a motion to extend the time for filing within a particular period of time or lose jurisdiction to do\nso.\nAccordingly, the amendment deletes the language regarding the court\'s acting within seven\ndays to set the time for filing. Read in conjunction with the conforming amendment to Rule 45(b),\nthe defendant is still required to file a timely motion to arrest judgment under Rule 34 within the\nseven-day period specified. The defendant may, under Rule 45, seek an extension of time to file\nthe underlying motion as long as the defendant does so within the seven-day period. But the court\nitself is not required to act on that motion within any particular time. Further, under Rule\n45(b)(1)(B), if for some reason the defendant fails to file the underlying motion within the\nspecified time, the court may nonetheless consider that untimely motion if the court determines\nthat the failure to file it on time was the result of excusable neglect.\nChanges Made After Publication and Comment. The Committee made no substantive\nchanges to Rule 34 following publication.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nFormer Rules 29, 33, and 34 adopted 7-day periods for their respective motions. This\nperiod has been expanded to 14 days. Experience has proved that in many cases it is not possible to\nprepare a satisfactory motion in 7 days, even under the former rule that excluded intermediate\nSaturdays, Sundays, and legal holidays. This led to frequent requests for continuances, and the\nfiling of bare bones motions that required later supplementation. The 14-day period\xe2\x80\x94including\nintermediate Saturdays, Sundays, and legal holidays as provided by Rule 45(a)\xe2\x80\x94sets a more\nrealistic time for the filing of these motions.\nCommittee Notes on Rules\xe2\x80\x942014 Amendment\nRule 34(a). This amendment conforms Rule 34 to Rule 12(b) which has been amended to\nremove language that the court at any time while the case is pending may hear a claim that the\n"indictment or information fails . . . to state an offense." The amended Rule 12 instead requires that\nsuch a defect be raised before trial.\n\nRule 35. Correcting or Reducing a Sentence\n(a) Correcting Clear Error. Within 14 days after sentencing, the court may correct a\nsentence that resulted from arithmetical, technical, or other clear error.\n(b) Reducing a Sentence for Substantial Assistance.\n(1) In General. Upon the government\'s motion made within one year of sentencing, the\ncourt may reduce a sentence if the defendant, after sentencing, provided substantial assistance in\ninvestigating or prosecuting another person.\n(2) Later Motion. Upon the government\'s motion made more than one year after\nsentencing, the court may reduce a sentence if the defendant\'s substantial assistance involved:\n(A) information not known to the defendant until one year or more after sentencing;\n(B) information provided by the defendant to the government within one year of\nsentencing, but which did not become useful to the government until more than one year after\nsentencing; or\n(C) information the usefulness of which could not reasonably have been anticipated by the\n277\n\n\x0cdefendant until more than one year after sentencing and which was promptly provided to the\ngovernment after its usefulness was reasonably apparent to the defendant.\n(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided\nsubstantial assistance, the court may consider the defendant\'s presentence assistance.\n(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the\nsentence to a level below the minimum sentence established by statute.\n(c) \xe2\x80\x9cSentencing\xe2\x80\x9d Defined. As used in this rule, \xe2\x80\x9csentencing\xe2\x80\x9d means the oral announcement\nof the sentence.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28,\n1983, eff. Aug. 1, 1983; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7215(b), Oct. 12, 1984, 98 Stat. 2015; Apr. 29,\n1985, eff. Aug. 1, 1985; Pub. L. 99\xe2\x80\x93570, title I, \xc2\xa71009(a), Oct. 27, 1986, 100 Stat. 3207\xe2\x80\x938; Apr. 30,\n1991, eff. Dec. 1, 1991; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26,\n2004, eff. Dec. 1, 2004; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThe first sentence of the rule continues existing law. The second sentence introduces a\nflexible time limitation on the power of the court to reduce a sentence, in lieu of the present\nlimitation of the term of court. Rule 45(c) abolishes the expiration of a term of court as a time\nlimitation, thereby necessitating the introduction of a specific time limitation as to all proceedings\nnow governed by the term of court as a limitation. The Federal Rules of Civil Procedure (Rule\n6(c)) [28 U.S.C., Appendix], abolishes the term of court as a time limitation in respect to civil\nactions. The two rules together thus do away with the significance of the expiration of a term of\ncourt which has largely become an anachronism.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe amendment to the first sentence gives the court power to correct a sentence imposed in\nan illegal manner within the same time limits as those provided for reducing a sentence. In Hill v.\nUnited States, 368 U.S. 424 (1962) the court held that a motion to correct an illegal sentence was\nnot an appropriate way for a defendant to raise the question whether when he appeared for\nsentencing the court had afforded him an opportunity to make a statement in his own behalf as\nrequired by Rule 32(a). The amendment recognizes the distinction between an illegal sentence,\nwhich may be corrected at any time, and a sentence imposed in an illegal manner, and provides a\nlimited time for correcting the latter.\nThe second sentence has been amended to increase the time within which the court may act\nfrom 60 days to 120 days. The 60-day period is frequently too short to enable the defendant to\nobtain and file the evidence, information and argument to support a reduction in sentence.\nEspecially where a defendant has been committed to an institution at a distance from the\nsentencing court, the delays involved in institutional mail inspection procedures and the time\nrequired to contact relatives, friends and counsel may result in the 60-day period passing before the\ncourt is able to consider the case.\nThe other amendments to the second sentence clarify ambiguities in the timing provisions.\nIn those cases in which the mandate of the court of appeals is issued prior to action by the Supreme\n278\n\n\x0cCourt on the defendant\'s petition for certiorari, the rule created problems in three situations: (1) If\nthe writ were denied, the last phrase of the rule left obscure the point at which the period began to\nrun because orders of the Supreme Court denying applications for writs are not sent to the district\ncourts. See Johnson v. United States, 235 F.2d 459 (5th Cir. 1956). (2) If the writ were granted but\nlater dismissed as improvidently granted, the rule did not provide any time period for reduction of\nsentence. (3) If the writ were granted and later the Court affirmed a judgment of the court of\nappeals which had affirmed the conviction, the rule did not provide any time period for reduction\nof sentence. The amendment makes it clear that in each of these three situations the 120-period\ncommences to run with the entry of the order or judgment of the Supreme Court.\nThe third sentence has been added to make it clear that the time limitation imposed by Rule\n35 upon the reduction of a sentence does not apply to such reduction upon the revocation of\nprobation as authorized by 18 U.S.C. \xc2\xa73653.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nRule 35 is amended in order to make it clear that a judge may, in his discretion, reduce a\nsentence of incarceration to probation. To the extent that this permits the judge to grant probation\nto a defendant who has already commenced service of a term of imprisonment, it represents a\nchange in the law. See United States v. Murray, 275 U.S. 347 (1928) (Probation Act construed not\nto give power to district court to grant probation to convict after beginning of service of sentence,\neven in the same term of court); Affronti v. United States, 350 U.S. 79 (1955) (Probation Act\nconstrued to mean that after a sentence of consecutive terms on multiple counts of an indictment\nhas been imposed and service of sentence for the first such term has commenced, the district court\nmay not suspend sentence and grant probation as to the remaining term or terms). In construing the\nstatute in Murray and Affronti, the Court concluded Congress could not have intended to make the\nprobation provisions applicable during the entire period of incarceration (the only other\nconceivable interpretation of the statute), for this would result in undue duplication of the three\nmethods of mitigating a sentence\xe2\x80\x94probation, pardon and parole\xe2\x80\x94and would impose upon district\njudges the added burden of responding to probation applications from prisoners throughout the\nservice of their terms of imprisonment. Those concerns do not apply to the instant provisions, for\nthe reduction may occur only within the time specified in subdivision (b). This change gives\n\xe2\x80\x9cmeaningful effect\xe2\x80\x9d to the motion-to-reduce remedy by allowing the court \xe2\x80\x9cto consider all\nalternatives that were available at the time of imposition of the original sentence.\xe2\x80\x9d United States v.\nGolphin, 362 F.Supp. 698 (W.D.Pa. 1973).\nShould the reduction to a sentence of probation occur after the defendant has been\nincarcerated more than six months, this would put into issue the applicability of 18 U.S.C. \xc2\xa73651,\nwhich provides that initially the court \xe2\x80\x9cmay impose a sentence in excess of six months and provide\nthat the defendant be confined in a jail-type institution for a period not exceeding six months and\nthat the execution of the remainder of the sentence be suspended and the defendant placed on\nprobation for such period and upon such terms and conditions as the court deems best.\xe2\x80\x9d\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nNote to Subdivision (b). There is currently a split of authority on the question of whether a\ncourt may reduce a sentence within 120 days after revocation of probation when the sentence was\nimposed earlier but execution of the sentence had in the interim been suspended in part or in its\n279\n\n\x0centirety. Compare United States v. Colvin, 644 F.2d 703 (8th Cir. 1981) (yes); United States v.\nJohnson, 634 F.2d 94 (3d Cir. 1980) (yes); with United States v. Rice, 671 F.2d 455 (11th Cir.\n1982) (no); United States v. Kahane, 527 F.2d 491 (2d Cir. 1975) (no). The Advisory Committee\nbelieves that the rule should be clarified in light of this split, and has concluded that as a policy\nmatter the result reached in Johnson is preferable.\nThe Supreme Court declared in Korematsu v. United States, 319 U.S. 432, 435 (1943), that\n\xe2\x80\x9cthe difference to the probationer between imposition of sentence followed by probation . . . and\nsuspension of the imposition of sentence [followed by probation]\xe2\x80\x9d is not a meaningful one. When\nimposition of sentence is suspended entirely at the time a defendant is placed on probation, that\ndefendant has 120 days after revocation of probation and imposition of sentence to petition for\nleniency. The amendment to subdivision (b) makes it clear that similar treatment is to be afforded\nprobationers for whom execution, rather than imposition, of sentence was originally suspended.\nThe change facilitates the underlying objective of rule 35, which is to \xe2\x80\x9cgive every\nconvicted defendant a second round before the sentencing judge, and [afford] the judge an\nopportunity to reconsider the sentence in the light of any further information about the defendant\nor the case which may have been presented to him in the interim.\xe2\x80\x9d United States v. Ellenbogan,\n390 F.2d 537, 543 (2d Cir. 1968). It is only technically correct that a reduction may be sought\nwhen a suspended sentence is imposed. As noted in Johnson, supra, at 96:\nIt frequently will be unrealistic for a defendant whose sentence has just been suspended to\npetition the court for the further relief of a reduction of that suspended sentence.\nJust as significant, we doubt that sentencing judges would be very receptive to Rule 35\nmotions proffered at the time the execution of a term of imprisonment is suspended in whole or in\npart and the defendant given a term of probation. Moreover, the sentencing judge cannot know of\nevents that might occur later and that might bear on what would constitute an appropriate term of\nimprisonment should the defendant violate his probation. . . . In particular, it is only with the\nrevocation hearing that the judge is in a position to consider whether a sentence originally\nsuspended pending probation should be reduced. The revocation hearing is thus the first point at\nwhich an offender can be afforded a realistic opportunity to plead for a light sentence. If the\noffender is to be provided two chances with the sentencing judge, to be meaningful this second\nsentence must occur subsequent to the revocation hearing.\nNotes of Advisory Committee on Rules\xe2\x80\x941985 Amendment\nNote to Subdivision (b). This amendment to Rule 35(b) conforms its language to the\nnonliteral interpretation which most courts have already placed upon the rule, namely, that it\nsuffices that the defendant\'s motion was made within the 120 days and that the court determines\nthe motion within a reasonable time thereafter. United States v. DeMier, 671 F.2d 1200 (8th Cir.\n1982); United States v. Smith, 650 F.2d 206 (9th Cir. 1981); United States v. Johnson, 634 F.2d 94\n(3d Cir. 1980); United States v. Mendoza, 581 F.2d 89 (5th Cir. 1978); United States V. Stollings,\n516 F.2d 1287 (4th Cir. 1975). Despite these decisions, a change in the language is deemed\ndesirable to remove any doubt which might arise from dictum in some cases, e.g., United States v.\nAddonizio, 442 U.S. 178, 189 (1979), that Rule 35 only \xe2\x80\x9cauthorizes District Courts to reduce a\nsentence within 120 days\xe2\x80\x9d and that this time period \xe2\x80\x9cis jurisdictional, and may not be extended.\xe2\x80\x9d\nSee United States v. Kajevic, 711 F.2d 767 (7th Cir. 1983), following the Addonizio dictum.\nAs for the \xe2\x80\x9creasonable time\xe2\x80\x9d limitation, reasonableness in this context \xe2\x80\x9cmust be evaluated\nin light of the policies supporting the time limitations and the reasons for the delay in each case.\xe2\x80\x9d\n280\n\n\x0cUnited States v. Smith, supra, at 209. The time runs \xe2\x80\x9cat least for so long as the judge reasonably\nneeds time to consider and act upon the motion.\xe2\x80\x9d United States v. Stollings, supra, at 1288.\nIn some instances the court may decide to reduce a sentence even though no motion\nseeking such action is before the court. When that is the case, the amendment makes clear, the\nreduction must actually occur within the time specified.\nThis amendment does not preclude the filing of a motion by a defendant for further\nreduction of sentence after the court has reduced a sentence on its own motion, if filed within the\n120 days specified in this rule.\nNotes of Advisory Committee on Rules\xe2\x80\x941991 Amendment\nRule 35(b), as amended in 1987 as part of the Sentencing Reform Act of 1984, reflects a\nmethod by which the government may obtain valuable assistance from defendants in return for an\nagreement to file a motion to reduce the sentence, even if the reduction would reduce the sentence\nbelow the mandatory minimum sentence.\nThe title of subsection (b) has been amended to reflect that there is a difference between\ncorrecting an illegal or improper sentence, as in subsection (a), and reducing an otherwise legal\nsentence for special reasons under subsection (b).\nUnder the 1987 amendment, the trial court was required to rule on the government\'s motion\nto reduce a defendant\'s sentence within one year after imposition of the sentence. This caused\nproblems, however, in situations where the defendant\'s assistance could not be fully assessed in\ntime to make a timely motion which could be ruled upon before one year had elapsed. The\namendment requires the government to make its motion to reduce the sentence before one year has\nelapsed but does not require the court to rule on the motion within the one year limit. This change\nshould benefit both the government and the defendant and will permit completion of the\ndefendant\'s anticipated cooperation with the government. Although no specific time limit is set on\nthe court\'s ruling on the motion to reduce the sentence, the burden nonetheless rests on the\ngovernment to request and justify a delay in the court\'s ruling.\nThe amendment also recognizes that there may be those cases where the defendant\'s\nassistance or cooperation may not occur until after one year has elapsed. For example, the\ndefendant may not have obtained information useful to the government until after the time limit\nhad passed. In those instances the trial court in its discretion may consider what would otherwise\nbe an untimely motion if the government establishes that the cooperation could not have been\nfurnished within the one-year time limit. In deciding whether to consider an untimely motion, the\ncourt may, for example, consider whether the assistance was provided as early as possible.\nSubdivision (c) is intended to adopt, in part, a suggestion from the Federal Courts Study\nCommittee 1990 that Rule 35 be amended to recognize explicitly the ability of the sentencing court\nto correct a sentence imposed as a result of an obvious arithmetical, technical or other clear error, if\nthe error is discovered shortly after the sentence is imposed. At least two courts of appeals have\nheld that the trial court has the inherent authority, notwithstanding the repeal of former Rule 35(a)\nby the Sentencing Reform Act of 1984, to correct a sentence within the time allowed for sentence\nappeal by any party under 18 U.S.C. 3742. See United States v. Cook, 890 F.2d 672 (4th Cir. 1989)\n(error in applying sentencing guidelines); United States v. Rico, 902 F.2d 1065 (2nd Cir. 1990)\n(failure to impose prison sentence required by terms of plea agreement). The amendment in effect\ncodifies the result in those two cases but provides a more stringent time requirement. The\nCommittee believed that the time for correcting such errors should be narrowed within the time for\n281\n\n\x0cappealing the sentence to reduce the likelihood of jurisdictional questions in the event of an appeal\nand to provide the parties with an opportunity to address the court\'s correction of the sentence, or\nlack thereof, in any appeal of the sentence. A shorter period of time would also reduce the\nlikelihood of abuse of the rule by limiting its application to acknowledged and obvious errors in\nsentencing.\nThe authority to correct a sentence under this subdivision is intended to be very narrow and\nto extend only to those cases in which an obvious error or mistake has occurred in the sentence,\nthat is, errors which would almost certainly result in a remand of the case to the trial court for\nfurther action under Rule 35(a). The subdivision is not intended to afford the court the opportunity\nto reconsider the application or interpretation of the sentencing guidelines or for the court simply\nto change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues\npreviously resolved at the sentencing hearing through the exercise of the court\'s discretion with\nregard to the application of the sentencing guidelines. Furthermore, the Committee did not intend\nthat the rule relax any requirement that the parties state all objections to a sentence at or before the\nsentencing hearing. See, e.g., United States v. Jones, 899 F.2d 1097 (11th Cir. 1990).\nThe subdivision does not provide for any formalized method of bringing the error to the\nattention of the court and recognizes that the court could sua sponte make the correction. Although\nthe amendment does not expressly address the issue of advance notice to the parties or whether the\ndefendant should be present in court for resentencing, the Committee contemplates that the court\nwill act in accordance with Rules 32 and 43 with regard to any corrections in the sentence.\nCompare United States v. Cook, supra (court erred in correcting sentence sua sponte in absence of\ndefendant) with United States v. Rico, supra (court heard arguments on request by government to\ncorrect sentence). The Committee contemplates that the court would enter an order correcting the\nsentence and that such order must be entered within the seven (7) day period so that the appellate\nprocess (if a timely appeal is taken) may proceed without delay and without jurisdictional\nconfusion.\nRule 35(c) provides an efficient and prompt method for correcting obvious technical errors\nthat are called to the court\'s attention immediately after sentencing. But the addition of this\nsubdivision is not intended to preclude a defendant from obtaining statutory relief from a plainly\nillegal sentence. The Committee\'s assumption is that a defendant detained pursuant to such a\nsentence could seek relief under 28 U.S.C. \xc2\xa72255 if the seven day period provided in Rule 35(c)\nhas elapsed. Rule 35(c) and \xc2\xa72255 should thus provide sufficient authority for a district court to\ncorrect obvious sentencing errors.\nThe Committee considered, but rejected, a proposal from the Federal Courts Study\nCommittee to permit modification of a sentence, within 120 days of sentencing, based upon new\nfactual information not known to the defendant at the time of sentencing. Unlike the proposed\nsubdivision (c) which addresses obvious technical mistakes, the ability of the defendant (and\nperhaps the government) to come forward with new evidence would be a significant step toward\nreturning Rule 35 to its former state. The Committee believed that such a change would inject into\nRule 35 a degree of postsentencing discretion which would raise doubts about the finality of\ndeterminate sentencing that Congress attempted to resolve by eliminating former Rule 35(a). It\nwould also tend to confuse the jurisdiction of the courts of appeals in those cases in which a timely\nappeal is taken with respect to the sentence. Finally, the Committee was not persuaded by the\navailable evidence that a problem of sufficient magnitude existed at this time which would warrant\nsuch an amendment.\nCommittee Notes on Rules\xe2\x80\x941998 Amendment\n282\n\n\x0cThe amendment to Rule 35(b) is intended to fill a gap in current practice. Under the\nSentencing Reform Act and the applicable guidelines, a defendant who has provided \xe2\x80\x9csubstantial\xe2\x80\x9d\nassistance to the Government before sentencing may receive a reduced sentence under United\nStates Sentencing Guideline \xc2\xa75K1.1. In addition, a defendant who provides substantial assistance\nafter the sentence has been imposed may receive a reduction of the sentence if the Government\nfiles a motion under Rule 35(b). In theory, a defendant who has provided substantial assistance\nboth before and after sentencing could benefit from both \xc2\xa75K1.1 and Rule 35(b). But a defendant\nwho has provided, on the whole, substantial assistance may not be able to benefit from either\nprovision because each provision requires \xe2\x80\x9csubstantial assistance.\xe2\x80\x9d As one court has noted, those\ntwo provisions contain distinct \xe2\x80\x9ctemporal boundaries.\xe2\x80\x9d United States v. Drown, 942 F.2d 55, 59\n(1st Cir. 1991).\nAlthough several decisions suggest that a court may aggregate the defendant\'s\npresentencing and postsentencing assistance in determining whether the \xe2\x80\x9csubstantial assistance\xe2\x80\x9d\nrequirement of Rule 35(b) has been met, United States v. Speed, 53 F.3d 643, 647\xe2\x80\x93649 (4th Cir.\n1995) (Ellis, J. concurring), there is no formal mechanism for doing so. The amendment to Rule\n35(b) is designed to fill that need. Thus, the amendment permits the court to consider, in\ndetermining the substantiality of postsentencing assistance, the defendant\'s presentencing\nassistance, irrespective of whether that assistance, standing alone, was substantial.\nThe amendment, however, is not intended to provide a double benefit to the defendant.\nThus, if the defendant has already received a reduction of sentence under U.S.S.G. \xc2\xa75K1.1 for\nsubstantial presentencing assistance, he or she may not have that assistance counted again in a\npostsentence Rule 35(b) motion.\nChanges Made After Publication (\xe2\x80\x9cGAP Report\xe2\x80\x9d). The Committee incorporated the Style\nSubcommittee\'s suggested changes.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 35 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nThe Committee deleted current Rule 35(a) (Correction on Remand). Congress added that\nrule, which currently addresses the issue of the district court\'s actions following a remand on the\nissue of sentencing, in the Sentencing Reform Act of 1984. Pub. L. No. 98\xe2\x80\x93473. The rule\ncross-references 18 U.S.C. \xc2\xa73742, also enacted in 1984, which provides detailed guidance on the\nvarious options available to the appellate courts in addressing sentencing errors. In reviewing both\nprovisions, the Committee concluded that Rule 35(a) was no longer needed. First, the statute\nclearly covers the subject matter and second, it is not necessary to address an issue that would be\nvery clear to a district court following a decision by a court of appeals.\nFormer Rule 35(c), which addressed the authority of the court to correct certain errors in\nthe sentence, is now located in Rule 35(a). In the current version of Rule 35(c), the sentencing\ncourt is authorized to correct errors in the sentence if the correction is made within seven days of\nthe imposition of the sentence. The revised rule uses the term \xe2\x80\x9csentencing.\xe2\x80\x9d No change in practice\nis intended by using that term.\nA substantive change has been made in revised Rule 35(b). Under current Rule 35(b), if the\n283\n\n\x0cgovernment believes that a sentenced defendant has provided substantial assistance in\ninvestigating or prosecuting another person, it may move the court to reduce the original sentence;\nordinarily, the motion must be filed within one year of sentencing. In 1991, the rule was amended\nto permit the government to file such motions after more than one year had elapsed if the\ngovernment could show that the defendant\'s substantial assistance involved \xe2\x80\x9cinformation or\nevidence not known by the defendant\xe2\x80\x9d until more than one year had elapsed. The current rule,\nhowever, did not address the question whether a motion to reduce a sentence could be filed and\ngranted in those instances when the defendant\'s substantial assistance involved information\nprovided by the defendant within one year of sentence but that did not become useful to the\ngovernment until more than one year after sentencing (e.g., when the government starts an\ninvestigation to which the information is pertinent). The courts were split on the issue. Compare\nUnited States v. Morales, 52 F.3d 7 (1st Cir. 1995) (permitting filing and granting of motion) with\nUnited States v. Orozco, 160 F.3d 1309 (11th Cir. 1998) (denying relief and citing cases).\nAlthough the court in Orozco felt constrained to deny relief under Rule 35(b), the court urged an\namendment of the rule to:\naddress the apparent unforeseen situation presented in this case where a convicted\ndefendant provides information to the government prior to the expiration of the jurisdictional,\none-year period from sentence imposition, but that information does not become useful to the\ngovernment until more than one year after sentence imposition. Id. at 1316, n. 13.\nNor does the existing rule appear to allow a substantial assistance motion under equally\ndeserving circumstances where a defendant, who fails to provide information within one year of\nsentencing because its usefulness could not reasonably have been anticipated, later provides the\ninformation to the government promptly upon its usefulness becoming apparent.\nRevised Rule 35(b) is intended to address both of those situations. First, Rule 35(b)(2)(B)\nmakes clear that a sentence reduction motion is permitted in those instances identified by the court\nin Orozco. Second, Rule 35(b)(2)(C) recognizes that a postsentence motion is also appropriate in\nthose instances where the defendant did not provide any information within one year of\nsentencing, because its usefulness was not reasonably apparent to the defendant during that period.\nBut the rule requires that once the defendant realizes the importance of the information the\ndefendant promptly provide the information to the government. What constitutes \xe2\x80\x9cprompt\xe2\x80\x9d\nnotification will depend on the circumstances of the case.\nThe rule\'s one-year restriction generally serves the important interests of finality and of\ncreating an incentive for defendants to provide promptly what useful information they might have.\nThus, the proposed amendment would not eliminate the one-year requirement as a generally\noperative element. But where the usefulness of the information is not reasonably apparent until a\nyear or more after sentencing, no sound purpose is served by the current rule\'s removal of any\nincentive to provide that information to the government one year or more after the sentence (or if\npreviously provided, for the government to seek to reward the defendant) when its relevance and\nsubstantiality become evident.\nBy using the term \xe2\x80\x9cinvolves\xe2\x80\x9d in Rule 35(b)(2) in describing the sort of information that\nmay result in substantial assistance, the Committee recognizes that a court does not lose\njurisdiction to consider a Rule 35(b)(2) motion simply because other information, not covered by\nany of the three provisions in Rule 35(b)(2), is presented in the motion.\nCommittee Notes on Rules\xe2\x80\x942004 Amendment\n\n284\n\n\x0cRule 35(c) is a new provision, which defines sentencing for purposes of Rule 35 as the oral\nannouncement of the sentence.\nOriginally, the language in Rule 35 had used the term \xe2\x80\x9cimposition of sentence.\xe2\x80\x9d The term\n\xe2\x80\x9cimposition of sentence\xe2\x80\x9d was not defined in the rule and the courts addressing the meaning of the\nterm were split. The majority view was that the term meant the oral announcement of the sentence\nand the minority view was that it meant the entry of the judgment. See United States v. Aguirre,\n214 F.3d 1122, 1124\xe2\x80\x9325 (9th Cir. 2000) (discussion of original Rule 35(c) and citing cases).\nDuring the restyling of all of the Criminal Rules in 2000 and 2001, the Committee determined that\nthe uniform term \xe2\x80\x9csentencing\xe2\x80\x9d throughout the entire rule was the more appropriate term. After\nfurther reflection, and with the recognition that some ambiguity may still be present in using the\nterm \xe2\x80\x9csentencing,\xe2\x80\x9d the Committee believes that the better approach is to make clear in the rule\nitself that the term \xe2\x80\x9csentencing\xe2\x80\x9d in Rule 35 means the oral announcement of the sentence. That is\nthe meaning recognized in the majority of the cases addressing the issue.\nChanges Made to Rule 35 After Publication and Comment. The Committee changed the\ndefinition of the triggering event for the timing requirements in Rule 35 to conform to the majority\nview in the circuit courts and adopted a special definitional section, Rule 35(c), to define\nsentencing as the \xe2\x80\x9coral announcement of the sentence.\xe2\x80\x9d\nCommittee Notes on Rules\xe2\x80\x942007 Amendment\nSubdivision (b)(1). The amendment conforms Rule 35(b)(1) to the Supreme Court\'s\ndecision in United States v. Booker, 543 U.S. 220 (2005). In Booker the Court held that the\nprovision of the federal sentencing statute that makes the Guidelines mandatory, 18 U.S.C.\n\xc2\xa73553(b)(1), violates the Sixth Amendment right to jury trial. With this provision severed and\nexcised, the Court held, the Sentencing Reform Act \xe2\x80\x9cmakes the Guidelines effectively advisory,\xe2\x80\x9d\nand \xe2\x80\x9crequires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. \xc2\xa73553(a)(4)\n(Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as\nwell, see \xc2\xa73553(a) (Supp. 2004).\xe2\x80\x9d Id. at 245\xe2\x80\x9346. Subdivision (b)(1)(B) has been deleted because it\ntreats the guidelines as mandatory.\nChanges Made to Proposed Amendment Released for Public Comment. No changes were\nmade to the text of the proposed amendment as released for public comment, but one change was\nmade in the Committee Note. Here\xe2\x80\x94as in the other Booker rules\xe2\x80\x94the Committee deleted the\nreference to the Fifth Amendment from the description of the Supreme Court\'s decision in Booker.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nFormer Rule 35 permitted the correction of arithmetic, technical, or clear errors within 7\ndays of sentencing. In light of the increased complexity of the sentencing process, the Committee\nconcluded it would be beneficial to expand this period to 14 days, including intermediate\nSaturdays, Sundays, and legal holidays as provided by Rule 45(a). Extension of the period in this\nfashion will cause no jurisdictional problems if an appeal has been filed, because Federal Rule of\nAppellate Procedure 4 (b)(5) expressly provides that the filing of a notice of appeal does not divest\nthe district court of jurisdiction to correct a sentence under Rule 35(a).\nAmendment by Public Law\n\n285\n\n\x0c1986 \xe2\x80\x94Subd. (b). Pub. L. 99\xe2\x80\x93570 substituted \xe2\x80\x9cin accordance with the guidelines and\npolicy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United\nStates Code. The court\'s authority to lower a sentence under this subdivision includes the authority\nto lower such sentence to a level below that established by statute as a minimum sentence\xe2\x80\x9d for \xe2\x80\x9cto\nthe extent that such assistance is a factor in applicable guidelines or policy statements issued by the\nSentencing Commission pursuant to 28 U.S.C. 994(a) \xe2\x80\x9d.\n1984 \xe2\x80\x94Pub. L. 98\xe2\x80\x93473 amended Rule 35 generally. Prior to amendment, rule read as\nfollows:\n\xe2\x80\x9cRule 35. Correction or Reduction of Sentence\n\xe2\x80\x9c(a) Correction of Sentence. The court may correct an illegal sentence at any time and may\ncorrect a sentence imposed in an illegal manner within the time provided herein for the reduction\nof sentence.\n\xe2\x80\x9c(b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may\nreduce a sentence without motion, within 120 days after the sentence is imposed or probation is\nrevoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the\njudgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the\nSupreme Court denying review of, or having the effect of upholding, a judgment of conviction or\nprobation revocation. The court shall determine the motion within a reasonable time. Changing a\nsentence from a sentence of incarceration to a grant of probation shall constitute a permissible\nreduction of sentence under this subdivision.\xe2\x80\x9d\nEffective Date of 1986 Amendment\nSection 1009(b) of Pub. L. 99\xe2\x80\x93570 provided that: \xe2\x80\x9cThe amendment made by this section\n[amending this rule] shall take effect on the date of the taking effect of rule 35(b) of the Federal\nRules of Criminal Procedure, as amended by section 215(b) of the Comprehensive Crime Control\nAct of 1984 [section 215(b) of Pub. L. 98\xe2\x80\x93473, effective Nov. 1, 1987].\xe2\x80\x9d\nEffective and Termination Dates of 1985 Amendments\nSection 2 of the Order of the Supreme Court dated Apr. 29, 1985, provided: \xe2\x80\x9cThat the\nforegoing amendments to the Federal Rules of Criminal Procedure [amending Rules 6, 11, 12.1,\n12.2, 35, 45, 49, and 57] shall take effect on August 1, 1985 and shall govern all proceedings in\ncriminal cases thereafter commenced and, insofar as just and practicable, all proceedings in\ncriminal cases then pending. The amendment to Rule 35(b) shall be effective until November 1,\n1986, when Section 215(b) of the Comprehensive Crime Control Act of 1984, Pub. L. 98\xe2\x80\x93473,\napproved October 12, 1984, 98 Stat. 2015, goes into effect.\xe2\x80\x9d See section 22 of Pub. L. 100\xe2\x80\x93182, set\nout below, for application of Rule 35(b) to conduct occurring before effective date of sentencing\nguidelines.\nSection 235(a)(1) of Pub. L. 98\xe2\x80\x93473, which originally provided for an effective date of\nNov. 1, 1986 for the amendment to Rule 35 by section 215(b) of Pub. L. 98\xe2\x80\x93473, was later\namended to provide for an effective date of Nov. 1, 1987, with applicability only to offenses\ncommitted after the taking effect of such amendment. See Effective Date note set out under section\n3551 of this title.\nEffective Date of 1984 Amendment\n\n286\n\n\x0cAmendment by Pub. L. 98\xe2\x80\x93473 effective Nov. 1, 1987, and applicable only to offenses\ncommitted after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98\xe2\x80\x93473, set\nout as an Effective Date note under section 3551 of this title.\nApplication of Rule 35(b) to Conduct Occurring Before Effective Date of Sentencing\nGuidelines\nPub. L. 100\xe2\x80\x93182, \xc2\xa722, Dec. 7, 1987, 101 Stat. 1271, provided that: \xe2\x80\x9cThe amendment to rule\n35(b) of the Federal Rules of Criminal Procedure made by the order of the Supreme Court on April\n29, 1985, shall apply with respect to all offenses committed before the taking effect of section\n215(b) of the Comprehensive Crime Control Act of 1984 [section 215(b) of Pub. L. 98\xe2\x80\x93473,\neffective Nov. 1, 1987].\xe2\x80\x9d\nAuthority To Lower a Sentence Below Statutory Minimum for Old Offenses\nSubd. (b) of this rule as amended by section 215(b) of Pub. L. 98\xe2\x80\x93473 and subd. (b) of this\nrule as in effect before the taking effect of the initial set of guidelines promulgated by the United\nStates Sentencing Commission pursuant to chapter 58 (\xc2\xa7991 et seq.) of Title 28, Judiciary and\nJudicial Procedure, applicable in the case of an offense committed before the taking effect of such\nguidelines notwithstanding section 235 of Pub. L. 98\xe2\x80\x93473, see section 24 of Pub. L. 100\xe2\x80\x93182, set\nout as a note under section 3553 of this title.\n\nRule 36. Clerical Error\nAfter giving any notice it considers appropriate, the court may at any time correct a clerical\nerror in a judgment, order, or other part of the record, or correct an error in the record arising from\noversight or omission.\nNotes\n(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule continues existing law. Rupinski v. United States, 4 F.2d 17 (C.C.A. 6th). The\nrule is similar to Rule 60(a) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix].\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 36 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\n\nRule 37. Indicative Ruling on a Motion for Relief That Is Barred by a Pending\nAppeal\n(a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks\n287\n\n\x0cauthority to grant because of an appeal that has been docketed and is pending, the court may:\n(1) defer considering the motion;\n(2) deny the motion; or\n(3) state either that it would grant the motion if the court of appeals remands for that\npurpose or that the motion raises a substantial issue.\n(b) Notice to the Court of Appeals. The movant must promptly notify the circuit clerk\nunder Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the\nmotion or that the motion raises a substantial issue.\n(c) Remand. The district court may decide the motion if the court of appeals remands for\nthat purpose.\nNotes\n(Added Jun. 30, 2011, eff. Dec. 1, 2012)\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nThis new rule adopts for any motion that the district court cannot grant because of a\npending appeal the practice that most courts follow when a party makes a motion under Rule 60(b)\nof the Federal Rules of Civil Procedure to vacate a judgment that is pending on appeal. After an\nappeal has been docketed and while it remains pending, the district court cannot grant a Rule 60(b)\nmotion without a remand. But it can entertain the motion and deny it, defer consideration, or state\nthat it would grant the motion if the court of appeals remands for that purpose or state that the\nmotion raises a substantial issue. Experienced lawyers often refer to the suggestion for remand as\nan \xe2\x80\x9cindicative ruling.\xe2\x80\x9d (Federal Rule of Appellate Procedure 4(b)(3) lists three motions that, if\nfiled within the relevant time limit, suspend the effect of a notice of appeal filed before or after the\nmotion is filed until the judgment of conviction is entered and the last such motion is ruled upon.\nThe district court has authority to grant the motion without resorting to the indicative ruling\nprocedure.)\nThe procedure formalized by Federal Rule of Appellate Procedure 12.1 is helpful when\nrelief is sought from an order that the court cannot reconsider because the order is the subject of a\npending appeal. In the criminal context, the Committee anticipates that Criminal Rule 37 will be\nused primarily if not exclusively for newly discovered evidence motions under Criminal Rule\n33(b)(1) (see United States v. Cronic, 466 U.S. 648, 667 n.42 (1984)), reduced sentence motions\nunder Criminal Rule 35(b), and motions under 18 U.S.C. \xc2\xa7 3582(c). Rule 37 does not attempt to\ndefine the circumstances in which an appeal limits or defeats the district court\xe2\x80\x99s authority to act in\nthe face of a pending appeal. The rules that govern the relationship between trial courts and\nappellate courts may be complex, depending in part on the nature of the order and the source of\nappellate jurisdiction. Rule 37 applies only when those rules deprive the district court of authority\nto grant relief without appellate permission. If the district court concludes that it has authority to\ngrant relief without appellate permission, it can act without falling back on the indicative ruling\nprocedure.\nTo ensure proper coordination of proceedings in the district court and in the appellate\ncourt, the movant must notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if\nthe district court states that it would grant the motion or that the motion raises a substantial issue.\nRemand is in the court of appeals\xe2\x80\x99 discretion under Federal Rule of Appellate Procedure 12.1.\nOften it will be wise for the district court to determine whether it in fact would grant the\n288\n\n\x0cmotion if the court of appeals remands for that purpose. But a motion may present complex issues\nthat require extensive litigation and that may either be mooted or be presented in a different\ncontext by decision of the issues raised on appeal. In such circumstances the district court may\nprefer to state that the motion raises a substantial issue, and to state the reasons why it prefers to\ndecide only if the court of appeals agrees that it would be useful to decide the motion before\ndecision of the pending appeal. The district court is not bound to grant the motion after stating that\nthe motion raises a substantial issue; further proceedings on remand may show that the motion\nought not be granted.\nChanges Made After Publication and Comment. No changes were made in the amendment\nas published.\n\nRule 38. Staying a Sentence or a Disability\n(a) Death Sentence. The court must stay a death sentence if the defendant appeals the\nconviction or sentence.\n(b) Imprisonment.\n(1) Stay Granted. If the defendant is released pending appeal, the court must stay a\nsentence of imprisonment.\n(2) Stay Denied; Place of Confinement. If the defendant is not released pending appeal, the\ncourt may recommend to the Attorney General that the defendant be confined near the place of the\ntrial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the\nappeal.\n(c) Fine. If the defendant appeals, the district court, or the court of appeals under Federal\nRule of Appellate Procedure 8, may stay a sentence to pay a fine or a fine and costs. The court may\nstay the sentence on any terms considered appropriate and may require the defendant to:\n(1) deposit all or part of the fine and costs into the district court\'s registry pending appeal;\n(2) post a bond to pay the fine and costs; or\n(3) submit to an examination concerning the defendant\'s assets and, if appropriate, order\nthe defendant to refrain from dissipating assets.\n(d) Probation. If the defendant appeals, the court may stay a sentence of probation. The\ncourt must set the terms of any stay.\n(e) Restitution and Notice to Victims.\n(1) In General. If the defendant appeals, the district court, or the court of appeals under\nFederal Rule of Appellate Procedure 8, may stay\xe2\x80\x94on any terms considered appropriate\xe2\x80\x94any\nsentence providing for restitution under 18 U.S.C. \xc2\xa73556 or notice under 18 U.S.C. \xc2\xa73555.\n(2) Ensuring Compliance. The court may issue any order reasonably necessary to ensure\ncompliance with a restitution order or a notice order after disposition of an appeal, including:\n(A) a restraining order;\n(B) an injunction;\n(C) an order requiring the defendant to deposit all or part of any monetary restitution into\nthe district court\'s registry; or\n(D) an order requiring the defendant to post a bond.\n(f) Forfeiture. A stay of a forfeiture order is governed by Rule 32.2(d).\n(g) Disability. If the defendant\'s conviction or sentence creates a civil or employment\ndisability under federal law, the district court, or the court of appeals under Federal Rule of\nAppellate Procedure 8, may stay the disability pending appeal on any terms considered\nappropriate. The court may issue any order reasonably necessary to protect the interest represented\n289\n\n\x0cby the disability pending appeal, including a restraining order or an injunction.\nNotes\n(As amended Dec. 27, 1948, eff. Jan. 1, 1949; Feb. 28, 1966, eff. July 1, 1966; Dec. 4,\n1967, eff. July 1, 1968; Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7215(c), Oct. 12,\n1984, 98 Stat. 2016; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29,\n2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule substantially continues existing law except that it provides that in case an appeal\nis taken from a judgment imposing a sentence of imprisonment, a stay shall be granted only if the\ndefendant so elects, or is admitted to bail. Under the present rule the sentence is automatically\nstayed unless the defendant elects to commence service of the sentence pending appeal. The new\nrule merely changes the burden of making the election. See Rule V of the Criminal Appeals Rules,\n1933, 292 U.S. 661.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nA defendant sentenced to a term of imprisonment is committed to the custody of the\nAttorney General who is empowered by statute to designate the place of his confinement. 18\nU.S.C. \xc2\xa74082. The sentencing court has no authority to designate the place of imprisonment. See,\ne.g., Hogue v. United States, 287 F.2d 99 (5th Cir. 1961), cert. den., 368 U.S. 932 (1961).\nWhen the place of imprisonment has been designated, and notwithstanding the pendency\nof an appeal, the defendant is usually transferred from the place of his temporary detention within\nthe district of his conviction unless he has elected \xe2\x80\x9cnot to commence service of the sentence.\xe2\x80\x9d This\ntransfer can be avoided only if the defendant makes the election, a course sometimes advised by\ncounsel who may deem it necessary to consult with the defendant from time to time before the\nappeal is finally perfected. However, the election deprives the defendant of a right to claim credit\nfor the time spent in jail pending the disposition of the appeal because 18 U.S.C. \xc2\xa73568 provides\nthat the sentence of imprisonment commences, to run only from \xe2\x80\x9cthe date on which such person is\nreceived at the penitentiary, reformatory, or jail for service of said sentence.\xe2\x80\x9d See, e.g., Shelton v.\nUnited States, 234 F.2d 132 (5th Cir. 1956).\nThe amendment eliminates the procedure for election not to commence service of\nsentence. In lieu thereof it is provided that the court may recommend to the Attorney General that\nthe defendant be retained at or transferred to a place of confinement near the place of trial or the\nplace where the appeal is to be heard for the period reasonably necessary to permit the defendant to\nassist in the preparation of his appeal to the court of appeals. Under this procedure the defendant\nwould no longer be required to serve dead time in a local jail in order to assist in preparation of his\nappeal.\nNotes of Advisory Committee on Rules\xe2\x80\x941968 Amendment\nSubdivisions (b) and (c) of this rule relate to appeals, the provisions of which are\ntransferred to and covered by the Federal Rules of Appellate Procedure. See Advisory Committee\nNote under rule 37.\n290\n\n\x0cNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nRule 38(a)(2) is amended to reflect rule 9(b), Federal Rules of Appellate Procedure. The\ncriteria for the stay of a sentence of imprisonment pending disposition of an appeal are those\nspecified in rule 9(c) which incorporates 18 U.S.C. \xc2\xa73148 by reference.\nThe last sentence of subdivision (a)(2) is retained although easy access to the defendant has\nbecome less important with the passage of the Criminal Justice Act which provides for\ncompensation to the attorney to travel to the place at which the defendant is confined. Whether the\ncourt will recommend confinement near the place of trial or place where the appeal is to be heard\nwill depend upon a balancing of convenience against the possible advantage of confinement at a\nmore remote correctional institution where facilities and program may be more adequate.\nThe amendment to subdivision (a)(4) gives the court discretion in deciding whether to stay\nthe order placing the defendant on probation. It also makes mandatory the fixing of conditions for\nthe stay if a stay is granted. The court cannot release the defendant pending appeal without either\nplacing him on probation or fixing the conditions for the stay under the Bail Reform Act, 18 U.S.C.\n\xc2\xa73148.\nFormer rule 38(a)(4) makes mandatory a stay of an order placing the defendant on\nprobation whenever an appeal is noted. The court may or may not impose conditions upon the stay.\nSee rule 46, Federal Rules of Criminal Procedure; and the Bail Reform Act, 18 U.S.C. \xc2\xa73148.\nHaving the defendant on probation during the period of appeal may serve the objectives of\nboth community protection and defendant rehabilitation. In current practice, the order of probation\nis sometimes stayed for an appeal period as long as two years. In a situation where the appeal is\nunsuccessful, the defendant must start under probation supervision after so long a time that the\nconditions of probation imposed at the time of initial sentencing may no longer appropriately\nrelate either to the defendant\'s need for rehabilitation or to the community\'s need for protection.\nThe purposes of probation are more likely to be served if the judge can exercise discretion, in\nappropriate cases, to require the defendant to be under probation during the period of appeal. The\nAmerican Bar Association Project on Standards for Criminal Justice takes the position that prompt\nimposition of sentence aids in the rehabilitation of defendants, ABA Standards Relating to Pleas of\nGuilty \xc2\xa71.8(a)(i), Commentary p. 40 (Approved Draft, 1968). See also Sutherland and Cressey,\nPrinciples of Criminology 336 (1966).\nUnder 18 U.S.C. \xc2\xa73148 the court now has discretion to impose conditions of release which\nare necessary to protect the community against danger from the defendant. This is in contrast to\nrelease prior to conviction, where the only appropriate criterion is insuring the appearance of the\ndefendant. 18 U.S.C. \xc2\xa73146. Because the court may impose conditions of release to insure\ncommunity protection, it seems appropriate to enable the court to do so by ordering the defendant\nto submit to probation supervision during the period of appeal, thus giving the probation service\nresponsibility for supervision.\nA major difference between probation and release under 18 U.S.C. \xc2\xa73148 exists if the\ndefendant violates the conditions imposed upon his release. In the event that release is under 18\nU.S.C. \xc2\xa73148, the violation of the condition may result in his being placed in custody pending the\ndecision on appeal. If the appeal were unsuccessful, the order placing him on probation\npresumably would become effective at that time, and he would then be released under probation\nsupervision. If the defendant were placed on probation, his violation of a condition could result in\nthe imposition of a jail or prison sentence. If the appeal were unsuccessful, the jail or prison\n291\n\n\x0csentence would continue to be served.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942000 Amendment\nThe rule is amended to reflect the creation of new Rule 32.2 which now governs criminal\nforfeiture procedures.\nGAP Report\xe2\x80\x94Rule 38. The Committee made no changes to the published draft.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 38 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nThe reference to Appellate Rule 9(b) is deleted. The Committee believed that the reference\nwas unnecessary and its deletion was not intended to be substantive in nature.\nReferences in Text\nThe Federal Rules of Appellate Procedure, referred to in subds. (c), (e)(1), and (g), are set\nout in the Appendix to Title 28, Judiciary and Judicial Procedure.\nAmendment by Public Law\n1984 \xe2\x80\x94Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(1), substituted \xe2\x80\x9cStay of Execution\xe2\x80\x9d for \xe2\x80\x9cStay of\nExecution, and Relief Pending Review\xe2\x80\x9d in rule catchline.\nSubd. (a). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(1), struck out subd. heading \xe2\x80\x9c(a) Stay of Execution\xe2\x80\x9d.\nPub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(3), (4), redesignated subd. (a)(1) as (a), and inserted \xe2\x80\x9cfrom the\nconviction or sentence\xe2\x80\x9d after \xe2\x80\x9cis taken\xe2\x80\x9d.\nSubd. (b). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(3), (5), redesignated subd. (a)(2) as (b), and inserted\n\xe2\x80\x9cfrom the conviction or sentence\xe2\x80\x9d after \xe2\x80\x9cis taken\xe2\x80\x9d.\nPub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(2), struck out subd. (b) relating to bail, which had been abrogated\nDec. 4, 1967, eff. July 1, 1968.\nSubd. (c). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(3), redesignated subd. (a)(3) as (c).\nPub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(2), struck out subd. (c) relating to application for relief pending\nreview, which had been abrogated Dec. 4, 1967, eff. July 1, 1968.\nSubd. (d). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(3), (6), redesignated subd. (a)(4) as (d) and amended it\ngenerally. Prior to amendment, subd. (a)(4) read as follows: \xe2\x80\x9cAn order placing the defendant on\nprobation may be stayed if an appeal is taken. If not stayed, the court shall specify when the term of\nprobation shall commence. If the order is stayed the court shall fix the terms of the stay.\xe2\x80\x9d\nSubds. (e), (f). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(c)(7), added subds. (e) and (f).\nEffective Date of 1984 Amendment\n\n292\n\n\x0cAmendment by Pub. L. 98\xe2\x80\x93473 effective Nov. 1, 1987, and applicable only to offenses\ncommitted after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98\xe2\x80\x93473, set\nout as an Effective Date note under section 3551 of this title.\n\nRule 39. [Reserved]\n\n293\n\n\x0cTITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS\nRule 40. Arrest for Failing to Appear in Another District or for Violating\nConditions of Release Set in Another District\n(a) In General. A person must be taken without unnecessary delay before a magistrate\njudge in the district of arrest if the person has been arrested under a warrant issued in another\ndistrict for:\n(i) failing to appear as required by the terms of that person\'s release under 18 U.S.C.\n\xc2\xa7\xc2\xa73141 \xe2\x80\x933156 or by a subpoena; or\n(ii) violating conditions of release set in another district.\n(b) Proceedings. The judge must proceed under Rule 5(c)(3) as applicable.\n(c) Release or Detention Order. The judge may modify any previous release or detention\norder issued in another district, but must state in writing the reasons for doing so.\n(d) Video Teleconferencing. Video teleconferencing may be used to conduct an\nappearance under this rule if the defendant consents.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30,\n1979, eff. Aug. 1, 1979; Pub. L. 96\xe2\x80\x9342, \xc2\xa71(2), July 31, 1979, 93 Stat. 326; Apr. 28, 1982, eff. Aug.\n1, 1982; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7\xc2\xa7209(c), 215(d), Oct. 12, 1984, 98 Stat. 1986, 2016; Mar. 9,\n1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29,\n1994, eff. Dec. 1, 1994; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12,\n2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. This rule modifies and revamps existing procedure. The present practice has developed\nas a result of a series of judicial decisions, the only statute dealing with the subject being\nexceedingly general, 18 U.S.C. 591 [now 3041] (Arrest and removal for trial):\nFor any crime or offense against the United States, the offender may, by any justice or\njudge of the United States, or by any United States commissioner, or by any chancellor, judge of a\nsupreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the\npeace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of\nprocess against offenders in such State, and at the expense of the United States, be arrested and\nimprisoned, or bailed, as the case may be, for trial before such court of the United States as by law\nhas cognizance of the offense. * Where any offender or witness is committed in any district\nother than that where the offense is to be tried, it shall be the duty of the judge of the district where\nsuch offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a\nwarrant for his removal to the district where the trial is to be had.\nThe scope of a removal hearing, the issues to be considered, and other similar matters are\ngoverned by judicial decisions, Beavers v. Henkel, 194 U.S. 73; Tinsley v. Treat, 205 U.S. 20;\nHenry v. Henkel, 235 U.S. 219; Rodman v. Pothier, 264 U.S. 399; Morse v. United States, 267 U.S.\n80; Fetters v. United States ex rel. Cunningham, 283 U.S. 638; United States ex rel. Kassin v.\nMulligan, 295 U.S. 396; see, also, 9 Edmunds, Cyclopedia of Federal Procedure 39053, et seq.\n294\n\n\x0c2. The purpose of removal proceedings is to accord safeguards to a defendant against an\nimprovident removal to a distant point for trial. On the other hand, experience has shown that\nremoval proceedings have at times been used by defendants for dilatory purposes and in\nattempting to frustrate prosecution by preventing or postponing transportation even as between\nadjoining districts and between places a few miles apart. The object of the rule is adequately to\nmeet each of these two situations.\n3. For the purposes of removal, all cases in which the accused is apprehended in a district\nother than that in which the prosecution is pending have been divided into two groups: first, those\nin which the place of arrest is either in another district of the same State, or if in another State, then\nless than 100 miles from the place where the prosecution is pending; and second, cases in which\nthe arrest occurs in a State other than that in which the prosecution is pending and the place of\narrest is 100 miles or more distant from the latter place.\nIn the first group of cases, removal proceedings are abolished. The defendant\'s right to the\nusual preliminary hearing is, of course, preserved, but the committing magistrate, if he holds\ndefendant would bind him over to the district court in which the prosecution is pending. As\nordinarily there are no removal proceedings in State prosecutions as between different parts of the\nsame State, but the accused is transported by virtue of the process under which he was arrested, it\nseems reasonable that no removal proceedings should be required in the Federal courts as between\ndistricts in the same State. The provision as to arrest in another State but at a place less than 100\nmiles from the place where the prosecution is pending was added in order to preclude obstruction\nagainst bringing the defendant a short distance for trial.\nIn the second group of cases mentioned in the first paragraph, removal proceedings are\ncontinued. The practice to be followed in removal hearings will depend on whether the demand for\nremoval is based upon an indictment or upon an information or complaint. In the latter case, proof\nof identity and proof of reasonable cause to believe the defendant guilty will have to be adduced in\norder to justify the issuance of a warrant of removal. In the former case, proof of identity coupled\nwith a certified copy of the indictment will be sufficient, as the indictment will be conclusive proof\nof probable cause. The distinction is based on the fact that in case of an indictment, the grand jury,\nwhich is an arm of the court, has already found probable cause. Since the action of the grand jury is\nnot subject to review by a district judge in the district in which the grand jury sits, it seems illogical\nto permit such review collaterally in a removal proceeding by a judge in another district.\n4. For discussions of this rule see, Homer Cummings, 29 A.B.A.Jour. 654, 656; Holtzoff, 3\nF.R.D. 445, 450\xe2\x80\x93452; Holtzoff, 12 George Washington L.R. 119, 127\xe2\x80\x93130; Holtzoff, The Federal\nBar Journal, October 1944, 18\xe2\x80\x9337; Berge, 42 Mich.L.R. 353, 374; Medalie, 4 Lawyers Guild R.\n(3)1, 4.\nNote to Subdivision (b). The rule provides that all removal hearings shall take place before\na United States commissioner or a Federal judge. It does not confer such jurisdiction on State or\nlocal magistrates. While theoretically under existing law State and local magistrates have authority\nto conduct removal hearings, nevertheless as a matter of universal practice, such proceedings are\nalways conducted before a United States commissioner or a Federal judge, 9 Edmunds,\nCyclopedia of Federal Procedure 3919.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe amendment conforms to the change made in the corresponding procedure in Rule 5(b).\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\n295\n\n\x0cSubdivision (a) is amended to make clear that the person shall be taken before the federal\nmagistrate \xe2\x80\x9cwithout unnecessary delay.\xe2\x80\x9d Although the former rule was silent in this regard, it\nprobably would have been interpreted to require prompt appearance, and there is therefore\nadvantage in making this explicit in the rule itself. See C. Wright, Federal Practice and Procedure:\nCriminal \xc2\xa7652 (1969, Supp. 1971). Subdivision (a) is amended to also make clear that the person is\nto be brought before a \xe2\x80\x9cfederal magistrate\xe2\x80\x9d rather than a state or local magistrate authorized by 18\nU.S.C. \xc2\xa73041. The former rules were inconsistent in this regard. Although rule 40(a) provided that\nthe person may be brought before a state or local officer authorized by former rule 5(a), such state\nor local officer lacks authority to conduct a preliminary examination under rule 5(c), and a\nprincipal purpose of the appearance is to hold a preliminary examination where no prior\nindictment or information has issued. The Federal Magistrates Act should make it possible to bring\na person before a federal magistrate. See C. Wright, Federal Practice and Procedure: Criminal\n\xc2\xa7653, especially n.35 (1969, Supp. 1971).\nSubdivision (b)(2) is amended to provide that the federal magistrate should inform the\ndefendant of the fact that he may avail himself of the provisions of rule 20 if applicable in the\nparticular case. However, the failure to so notify the defendant should not invalidate the removal\nprocedure. Although the old rule is silent in this respect, it is current practice to so notify the\ndefendant, and it seems desirable, therefore, to make this explicit in the rule itself.\nThe requirement that an order of removal under subdivision (b)(3) can be made only by a\njudge of the United States and cannot be made by a United States magistrate is retained. However,\nsubdivision (b)(5) authorizes issuance of the warrant of removal by a United States magistrate if he\nis authorized to do so by a rule of district court adopted in accordance with 28 U.S.C. \xc2\xa7636 (b):\nAny district court * by the concurrence of a majority of all the judges * may establish\nrules pursuant to which any full-time United States magistrate * may be assigned * such\nadditional duties as are not inconsistent with the Constitution and laws of the United States.\nAlthough former rule 40(b)(3) required that the warrant of removal be issued by a judge of\nthe United States, there appears no constitutional or statutory prohibition against conferring this\nauthority upon a United States magistrate in accordance with 28 U.S.C. \xc2\xa7636(b). The background\nhistory is dealt with in detail in 8A J. Moore, Federal Practice 40.01 and 40.02 (2d ed. Cipes 1970,\nSupp. 1971).\nSubdivision (b)(4) makes explicit reference to provisions of the Bail Reform Act of 1966\nby incorporating a cross-reference to 18 U.S.C. \xc2\xa73146 and \xc2\xa73148.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nThis substantial revision of rule 40 abolishes the present distinction between arrest in a\nnearby district and arrest in a distant district, clarifies the authority of the magistrate with respect to\nthe setting of bail where bail had previously been fixed in the other district, adds a provision\ndealing with arrest of a probationer in a district other than the district of supervision, and adds a\nprovision dealing with arrest of a defendant or witness for failure to appear in another district.\nNote to Subdivision (a). Under subdivision (a) of the present rule, if a person is arrested in a\nnearby district (another district in the same state, or a place less than 100 miles away), the usual\nrule 5 and 5.1 preliminary proceedings are conducted. But under subdivision (b) of the present\nrule, if a person is arrested in a distant district, then a hearing leading to a warrant of removal is\n296\n\n\x0cheld. New subdivision (a) would make no distinction between these two situations and would\nprovide for rule 5 and 5.1 proceedings in all instances in which the arrest occurs outside the district\nwhere the warrant issues or where the offense is alleged to have been committed.\nThis abolition of the distinction between arrest in a nearby district and arrest in a distant\ndistrict rests upon the conclusion that the procedures prescribed in rules 5 and 5.1 are adequate to\nprotect the rights of an arrestee wherever he might be arrested. If the arrest is without a warrant, it\nis necessary under rule 5 that a complaint be filed forthwith complying with the requirements of\nrule 4(a) with respect to the showing of probable cause. If the arrest is with a warrant, that warrant\nwill have been issued upon the basis of an indictment or of a complaint or information showing\nprobable cause, pursuant to rules 4(a) and 9(a). Under rule 5.1 dealing with the preliminary\nexamination, the defendant is to be held to answer only upon a showing of probable cause that an\noffense has been committed and that the defendant committed it.\nUnder subdivision (a), there are two situations in which no preliminary examination will be\nheld. One is where \xe2\x80\x9can indictment has been returned or an information filed,\xe2\x80\x9d which pursuant to\nrule 5(c) obviates the need for a preliminary examination. The order is where \xe2\x80\x9cthe defendant elects\nto have the preliminary examination conducted in the district in which the prosecution is pending.\xe2\x80\x9d\nA defendant might wish to elect that alternative when, for example, the law in that district is that\nthe complainant and other material witnesses may be required to appear at the preliminary\nexamination and give testimony. See Washington v. Clemmer, 339 F.2d 715 (D.C. Cir. 1964).\nNew subdivision (a) continues the present requirement that if the arrest was without a\nwarrant a warrant must thereafter issue in the district in which the offense is alleged to have been\ncommitted. This will ensure that in the district of anticipated prosecution there will have been a\nprobable cause determination by a magistrate or grand jury.\nNote to Subdivision (b). New subdivision (b) follows existing subdivision (b)(2) in\nrequiring the magistrate to inform the defendant of the provisions of rule 20 applicable in the\nparticular case. Failure to so notify the defendant should not invalidate the proceedings.\nNote to Subdivision (c). New subdivision (c) follows existing subdivision (b)(4) as to\ntransmittal of papers.\nNote to Subdivision (d). New subdivision (d) has no counterpart in the present rule. It\nprovides a procedure for dealing with the situation in which a probationer is arrested in a district\nother than the district of supervision, consistent with 18 U.S.C. \xc2\xa73653, which provides in part:\nIf the probationer shall be arrested in any district other than that in which he was last\nsupervised, he shall be returned to the district in which the warrant was issued, unless jurisdiction\nover him is transferred as above provided to the district in which he is found, and in that case he\nshall be detained pending further proceedings in such district.\nOne possibility, provided for in subdivision (d)(1), is that of transferring jurisdiction over\nthe probationer to the district in which he was arrested. This is permissible under the\naforementioned statute, which provides in part:\nWhenever during the period of his probation, a probationer heretofore or hereafter placed\non probation, goes from the district in which he is being supervised to another district, jurisdiction\nover him may be transferred, in the discretion of the court, from the court for the district from\nwhich he goes to the court for the other district, with the concurrence of the latter court. Thereupon\nthe court for the district to which jurisdiction is transferred shall have all power with respect to the\nprobationer that was previously possessed by the court for the district from which the transfer is\nmade, except that the period of probation shall not be changed without the consent of the\nsentencing court. This process under the same conditions may be repeated whenever during the\n297\n\n\x0cperiod of this probation the probationer goes from the district in which he is being supervised to\nanother district.\nSuch transfer may be particularly appropriate when it is found that the probationer has now\ntaken up residence in the district where he was arrested or where the alleged occurrence deemed to\nconstitute a violation of probation took place in the district of arrest. In current practice,\nprobationers arrested in a district other than that of their present supervision are sometimes\nunnecessarily returned to the district of their supervision, at considerable expense and loss of time,\nwhen the more appropriate course of action would have been transfer of probation jurisdiction.\nSubdivision (d)(2) and (3) deal with the situation in which there is not a transfer of\nprobation jurisdiction to the district of arrest. If the alleged probation violation occurred in the\ndistrict of arrest, then, under subdivision (d)(2), the preliminary hearing provided for in rule\n32.1(a)(1) is to be held in that district. This is consistent with the reasoning in Morrissey v. Brewer,\n408 U.S. 471 (1972), made applicable to probation cases in Gagnon v. Scarpelli, 411 U.S. 778\n(1973), where the Court stressed that often a parolee \xe2\x80\x9cis arrested at a place distant from the state\ninstitution, to which he may be returned before the final decision is made concerning revocation,\xe2\x80\x9d\nand cited this as a factor contributing to the conclusion that due process requires \xe2\x80\x9cthat some\nminimal inquiry be conducted at or reasonably near the place of the alleged parole violation or\narrest and as promptly as convenient after arrest while information is fresh and sources are\navailable.\xe2\x80\x9d As later noted in Gerstein v. Pugh, 420 U.S. 103 (1975):\nIn Morrissey v. Brewer * and Gagnon v. Scarpelli * we held that a parolee or\nprobationer arrested prior to revocation is entitled to an informal preliminary hearing at the place\nof arrest, with some provision for live testimony. * That preliminary hearing, more than the\nprobable cause determination required by the Fourth Amendment, serves the purpose of gathering\nand preserving live testimony, since the final revocation hearing frequently is held at some\ndistance from the place where the violation occurred.\nHowever, if the alleged violation did not occur in that district, then first-hand testimony\nconcerning the violation is unlikely to be available there, and thus the reasoning of Morrissey and\nGerstein does not call for holding the preliminary hearing in that district. In such a case, as\nprovided in subdivision (d)(3), the probationer should be held to answer in the district court of the\ndistrict having probation jurisdiction. The purpose of the proceeding there provided for is to\nascertain the identity of the probationer and provide him with copies of the warrant and the\napplication for the warrant. A probationer is subject to the reporting condition at all times and is\nalso subject to the continuing power of the court to modify such conditions. He therefore stands\nsubject to return back to the jurisdiction district without the necessity of conducting a hearing in\nthe district of arrest to determine whether there is probable cause to revoke his probation.\nNote to Subdivision (e). New subdivision (e) has no counterpart in the present rule. It has\nbeen added because some confusion currently exists as to whether present rule 40(b) is applicable\nto the case in which a bench warrant has issued for the return of a defendant or witness who has\nabsented himself and that person is apprehended in a distant district. In Bandy v. United States, 408\nF.2d 518 (8th Cir. 1969), a defendant, who had been released upon his personal recognizance after\nconviction and while petitioning for certiorari and who failed to appear as required after certiorari\nwas denied, objected to his later arrest in New York and removal to Leavenworth without\ncompliance with the rule 40 procedures. The court concluded:\nThe short answer to Bandy\'s first argument is found in Rush v. United States, 290 F.2d 709,\n710 (5 Cir. 1961): \xe2\x80\x9cThe provisions of Rules 5 and 40, Federal Rules of Criminal Procedure, 18\nU.S.C.A. may not be availed of by a prisoner in escape status *.\xe2\x80\x9d As noted by Holtzoff,\n298\n\n\x0c\xe2\x80\x9cRemoval of Defendants in Federal Criminal Procedure\xe2\x80\x9d, 4 F.R.D. 455, 458 (1946):\n\xe2\x80\x9cResort need not be had, however, to this [removal] procedure for the purpose of returning\na prisoner who has been recaptured after an escape from custody. It has been pointed out that in\nsuch a case the court may summarily direct his return under its general power to issue writs not\nspecifically provided for by statute, which may be necessary for the exercise of its jurisdiction and\nagreeable to the usages and principles of law. In fact, in such a situation no judicial process appears\nnecessary. The prisoner may be retaken and administratively returned to the custody from which\nhe escaped.\xe2\x80\x9d\nBandy\'s arrest in New York was pursuant to a bench warrant issued by the United States\nDistrict Court for the District of North Dakota on May 1, 1962, when Bandy failed to surrender\nhimself to commence service of his sentence on the conviction for filing false income tax refunds.\nAs a fugitive from justice, Bandy was not entitled upon apprehension to a removal hearing, and he\nwas properly removed to the United States Penitentiary at Leavenworth, Kansas to commence\nservice of sentence.\nConsistent with Bandy, new subdivision (e) does not afford such a person all of the\nprotections provided for in subdivision (a). However, subdivision (e) does ensure that a\ndetermination of identity will be made before that person is held to answer in the district of arrest.\nNote to Subdivision (f). Although the matter of bail is dealt with in rule 46 and 18 U.S.C.\n\xc2\xa7\xc2\xa73146 and 3148, new subdivision (f) has been added to clarify the situation in which a defendant\nmakes his initial appearance before the United States magistrate and there is a warrant issued by a\njudge of a different district who has endorsed the amount of bail on the warrant. The present\nambiguity of the rule is creating practical administrative problems. If the United States magistrate\nconcludes that a lower bail is appropriate, the judge who fixed the original bail on the warrant has,\non occasion, expressed the view that this is inappropriate conduct by the magistrate. If the\nmagistrate, in such circumstances, does not reduce the bail to the amount supported by all of the\nfacts, there may be caused unnecessary inconvenience to the defendant, and there would arguably\nbe a violation of at least the spirit of the Bail Reform Act and the Eighth Amendment.\nThe Procedures Manual for United States Magistrates, issued under the authority of the\nJudicial Conference of the United States, provides in ch. 6, pp. 8\xe2\x80\x939:\nWhere the arrest occurs in a \xe2\x80\x9cdistant\xe2\x80\x9d district, the rules do not expressly limit the discretion\nof the magistrate in the setting of conditions of release. However, whether or not the magistrate in\nthe district of arrest has authority to set his own bail under Rule 40, considerations of propriety and\ncomity would dictate that the magistrate should not attempt to set bail in a lower amount than that\nfixed by a judge in another district. If an unusual situation should arise where it appears from all\nthe information available to the magistrate that the amount of bail endorsed on the warrant is\nexcessive, he should consult with a judge of his own district or with the judge in the other district\nwho fixed the bail in order to resolve any difficulties. (Where an amount of bail is merely\nrecommended on the indictment by the United States attorney, the magistrate has complete\ndiscretion in setting conditions of release.)\nRule 40 as amended would encourage the above practice and hopefully would eliminate\nthe present confusion and misunderstanding.\nThe last sentence of subdivision (f) requires that the magistrate set forth the reasons for his\naction in writing whenever he fixes bail in an amount different from that previously fixed. Setting\nforth the reasons for the amount of bail fixed, certainly a sound practice in all circumstances, is\nparticularly appropriate when the bail differs from that previously fixed in another district. The\nrequirement that reasons be set out will ensure that the \xe2\x80\x9cconsiderations of propriety and comity\xe2\x80\x9d\n299\n\n\x0creferred to above will be specifically taken into account.\nCongressional Modification of Proposed 1979 Amendment\nSection 1(2) of Pub. L. 96\xe2\x80\x9342 [set out as a note under section 2074 of Title 28, Judiciary\nand Judicial Procedure] provided in part that the amendment proposed by the Supreme Court [in its\norder of Apr. 30, 1979] affecting rule 40 of the Federal Rules of Criminal Procedure [this rule]\nwould take effect on Aug. 1, 1979, as amended by that section. See 1979 Amendment note below.\nNotes of Advisory Committee on Rules\xe2\x80\x941982 Amendment\nThe amendment to 40(d) is intended to make it clear that the transfer provisions therein\napply whenever the arrest occurs other than in the district of probation jurisdiction, and that if\nprobable cause is found at a preliminary hearing held pursuant to Rule 40(d)(2) the probationer\nshould be held to answer in the district having probation jurisdiction.\nOn occasion, the district of probation supervision and the district of probation jurisdiction\nwill not be the same. See, e.g., Cupp v. Byington, 179 F.Supp. 669 (S.D.Ind. 1960) (supervision in\nSouthern District of Indiana, but jurisdiction never transferred from District of Nevada). In such\ncircumstances, it is the district having jurisdiction which may revoke the defendant\'s probation.\nCupp v. Byington, supra; 18 U.S.C. \xc2\xa73653 (\xe2\x80\x9cthe court for the district having jurisdiction over him\n* may revoke the probation\xe2\x80\x9d; if probationer goes to another district, \xe2\x80\x9cjurisdiction over him may be\ntransferred,\xe2\x80\x9d and only then does \xe2\x80\x9cthe court for the district to which jurisdiction is transferred *\nhave all the power with respect to the probationer that was previously possessed by the court for\nthe district from which the transfer was made\xe2\x80\x9d). That being the case, that is the jurisdiction to\nwhich the probationer should be transferred as provided in Rule 40(d).\nBecause Rule 32.1 has now taken effect, a cross-reference to those provisions has been\nmade in subdivision (d)(1) so as to clarify how the magistrate is to proceed if jurisdiction is\ntransferred.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941989 Amendment\nThe amendments recognize that convicted defendants may be on supervised release as well\nas on probation. See 18 U.S.C. \xc2\xa7\xc2\xa73583, and 3624(e).\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe amendment to subdivision (a) is intended to expedite determining where a defendant\nwill be held to answer by permitting facsimile transmission of a warrant or a certified copy of the\nwarrant. The amendment recognizes an increased reliance by the public in general, and the legal\nprofession in particular, on accurate and efficient transmission of important legal documents by\nfacsimile machines.\nThe Rule is also amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93\n300\n\n\x0c650, Title III, Section 321] which provides that each United States magistrate appointed under\nsection 631 of title 28, United States Code, shall be known as a United States magistrate judge.\nNotes of Advisory Committee on Rules\xe2\x80\x941994 Amendment\nThe amendment to subdivision (d) is intended to clarify the authority of a magistrate judge\nto set conditions of release in those cases where a probationer or supervised releasee is arrested in\na district other than the district having jurisdiction. As written, there appeared to be a gap in Rule\n40, especially under (d)(1) where the alleged violation occurs in a jurisdiction other than the\ndistrict having jurisdiction.\nA number of rules contain references to pretrial, trial, and post-trial release or detention of\ndefendants, probationers and supervised releasees. Rule 46, for example, addresses the topic of\nrelease from custody. Although Rule 46(c) addresses custody pending sentencing and notice of\nappeal, the rule makes no explicit provision for detaining or releasing probationers or supervised\nreleasees who are later arrested for violating terms of their probation or release. Rule 32.1 provides\nguidance on proceedings involving revocation of probation or supervised release. In particular,\nRule 32.1(a)(1) recognizes that when a person is held in custody on the ground that the person\nviolated a condition of probation or supervised release, the judge or United States magistrate judge\nmay release the person under Rule 46(c), pending the revocation proceeding. But no other explicit\nreference is made in Rule 32.1 to the authority of a judge or magistrate judge to determine\nconditions of release for a probationer or supervised releasee who is arrested in a district other than\nthe district having jurisdiction.\nThe amendment recognizes that a judge or magistrate judge considering the case of a\nprobationer or supervised releasee under Rule 40(d) has the same authority vis a vis decisions\nregarding custody as a judge or magistrate judge proceeding under Rule 32.1(a)(1). Thus,\nregardless of the ultimate disposition of an arrested probationer or supervised releasee under Rule\n40(d), a judge or magistrate judge acting under that rule may rely upon Rule 46(c) in determining\nwhether custody should be continued and if not, what conditions, if any, should be placed upon the\nperson.\nNotes of Advisory Committee on Rules\xe2\x80\x941995 Amendment\nThe amendment to Rule 40(a) is a technical, conforming change to reflect an amendment to\nRule 5, which recognizes a limited exception to the general rule that all arrestees must be taken\nbefore a federal magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 40 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nRule 40 has been completely revised. The Committee believed that it would be much\nclearer and more helpful to locate portions of Rule 40 in Rules 5 (initial appearances), 5.1\n(preliminary hearings), and 32.1 (revocation or modification of probation or supervised release).\nAccordingly, current Rule 40(a) has been relocated in Rules 5 and 5.1. Current Rule 40(b) has been\nrelocated in Rule 5(c)(2)(B) and current Rule 40(c) has been moved to Rule 5(c)(2)(F).\n301\n\n\x0cCurrent Rule 40(d) has been relocated in Rule 32.1(a)(5). The first sentence of current Rule\n40(e) is now located in revised Rule 40(a). The second sentence of current Rule 40(e) is now in\nrevised Rule 40(b) and current Rule 40(f) is revised Rule 40(c).\nCommittee Notes on Rules\xe2\x80\x942006 Amendment\nSubdivision (a). Rule 40 currently refers only to a person arrested for failing to appear in\nanother district. The amendment is intended to fill a perceived gap in the rule that a magistrate\njudge in the district of arrest lacks authority to set release conditions for a person arrested only for\nviolation of conditions of release. See, e.g., United States v. Zhu, 215 F.R.D. 21, 26 (D. Mass.\n2003). The Committee believes that it would be inconsistent for the magistrate judge to be\nempowered to release an arrestee who had failed to appear altogether, but not to release one who\nonly violated conditions of release in a minor way. Rule 40(a) is amended to expressly cover not\nonly failure to appear, but also violation of any other condition of release.\nChanges Made After Publication and Comment. The Committee made minor clarifying\nchanges in the published rule at the suggestion of the Style Committee.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivision (d). The amendment provides for video teleconferencing in order to bring the\nrule into conformity with Rule 5(f).\nChanges Made to Proposed Amendment Released for Public Comment\nThe amendment was rephrased to track precisely the language of Rule 5(f), on which it was\nmodeled.\nAmendment by Public Law\n1984 \xe2\x80\x94Subd. (d)(1). Pub. L. 98\xe2\x80\x93473, \xc2\xa7215(d), substituted \xe2\x80\x9c3605\xe2\x80\x9d for \xe2\x80\x9c3653\xe2\x80\x9d.\nSubd. (f). Pub. L. 98\xe2\x80\x93473, \xc2\xa7209(c), substituted \xe2\x80\x9cRelease or Detention\xe2\x80\x9d for \xe2\x80\x9cBail\xe2\x80\x9d as the\nsubdivision heading and, in text, substituted \xe2\x80\x9cIf a person was previously detained or conditionally\nreleased, pursuant to chapter 207 of title 18, United States Code,\xe2\x80\x9d for \xe2\x80\x9cIf bail was previously\nfixed\xe2\x80\x9d, \xe2\x80\x9cdecision previously made\xe2\x80\x9d for \xe2\x80\x9camount of bail previously fixed\xe2\x80\x9d, \xe2\x80\x9cby that decision\xe2\x80\x9d for\n\xe2\x80\x9cby the amount of bail previously fixed\xe2\x80\x9d, and \xe2\x80\x9camends the release or detention decision or alters\nthe conditions of release\xe2\x80\x9d for \xe2\x80\x9cfixes bail different from that previously fixed\xe2\x80\x9d.\n1979 \xe2\x80\x94Subd. (d)(1). Pub. L. 96\xe2\x80\x9342, \xc2\xa71(2)(A), struck out \xe2\x80\x9cin accordance with Rule\n32.1(a)\xe2\x80\x9d after \xe2\x80\x9cProceed in\xe2\x80\x9d.\nSubd. (d)(2). Pub. L. 96\xe2\x80\x9342, \xc2\xa71(2)(B), struck out \xe2\x80\x9cin accordance with Rule 32.1(a)(1)\xe2\x80\x9d\nafter \xe2\x80\x9cHold a prompt preliminary hearing\xe2\x80\x9d.\nEffective Date of 1984 Amendment\nAmendment by section 215(d) of Pub. L. 98\xe2\x80\x93473 effective Nov. 1, 1987, and applicable\nonly to offenses committed after the taking effect of such amendment, see section 235(a)(1) of\nPub. L. 98\xe2\x80\x93473, set out as an Effective Date note under section 3551 of this title.\n\nRule 41. Search and Seizure\n302\n\n\x0c(a) Scope and Definitions.\n(1) Scope. This rule does not modify any statute regulating search or seizure, or the\nissuance and execution of a search warrant in special circumstances.\n(2) Definitions. The following definitions apply under this rule:\n(A) \xe2\x80\x9cProperty\xe2\x80\x9d includes documents, books, papers, any other tangible objects, and\ninformation.\n(B) \xe2\x80\x9cDaytime\xe2\x80\x9d means the hours between 6:00 a.m. and 10:00 p.m. according to local time.\n(C) \xe2\x80\x9cFederal law enforcement officer\xe2\x80\x9d means a government agent (other than an attorney\nfor the government) who is engaged in enforcing the criminal laws and is within any category of\nofficers authorized by the Attorney General to request a search warrant.\n(D) \xe2\x80\x9cDomestic terrorism\xe2\x80\x9d and \xe2\x80\x9cinternational terrorism\xe2\x80\x9d have the meanings set out in 18\nU.S.C. \xc2\xa72331.\n(E) \xe2\x80\x9cTracking device\xe2\x80\x9d has the meaning set out in 18 U.S.C. \xc2\xa73117 (b).\n(b) Authority to Issue a Warrant. At the request of a federal law enforcement officer or an\nattorney for the government:\n(1) a magistrate judge with authority in the district\xe2\x80\x94or if none is reasonably available, a\njudge of a state court of record in the district\xe2\x80\x94has authority to issue a warrant to search for and\nseize a person or property located within the district;\n(2) a magistrate judge with authority in the district has authority to issue a warrant for a\nperson or property outside the district if the person or property is located within the district when\nthe warrant is issued but might move or be moved outside the district before the warrant is\nexecuted;\n(3) a magistrate judge\xe2\x80\x94in an investigation of domestic terrorism or international\nterrorism\xe2\x80\x94with authority in any district in which activities related to the terrorism may have\noccurred has authority to issue a warrant for a person or property within or outside that district;\n(4) a magistrate judge with authority in the district has authority to issue a warrant to install\nwithin the district a tracking device; the warrant may authorize use of the device to track the\nmovement of a person or property located within the district, outside the district, or both; and\n(5) a magistrate judge having authority in any district where activities related to the crime\nmay have occurred, or in the District of Columbia, may issue a warrant for property that is located\noutside the jurisdiction of any state or district, but within any of the following:\n(A) a United States territory, possession, or commonwealth;\n(B) the premises\xe2\x80\x94no matter who owns them\xe2\x80\x94of a United States diplomatic or consular\nmission in a foreign state, including any appurtenant building, part of a building, or land used for\nthe mission\'s purposes; or\n(C) a residence and any appurtenant land owned or leased by the United States and used by\nUnited States personnel assigned to a United States diplomatic or consular mission in a foreign\nstate.\n(c) Persons or Property Subject to Search or Seizure. A warrant may be issued for any of\nthe following:\n(1) evidence of a crime;\n(2) contraband, fruits of crime, or other items illegally possessed;\n(3) property designed for use, intended for use, or used in committing a crime; or\n(4) a person to be arrested or a person who is unlawfully restrained.\n(d) Obtaining a Warrant.\n(1) In General. After receiving an affidavit or other information, a magistrate judge\xe2\x80\x94or if\n303\n\n\x0cauthorized by Rule 41(b), a judge of a state court of record\xe2\x80\x94must issue the warrant if there is\nprobable cause to search for and seize a person or property or to install and use a tracking device.\n(2) Requesting a Warrant in the Presence of a Judge.\n(A) Warrant on an Affidavit. When a federal law enforcement officer or an attorney for the\ngovernment presents an affidavit in support of a warrant, the judge may require the affiant to\nappear personally and may examine under oath the affiant and any witness the affiant produces.\n(B) Warrant on Sworn Testimony. The judge may wholly or partially dispense with a\nwritten affidavit and base a warrant on sworn testimony if doing so is reasonable under the\ncircumstances.\n(C) Recording Testimony. Testimony taken in support of a warrant must be recorded by a\ncourt reporter or by a suitable recording device, and the judge must file the transcript or recording\nwith the clerk, along with any affidavit.\n(3) Requesting a Warrant by Telephonic or Other Reliable Electronic Means. In\naccordance with Rule 4.1, a magistrate judge may issue a warrant based on information\ncommunicated by telephone or other reliable electronic means.\n(e) Issuing the Warrant.\n(1) In General. The magistrate judge or a judge of a state court of record must issue the\nwarrant to an officer authorized to execute it.\n(2) Contents of the Warrant.\n(A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device\nwarrant, the warrant must identify the person or property to be searched, identify any person or\nproperty to be seized, and designate the magistrate judge to whom it must be returned. The warrant\nmust command the officer to:\n(i) execute the warrant within a specified time no longer than 14 days;\n(ii) execute the warrant during the daytime, unless the judge for good cause expressly\nauthorizes execution at another time; and\n(iii) return the warrant to the magistrate judge designated in the warrant.\n(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A)\nmay authorize the seizure of electronic storage media or the seizure or copying of electronically\nstored information. Unless otherwise specified, the warrant authorizes a later review of the media\nor information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A)\nand (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any\nlater off-site copying or review.\n(C) Warrant for a Tracking Device. A tracking-device warrant must identify the person or\nproperty to be tracked, designate the magistrate judge to whom it must be returned, and specify a\nreasonable length of time that the device may be used. The time must not exceed 45 days from the\ndate the warrant was issued. The court may, for good cause, grant one or more extensions for a\nreasonable period not to exceed 45 days each. The warrant must command the officer to:\n(i) complete any installation authorized by the warrant within a specified time no longer\nthan 10 days;\n(ii) perform any installation authorized by the warrant during the daytime, unless the judge\nfor good cause expressly authorizes installation at another time; and\n(iii) return the warrant to the judge designated in the warrant.\n(f) Executing and Returning the Warrant.\n(1) Warrant to Search for and Seize a Person or Property.\n(A) Noting the Time. The officer executing the warrant must enter on it the exact date and\n304\n\n\x0ctime it was executed.\n(B) Inventory. An officer present during the execution of the warrant must prepare and\nverify an inventory of any property seized. The officer must do so in the presence of another\nofficer and the person from whom, or from whose premises, the property was taken. If either one is\nnot present, the officer must prepare and verify the inventory in the presence of at least one other\ncredible person. In a case involving the seizure of electronic storage media or the seizure or\ncopying of electronically stored information, the inventory may be limited to describing the\nphysical storage media that were seized or copied. The officer may retain a copy of the\nelectronically stored information that was seized or copied.\n(C) Receipt. The officer executing the warrant must give a copy of the warrant and a receipt\nfor the property taken to the person from whom, or from whose premises, the property was taken\nor leave a copy of the warrant and receipt at the place where the officer took the property.\n(D) Return. The officer executing the warrant must promptly return it\xe2\x80\x94together with a\ncopy of the inventory\xe2\x80\x94to the magistrate judge designated on the warrant. The officer may do so\nby reliable electronic means. The judge must, on request, give a copy of the inventory to the person\nfrom whom, or from whose premises, the property was taken and to the applicant for the warrant.\n(2) Warrant for a Tracking Device.\n(A) Noting the Time. The officer executing a tracking-device warrant must enter on it the\nexact date and time the device was installed and the period during which it was used.\n(B) Return. Within 10 days after the use of the tracking device has ended, the officer\nexecuting the warrant must return it to the judge designated in the warrant. The officer may do so\nby reliable electronic means.\n(C) Service. Within 10 days after the use of the tracking device has ended, the officer\nexecuting a tracking-device warrant must serve a copy of the warrant on the person who was\ntracked or whose property was tracked. Service may be accomplished by delivering a copy to the\nperson who, or whose property, was tracked; or by leaving a copy at the person\'s residence or usual\nplace of abode with an individual of suitable age and discretion who resides at that location and by\nmailing a copy to the person\'s last known address. Upon request of the government, the judge may\ndelay notice as provided in Rule 41(f)(3).\n(3) Delayed Notice. Upon the government\'s request, a magistrate judge\xe2\x80\x94or if authorized\nby Rule 41(b), a judge of a state court of record\xe2\x80\x94may delay any notice required by this rule if the\ndelay is authorized by statute.\n(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of\nproperty or by the deprivation of property may move for the property\'s return. The motion must be\nfiled in the district where the property was seized. The court must receive evidence on any factual\nissue necessary to decide the motion. If it grants the motion, the court must return the property to\nthe movant, but may impose reasonable conditions to protect access to the property and its use in\nlater proceedings.\n(h) Motion to Suppress. A defendant may move to suppress evidence in the court where the\ntrial will occur, as Rule 12 provides.\n(i) Forwarding Papers to the Clerk. The magistrate judge to whom the warrant is returned\nmust attach to the warrant a copy of the return, of the inventory, and of all other related papers and\nmust deliver them to the clerk in the district where the property was seized.\nNotes\n(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Apr. 9, 1956, eff. July 8, 1956; Apr. 24,\n305\n\n\x0c1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July 1, 1974; Apr. 26 and July 8, 1976, eff. Aug. 1,\n1976; Pub. L. 95\xe2\x80\x9378, \xc2\xa72(e), July 30, 1977, 91 Stat. 320, eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug.\n1, 1979; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; May 1, 1990, eff. Dec. 1,\n1990; Apr. 22, 1993, eff. Dec. 1, 1993; Pub. L. 107\xe2\x80\x9356, title II, \xc2\xa7219, Oct. 26, 2001, 115 Stat. 291;\nApr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 23, 2008, eff. Dec. 1, 2008;\nMar. 26, 2009, eff. Dec. 1, 2009; Apr. 26, 2011, eff. Dec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule is a codification of existing law and practice.\nNote to Subdivision (a). This rule is a restatement of existing law, 18 U.S.C. [former] 611.\nNote to Subdivision (b). This rule is a restatement of existing law, 18 U.S.C. [former] 612;\nConyer v. United States, 80 F.2d 292 (C.C.A. 6th). This provision does not supersede or repeal\nspecial statutory provisions permitting the issuance of search warrants in specific circumstances.\nSee Subdivision (g) and Note thereto, infra.\nNote to Subdivision (c). This rule is a restatement of existing law, 18 U.S.C. [former] 613\xe2\x80\x93\n616, 620; Dumbra v. United States, 268 U.S. 435.\nNote to Subdivision (d). This rule is a restatement of existing law, 18 U.S.C. [former] 621\xe2\x80\x93\n624.\nNote to Subdivision (e). This rule is a restatement of existing law and practice, with the\nexception hereafter noted, 18 U.S.C. [former] 625, 626; Weeks v. United States, 232 U.S. 383;\nSilverthorne Lumber Co. v. United States, 251 U.S. 385; Agello v. United States, 269 U.S. 20;\nGouled v. United States, 255 U.S. 298. While under existing law a motion to suppress evidence or\nto compel return of property obtained by an illegal search and seizure may be made either before a\ncommissioner subject to review by the court on motion, or before the court, the rule provides that\nsuch motion may be made only before the court. The purpose is to prevent multiplication of\nproceedings and to bring the matter before the court in the first instance. While during the life of\nthe Eighteenth Amendment when such motions were numerous it was a common practice in some\ndistricts for commissioners to hear such motions, the prevailing practice at the present time is to\nmake such motions before the district court. This practice, which is deemed to be preferable, is\nembodied in the rule.\nNote to Subdivision (f). This rule is a restatement of existing law, 18 U.S.C. [former] 627;\nCf. Rule 5(c) (last sentence).\nNote to Subdivision (g). While Rule 41 supersedes the general provisions of 18 U.S.C. 611\n\xe2\x80\x93626 [now 18 U.S.C. 3105, 3109], relating to search warrants, it does not supersede, but preserves,\nall other statutory provisions permitting searches and seizures in specific situations. Among such\nstatutes are the following:\nU.S.C., Title 18:\nSection 287 [former] (Search warrant for suspected counterfeiture)\nU.S.C., Title 19:\nSection 1595 (Customs duties; searches and seizures)\nU.S.C., Title 26:\nSection 3117 [now 5557] (Officers and agents authorized to investigate, issue search\nwarrants, and prosecute for violations)\nFor statutes which incorporate by reference 18 U.S.C. [former] 98, and therefore are now\ncontrolled by this rule, see, e. g.:\n306\n\n\x0cU.S.C., Title 18:\nSection 12 [former] (Subversive activities; undermining loyalty, discipline, or morale of\narmed forces; searches and seizures)\nU.S.C., Title 26:\nSection 3116 [now 7302] (Forfeitures and seizures)\nStatutory provision for a warrant for detention of war materials seized under certain\ncircumstances is found in 22 U.S.C. 402 [see 401] (Seizure of war materials intended for unlawful\nexport.)\nOther statutes providing for searches and seizures or entry without warrants are the\nfollowing:\nU.S.C., Title 19:\nSection 482 (Search of vehicles and persons)\nU.S.C., Title 25:\nSection 246 [now 18 U.S.C. 3113 ] (Searches and seizures)\nU.S.C., Title 26:\nSection 3601 [now 7606] (Entry of premises for examination of taxable objects)\nU.S.C., Title 29:\nSection 211 (Investigations, inspections, and records)\nU.S.C., Title 49:\nSection 781 [now 80302] (Unlawful use of vessels, vehicles, and aircrafts; contraband\narticle defined)\nSection 782 [now 80303] (Seizure and forfeiture)\nSection 784 [now 80306] (Application of related laws)\nNotes of Advisory Committee on Rules\xe2\x80\x941948 Amendment\nSubdivision (b)(3).\xe2\x80\x94The amendment is to substitute proper reference to Title 18 in place\nof the repealed acts.\nSubdivision (g).\xe2\x80\x94To eliminate reference to sections of the Act of June 15, 1917, c. 30,\nwhich have been repealed by the Act of June 25, 1948, c. 645, which enacted Title 18.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivision (a) is amended to provide that a search warrant may be issued only upon the\nrequest of a federal law enforcement officer or an attorney for the government. The phrase \xe2\x80\x9cfederal\nlaw enforcement officer\xe2\x80\x9d is defined in subdivision (h) in a way which will allow the Attorney\nGeneral to designate the category of officers who are authorized to make application for a search\nwarrant. The phrase \xe2\x80\x9cattorney for the government\xe2\x80\x9d is defined in rule 54.\nThe title to subdivision (b) is changed to make it conform more accurately to the content of\nthe subdivision. Subdivision (b) is also changed to modernize the language used to describe the\nproperty which may be seized with a lawfully issued search warrant and to take account of a recent\nSupreme Court decision ( Warden v. Haden, 387 U.S. 294 (1967)) and recent congressional action\n( 18 U.S.C. \xc2\xa73103a) which authorize the issuance of a search warrant to search for items of solely\nevidential value. 18 U.S.C. \xc2\xa73103a provides that \xe2\x80\x9ca warrant may be issued to search for and seize\nany property that constitutes evidence of a criminal offense. . . .\xe2\x80\x9d\nRecent state legislation authorizes the issuance of a search warrant for evidence of crime.\n307\n\n\x0cSee, e.g., Cal. Penal Code \xc2\xa71524 (4) (West Supp. 1968); Ill.Rev.Stat. ch. 38, \xc2\xa7108\xe2\x80\x933 (1965); LSA\nC.Cr.P. art. 161 (1967); N.Y. CPL \xc2\xa7690.10(4) (McKinney, 1971); Ore.Rev.Stat. \xc2\xa7141.010 (1969);\nWis.Stat. \xc2\xa7968.13(2) (1969).\nThe general weight of recent text and law review comment has been in favor of allowing a\nsearch for evidence. 8 Wigmore, Evidence \xc2\xa72184a. (McNaughton rev. 1961); Kamisar. The\nWiretapping-Eavesdropping Problem: A professor\'s View, 44 Minn.L.Rev. 891 (1960); Kaplan,\nSearch and Seizure: A No-Man\'s Land in the Criminal Law, 49 Calif.L.Rev. 474 (1961);\nComments: 66 Colum.L.Rev. 355 (1966), 45 N.C.L.Rev. 512 (1967), 20 U.Chi.L.Rev. 319 (1953).\nThere is no intention to limit the protection of the fifth amendment against compulsory\nself-incrimination, so items which are solely \xe2\x80\x9ctestimonial\xe2\x80\x9d or \xe2\x80\x9ccommunicative\xe2\x80\x9d in nature might\nwell be inadmissible on those grounds. Schmerber v. California, 384 U.S. 757 (1966). The court\nreferred to the possible fifth amendment limitation in Warden v. Hayden, supra:\nThis case thus does not require that we consider whether there are items of evidential value\nwhose very nature precludes them from being the object of a reasonable search and seizure. [387\nU.S. at 303].\nSee ALI Model Code of Pre-Arraignment Procedure \xc2\xa7551.03(2) and commentary at pp. 3\xe2\x80\x93\n5 (April 30, 1971).\nIt seems preferable to allow the fifth amendment limitation to develop as cases arise rather\nthan attempt to articulate the constitutional doctrine as part of the rule itself.\nThe amendment to subdivision (c) is intended to make clear that a search warrant may\nproperly be based upon a finding of probable cause based upon hearsay. That a search warrant may\nproperly be issued on the basis of hearsay is current law. See, e.g., Jones v. United States, 362 U.S.\n257 (1960); Spinelli v. United States, 393 U.S. 410 (1969). See also State v. Beal, 40 Wis.2d 607,\n162 N.W.2d 640 (1968), reversing prior Wisconsin cases which held that a search warrant could\nnot properly issue on the basis of hearsay evidence.\nThe provision in subdivision (c) that the magistrate may examine the affiant or witnesses\nunder oath is intended to assure him an opportunity to make a careful decision as to whether there\nis probable cause. It seems desirable to do this as an incident to the issuance of the warrant rather\nthan having the issue raised only later on a motion to suppress the evidence. See L. Tiffany, D.\nMcIntyre, and D. Rotenberg, Detection of Crime 118 (1967). If testimony is taken it must be\nrecorded, transcribed, and made part of the affidavit or affidavits. This is to insure an adequate\nbasis for determining the sufficiency of the evidentiary grounds for the issuance of the search\nwarrant if that question should later arise.\nThe requirement that the warrant itself state the grounds for its issuance and the names of\nany affiants, is eliminated as unnecessary paper work. There is no comparable requirement for an\narrest warrant in rule 4. A person who wishes to challenge the validity of a search warrant has\naccess to the affidavits upon which the warrant was issued.\nThe former requirement that the warrant require that the search be conducted \xe2\x80\x9cforthwith\xe2\x80\x9d is\nchanged to read \xe2\x80\x9cwithin a specified period of time not to exceed 10 days.\xe2\x80\x9d The former rule\ncontained an inconsistency between subdivision (c) requiring that the search be conducted\n\xe2\x80\x9cforthwith\xe2\x80\x9d and subdivision (d) requiring execution \xe2\x80\x9cwithin 10 days after its date.\xe2\x80\x9d The\namendment resolves this ambiguity and confers discretion upon the issuing magistrate to specify\nthe time within which the search may be conducted to meet the needs of the particular case.\nThe rule is also changed to allow the magistrate to authorize a search at a time other than\n\xe2\x80\x9cdaytime,\xe2\x80\x9d where there is \xe2\x80\x9creasonable cause shown\xe2\x80\x9d for doing so. To make clear what \xe2\x80\x9cdaytime\xe2\x80\x9d\nmeans, the term is defined in subdivision (h).\n308\n\n\x0cSubdivision (d) is amended to conform its language to the Federal Magistrates Act. The\nlanguage \xe2\x80\x9cThe warrant may be executed and returned only within 10 days after its date\xe2\x80\x9d is omitted\nas unnecessary. The matter is now covered adequately in proposed subdivision (c) which gives the\nissuing officer authority to fix the time within which the warrant is to be executed.\nThe amendment to subdivision (e) and the addition of subdivision (f) are intended to\nrequire the motion to suppress evidence to be made in the trial court rather than in the district in\nwhich the evidence was seized as now allowed by the rule. In DiBella v. United States, 369 U.S.\n121 (1962), the court, in effect, discouraged motions to suppress in the district in which the\nproperty was seized:\nThere is a decision in the Second Circuit, United States v. Klapholz, 230 F.2d 494 (1956),\nallowing the Government an appeal from an order granting a post-indictment motion to suppress,\napparently for the single reason that the motion was filed in the district of seizure rather than of\ntrial; but the case was soon thereafter taken by a District Court to have counseled declining\njurisdiction of such motions for reasons persuasive against allowing the appeal: \xe2\x80\x9cThis course will\navoid a needless duplication of effort by two courts and provide a more expeditious resolution of\nthe controversy besides avoiding the risk of determining prematurely and inadequately the\nadmissibility of evidence at the trial. . . . A piecemeal adjudication such as that which would\nnecessarily follow from a disposition of the motion here might conceivably result in prejudice\neither to the Government or the defendants, or both.\xe2\x80\x9d United States v. Lester, 21 F.R.D. 30, 31\n(D.C.S.D.N.Y. 1957). Rule 41(e), of course, specifically provides for making of the motion in the\ndistrict of seizure On a summary hearing, however, the ruling there is likely always to be tentative.\nWe think it accords most satisfactorily with sound administration of the Rules to treat such rulings\nas interlocutory. [369 U.S. at 132\xe2\x80\x93133.]\nAs amended, subdivision (e) provides for a return of the property if (1) the person is\nentitled to lawful possession and (2) the seizure was illegal. This means that the judge in the\ndistrict of seizure does not have to decide the legality of the seizure in cases involving contraband\nwhich, even if seized illegally, is not to be returned.\nThe five grounds for returning the property, presently listed in the rule, are dropped for two\nreasons\xe2\x80\x94(1) substantive grounds for objecting to illegally obtained evidence ( e.g., Miranda) are\nnot ordinarily codified in the rules and (2) the categories are not entirely accurate. See United\nStates v. Howard, 138 F.Supp. 376, 380 (D.Md. 1956).\nA sentence is added to subdivision (e) to provide that a motion for return of property, made\nin the district of trial, shall be treated also as a motion to suppress under rule 12. This change is\nintended to further the objective of rule 12 which is to have all pretrial motions disposed of in a\nsingle court appearance rather than to have a series of pretrial motions made on different dates,\ncausing undue delay in administration.\nSubdivision (f) is new and reflects the position that it is best to have the motion to suppress\nmade in the court of the district of trial rather than in the court of the district in which the seizure\noccurred. The motion to suppress in the district of trial should be made in accordance with the\nprovisions of rule 12.\nSubdivision (g) is changed to conform to subdivision (c) which requires the return to be\nmade before a federal judicial officer even though the search warrant may have been issued by a\nnonfederal magistrate.\nSubdivision (h) is former rule 41(g) with the addition of a definition of the term \xe2\x80\x9cdaytime\xe2\x80\x9d\nand the phrase \xe2\x80\x9cfederal law enforcement officer.\xe2\x80\x9d\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\n309\n\n\x0cThe amendment restores the words \xe2\x80\x9ccourt of record\xe2\x80\x9d which were inadvertently omitted\nfrom the amended text of the subdivision which was transmitted by the Judicial Conference to the\nSupreme Court and prescribed by the Court on April 24, 1972.\nNotes of Advisory Committee on Rules\xe2\x80\x941977 Amendment\nRule 41(c)(2) is added to establish a procedure for the issuance of a search warrant when it\nis not reasonably practicable for the person obtaining the warrant to present a written affidavit to a\nmagistrate or a state judge as required by subdivision (c)(1). At least two states have adopted a\nsimilar procedure, Ariz.Rev.Stat. Ann. \xc2\xa7\xc2\xa713\xe2\x80\x931444(c)\xe2\x80\x931445(c) (Supp. 1973); Cal.Pen. Code\n\xc2\xa7\xc2\xa71526(b), 1528(b) (West Supp. 1974), and comparable amendments are under consideration in\nother jurisdictions. See Israel, Legislative Regulation of Searches and Seizures: The Michigan\nProposals, 73 Mich.L.Rev. 221, 258\xe2\x80\x9363 (1975); Nakell, Proposed Revisions of North Carolina\'s\nSearch and Seizure Law, 52 N.Car.L.Rev. 277, 306\xe2\x80\x9311 (1973). It has been strongly recommended\nthat \xe2\x80\x9cevery State enact legislation that provides for the issuance of search warrants pursuant to\ntelephoned petitions and affidavits from police officers.\xe2\x80\x9d National Advisory Commission on\nCriminal Justice Standards and Goals, Report on Police 95 (1973). Experience with the procedure\nhas been most favorable. Miller, Telephonic Search Warrants: The San Diego Experience, 9 The\nProsecutor 385 (1974).\nThe trend of recent Supreme Court decisions has been to give greater priority to the use of\na search warrant as the proper way of making a lawful search:\nIt is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure\nand use search warrants whenever reasonably practicable. . . . This rule rests upon the desirability\nof having magistrates rather than police officers determine when searches and seizures are\npermissible and what limitations should be placed upon such activities. Trupiano v. United States,\n334 U.S. 699, 705 (1948), quoted with approval in Chimel v. California, 395 U.S. 752, 758 (1969).\nSee also Coolidge v. New Hampshire, 403 U.S. 443 (1971); Note, Chambers v. Maroney:\nNew Dimensions in the Law of Search and Seizure, 46 Indiana L.J. 257, 262 (1971).\nUse of search warrants can best be encouraged by making it administratively feasible to\nobtain a warrant when one is needed. One reason for the nonuse of the warrant has been the\nadministrative difficulties involved in getting a warrant, particularly at times of the day when a\njudicial officer is ordinarily unavailable. See L. Tiffany, D. McIntyre, and D. Rotenberg, Detection\nof Crime 105\xe2\x80\x93116 (1967); LaFave, Improving Police Performance Through the Exclusionary\nRule, 30 Mo.L.Rev. 391, 411 (1965). Federal law enforcement officers are not infrequently\nconfronted with situations in which the circumstances are not sufficiently \xe2\x80\x9cexigent\xe2\x80\x9d to justify the\nserious step of conducting a warrantless search of private premises, but yet there exists a\nsignificant possibility that critical evidence would be lost in the time it would take to obtain a\nsearch warrant by traditional means. See, e.g., United States v. Johnson,\xe2\x80\x94F.2d\xe2\x80\x94(D.C. Cir. June\n16, 1975).\nSubdivision (c)(2) provides that a warrant may be issued on the basis of an oral statement\nof a person not in the physical presence of the federal magistrate. Telephone, radio, or other\nelectronic methods of communication are contemplated. For the warrant to properly issue, four\nrequirements must be met:\n(1) The applicant\xe2\x80\x94a federal law enforcement officer or an attorney for the government, as\n310\n\n\x0crequired by subdivision (a)\xe2\x80\x94must persuade the magistrate that the circumstances of time and\nplace make it reasonable to request the magistrate to issue a warrant on the basis of oral testimony.\nThis restriction on the issuance of a warrant recognizes the inherent limitations of an oral warrant\nprocedure, the lack of demeanor evidence, and the lack of a written record for the reviewing\nmagistrate to consider before issuing the warrant. See Comment, Oral Search Warrants: A New\nStandard of Warrant Availability, 21 U.C.L.A. Law Review 691, 701 (1974). Circumstances\nmaking it reasonable to obtain a warrant on oral testimony exist if delay in obtaining the warrant\nmight result in the destruction or disappearance of the property [see Chimel v. California, 395 U.S.\n752, 773\xe2\x80\x93774 (1969) (White, dissenting); Landynski, The Supreme Court\'s Search for Fourth\nAmendment Standards: The Warrantless Search, 45 Conn.B.J. 2, 25 (1971)]; or because of the\ntime when the warrant is sought, the distance from the magistrate of the person seeking the\nwarrant, or both.\n(2) The applicant must orally state facts sufficient to satisfy the probable cause requirement\nfor the issuance of the search warrant. (See subdivision (c)(1).) This information may come from\neither the applicant federal law enforcement officer or the attorney for the government or a witness\nwilling to make an oral statement. The oral testimony must be recorded at this time so that the\ntranscribed affidavit will provide an adequate basis for determining the sufficiency of the evidence\nif that issue should later arise. See Kipperman. Inaccurate Search Warrant Affidavits as a Ground\nfor Suppressing Evidence, 84 Harv.L.Rev. 825 (1971). It is contemplated that the recording of the\noral testimony will be made by a court reporter, by a mechanical recording device, or by a\nverbatim contemporaneous writing by the magistrate. Recording a telephone conversation is no\nlonger difficult with many easily operated recorders available. See 86:2 L.A. Daily Journal 1\n(1973); Miller, Telephonic Search Warrants: The San Diego Experience, 9 The Prosecutor 385,\n386 (1974).\n(3) The applicant must read the contents of the warrant to the federal magistrate in order to\nenable the magistrate to know whether the requirements of certainty in the warrant are satisfied.\nThe magistrate may direct that changes be made in the warrant. If the magistrate approves the\nwarrant as requested or as modified by the magistrate, he then issues the warrant by directing the\napplicant to sign the magistrate\'s name to the duplicate original warrant. The magistrate then\ncauses to be made a written copy of the approved warrant. This constitutes the original warrant.\nThe magistrate enters the time of issuance of the duplicate original warrant on the face of the\noriginal warrant.\n(4) Return of the duplicate original warrant and the original warrant must conform to\nsubdivision (d). The transcript of the sworn oral testimony setting forth the grounds for issuance of\nthe warrant must be signed by affiant in the presence of the magistrate and filed with the court.\nBecause federal magistrates are likely to be accessible through the use of the telephone or\nother electronic devices, it is unnecessary to authorize state judges to issue warrants under\nsubdivision (c)(2).\nAlthough the procedure set out in subdivision (c)(2) contemplates resort to technology\nwhich did not exist when the Fourth Amendment was adopted, the Advisory Committee is of the\nview that the procedure complies with all of the requirements of the Amendment. The telephonic\nsearch warrant process has been upheld as constitutional by the courts, e.g., People v. Peck, 38\nCal.App.3d 993, 113 Cal.Rptr. 806 (1974), and has consistently been so viewed by commentators.\nSee Israel, Legislative Regulation of Searches and Seizures: The Michigan Proposals, 73\nMich.L.Rev. 221, 260 (1975); Nakell, Proposed Revisions of North Carolina\'s Search and Seizure\nLaw, 52 N.Car.L.Rev. 277, 310 (1973); Comment, Oral Search Warrants: A New Standard of\n311\n\n\x0cWarrant Availability, 21 U.C.L.A.Rev. 691, 697 (1973).\nReliance upon oral testimony as a basis for issuing a search warrant is permissible under\nthe Fourth Amendment. Campbell v. Minnesota, 487 F.2d 1 (8th Cir. 1973); United States ex rel.\nGaugler v. Brierley, 477 F.2d 516 (3d Cir. 1973); Tabasko v. Barton, 472 F.2d 871 (6th Cir. 1972);\nFrazier v. Roberts, 441 F.2d 1224 (8th Cir. 1971). Thus, the procedure authorized under\nsubdivision (c)(2) is not objectionable on the ground that the oral statement is not transcribed in\nadvance of the issuance of the warrant. People v. Peck, 38 Cal.App.3d 993, 113 Cal.Rptr. 806\n(1974). Although it has been questioned whether oral testimony will suffice under the Fourth\nAmendment if some kind of contemporaneous record is not made of that testimony, see dissent\nfrom denial of certiorari in Christofferson v. Washington, 393 U.S. 1090 (1969), this problem is\nnot present under the procedure set out in subdivision (c)(2).\nThe Fourth Amendment requires that warrants issue \xe2\x80\x9cupon probable cause, supported by\nOath or affirmation.\xe2\x80\x9d The significance of the oath requirement is \xe2\x80\x9cthat someone must take the\nresponsibility for the facts alleged, giving rise to the probable cause for the issuance of a warrant.\xe2\x80\x9d\nUnited States ex rel. Pugh v. Pate, 401 F.2d 6 (7th Cir. 1968); See also Frazier v. Roberts, 441\nF.2d 1224 (8th Cir. 1971). This is accomplished under the procedure required by subdivision\n(c)(2); the need for an oath under the Fourth Amendment does not \xe2\x80\x9crequire a face to face\nconfrontation between the magistrate and the affiant.\xe2\x80\x9d People v. Chavaz, 27 Cal.App.3d 883, 104\nCal.Rptr. 247 (1972). See also People v. Aguirre, 26 Cal.App.3d 7, 103 Cal.Rptr. 153 (1972),\nnoting it is unnecessary that \xe2\x80\x9coral statements [be] taken in the physical presence of the magistrate.\xe2\x80\x9d\nThe availability of the procedure authorized by subdivision (c)(2) will minimize the\nnecessity of federal law enforcement officers engaging in other practices which, at least on\noccasion, might threaten to a greater extent those values protected by the Fourth Amendment.\nAlthough it is permissible for an officer in the field to relay his information by radio or telephone\nto another officer who has more ready access to a magistrate and who will thus act as the affiant,\nLopez v. United States, 370 F.2d 8 (5th Cir. 1966); State v. Banks, 250 N.C. 728, 110 S.E.2d 322\n(1959), that procedure is less desirable than that permitted under subdivision (c)(2), for it deprives\n\xe2\x80\x9cthe magistrate of the opportunity to examine the officer at the scene, who is in a much better\nposition to answer questions relating to probable cause and the requisite scope of the search.\xe2\x80\x9d\nIsrael, Legislative Regulation of Searches and Seizures: The Michigan Proposals, 73 Mich.L.Rev.\n221, 260 (1975). Or, in the absence of the subdivision (c)(2) procedure, officers might take\n\xe2\x80\x9cprotective custody\xe2\x80\x9d of the premises and occupants for a significant period of time while a search\nwarrant was sought by traditional means. The extent to which the \xe2\x80\x9cprotective custody\xe2\x80\x9d procedure\nmay be employed consistent with the Fourth Amendment is uncertain at best; see Griswold,\nCriminal Procedure, 1969\xe2\x80\x94Is It a Means or an End?, 29 Md.L.Rev. 307, 317 (1969). The\nunavailability of the subdivision (c)(2) procedure also makes more tempting an immediate resort\nto a warrantless search in the hope that the circumstances will later be found to have been\nsufficiently \xe2\x80\x9cexigent\xe2\x80\x9d to justify such a step. See Miller, Telephonic Search Warrants: The San\nDiego Experience, 9 The Prosecutor 385, 386 (1974), noting a dramatic increase in police\nutilization of the warrant process following enactment of a telephonic warrant statute.\nNotes of Committee on the Judiciary, Senate Report No. 95\xe2\x80\x93354; 1977 Amendments\nProposed by the Supreme Court\nThe committee agrees with the Supreme Court that it is desirable to encourage Federal law\nenforcement officers to seek search warrants in situations where they might otherwise conduct\n312\n\n\x0cwarrantless searches by providing for a telephone search warrant procedure with the basic\ncharacteristics suggested in the proposed Rule 41(c)(2). As the Supreme Court has observed, \xe2\x80\x9cIt is\na cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use\nsearch warrants whenever reasonably practicable.\xe2\x80\x9d After consideration of the Supreme Court\nversion and a proposal set forth in H.R. 7888, the committee decided to use the language of the\nHouse bill as the vehicle, with certain modifications.\nA new provision, as indicated in subparagraph (c)(2)(A), is added to establish a procedure\nfor the issuance of a search warrant where the circumstances make it reasonable to dispense with a\nwritten affidavit to be presented in person to a magistrate. At least two States have adopted a\nsimilar procedure\xe2\x80\x94Arizona and California\xe2\x80\x94and comparable amendments are under\nconsideration in other jurisdictions. Such a procedure has been strongly recommended by the\nNational Advisory Commission on Criminal Justice Standards and Goals and State experience\nwith the procedure has been favorable. The telephone search warrant process has been upheld as\nconstitutional by the courts and has consistently been so viewed by commentators.\nIn recommending a telephone search warrant procedure, the Advisory Committee note on\nthe Supreme Court proposal points out that the preferred method of conducting a search is with a\nsearch warrant. The note indicates that the rationale for the proposed change is to encourage\nFederal law enforcement officers to seek search warrants in situations when they might otherwise\nconduct warrantless searches. \xe2\x80\x9cFederal law enforcement officers are not infrequently confronted\nwith situations in which the circumstances are not sufficiently \xe2\x80\x98exigent\xe2\x80\x99 to justify the serious step\nof conducting a warrantless search of private premises, but yet there exists a significant possibility\nthat critical evidence would be lost in the time it would take to obtain a search warrant by\ntraditional means.\xe2\x80\x9d\nSubparagraph (c)(2)(B) provides that the person requesting the warrant shall prepare a\n\xe2\x80\x9cduplicate original warrant\xe2\x80\x9d which will be read and recorded verbatim by the magistrate on an\n\xe2\x80\x9coriginal warrant.\xe2\x80\x9d The magistrate may direct that the warrant be modified.\nSubparagraph (c)(2)(C) provides that, if the magistrate is satisfied that the circumstances\nare such as to make it reasonable to dispense with a written affidavit and that grounds for the\napplication exist or there is probable cause to believe that they exist, he shall order the issuance of\nthe warrant by directing the requestor to sign the magistrate\'s name on the duplicate original\nwarrant. The magistrate is required to sign the original warrant and enter the time of issuance\nthereon. The finding of probable cause may be based on the same type of evidence appropriate for\na warrant upon affidavit.\nSubparagraph (c)(2)(D) requires the magistrate to place the requestor and any witness\nunder oath and, if a voice recording device is available, to record the proceeding. If a voice\nrecording is not available, the proceeding must be recorded verbatim stenographically or in\nlonghand. Verified copies must be filed with the court as specified.\nSubparagraph (c)(2)(E) provides that the contents of the warrant upon oral testimony shall\nbe the same as the contents of a warrant upon affidavit.\nSubparagraph (c)(2)(F) provides that the person who executes the warrant shall enter the\nexact time of execution on the face of the duplicate original warrant. Unlike H.R. 7888, this\nsubparagraph does not require the person who executes the warrant to have physical possession of\nthe duplicate original warrant at the time of the execution of the warrant. The committee believes\nthis would make an unwise and unnecessary distinction between execution of regular warrants\nissued on written affidavits and warrants issued by telephone that would limit the flexibility and\nutility of this procedure for no useful purpose.\n313\n\n\x0cFinally, subparagraph (c)(2)(G) makes it clear that, absent a finding of bad faith by the\ngovernment, the magistrate\'s judgment that the circumstances made it reasonable to dispense with\na written affidavit\xe2\x80\x94a decision that does not go to the core question of whether there was probable\ncause to issue a warrant\xe2\x80\x94is not a ground for granting a motion to suppress evidence.\nCongressional Modification of Proposed 1977 Amendment\nSection 2(e) of Pub. L. 95\xe2\x80\x9378 provided in part that the amendment by the Supreme Court\n[in its order of Apr. 26, 1976] to subdivision (c) of rule 41 of the Federal Rules of Criminal\nProcedure [subd. (c) of this rule] is approved in a modified form.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nThis amendment to Rule 41 is intended to make it possible for a search warrant to issue to\nsearch for a person under two circumstances: (i) when there is probable cause to arrest that person;\nor (ii) when that person is being unlawfully restrained. There may be instances in which a search\nwarrant would be required to conduct a search in either of these circumstances. Even when a\nsearch warrant would not be required to enter a place to search for a person, a procedure for\nobtaining a warrant should be available so that law enforcement officers will be encouraged to\nresort to the preferred alternative of acquiring \xe2\x80\x9can objective predetermination of probable cause\xe2\x80\x9d\nKatz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in this instance, that the\nperson sought is at the place to be searched.\nThat part of the amendment which authorizes issuance of a search warrant to search for a\nperson unlawfully restrained is consistent with ALI Model Code of Pre-Arraignment Procedure\n\xc2\xa7SS 210.3(1)(d) (Proposed Official Draft, 1975), which specifies that a search warrant may issue\nto search for \xe2\x80\x9can individual * who is unlawfully held in confinement or other restraint.\xe2\x80\x9d As\nnoted in the Commentary thereto, id. at p. 507:\nOrdinarily such persons will be held against their will and in that case the persons are, of\ncourse, not subject to \xe2\x80\x9cseizure.\xe2\x80\x9d But they are, in a sense, \xe2\x80\x9cevidence\xe2\x80\x9d of crime, and the use of search\nwarrants for these purposes presents no conceptual difficulties.\nSome state search warrant provisions also provide for issuance of a warrant in these\ncircumstances. See, e. g., Ill.Rev.Stat. ch. 38, \xc2\xa7108\xe2\x80\x933 (\xe2\x80\x9cAny person who has been kidnapped in\nviolation of the laws of this State, or who has been kidnapped in another jurisdiction and is now\nconcealed within this State\xe2\x80\x9d).\nIt may be that very often exigent circumstances, especially the need to act very promptly to\nprotect the life or well-being of the kidnap victim, would justify an immediate warrantless search\nfor the person restrained. But this is not inevitably the case. Moreover, as noted above there should\nbe available a process whereby law enforcement agents may acquire in advance a judicial\ndetermination that they have cause to intrude upon the privacy of those at the place where the\nvictim is thought to be located.\nThat part of the amendment which authorizes issuance of a search warrant to search for a\nperson to be arrested is also consistent with ALI Model Code of Pre-Arraignment Procedure \xc2\xa7SS\n210.3(1)(d) (Proposed Official Draft, 1975), which states that a search warrant may issue to search\nfor \xe2\x80\x9can individual for whose arrest there is reasonable cause.\xe2\x80\x9d As noted in the Commentary thereto,\nid. at p. 507, it is desirable that there be \xe2\x80\x9cexplicit statutory authority for such searches.\xe2\x80\x9d Some state\nsearch warrant provisions also expressly provide for the issuance of a search warrant to search for\n314\n\n\x0ca person to be arrested. See, e. g., Del.Code Ann. tit. 11, \xc2\xa72305 (\xe2\x80\x9cPersons for whom a warrant of\narrest has been issued\xe2\x80\x9d). This part of the amendment to Rule 41 covers a defendant or witness for\nwhom an arrest warrant has theretofore issued, or a defendant for whom grounds to arrest exist\neven though no arrest warrant has theretofore issued. It also covers the arrest of a deportable alien\nunder 8 U.S.C. \xc2\xa71252, whose presence at a certain place might be important evidence of criminal\nconduct by another person, such as the harboring of undocumented aliens under 8 U.S.C.\n\xc2\xa71324(a)(3).\nIn United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Court\nonce again alluded to \xe2\x80\x9cthe still unsettled question\xe2\x80\x9d of whether, absent exigent circumstances,\nofficers acting without a warrant may enter private premises to make an arrest. Some courts have\nindicated that probable cause alone ordinarily is sufficient to support an arrest entry. United States\nv. Fernandez, 480 F.2d 726 (2d Cir. 1973); United States ex rel. Wright v. Woods, 432 F.2d 1143\n(7th Cir. 1970). There exists some authority, however, that except under exigent circumstances a\nwarrant is required to enter the defendant\'s own premises, United States v. Calhoun, 542 F.2d 1094\n(9th Cir. 1976); United States v. Lindsay, 506 F.2d 166 (D.C.Cir. 1974); Dorman v. United States,\n435 F.2d 385 (D.C.Cir. 1970), or, at least, to enter the premises of a third party, Virgin Islands v.\nGereau, 502 F.2d 914 (3d Cir. 1974); Fisher v. Volz, 496 F.2d 333 (3d Cir. 1974); Huotari v.\nVanderport, 380 F.Supp. 645 (D.Minn. 1974).\nIt is also unclear, assuming a need for a warrant, what kind of warrant is required, although\nit is sometimes assumed that an arrest warrant will suffice, e. g., United States v. Calhoun, supra;\nUnited States v. James, 528 F.2d 999 (5th Cir. 1976). There is a growing body of authority,\nhowever, that what is needed to justify entry of the premises of a third party to arrest is a search\nwarrant, e. g., Virgin Islands v. Gereau, supra; Fisher v. Volz, supra. The theory is that if the\nprivacy of this third party is to be protected adequately, what is needed is a probable cause\ndetermination by a magistrate that the wanted person is presently within that party\'s premises. \xe2\x80\x9cA\nwarrant for the arrest of a suspect may indicate that the police officer has probable cause to believe\nthe suspect committed the crime; it affords no basis to believe the suspect is in some stranger\'s\nhome.\xe2\x80\x9d Fisher v. Volz, supra.\nIt has sometimes been contended that a search warrant should be required for a nonexigent\nentry to arrest even when the premises to be entered are those of the person to be arrested.\nRotenberg & Tanzer, Searching for the Person to be Seized, 35 Ohio St.L.J. 56, 69 (1974). Case\nauthority in support is lacking, and it may be that the protections of a search warrant are less\nimportant in such a situation because ordinarily \xe2\x80\x9crudimentary police procedure dictates that a\nsuspect\'s residence be eliminated as a possible hiding place before a search is conducted\nelsewhere.\xe2\x80\x9d People v. Sprovieri, 95 Ill.App.2d 10, 238 N.E.2d 115 (1968).\nDespite these uncertainties, the fact remains that in some circuits under some\ncircumstances a search warrant is required to enter private premises to arrest. Moreover, the law on\nthis subject is in a sufficient state of uncertainty that this position may be taken by other courts. It is\nthus important that Rule 41 clearly express that a search warrant for this purpose may issue. And\neven if future decisions head the other direction, the need for the amendment would still exist. It is\nclear that law enforcement officers \xe2\x80\x9cmay not constitutionally enter the home of a private individual\nto search for another person, though he be named in a valid arrest warrant in their possession,\nabsent probable cause to believe that the named suspect is present within at the time.\xe2\x80\x9d Fisher v.\nVolz, supra. The cautious officer is entitled to a procedure whereby he may have this probable\ncause determination made by a neutral and detached magistrate in advance of the entry.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\n315\n\n\x0cThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941989 Amendment\nThe amendment to Rule 41(e) conforms the rule to the practice in most districts and\neliminates language that is somewhat confusing. The Supreme Court has upheld warrants for the\nsearch and seizure of property in the possession of persons who are not suspected of criminal\nactivity. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547 (1978). Before the amendment, Rule\n41(e) permitted such persons to seek return of their property if they were aggrieved by an unlawful\nsearch and seizure. But, the rule failed to address the harm that may result from the interference\nwith the lawful use of property by persons who are not suspected of wrongdoing. Courts have\nrecognized that once the government no longer has a need to use evidence, it should be returned.\nSee, e.g., United States v. Wilson, 540 F.2d 1100 (D.C. Cir. 1976). Prior to the amendment, Rule\n41(e) did not explicitly recognize a right of a property owner to obtain return of lawfully seized\nproperty even though the government might be able to protect its legitimate law enforcement\ninterests in the property despite its return\xe2\x80\x94e.g., by copying documents or by conditioning the\nreturn on government access to the property at a future time. As amended, Rule 41(e) provides that\nan aggrieved person may seek return of property that has been unlawfully seized, and a person\nwhose property has been lawfully seized may seek return of property when aggrieved by the\ngovernment\'s continued possession of it.\nNo standard is set forth in the rule to govern the determination of whether property should\nbe returned to a person aggrieved either by an unlawful seizure or by deprivation of the property.\nThe fourth amendment protects people from unreasonable seizures as well as unreasonable\nsearches, United States v. Place, 462 U.S. 696, 701 (1983), and reasonableness under all of the\ncircumstances must be the test when a person seeks to obtain the return of property. If the United\nStates has a need for the property in an investigation or prosecution, its retention of the property\ngenerally is reasonable. But, if the United States\xe2\x80\x99 legitimate interests can be satisfied even if the\nproperty is returned, continued retention of the property would become unreasonable.\nThe amendment deletes language dating from 1944 stating that evidence shall not be\nadmissible at a hearing or at a trial if the court grants the motion to return property under Rule\n41(e). This language has not kept pace with the development of exclusionary rule doctrine and is\ncurrently only confusing. The Supreme Court has now held that evidence seized in violation of the\nfourth amendment, but in good faith pursuant to a warrant, may be used even against a person\naggrieved by the constitutional violation. United States v. Leon, 468 U.S. 897 (1984). The Court\nhas also held that illegally seized evidence may be admissible against persons who are not\npersonally aggrieved by an illegal search or seizure. Rakas v. Illinois, 439 U.S. 128 (1978).\nProperty that is inadmissible for one purpose (e.g., as part of the government\'s case-in-chief) may\nbe admissible for another purpose (e.g., impeachment, United States v. Havens, 446 U.S. 620\n(1980)). Federal courts have relied upon these decisions and permitted the government to retain\nand to use evidence as permitted by the fourth amendment.\nRule 41(e) is not intended to deny the United States the use of evidence permitted by the\nfourth amendment and federal statutes, even if the evidence might have been unlawfully seized.\nSee, e.g., United States v. Calandra, 414 U.S. 338, 349 n.6 (1978) (\xe2\x80\x9cRule 41(e) does not constitute\na statutory expansion of the exclusionary rule.\xe2\x80\x9d); United States v. Roberts, 852 F.2d 671 (2nd Cir.\n316\n\n\x0c1988) (exceptions to exclusionary rule applicable to Rule 41(e)). Thus, the exclusionary provision\nis deleted, and the scope of the exclusionary rule is reserved for judicial decisions.\nIn opting for a reasonableness approach and in deleting the exclusionary language, the\nCommittee rejects the analysis of Sovereign News Co. v. United States, 690 F.2d 569 (6th Cir.\n1982), cert. denied, 464 U.S. 814 (1983), which held that the United States must return\nphotocopies of lawfully seized business records unless it could demonstrate that the records were\n\xe2\x80\x9cnecessary for a specific investigation.\xe2\x80\x9d As long as the government has a law enforcement purpose\nin copying records, there is no reason why it should be saddled with a heavy burden of justifying\nthe copying. Although some cases have held that the government must return copies of records\nwhere the originals were illegally seized\xe2\x80\x94See, e.g., United States v. Wallace & Tiernan Co., 336\nU.S. 793, 801 (1948); Goodman v. United States, 369 F.2d 166 (9th Cir. 1966)\xe2\x80\x94these holdings are\nquestionable in situations in which the government is permitted under Supreme Court decisions to\nuse illegally seized evidence, and their reasoning does not apply to legally seized evidence.\nAs amended, Rule 41(e) avoids an all or nothing approach whereby the government must\neither return records and make no copies or keep originals notwithstanding the hardship to their\nowner. The amended rule recognizes that reasonable accommodations might protect both the law\nenforcement interests of the United States and the property rights of property owners and holders.\nIn many instances documents and records that are relevant to ongoing or contemplated\ninvestigations and prosecutions may be returned to their owner as long as the government\npreserves a copy for future use. In some circumstances, however, equitable considerations might\njustify an order requiring the government to return or destroy all copies of records that it has\nseized. See, e.g., Paton v. LaPrade, 524 F.2d 862, 867\xe2\x80\x9369 (3rd Cir. 1975). The amended rule\ncontemplates judicial action that will respect both possessory and law enforcement interests.\nThe word \xe2\x80\x9cjudge\xe2\x80\x9d is changed to \xe2\x80\x9ccourt\xe2\x80\x9d in the second sentence of subdivision (e) to clarify\nthat a magistrate may receive evidence in the course of making a finding or a proposed finding for\nconsideration by the district judge.\nNotes of Advisory Committee on Rules\xe2\x80\x941990 Amendment\nRule 41(a). The amendment to Rule 41(a) serves several purposes. First, it furthers the\nconstitutional preference for warrants by providing a mechanism whereby a warrant may be issued\nin a district for a person or property that is moving into or through a district or might move outside\nthe district while the warrant is sought or executed. Second, it clarifies the authority of federal\nmagistrates to issue search warrants for property that is relevant to criminal investigation being\nconducted in a district and, although located outside the United States, that is in a place where the\nUnited States may lawfully conduct a search.\nThe amendment is not intended to expand the class of persons authorized to request a\nwarrant and the language \xe2\x80\x9cupon request of a federal law enforcement officer,\xe2\x80\x9d modifies all\nwarrants covered by Rule 41. The amendment is intended to make clear that judges of state courts\nof record within a federal district may issue search warrants for persons or property located within\nthat district. The amendment does not prescribe the circumstances in which a warrant is required\nand is not intended to change the law concerning warrant requirements. Rather the rule provides a\nmechanism for the issuance of a warrant when one is required, or when a law enforcement officer\ndesires to seek a warrant even though warrantless activity is permissible.\nRule 41(a)(1) permits anticipatory warrants by omitting the words \xe2\x80\x9cis located,\xe2\x80\x9d which in\nthe past required that in all instances the object of the search had to be located within the district at\n317\n\n\x0cthe time the warrant was issued. Now a search for property or a person within the district, or\nexpected to be within the district, is valid if it otherwise complies with the rule.\nRule 41(a)(2) authorizes execution of search warrants in another district under limited\ncircumstances. Because these searches are unusual, the rule limits to federal magistrates the\nauthority to issue such warrants. The rule permits a federal magistrate to issue a search warrant for\nproperty within the district which is moving or may move outside the district. The amendment\nrecognizes that there are inevitable delays between the application for a warrant and its\nauthorization, on the one hand, and the execution of the warrant, on the other hand. The\namendment also recognizes that when property is in motion, there may be good reason to delay\nexecution until the property comes to rest. The amendment provides a practical tool for federal law\nenforcement officers that avoids the necessity of their either seeking several warrants in different\ndistricts for the same property or their relying on an exception to the warrant requirement for\nsearch of property or a person that has moved outside a district.\nThe amendment affords a useful warrant procedure to cover familiar fact patterns, like the\none typified by United States v. Chadwick, 433 U.S. 1 (1976). In Chadwick, agents in San Diego\nobserved suspicious activities involving a footlocker carried onto a train. When the train arrived in\nBoston, the agents made an arrest and conducted a warrantless search of the footlocker (which the\nSupreme Court held was invalid). Under the amended rule, agents who have probable cause in San\nDiego would be able to obtain a warrant for a search of the footlocker even though it is moving\noutside the district. Agents, who will not be sure exactly where the footlocker will be unloaded\nfrom the train, may execute the warrant when the journey ends. See also United States v. Karo, 468\nU.S. 705 (1984) (rejecting argument that obtaining warrant to monitor beeper would not comply\nwith requirement of particularity because its final destination may not be known); United States v.\nKnotts, 460 U.S. 276 (1983) (agents followed beeper across state lines). The Supreme Court\'s\nholding in Chadwick permits law enforcement officers to seize and hold an object like a footlocker\nwhile seeking a warrant. Although the amended rule would not disturb this holding, it provides a\nmechanism for agents to seek a probable cause determination and a warrant before interfering with\nthe property and seizing it. It encourages reliance on warrants.\nThe amendment is not intended to abrogate the requirements of probable cause and prompt\nexecution. At some point, a warrant issued in one district might become stale when executed in\nanother district. But staleness can be a problem even when a warrant is executed in the district in\nwhich it was issued. See generally United States v. Harris, 403 U.S. 573, 579, 589 (1971). And at\nsome point, an intervening event might make execution of a warrant unreasonable. Cf. Illinois v.\nAndreas, 463 U.S. 765, 772 (1983). Evaluations of the execution of a warrant must, in the nature of\nthings, be made after the warrant is issued.\nNor does the amendment abrogate the requirement of particularity. Thus, it does not\nauthorize searches of premises other than a particular place. As recognized by the Supreme Court\nin Karo, supra, although agents may not know exactly where moving property will come to rest,\nthey can still describe with particularity the object to be searched.\nThe amendment would authorize the search of a particular object or container provided that\nlaw enforcement officials were otherwise in a lawful position to execute the search without\nmaking an impermissible intrusion. For example, it would authorize the search of luggage moving\naboard a plane.\nRule 41(a)(3) [The Supreme Court did not adopt the addition of a subsection (3) to Rule\n41(a)] provides for warrants to search property outside the United States. No provision for search\nwarrants for persons is made lest the rule be read as a substitute for extradition proceedings. As\n318\n\n\x0cwith the provision for searches outside a district, supra, this provision is limited to search warrants\nissued by federal magistrates. The phrase \xe2\x80\x9crelevant to criminal investigation\xe2\x80\x9d is intended to\nencompass all of the types of property that are covered by Rule 41(b), which is unchanged by the\namendment. That phrase also is intended to include those investigations which begin with the\nrequest for the search warrant.\nSome searches and seizures by federal officers outside the territory of the United States\nmay be governed by the fourth amendment. See generally Saltzburg, the Reach of the Bill of\nRights Beyond the Terra Firma of the United States, 20 Va. J. Int\'l L. 741 (1980). Prior to the\namendment of the rule, it was unclear how federal officers might obtain warrants authorizing\nsearches outside the district of the issuing magistrate. Military Rule of Evidence 315 provided\nguidance for searches of military personnel and property and nonmilitary property in a foreign\ncountry. But it had no civilian counterpart. See generally S. Saltzburg, L. Schinasi, & D. Schlueter,\nMilitary Rules of Evidence Manual 274\xe2\x80\x9395 (2d ed. 1986).\nAlthough the amendment rests on the assumption that the Constitution applies to some\nextraterritorial searches, cf United States v. Verdugo-Urquidez, 110 S. Ct. 1056, 494 U.S. 259\n(1990) (fourth amendment inapplicable to extraterritorial searches of property owned by\nnonresident aliens), it does not address the question of when the Constitution requires a warrant.\nNor does it address the issue of whether international agreements or treaties or the law of a foreign\nnation might be applicable. See United States v. Patterson, 812 F. 2d 486 (9th Cir. 1987). Instead,\nthe amendment is intended to provide necessary clarification as to how a warrant may be obtained\nwhen law enforcement officials are required, or find it desirable, to do so.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe amendment to Rule 41(c)(2)(A) is intended to expand the authority of magistrates and\njudges in considering oral requests for search warrants. It also recognizes the value of, and the\npublic\'s increased dependence on facsimile machines to transmit written information efficiently\nand accurately. As amended, the Rule should thus encourage law enforcement officers to seek a\nwarrant, especially when it is necessary, or desirable, to supplement oral telephonic\ncommunications by written materials which may now be transmitted electronically as well. The\nmagistrate issuing the warrant may require that the original affidavit be ultimately filed. The\nCommittee considered, but rejected, amendments to the Rule which would have permitted other\nmeans of electronic transmission, such as the use of computer modems. In its view, facsimile\ntransmissions provide some method of assuring the authenticity of the writing transmitted by the\naffiant.\nThe Committee considered amendments to Rule 41(c)(2)(B), Application, Rule\n41(c)(2)(C), Issuance, and Rule 41(g), Return of Papers to Clerk, but determined that allowing use\nof facsimile transmissions in those instances would not save time and would present problems and\nquestions concerning the need to preserve facsimile copies.\nThe Rule is also amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93\n650, Title III, Section 321] which provides that each United States magistrate appointed under\nsection 631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 41 has been amended as part of the general restyling of the Criminal\n319\n\n\x0cRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as otherwise noted\nbelow. Rule 41 has been completely reorganized to make it easier to read and apply its key\nprovisions.\nRule 41(b)(3) is a new provision that incorporates a congressional amendment to Rule 41\nas a part of the Uniting and Strengthening America by Providing Appropriate Tools Required to\nIntercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. The provision explicitly\naddresses the authority of a magistrate judge to issue a search warrant in an investigation of\ndomestic or international terrorism. As long as the magistrate judge has authority in a district\nwhere activities related to terrorism may have occurred, the magistrate judge may issue a warrant\nfor persons or property not only within the district, but outside the district as well.\nCurrent Rule 41(c)(1), which refers to the fact that hearsay evidence may be used to\nsupport probable cause, has been deleted. That language was added to the rule in 1972, apparently\nto reflect emerging federal case law. See Advisory Committee Note to 1972 Amendments to Rule\n41 (citing cases). Similar language was added to Rule 4 in 1974. In the intervening years, however,\nthe case law has become perfectly clear on that proposition. Thus, the Committee believed that the\nreference to hearsay was no longer necessary. Furthermore, the limited reference to hearsay\nevidence was misleading to the extent that it might have suggested that other forms of inadmissible\nevidence could not be considered. For example, the rule made no reference to considering a\ndefendant\'s prior criminal record, which clearly may be considered in deciding whether probable\ncause exists. See, e.g., Brinegar v. United States, 338 U.S. 160 (1949) (officer\'s knowledge of\ndefendant\'s prior criminal activity). Rather than address that issue, or any other similar issues, the\nCommittee believed that the matter was best addressed in Rule 1101(d)(3), Federal Rules of\nEvidence. That rule explicitly provides that the Federal Rules of Evidence do not apply to\n\xe2\x80\x9cpreliminary examinations in criminal cases, . . . issuance of warrants for arrest, criminal\nsummonses, and search warrants . . . .\xe2\x80\x9d The Advisory Committee Note accompanying that rule\nrecognizes that: \xe2\x80\x9cThe nature of the proceedings makes application of the formal rules of evidence\ninappropriate and impracticable.\xe2\x80\x9d The Committee did not intend to make any substantive changes\nin practice by deleting the reference to hearsay evidence.\nCurrent Rule 41(d) provides that the officer taking the property under the warrant must\nprovide a receipt for the property and complete an inventory. The revised rule indicates that the\ninventory may be completed by an officer present during the execution of the warrant, and not\nnecessarily the officer actually executing the warrant.\nCommittee Notes on Rules\xe2\x80\x942006 Amendment\nThe amendments to Rule 41 address three issues: first, procedures for issuing tracking\ndevice warrants; second, a provision for delaying any notice required by the rule; and third, a\nprovision permitting a magistrate judge to use reliable electronic means to issue warrants.\nSubdivision (a). Amended Rule 41(a)(2) includes two new definitional provisions. The\nfirst, in Rule 41(a)(2)(D), addresses the definitions of \xe2\x80\x9cdomestic terrorism\xe2\x80\x9d and \xe2\x80\x9cinternational\nterrorism,\xe2\x80\x9d terms used in Rule 41(b)(2). The second, in Rule 41(a)(2)(E), addresses the definition\nof \xe2\x80\x9ctracking device.\xe2\x80\x9d\nSubdivision (b). Amended Rule 41(b)(4) is a new provision, designed to address the use of\ntracking devices. Such searches are recognized both by statute, see 18 U.S.C. \xc2\xa73117 (a) and by\ncaselaw, see, e.g., United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S.\n320\n\n\x0c276 (1983). Warrants may be required to monitor tracking devices when they are used to monitor\npersons or property in areas where there is a reasonable expectation of privacy. See, e.g., United\nStates v. Karo, supra (although no probable cause was required to install beeper, officers\xe2\x80\x99\nmonitoring of its location in defendant\'s home raised Fourth Amendment concerns). Nonetheless,\nthere is no procedural guidance in current Rule 41 for those judicial officers who are asked to issue\ntracking device warrants. As with traditional search warrants for persons or property, tracking\ndevice warrants may implicate law enforcement interests in multiple districts.\nThe amendment provides that a magistrate judge may issue a warrant, if he or she has the\nauthority to do so in the district, to install and use a tracking device, as that term is defined in 18\nU.S.C. \xc2\xa73117 (b). The magistrate judge\'s authority under this rule includes the authority to permit\nentry into an area where there is a reasonable expectation of privacy, installation of the tracking\ndevice, and maintenance and removal of the device. The Committee did not intend by this\namendment to expand or contract the definition of what might constitute a tracking device. The\namendment is based on the understanding that the device will assist officers only in tracking the\nmovements of a person or property. The warrant may authorize officers to track the person or\nproperty within the district of issuance, or outside the district.\nBecause the authorized tracking may involve more than one district or state, the Committee\nbelieves that only federal judicial officers should be authorized to issue this type of warrant. Even\nwhere officers have no reason to believe initially that a person or property will move outside the\ndistrict of issuance, issuing a warrant to authorize tracking both inside and outside the district\navoids the necessity of obtaining multiple warrants if the property or person later crosses district or\nstate lines.\nThe amendment reflects the view that if the officers intend to install or use the device in a\nconstitutionally protected area, they must obtain judicial approval to do so. If, on the other hand,\nthe officers intend to install and use the device without implicating any Fourth Amendment rights,\nthere is no need to obtain the warrant. See, e.g., United States v. Knotts, supra, where the officers\xe2\x80\x99\nactions in installing and following tracking device did not amount to a search under the Fourth\nAmendment.\nSubdivision (d). Amended Rule 41(d) includes new language on tracking devices. The\ntracking device statute, 18 U.S.C. \xc2\xa73117, does not specify the standard an applicant must meet to\ninstall a tracking device. The Supreme Court has acknowledged that the standard for installation of\na tracking device is unresolved, and has reserved ruling on the issue until it is squarely presented\nby the facts of a case. See United States v. Karo, 468 U.S. 705, 718 n. 5 (1984). The amendment to\nRule 41 does not resolve this issue or hold that such warrants may issue only on a showing of\nprobable cause. Instead, it simply provides that if probable cause is shown, the magistrate judge\nmust issue the warrant. And the warrant is only needed if the device is installed (for example, in the\ntrunk of the defendant\'s car) or monitored (for example, while the car is in the defendant\'s garage)\nin an area in which the person being monitored has a reasonable expectation of privacy.\nSubdivision (e). Rule 41(e) has been amended to permit magistrate judges to use reliable\nelectronic means to issue warrants. Currently, the rule makes no provision for using such media.\nThe amendment parallels similar changes to Rules 5 and 32.1(a)(5)(B)(i).\nThe amendment recognizes the significant improvements in technology. First, more\ncounsel, courts, and magistrate judges now routinely use facsimile transmissions of documents.\nAnd many courts and magistrate judges are now equipped to receive filings by electronic means.\nIndeed, some courts encourage or require that certain documents be filed by electronic means.\nSecond, the technology has advanced to the state where such filings may be sent from, and\n321\n\n\x0creceived at, locations outside the courthouse. Third, electronic media can now provide improved\nquality of transmission and security measures. In short, in a particular case, using facsimiles and\nelectronic media to transmit a warrant can be both reliable and efficient use of judicial resources.\nThe term \xe2\x80\x9celectronic\xe2\x80\x9d is used to provide some flexibility to the rule and make allowance for\nfurther technological advances in transmitting data. Although facsimile transmissions are not\nspecifically identified, the Committee envisions that facsimile transmissions would fall within the\nmeaning of \xe2\x80\x9celectronic means.\xe2\x80\x9d\nWhile the rule does not impose any special requirements on use of facsimile transmissions,\nneither does it presume that those transmissions are reliable. The rule treats all electronic\ntransmissions in a similar fashion. Whatever the mode, the means used must be \xe2\x80\x9creliable.\xe2\x80\x9d While\nthe rule does not further define that term, the Committee envisions that a court or magistrate judge\nwould make that determination as a local matter. In deciding whether a particular electronic\nmeans, or media, would be reliable, the court might consider first, the expected quality and clarity\nof the transmission. For example, is it possible to read the contents of the warrant in its entirety, as\nthough it were the original or a clean photocopy? Second, the court may consider whether security\nmeasures are available to insure that the transmission is not compromised. In this regard, most\ncourts are now equipped to require that certain documents contain a digital signature, or some\nother similar system for restricting access. Third, the court may consider whether there are reliable\nmeans of preserving the document for later use.\nAmended Rule 41(e)(2)(B) is a new provision intended to address the contents of tracking\ndevice warrants. To avoid open-ended monitoring of tracking devices, the revised rule requires the\nmagistrate judge to specify in the warrant the length of time for using the device. Although the\ninitial time stated in the warrant may not exceed 45 days, extensions of time may be granted for\ngood cause. The rule further specifies that any installation of a tracking device authorized by the\nwarrant must be made within ten calendar days and, unless otherwise provided, that any\ninstallation occur during daylight hours.\nSubdivision (f). Current Rule 41(f) has been completely revised to accommodate new\nprovisions dealing with tracking device warrants. First, current Rule 41(f)(1) has been revised to\naddress execution and delivery of warrants to search for and seize a person or property; no\nsubstantive change has been made to that provision. New Rule 41(f)(2) addresses execution and\ndelivery of tracking device warrants. That provision generally tracks the structure of revised Rule\n41(f)(1), with appropriate adjustments for the particular requirements of tracking device warrants.\nUnder Rule 41(f)(2)(A) the officer must note on the warrant the time the device was installed and\nthe period during which the device was used. And under new Rule 41(f)(2)(B), the officer must\nreturn the tracking device warrant to the magistrate judge designated in the warrant, within 10\ncalendar days after use of the device has ended.\nAmended Rule 41(f)(2)(C) addresses the particular problems of serving a copy of a\ntracking device warrant on the person who has been tracked, or whose property has been tracked.\nIn the case of other warrants, current Rule 41 envisions that the subjects of the search typically\nknow that they have been searched, usually within a short period of time after the search has taken\nplace. Tracking device warrants, on the other hand, are by their nature covert intrusions and can be\nsuccessfully used only when the person being investigated is unaware that a tracking device is\nbeing used. The amendment requires that the officer must serve a copy of the tracking device\nwarrant on the person within 10 calendar days after the tracking has ended. That service may be\naccomplished by either personally serving the person, or both by leaving a copy at the person\'s\nresidence or usual abode and by sending a copy by mail. The Rule also provides, however, that the\n322\n\n\x0cofficer may (for good cause) obtain the court\'s permission to delay further service of the warrant.\nThat might be appropriate, for example, where the owner of the tracked property is undetermined,\nor where the officer establishes that the investigation is ongoing and that disclosure of the warrant\nwill compromise that investigation.\nUse of a tracking device is to be distinguished from other continuous monitoring or\nobservations that are governed by statutory provisions or caselaw. See Title III, Omnibus Crime\nControl and Safe Streets Act of 1968, as amended by Title I of the 1986 Electronic\nCommunications Privacy Act [Electronic Communications Privacy Act of 1986], 18 U.S.C.\n\xc2\xa7\xc2\xa72510 \xe2\x80\x932520 [sic]; United States v. Biasucci, 786 F.2d 504 (2d Cir. 1986) (video camera); United\nStates v. Torres, 751 F.2d 875 (7th Cir. 1984) (television surveillance).\nFinally, amended Rule 41(f)(3) is a new provision that permits the government to request,\nand the magistrate judge to grant, a delay in any notice required in Rule 41. The amendment is\nco-extensive with 18 U.S.C. \xc2\xa73103a (b). That new provision, added as part of the Uniting and\nStrengthening America by Providing Appropriate Tools Required to Intercept and Obstruct\nTerrorism (USA PATRIOT) Act of 2001, authorizes a court to delay any notice required in\nconjunction with the issuance of any search warrants.\nChanges Made After Publication and Comment. The Committee agreed with the NADCL\n[sic] proposal that the words \xe2\x80\x9chas authority\xe2\x80\x9d should be inserted in Rule 41(c)(3), and (4) to parallel\nsimilar language in Rule 41(c)(1) and (2). The Committee also considered, but rejected, a proposal\nfrom NADCL [sic] to completely redraft Rule 41(d), regarding the finding of probable cause. The\nCommittee also made minor clarifying changes in the Committee Note.\nCommittee Notes on Rules\xe2\x80\x942008 Amendment\nSubdivision (b)(5). Rule 41(b)(5) authorizes a magistrate judge to issue a search warrant\nfor property located within certain delineated parts of United States jurisdiction that are outside of\nany State or any federal judicial district. The locations covered by the rule include United States\nterritories, possessions, and commonwealths not within a federal judicial district as well as certain\npremises associated with United States diplomatic and consular missions. These are locations in\nwhich the United States has a legally cognizable interest or in which it exerts lawful authority and\ncontrol. The rule is intended to authorize a magistrate judge to issue a search warrant in any of the\nlocations for which 18 U.S.C. \xc2\xa77 (9) provides jurisdiction. The difference between the language in\nthis rule and the statute reflect the style conventions used in these rules, rather than any intention to\nalter the scope of the legal authority conferred. Under the rule, a warrant may be issued by a\nmagistrate judge in any district in which activities related to the crime under investigation may\nhave occurred, or in the District of Columbia, which serves as the default district for venue under\n18 U.S.C. \xc2\xa73238.\nRule 41(b)(5) provides the authority to issue warrants for the seizure of property in the\ndesignated locations when law enforcement officials are required or find it desirable to obtain such\nwarrants. The Committee takes no position on the question whether the Constitution requires a\nwarrant for searches covered by the rule, or whether any international agreements, treaties, or laws\nof a foreign nation might be applicable. The rule does not address warrants for persons, which\ncould be viewed as inconsistent with extradition requirements.\nChanges Made to Proposed Amendment Released for Public Comment. With the\nassistance of the Style Consultant, the Committee revised (b)(5)(B) and (C) for greater clarity and\ncompliance with the style conventions governing these rules. Because the language no longer\n323\n\n\x0ctracks precisely the statute, the Committee Note was revised to state that the proposed rule is\nintended to have the same scope as the jurisdictional provision upon which it was based, 18 U.S.C.\n\xc2\xa77 (9).\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nThe time set in the former rule at 10 days has been revised to 14 days. See the Committee\nNote to Rule 45(a).\nSubdivision (e)(2). Computers and other electronic storage media commonly contain such\nlarge amounts of information that it is often impractical for law enforcement to review all of the\ninformation during execution of the warrant at the search location. This rule acknowledges the\nneed for a two-step process: officers may seize or copy the entire storage medium and review it\nlater to determine what electronically stored information falls within the scope of the warrant.\nThe term \xe2\x80\x9celectronically stored information\xe2\x80\x9d is drawn from Rule 34(a) of the Federal Rules\nof Civil Procedure, which states that it includes \xe2\x80\x9cwritings, drawings, graphs, charts, photographs,\nsound recordings, images, and other data or data compilations stored in any medium from which\ninformation can be obtained.\xe2\x80\x9d The 2006 Committee Note to Rule 34(a) explains that the\ndescription is intended to cover all current types of computer-based information and to encompass\nfuture changes and developments. The same broad and flexible description is intended under Rule\n41.\nIn addition to addressing the two-step process inherent in searches for electronically stored\ninformation, the Rule limits the 10 [14] day execution period to the actual execution of the warrant\nand the on-site activity. While consideration was given to a presumptive national or uniform time\nperiod within which any subsequent off-site copying or review of the media or electronically\nstored information would take place, the practical reality is that there is no basis for a \xe2\x80\x9cone size fits\nall\xe2\x80\x9d presumptive period. A substantial amount of time can be involved in the forensic imaging and\nreview of information. This is due to the sheer size of the storage capacity of media, difficulties\ncreated by encryption and booby traps, and the workload of the computer labs. The rule does not\nprevent a judge from imposing a deadline for the return of the storage media or access to the\nelectronically stored information at the time the warrant is issued. However, to arbitrarily set a\npresumptive time period for the return could result in frequent petitions to the court for additional\ntime.\nIt was not the intent of the amendment to leave the property owner without an expectation\nof the timing for return of the property, excluding contraband or instrumentalities of crime, or a\nremedy. Current Rule 41(g) already provides a process for the \xe2\x80\x9cperson aggrieved\xe2\x80\x9d to seek an order\nfrom the court for a return of the property, including storage media or electronically stored\ninformation, under reasonable circumstances.\nWhere the \xe2\x80\x9cperson aggrieved\xe2\x80\x9d requires access to the storage media or the electronically\nstored information earlier than anticipated by law enforcement or ordered by the court, the court on\na case by case basis can fashion an appropriate remedy, taking into account the time needed to\nimage and search the data and any prejudice to the aggrieved party.\nThe amended rule does not address the specificity of description that the Fourth\nAmendment may require in a warrant for electronically stored information, leaving the application\nof this and other constitutional standards concerning both the seizure and the search to ongoing\ncase law development.\nSubdivision (f)(1). Current Rule 41(f)(1) does not address the question of whether the\n324\n\n\x0cinventory should include a description of the electronically stored information contained in the\nmedia seized. Where it is impractical to record a description of the electronically stored\ninformation at the scene, the inventory may list the physical storage media seized. Recording a\ndescription of the electronically stored information at the scene is likely to be the exception, and\nnot the rule, given the large amounts of information contained on electronic storage media and the\nimpracticality for law enforcement to image and review all of the information during the execution\nof the warrant. This is consistent with practice in the \xe2\x80\x9cpaper world.\xe2\x80\x9d In circumstances where filing\ncabinets of documents are seized, routine practice is to list the storage devices, i.e., the cabinets, on\nthe inventory, as opposed to making a document by document list of the contents.\nChanges Made to Proposed Amendment Released for Public Comment. The words\n\xe2\x80\x9ccopying or\xe2\x80\x9d were added to the last line of Rule 41(e)(2)(B) to clarify that copying as well as\nreview may take place off-site.\nThe Committee Note was amended to reflect the change to the text and to clarify that the\namended Rule does not speak to constitutional questions concerning warrants for electronic\ninformation. Issues of particularity and search protocol are presently working their way through\nthe courts. Compare United States v. Carey, 172 F.3d 1268 (10th Cir. 1999) (finding warrant\nauthorizing search for \xe2\x80\x9cdocumentary evidence pertaining to the sale and distribution of controlled\nsubstances\xe2\x80\x9d to prohibit opening of files with a .jpg suffix) and United States v. Fleet Management\nLtd., 521 F. Supp. 2d 436 (E.D. Pa. 2007) (warrant invalid when it \xe2\x80\x9cdid not even attempt to\ndifferentiate between data that there was probable cause to seize and data that was completely\nunrelated to any relevant criminal activity\xe2\x80\x9d) with United States v. Comprehensive Drug Testing,\nInc., 513 F.3d 1085 (9th Cir. 2008) (the government had no reason to confine its search to key\nwords; \xe2\x80\x9ccomputer files are easy to disguise or rename, and were we to limit the warrant to such a\nspecific search protocol, much evidence could escape discovery simply because of [the\ndefendants\xe2\x80\x99] labeling of the files\xe2\x80\x9d); United States v. Brooks, 427 F.3d 1246 (10th Cir. 2005)\n(rejecting requirement that warrant describe specific search methodology).\nMinor changes were also made to conform to style conventions.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivisions (d)(3) and (e)(3). The amendment deletes the provisions that govern the\napplication for and issuance of warrants by telephone or other reliable electronic means. These\nprovisions have been transferred to new Rule 4.1, which governs complaints and warrants under\nRules 3, 4, 9, and 41.\nSubdivision (e)(2). The amendment eliminates unnecessary references to \xe2\x80\x9ccalendar\xe2\x80\x9d days. As\namended effective December 1, 2009, Rule 45(a)(1) provides that all periods of time stated in days\ninclude \xe2\x80\x9cevery day, including intermediate Saturdays, Sundays, and legal holidays[.]\xe2\x80\x9d\nSubdivisions (f)(1) and (2). The amendment permits any warrant return to be made by\nreliable electronic means. Requiring an in-person return can be burdensome on law enforcement,\nparticularly in large districts when the return can require a great deal of time and travel. In contrast,\nno interest of the accused is affected by allowing what is normally a ministerial act to be done\nelectronically. Additionally, in subdivision (f)(2) the amendment eliminates unnecessary\nreferences to \xe2\x80\x9ccalendar\xe2\x80\x9d days. As amended effective December 1, 2009, Rule 45(a)(1) provides\nthat all periods of time stated in days include \xe2\x80\x9cevery day, including intermediate Saturdays,\nSundays, and legal holidays[.]\xe2\x80\x9d\n325\n\n\x0cChanges Made to Proposed Amendment Released for Public Comment\nObsolescent references to \xe2\x80\x9ccalendar\xe2\x80\x9d days were deleted by a technical and conforming\namendment not included in the rule as published. No other changes were made after publication.\nAmendment by Public Law\n2001 \xe2\x80\x94Subd. (a). Pub. L. 107\xe2\x80\x9356 inserted before period at end \xe2\x80\x9cand (3) in an investigation\nof domestic terrorism or international terrorism (as defined in section 2331 of title 18, United\nStates Code), by a Federal magistrate judge in any district in which activities related to the\nterrorism may have occurred, for a search of property or for a person within or outside the district\xe2\x80\x9d.\nEffective Date of 1977 Amendment\nAmendment of this rule by order of the United States Supreme Court on Apr. 26, 1976,\nmodified and approved by Pub. L. 95\xe2\x80\x9378, effective Oct. 1, 1977, see section 4 of Pub. L. 95\xe2\x80\x9378, set\nout as an Effective Date of Pub. L. 95\xe2\x80\x9378 note under section 2074 of Title 28, Judiciary and\nJudicial Procedure.\nEffective Date of 1976 Amendment\nAmendment of subd. (c)(1) by order of the United States Supreme Court of Apr. 26, 1976,\neffective Aug. 1, 1976, see section 1 of Pub. L. 94\xe2\x80\x93349, set out as a note under section 2074 of\nTitle 28, Judiciary and Judicial Procedure.\nEffective Date of 1956 Amendment\nAmendment by Order of April 9, 1956, became effective 90 days thereafter.\n\nRule 42. Criminal Contempt\n(a) Disposition After Notice. Any person who commits criminal contempt may be\npunished for that contempt after prosecution on notice.\n(1) Notice. The court must give the person notice in open court, in an order to show cause,\nor in an arrest order. The notice must:\n(A) state the time and place of the trial;\n(B) allow the defendant a reasonable time to prepare a defense; and\n(C) state the essential facts constituting the charged criminal contempt and describe it as\nsuch.\n(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an\nattorney for the government, unless the interest of justice requires the appointment of another\nattorney. If the government declines the request, the court must appoint another attorney to\nprosecute the contempt.\n(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a\njury trial in any case in which federal law so provides and must be released or detained as Rule 46\nprovides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is\ndisqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a\nfinding or verdict of guilty, the court must impose the punishment.\n326\n\n\x0c(b) Summary Disposition. Notwithstanding any other provision of these rules, the court\n(other than a magistrate judge) may summarily punish a person who commits criminal contempt in\nits presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge\nmay summarily punish a person as provided in 28 U.S.C. \xc2\xa7636(e). The contempt order must recite\nthe facts, be signed by the judge, and be filed with the clerk.\nNotes\n(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThe rule-making power of the Supreme Court with respect to criminal proceedings was\nextended to proceedings to punish for criminal contempt of court by the Act of November 21, 1941\n(55 Stat. 779), 18 U.S.C. 689.\nNote to Subdivision (a). This rule is substantially a restatement of existing law, Ex parte\nTerry, 128 U.S. 289; Cooke v. United States, 267 U.S. 517, 534.\nNote to Subdivision (b). 1. This rule is substantially a restatement of the procedure\nprescribed in 28 U.S.C. 386 \xe2\x80\x93390 [now 18 U.S.C. 401, 402, 3285, 3691], and 29 U.S.C. 111 [now\n18 U.S.C. 3692 ].\n2. The requirement in the second sentence that the notice shall describe the criminal\ncontempt as such is intended to obviate the frequent confusion between criminal and civil\ncontempt proceedings and follows the suggestion made in McCann v. New York Stock Exchange,\n80 F.2d 211 (C.C.A. 2d). See also Nye v. United States, 313 U.S. 33, 42 \xe2\x80\x9343.\n3. The fourth sentence relating to trial by jury preserves the right to a trial by jury in those\ncontempt cases in which it is granted by statute, but does not enlarge the right or extend it to\nadditional cases. The respondent in a contempt proceeding may demand a trial by jury as of right if\nthe proceeding is brought under the Act of March 23, 1932, c. 90, sec. 11, 47 Stat. 72, 29 U.S.C.\n111 [now 18 U.S.C. 3692 ] (Norris-La Guardia Act), or the Act of October 15, 1914, c. 323, sec.\n22, 38 Stat. 738, 28 U.S.C. 387 (Clayton Act).\n4. The provision in the sixth sentence disqualifying the judge affected by the contempt if\nthe charge involves disrespect to or criticism of him, is based, in part, on 29 U.S.C. former \xc2\xa7112\n(Contempts; demand for retirement of judge sitting in proceeding) and the observations of Chief\nJustice Taft in Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 69 L.Ed. 767.\n5. Among the statutory provisions defining criminal contempts are the following:\nU.S.C., Title 7:\nSection 499m (Perishable Agricultural Commodities Act; investigation of complaints;\nprocedure; penalties; etc.\xe2\x80\x94(c) Disobedience to subpenas; remedy; contempt)\nU.S.C., Title 9:\nSection 7 (Witnesses before arbitrators; fees, compelling attendance)\nU.S.C., Title 11:\nSection 69 [former] (Referees; contempts before)\nU.S.C., Title 15:\nSection 49 (Federal Trade Commission; documentary evidence; depositions; witnesses)\nSection 78u (Regulation of Securities Exchanges; investigation; injunctions and\nprosecution of offenses)\nSection 100 (Trademarks; destruction of infringing labels; service of injunction, and\n327\n\n\x0cproceedings for enforcement)\nSection 155 (China Trade Act; authority of registrar in obtaining evidence)\nU.S.C., Title 17:\nSection 36 [now 502] (Injunctions; service and enforcement)\nU.S.C., Title 19:\nSection 1333 (Tariff Commission; testimony and production of papers\xe2\x80\x94(b) Witnesses\nand evidence)\nU.S.C., Title 22:\nSection 270f (International Bureaus; Congresses, etc.; perjury; contempts; penalties)\nU.S.C., Title 28:\nSection 385 [now 459; 18 U.S.C. 401 ] (Administration of oaths; contempts)\nSection 386 [now 18 U.S.C. 402, 3691] (Contempts; when constituting also criminal\noffense)\nSection 387 [now 18 U.S.C. 402 ] (Same; procedure; bail; attachment; trial; punishment)\n(Clayton Act; jury trial; section)\nSection 388 [former] (Same; review of conviction)\nSection 389 [now 18 U.S.C. 402, 3691] (Same; not specifically enumerated)\nSection 390 [now 18 U.S.C. 3285 ] (Same; limitations)\nSection 390a [now 18 U.S.C. 402 ] (\xe2\x80\x9cPerson\xe2\x80\x9d or \xe2\x80\x9cpersons\xe2\x80\x9d defined)\nSection 648 [now Rule 17(f), FRCP, 18 U.S.C., Appendix; Rule 45(d), FRCP, 28 U.S.C.,\nAppendix] (Depositions under dedimus potestatem; witnesses; when required to attend)\nSection 703 [former] (Punishment of witness for contempt)\nSection 714 [now 1784] (Failure of witness to obey subpena; order to show cause in\ncontempt proceedings)\nSection 715 [now 1784] (Direction in order to show cause for seizure of property of\nwitness in contempt)\nSection 716 [now 1784] (Service of order to show cause)\nSection 717 [now 1784] (Hearing on order to show cause; judgment; satisfaction)\nSection 750 [now 2405] (Garnishees in suits by United States against a corporation;\ngarnishee failing to appear)\nU.S.C., Title 29:\nSection 111 [now 18 U.S.C. 3692 ] (Contempts; speedy and public trial; jury) (Norris-La\nGuardia Act)\nSection 112 [now Rule 42, FRCP, 18 U.S.C., Appendix] (Contempts; demands for\nretirement of judge sitting in proceeding)\nSection 160 (Prevention of unfair labor practices\xe2\x80\x94(h) Jurisdiction of courts unaffected by\nlimitations prescribed in sections 101\xe2\x80\x93115 of Title 29)\nSection 161 (Investigatory powers of Board\xe2\x80\x94(2) Court aid in compelling production of\nevidence and attendance of witnesses)\nSection 209 (Fair Labor Standards Act; attendance of witnesses)\nU.S.C., Title 33:\nSection 927 (Longshoremen\'s and Harbor Workers\xe2\x80\x99 Compensation Act; powers of deputy\ncommissioner)\nU.S.C., Title 35:\nSection 56 [now 24] (Failing to attend or testify)\nU.S.C., Title 47:\n328\n\n\x0cSection 409 (Federal Communications Commission; hearing; subpenas; oaths; witnesses;\nproduction of books and papers; contempts; depositions; penalties)\nU.S.C., Title 48:\nSection 1345a (Canal Zone; general jurisdiction of district court; issue of process at\nrequest of officials; witnesses; contempt)\nU.S.C., Title 49:\nSection 12 [see 721(c)(2), 13301(c)(2)] (Interstate Commerce Commission; authority and\nduties of commission; witnesses; depositions\xe2\x80\x94(3) Compelling attendance and testimony of\nwitnesses, etc.)\nFederal Rules of Civil Procedure:\nRule 45 (Subpoena) subdivision (f) (Contempt)\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 42 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nThe revised rule is intended to more clearly set out the procedures for conducting a\ncriminal contempt proceeding. The current rule implicitly recognizes that an attorney for the\ngovernment may be involved in the prosecution of such cases. Revised Rule 42(a)(2) now\nexplicitly addresses the appointment of a \xe2\x80\x9cprosecutor\xe2\x80\x9d and adopts language to reflect the holding\nin Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987). In that case the Supreme Court\nindicated that ordinarily the court should request that an attorney for the government prosecute the\ncontempt; only if that request is denied, should the court appoint a private prosecutor. The rule\nenvisions that a disinterested counsel should be appointed to prosecute the contempt.\nRule 42(b) has been amended to make it clear that a court may summarily punish a person\nfor committing contempt in the court\'s presence without regard to whether other rules, such as\nRule 32 (sentencing procedures), might otherwise apply. See, e.g., United States v.\nMartin-Trigona, 759 F.2d 1017 (2d Cir. 1985). Further, Rule 42(b) has been amended to recognize\nthe contempt powers of a court (other than a magistrate judge) and a magistrate judge.\n\n329\n\n\x0cTITLE IX. GENERAL PROVISIONS\nRule 43. Defendant\'s Presence\n(a) When Required. Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant\nmust be present at:\n(1) the initial appearance, the initial arraignment, and the plea;\n(2) every trial stage, including jury impanelment and the return of the verdict; and\n(3) sentencing.\n(b) When Not Required. A defendant need not be present under any of the following\ncircumstances:\n(1) Organizational Defendant. The defendant is an organization represented by counsel\nwho is present.\n(2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not\nmore than one year, or both, and with the defendant\'s written consent, the court permits\narraignment, plea, trial, and sentencing to occur by video teleconferencing or in the defendant\'s\nabsence.\n(3) Conference or Hearing on a Legal Question. The proceeding involves only a\nconference or hearing on a question of law.\n(4) Sentence Correction. The proceeding involves the correction or reduction of sentence\nunder Rule 35 or 18 U.S.C. \xc2\xa73582 (c).\n(c) Waiving Continued Presence.\n(1) In General. A defendant who was initially present at trial, or who had pleaded guilty or\nnolo contendere, waives the right to be present under the following circumstances:\n(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether\nthe court informed the defendant of an obligation to remain during trial;\n(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or\n(C) when the court warns the defendant that it will remove the defendant from the\ncourtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from\nthe courtroom.\n(2) Waiver\'s Effect. If the defendant waives the right to be present, the trial may proceed to\ncompletion, including the verdict\'s return and sentencing, during the defendant\'s absence.\nNotes\n(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94\xe2\x80\x9364, \xc2\xa73(35), July 31, 1975, 89\nStat. 376; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec.\n1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. The first sentence of the rule setting forth the necessity of the defendant\'s presence at\narraignment and trial is a restatement of existing law, Lewis v. United States, 146 U.S. 370; Diaz v.\nUnited States, 223 U.S. 442, 455. This principle does not apply to hearings on motions made prior\nto or after trial, United States v. Lynch, 132 F.2d 111 (C.C.A. 3d).\n2. The second sentence of the rule is a restatement of existing law that, except in capital\n330\n\n\x0ccases, the defendant may not defeat the proceedings by voluntarily absenting himself after the trial\nhas been commenced in his presence, Diaz v. United States, 223 U.S. 442, 455; United States v.\nNoble, 2 94 F. 689 (D.Mont.)\xe2\x80\x94affirmed, 300 F. 689 (C.C.A. 9th); United States v. Barracota, 45\nF.Supp. 38 (S.D.N.Y.); United States v. Vassalo, 52 F.2d 699 (E.D.Mich.).\n3. The fourth sentence of the rule empowering the court in its discretion, with the\ndefendant\'s written consent, to conduct proceedings in misdemeanor cases in defendant\'s absence\nadopts a practice prevailing in some districts comprising very large areas. In such districts\nappearance in court may require considerable travel, resulting in expense and hardship not\ncommensurate with the gravity of the charge, if a minor infraction is involved and a small fine is\neventually imposed. The rule, which is in the interest of defendants in such situations, leaves it\ndiscretionary with the court to permit defendants in misdemeanor cases to absent themselves and,\nif so, to determine in what types of misdemeanors and to what extent. Similar provisions are found\nin the statutes of a number of States. See A.L.I. Code of Criminal Procedure, pp. 881\xe2\x80\x93882.\n4. The purpose of the last sentence of the rule is to resolve a doubt that at times has arisen as\nto whether it is necessary to bring the defendant to court from an institution in which he is\nconfined, possibly at a distant point, if the court determines to reduce the sentence previously\nimposed. It seems in the interest of both the Government and the defendant not to require such\npresence, because of the delay and expense that are involved.\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nThe revision of rule 43 is designed to reflect Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057,\n25 L.Ed. 2d 353 (1970). In Allen, the court held that \xe2\x80\x9cthere are at least three constitutionally\npermissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag\nhim, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom\nuntil he promises to conduct himself properly.\xe2\x80\x9d 397 U.S. at 343\xe2\x80\x93344, 90 S.Ct. 1057.\nSince rule 43 formerly limited trial in absentia to situations in which there is a \xe2\x80\x9cvoluntary\nabsence after the trial has been commenced,\xe2\x80\x9d it could be read as precluding a federal judge from\nexercising the third option held to be constitutionally permissible in Allen. The amendment is\ndesigned to make clear that the judge does have the power to exclude the defendant from the\ncourtroom when the circumstances warrant such action.\nThe decision in Allen, makes no attempt to spell out standards to guide a judge in selecting\nthe appropriate method to ensure decorum in the courtroom and there is no attempt to do so in the\nrevision of the rule.\nThe concurring opinion of Mr. Justice Brennan stresses that the trial judge should make a\nreasonable effort to enable an excluded defendant \xe2\x80\x9cto communicate with his attorney and, if\npossible, to keep apprised of the progress of the trial.\xe2\x80\x9d 397 U.S. at 351, 90 S.Ct. 1057. The Federal\nJudicial Center is presently engaged in experimenting with closed circuit television in courtrooms.\nThe experience gained from these experiments may make closed circuit television readily\navailable in federal courtrooms through which an excluded defendant would be able to hear and\nobserve the trial.\nThe defendant\'s right to be present during the trial on a capital offense has been said to be\nso fundamental that it may not be waived. Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250,\n56 L.Ed. 500 (1912) (dictum); Near v. Cunningham, 313 F.2d 929, 931 (4th Cir. 1963); C. Wright,\nFederal Practice and Procedure: Criminal \xc2\xa7723 at 199 (1969, Supp.1971).\nHowever, in Illinois v. Allen, supra the court\'s opinion suggests that sanctions such as\n331\n\n\x0ccontempt may be least effective where the defendant is ultimately facing a far more serious\nsanction such as the death penalty. 397 U.S. at 345, 90 S.Ct. 1057. The ultimate determination of\nwhen a defendant can waive his right to be present in a capital case (assuming a death penalty\nprovision is held constitutional, see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d\n346 (1972)) is left for further clarification by the courts.\nSubdivision (b)(1) makes clear that voluntary absence may constitute a waiver even if the\ndefendant has not been informed by the court of his obligation to remain during the trial. Of\ncourse, proof of voluntary absence will require a showing that the defendant knew of the fact that\nthe trial or other proceeding was going on. C. Wright, Federal Practice and Procedure: Criminal\n\xc2\xa7723 n. 35 (1969). But it is unnecessary to show that he was specifically warned of his obligation\nto be present; a warning seldom is thought necessary in current practice. [See Taylor v. United\nStates, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973).]\nSubdivision (c)(3) makes clear that the defendant need not be present at a conference held\nby the court and counsel where the subject of the conference is an issue of law.\nThe other changes in the rule are editorial in nature. In the last phrase of the first sentence,\n\xe2\x80\x9cthese rules\xe2\x80\x9d is changed to read \xe2\x80\x9cthis rule,\xe2\x80\x9d because there are no references in any of the other rules\nto situations where the defendant is not required to be present. The phrase \xe2\x80\x9cat the time of the plea,\xe2\x80\x9d\nis added to subdivision (a) to make perfectly clear that defendant must be present at the time of the\nplea. See rule 11(c)(5) which provides that the judge may set a time, other than arraignment, for the\nholding of a plea agreement procedure.\nNotes of Committee on the Judiciary, House Report No. 94\xe2\x80\x93247; 1975 Amendment\nA. Amendments Proposed by the Supreme Court. Rule 43 of the Federal Rules of Criminal\nProcedure deals with the presence of the defendant during the proceedings against him. It presently\npermits a defendant to be tried in absentia only in noncapital cases where the defendant has\nvoluntarily absented himself after the trial has begun.\nThe Supreme Court amendments provide that a defendant has waived his right to be\npresent at the trial of a capital or noncapital case in two circumstances: (1) when he voluntarily\nabsents himself after the trial has begun; and (2) where he \xe2\x80\x9cengages in conduct which is such as to\njustify his being excluded from the courtroom.\xe2\x80\x9d\nB. Committee Action. The Committee added language to subdivision (b)(2), which deals\nwith excluding a disruptive defendant from the courtroom. The Advisory Committee Note\nindicates that the rule proposed by the Supreme Court was drafted to reflect the decision in Illinois\nv. Allen, 397 U.S. 337 (1970). The Committee found that subdivision (b)(2) as proposed did not\nfull track the Allen decision. Consequently, language was added to that subsection to require the\ncourt to warn a disruptive defendant before excluding him from the courtroom.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941995 Amendment\nThe revisions to Rule 43 focus on two areas. First, the amendments make clear that a\ndefendant who, initially present at trial or who has entered a plea of guilty or nolo contendere, but\n332\n\n\x0cwho voluntarily flees before sentencing, may nonetheless be sentenced in absentia. Second, the\nrule is amended to extend to organizational defendants. In addition, some stylistic changes have\nbeen made.\nSubdivision (a). The changes to subdivision (a) are stylistic in nature and the Committee\nintends no substantive change in the operation of that provision.\nSubdivision (b). The changes in subdivision (b) are intended to remedy the situation where\na defendant voluntarily flees before sentence is imposed. Without the amendment, it is doubtful\nthat a court could sentence a defendant who had been present during the entire trial but flees before\nsentencing. Delay in conducting the sentencing hearing under such circumstances may result in\ndifficulty later in gathering and presenting the evidence necessary to formulate a guideline\nsentence.\nThe right to be present at court, although important, is not absolute. The caselaw, and\npractice in many jurisdictions, supports the proposition that the right to be present at trial may be\nwaived through, inter alia, the act of fleeing. See generally Crosby v. United States, 113 S.Ct. 748,\n506 U.S. 255 (1993). The amendment extends only to noncapital cases and applies only where the\ndefendant is voluntarily absent after the trial has commenced or where the defendant has entered a\nplea of guilty or nolo contendere. The Committee envisions that defense counsel will continue to\nrepresent the interests of the defendant at sentencing.\nThe words \xe2\x80\x9cat trial, or having pleaded guilty or nolo contendere\xe2\x80\x9d have been added at the\nend of the first sentence to make clear that the trial of an absent defendant is possible only if the\ndefendant was previously present at the trial or has entered a plea of guilty or nolo contendere. See\nCrosby v. United States, supra.\nSubdivision (c). The change to subdivision (c) is technical in nature and replaces the word\n\xe2\x80\x9ccorporation\xe2\x80\x9d with a reference to \xe2\x80\x9corganization,\xe2\x80\x9d as that term is defined in 18 U.S.C. \xc2\xa718 to\ninclude entities other than corporations.\nCommittee Notes on Rules\xe2\x80\x941998 Amendment\nThe amendment to Rule 43(c)(4) is intended to address two issues. First, the rule is\nrewritten to clarify whether a defendant is entitled to be present at resentencing proceedings\nconducted under Rule 35. As a result of amendments over the last several years to Rule 35,\nimplementation of the Sentencing Reform Act, and caselaw interpretations of Rules 35 and 43,\nquestions had been raised whether the defendant had to be present at those proceedings. Under the\npresent version of the rule, it could be possible to require the defendant\'s presence at a \xe2\x80\x9creduction\xe2\x80\x9d\nof sentence hearing conducted under Rule 35(b), but not a \xe2\x80\x9ccorrection\xe2\x80\x9d of sentence hearing\nconducted under Rule 35(a). That potential result seemed at odds with sound practice. As\namended, Rule 43(c)(4) would permit a court to reduce or correct a sentence under Rule 35(b) or\n(c), respectively, without the defendant being present. But a sentencing proceeding being\nconducted on remand by an appellate court under Rule 35(a) would continue to require the\ndefendant\'s presence. See, e.g., United States v. Moree, 928 F.2d 654, 655\xe2\x80\x93656 (5th Cir. 1991)\n(noting distinction between presence of defendant at modification of sentencing proceedings and\nthose hearings that impose new sentence after original sentence has been set aside).\nThe second issue addressed by the amendment is the applicability of Rule 43 to\nresentencing hearings conducted under 18 U.S.C. \xc2\xa73582(c). Under that provision, a resentencing\nmay be conducted as a result of retroactive changes to the Sentencing Guidelines by the United\nStates Sentencing Commission or as a result of a motion by the Bureau of Prisons to reduce a\n333\n\n\x0csentence based on \xe2\x80\x9cextraordinary and compelling reasons.\xe2\x80\x9d The amendment provides that a\ndefendant\'s presence is not required at such proceedings. In the Committee\'s view, those\nproceedings are analogous to Rule 35(b) as it read before the Sentencing Reform Act of 1984,\nwhere the defendant\'s presence was not required. Further, the court may only reduce the original\nsentence under these proceedings.\nChanges Made to Rule 43 After Publication (\xe2\x80\x9cGAP Report\xe2\x80\x9d). The Committee made no\nchanges to the draft amendment as published.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 43 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nThe first substantive change is reflected in Rule 43(a), which recognizes several exceptions\nto the requirement that a defendant must be present in court for all proceedings. In addition to\nreferring to exceptions that might exist in Rule 43 itself, the amendment recognizes that a\ndefendant need not be present when the court has permitted video teleconferencing procedures\nunder Rules 5 and 10 or when the defendant has waived the right to be present for the arraignment\nunder Rule 10. Second, by inserting the word \xe2\x80\x9cinitial\xe2\x80\x9d before \xe2\x80\x9carraignment,\xe2\x80\x9d revised Rule 43(a)(1)\nreflects the view that a defendant need not be present for subsequent arraignments based upon a\nsuperseding indictment.\nThe Rule has been reorganized to make it easier to read and apply; revised Rule 43(b) is\nformer Rule 43(c).\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\nSubdivision (b). This rule currently allows proceedings in a misdemeanor case to be\nconducted in the defendant\xe2\x80\x99s absence with the defendant\xe2\x80\x99s written consent and the court\xe2\x80\x99s\npermission. The amendment allows participation through video teleconference as an alternative to\nappearing in person or not appearing. Participation by video teleconference is permitted only when\nthe defendant has consented in writing and received the court\xe2\x80\x99s permission.\nThe Committee reiterates the concerns expressed in the 2002\nCommittee Notes to Rules 5 and 10, when those rules were amended to permit video\nteleconferencing. The Committee recognized the intangible benefits and impact of requiring a\ndefendant to appear before a federal judicial officer in a federal courtroom, and what is lost when\nvirtual presence is substituted for actual presence. These concerns are particularly heightened\nwhen a defendant is not present for the determination of guilt and sentencing. However, the\nCommittee concluded that the use of video teleconferencing may be valuable in circumstances\nwhere the defendant would otherwise be unable to attend and the rule now authorizes proceedings\nin absentia.\nChanges Made to Proposed Amendment Released for Public Comment\nBecause the Advisory Committee withdrew its proposal to amend Rule 32.1 to allow for\nvideo teleconferencing, the cross reference to Rule 32.1 in Rule 43(a) was deleted.\nAmendment by Public Law\n\n334\n\n\x0c1975 \xe2\x80\x94Pub. L. 94\xe2\x80\x9364 amended subd. (b)(2) generally.\nEffective Date of Amendments Proposed April 22, 1974; Effective Date of 1975\nAmendments\nAmendments of this rule embraced in the order of the United States Supreme Court on Apr.\n22, 1974 and the amendments of this rule made by section 3 of Pub. L. 94\xe2\x80\x9364, effective Dec. 1,\n1975, see section 2 of Pub. L. 94\xe2\x80\x9364, set out as a note under rule 4 of these rules.\n\nRule 49. Serving and Filing Papers\n(a) When Required. A party must serve on every other party any written motion (other than\none to be heard ex parte), written notice, designation of the record on appeal, or similar paper.\n(b) How Made. Service must be made in the manner provided for a civil action. When these\nrules or a court order requires or permits service on a party represented by an attorney, service\nmust be made on the attorney instead of the party, unless the court orders otherwise.\n(c) Notice of a Court Order. When the court issues an order on any post-arraignment\nmotion, the clerk must provide notice in a manner provided for in a civil action. Except as Federal\nRule of Appellate Procedure 4 (b) provides otherwise, the clerk\'s failure to give notice does not\naffect the time to appeal, or relieve\xe2\x80\x94or authorize the court to relieve\xe2\x80\x94a party\'s failure to appeal\nwithin the allowed time.\n(d) Filing. A party must file with the court a copy of any paper the party is required to\nserve. A paper must be filed in a manner provided for in a civil action.\n(e) Electronic Service and Filing. A court may, by local rule, allow papers to be filed,\nsigned, or verified by electronic means that are consistent with any technical standards established\nby the Judicial Conference of the United States. A local rule may require electronic filing only if\nreasonable exceptions are allowed. A paper filed electronically in compliance with a local rule is\nwritten or in writing under these rules.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Apr. 29,\n1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27,\n1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). This rule is substantially the same as Rule 5(a) of the Federal Rules\nof Civil Procedure [28 U.S.C., Appendix] with such adaptations as are necessary for criminal\ncases.\nNote to Subdivision (b). The first sentence of this rule is in substance the same as the first\nsentence of Rule 5(b) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. The second\nsentence incorporates by reference the second and third sentences of Rule 5(b) of the Federal Rules\nof Civil Procedure.\nNote to Subdivision (c). This rule is an adaptation for criminal proceedings of Rule 77(d) of\nthe Federal Rules of Civil Procedure [28 U.S.C., Appendix]. No consequence attaches to the\nfailure of the clerk to give the prescribed notice, but in a case in which the losing party in reliance\n335\n\n\x0con the clerk\'s obligation to send a notice failed to file a timely notice of appeal, it was held\ncompetent for the trial judge, in the exercise of sound discretion, to vacate the judgment because of\nclerk\'s failure to give notice and to enter a new judgment, the term of court not having expired. Hill\nv. Hawes, 320 U.S. 520.\nNote to Subdivision (d). This rule incorporates by reference Rule 5(d) and (e) of the Federal\nRules of Civil Procedure [28 U.S.C., Appendix].\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nSubdivision (a).\xe2\x80\x94The words \xe2\x80\x9cadverse parties\xe2\x80\x9d in the original rule introduced a question of\ninterpretation. When, for example, is a codefendant an adverse party? The amendment requires\nservice on each of the parties thus avoiding the problem of interpretation and promoting full\nexchange of information among the parties. No restriction is intended, however, upon agreements\namong codefendants or between the defendants and the government restricting exchange of papers\nin the interest of eliminating unnecessary expense. Cf. the amendment made effective July 1, 1963,\nto Civil Rule 5(a).\nSubdivision (c).\xe2\x80\x94The words \xe2\x80\x9caffected thereby\xe2\x80\x9d are deleted in order to require notice to all\nparties. Cf. the similar change made effective July 1, 1963, to Civil Rule 77(d).\nThe sentence added at the end of the subdivision eliminates the possibility of extension of\nthe time to appeal beyond the provision for a 30 day extension on a showing or \xe2\x80\x9cexcusable\nneglect\xe2\x80\x9d provided in Rule 37(a)(2). Cf. the similar change made in Civil Rule 77(d) effective in\n1948. The question has arisen in a number of cases whether failure or delay in giving notice on the\npart of the clerk results in an extension of the time for appeal. The \xe2\x80\x9cgeneral rule\xe2\x80\x9d has been said to\nbe that in the event of such failure or delay \xe2\x80\x9cthe time for taking an appeal runs from the date of later\nactual notice or receipt of the clerk\'s notice rather than from the date of entry of the order.\xe2\x80\x9d Lohman\nv. United States, 237 F.2d 645, 646 (6th Cir. 1956). See also Rosenbloom v. United States, 355\nU.S. 80 (1957) (permitting an extension). In two cases it has been held that no extension results\nfrom the failure to give notice of entry of judgments (as opposed to orders) since such notice is not\nrequired by Rule 49(d). Wilkinson v. United States, 278 F.2d 604 (10th Cir. 1960), cert. den. 363\nU.S. 829; Hyche v. United States, 278 F.2d 915 (5th Cir. 1960), cert. den. 364 U.S. 881. The\nexcusable neglect extension provision in Rule 37(a)(2) will cover most cases where failure of the\nclerk to give notice of judgments or orders has misled the defendant. No need appears for an\nindefinite extension without time limit beyond the 30 day period.\nNotes of Advisory Committee on Rules\xe2\x80\x941968 Amendment\nThe amendment corrects the reference to Rule 37(a)(2), the pertinent provisions of which\nare contained in Rule 4(b) of the Federal Rules of Appellate Procedure.\nNotes of Advisory Committee on Rules\xe2\x80\x941985 Amendment\n18 U.S.C. \xc2\xa73575 (a) and 21 U.S.C. \xc2\xa7849 (a), dealing respectively with dangerous special\noffender sentencing and dangerous special drug offender sentencing, provide for the prosecutor to\nfile notice of such status \xe2\x80\x9cwith the court\xe2\x80\x9d and for the court to \xe2\x80\x9corder the notice sealed\xe2\x80\x9d under\nspecified circumstances, but also declare that disclosure of this notice shall not be made \xe2\x80\x9cto the\npresiding judge without the consent of the parties\xe2\x80\x9d before verdict or plea of guilty or nolo\n336\n\n\x0ccontendere. It has been noted that these provisions are \xe2\x80\x9cregrettably unclear as to where, in fact,\nsuch notice is to be filed\xe2\x80\x9d and that possibly filing with the chief judge is contemplated. United\nStates v. Tramunti, 377 F.Supp. 6 (S.D.N.Y. 1974). But such practice has been a matter of dispute\nwhen the chief judge would otherwise have been the presiding judge in the case, United States v.\nGaylor, No. 80\xe2\x80\x935016 (4th Cir. 1981), and \xe2\x80\x9cit does not solve the problem in those districts where\nthere is only one federal district judge appointed,\xe2\x80\x9d United States v. Tramunti, supra.\nThe first sentence of subdivision (e) clarifies that the filing of such notice with the court is\nto be accomplished by filing with the clerk of the court, which is generally the procedure for filing\nwith the court; see subdivision (d) of this rule. Except in a district having a single judge and no\nUnited States magistrate, the clerk will then, as provided in the second sentence, transmit the\nnotice to the chief judge or to some other judge or a United States magistrate if the chief judge is\nscheduled to be the presiding judge in the case, so that the determination regarding sealing of the\nnotice may be made without the disclosure prohibited by the aforementioned statutes. But in a\ndistrict having a single judge and no United States magistrate this prohibition means the clerk may\nnot disclose the notice to the court at all until the time specified by statute. The last sentence of\nsubdivision (e) contemplates that in such instances the clerk will seal the notice if the case falls\nwithin the local rule describing when \xe2\x80\x9ca public record may prejudice fair consideration of a\npending criminal matter,\xe2\x80\x9d the determination called for by the aforementioned statutes. The local\nrule might provide, for example, that the notice is to be sealed upon motion by any party.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nNotes of Advisory Committee on Rules\xe2\x80\x941995 Amendment\nSubdivision (e) has been deleted because both of the statutory provisions cited in the rule\nhave been abrogated.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 49 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules.\nRule 49(c) has been amended to reflect proposed changes in the Federal Rules of Civil\nProcedure that permit (but do not require) a court to provide notice of its orders and judgments\nthrough electronic means. See Federal Rules of Civil Procedure 5 (b) and 77(d). As amended, Rule\n49(c) now parallels a similar extant provision in Rule 49(b), regarding service of papers.\nCommittee Notes on Rules\xe2\x80\x942011 Amendment\n\n337\n\n\x0cSubdivision (e). Filing papers by electronic means is added as new subdivision (e), which is\ndrawn from Civil Rule 5(d)(3). It makes it clear that a paper filed electronically in compliance with\nthe Court\xe2\x80\x99s local rule is a written paper.\nChanges Made to Proposed Amendment Released for Public Comment\nNo changes were made in the rule as published.\nReferences in Text\nThe Federal Rules of Appellate Procedure, referred to in subd. (c), are set out in the\nAppendix to Title 28, Judiciary and Judicial Procedure.\n\nRule 44. Right to and Appointment of Counsel\n(a) Right to Appointed Counsel. A defendant who is unable to obtain counsel is entitled to\nhave counsel appointed to represent the defendant at every stage of the proceeding from initial\nappearance through appeal, unless the defendant waives this right.\n(b) Appointment Procedure. Federal law and local court rules govern the procedure for\nimplementing the right to counsel.\n(c) Inquiry Into Joint Representation.\n(1) Joint Representation. Joint representation occurs when:\n(A) two or more defendants have been charged jointly under Rule 8(b) or have been joined\nfor trial under Rule 13; and\n(B) the defendants are represented by the same counsel, or counsel who are associated in\nlaw practice.\n(2) Court\'s Responsibilities in Cases of Joint Representation. The court must promptly\ninquire about the propriety of joint representation and must personally advise each defendant of\nthe right to the effective assistance of counsel, including separate representation. Unless there is\ngood cause to believe that no conflict of interest is likely to arise, the court must take appropriate\nmeasures to protect each defendant\'s right to counsel.\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30,\n1979, eff. Dec. 1, 1980; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29,\n2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. This rule is a restatement of existing law in regard to the defendant\'s constitutional right\nof counsel as defined in recent judicial decisions. The Sixth Amendment provides:\n\xe2\x80\x9cIn all criminal prosecutions, the accused shall enjoy the right * to have the Assistance\nof Counsel for his defense.\xe2\x80\x9d\n28 U.S.C. former \xc2\xa7394 (now \xc2\xa71654) provides:\n\xe2\x80\x9cIn all the courts of the United States the parties may plead and manage their own causes\npersonally, or by the assistance of such counsel or attorneys at law as, by the rules of the said\ncourts, respectively, are permitted to manage and conduct causes therein.\xe2\x80\x9d\n338\n\n\x0c18 U.S.C. former \xc2\xa7563 (now \xc2\xa73005), which is derived from the act of April 30, 1790 (1\nStat. 118), provides:\n\xe2\x80\x9cEvery person who is indicted of treason or other capital crime, shall be allowed to make\nhis full defense by counsel learned in the law; and the court before which he is tried or some judge\nthereof, shall immediately, upon his request, assign to him such counsel, not exceeding two, as he\nmay desire, and they shall have free access to him at all seasonable hours.\xe2\x80\x9d\nThe present extent of the right of counsel has been defined recently in Johnson v. Zerbst,\n304 U.S. 458; Walker v. Johnston, 312 U.S. 275; and Glasser v. United States, 315 U.S. 60. The\nrule is a restatement of the principles enunciated in these decisions. See, also, Holtzoff, 20\nN.Y.U.L.Q.R. 1.\n2. The rule is intended to indicate that the right of the defendant to have counsel assigned\nby the court relates only to proceedings in court and, therefore, does not include preliminary\nproceedings before a committing magistrate. Although the defendant is not entitled to have\ncounsel assigned to him in connection with preliminary proceedings, he is entitled to be\nrepresented by counsel retained by him, if he so chooses, Rule 5(b) (Proceedings before the\nCommissioner; Statement by the Commissioner) and Rule 40(b)(2) (Commitment to Another\nDistrict; Removal\xe2\x80\x94Arrest in Distant District\xe2\x80\x94Statement by Commissioner or Judge). As to\ndefendant\'s right of counsel in connection with the taking of depositions, see Rule 15(c)\n(Depositions\xe2\x80\x94Defendant\'s Counsel and Payment of Expenses).\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nA new rule is provided as a substitute for the old to provide for the assignment of counsel to\ndefendants unable to obtain counsel during all stages of the proceeding. The Supreme Court has\nrecently made clear the importance of providing counsel both at the earliest possible time after\narrest and on appeal. See Crooker v. California, 357 U.S. 433 (1958); Cicenia v. LaGay, 357 U.S.\n504 (1958); White v. Maryland, 373 U.S. 59 (1963); Gideon v. Wainwright, 372 U.S. 335 (1963);\nDouglas v. California, 372 U.S. 353 (1963). See also Association of the Bar of the City of New\nYork, Special Committee to Study the Defender System, Equal Justice for the Accused (1959);\nReport of the Attorney General\'s Committee on Poverty and the Administration of Justice (1963);\nBeaney, Right to Counsel Before Arraignment, 45 Minn.L.Rev. 771 (1961); Boskey, The Right to\nCounsel in Appellate Proceedings, 45 Minn.L.Rev. 783 (1961); Douglas, The Right to\nCounsel\xe2\x80\x94A Foreword, 45 Minn.L.Rev. 693 (1961); Kamisar, The Right to Counsel and the\nFourteenth Amendment; A Dialogue on \xe2\x80\x9cThe Most Pervasive Right\xe2\x80\x9d of an Accused, 30\nU.Chi.L.Rev. 1 (1962); Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and\nDue Process Values, 61 Mich.L.Rev. 219 (1962); Symposium, The Right to Counsel, 22 Legal Aid\nBriefcase 4\xe2\x80\x9348 (1963). Provision has been made by law for a Legal Aid Agency in the District of\nColumbia which is charged with the duty of providing counsel and courts are admonished to assign\nsuch counsel \xe2\x80\x9cas early in the proceeding as practicable.\xe2\x80\x9d D.C. Code \xc2\xa72\xe2\x80\x932202. Congress has now\nmade provision for assignment of counsel and their compensation in all of the districts. Criminal\nJustice Act of 1964 (78 Stat. 552).\nLike the original rule the amended rule provides a right to counsel which is broader in two\nrespects than that for which compensation is provided in the Criminal Justice Act of 1964: (1) the\nright extends to petty offenses to be tried in the district courts, and (2) the right extends to\ndefendants unable to obtain counsel for reasons other than financial. These rules do not cover\nprocedures other than those in the courts of the United States and before United States\n339\n\n\x0ccommissioners. See Rule 1. Hence, the problems relating to the providing of counsel prior to the\ninitial appearance before a court or commissioner are not dealt with in this rule. Cf. Escobedo v.\nUnited States, 378 U.S. 478 (1964); Enker and Elsen, Counsel for the Suspect: Massiah v. United\nStates and Escobedo v. Illinois, 49 Minn.L.Rev. 47 (1964).\nSubdivision (a).\xe2\x80\x94This subdivision expresses the right of the defendant unable to obtain\ncounsel to have such counsel assigned at any stage of the proceedings from his initial appearance\nbefore the commissioner or court through the appeal, unless he waives such right. The phrase\n\xe2\x80\x9cfrom his initial appearance before the commissioner or court\xe2\x80\x9d is intended to require the\nassignment of counsel as promptly as possible after it appears that the defendant is unable to obtain\ncounsel. The right to assignment of counsel is not limited to those financially unable to obtain\ncounsel. If a defendant is able to compensate counsel but still cannot obtain counsel, he is entitled\nto the assignment of counsel even though not to free counsel.\nSubdivision (b).\xe2\x80\x94This new subdivision reflects the adoption of the Criminal Justice Act of\n1964. See Report of the Judicial Conference of the United States on the Criminal Justice Act of\n1964, 36 F.R.D. 277 (1964).\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nSubdivision (a) is amended to reflect the Federal Magistrates Act of 1968. The phrase\n\xe2\x80\x9cfederal magistrate\xe2\x80\x9d is defined in rule 54.\nNotes of Advisory Committee on Rules\xe2\x80\x941979 Amendment\nNote to Subdivision (c). Rule 44(c) establishes a procedure for avoiding the occurrence of\nevents which might otherwise give rise to a plausible post-conviction claim that because of joint\nrepresentation the defendants in a criminal case were deprived of their Sixth Amendment right to\nthe effective assistance of counsel. Although \xe2\x80\x9ccourts have differed with respect to the scope and\nnature of the affirmative duty of the trial judge to assure that criminal defendants are not deprived\nof their right to the effective assistance of counsel by joint representation of conflicting interests,\xe2\x80\x9d\nHolloway v. Arkansas, 98 S.Ct. 1173 (1978) (where the Court found it unnecessary to reach this\nissue), this amendment is generally consistent with the current state of the law in several circuits.\nAs held in United States v. Carrigan, 543 F.2d 1053 (2d Cir. 1976):\nWhen a potential conflict of interest arises, either where a court has assigned the same\ncounsel to represent several defendants or where the same counsel has been retained by\ncodefendants in a criminal case, the proper course of action for the trial judge is to conduct a\nhearing to determine whether a conflict exists to the degree that a defendant may be prevented\nfrom receiving advice and assistance sufficient to afford him the quality of representation\nguaranteed by the Sixth Amendment. The defendant should be fully advised by the trial court of\nthe facts underlying the potential conflict and be given the opportunity to express his views.\nSee also United States v. Lawriw, 568 F.2d 98 (8th Cir. 1977) (duty on trial judge to make\ninquiry where joint representation by appointed or retained counsel, and \xe2\x80\x9cwithout such an inquiry a\nfinding of knowing and intelligent waiver will seldom, if ever, be sustained by this Court\xe2\x80\x9d);\nAbraham v. United States, 549 F.2d 236 (2d Cir. 1977); United States v. Mari, 526 F.2d 117 (2d\nCir. 1975); United States v. Truglio, 493 F.2d 574 (4th Cir. 1974) (joint representation should\ncause trial judge \xe2\x80\x9cto inquire whether the defenses to be presented in any way conflict\xe2\x80\x9d); United\nStates v. DeBerry, 487 F.2d 488 (2d Cir. 1973); United States ex rel. Hart v. Davenport, 478 F.2d\n340\n\n\x0c203 (3d Cir. 1973) (noting there \xe2\x80\x9cis much to be said for the rule . . . which assumes prejudice and\nnonwaiver if there has been no on-the-record inquiry by the court as to the hazards to defendants\nfrom joint representation\xe2\x80\x9d; United States v. Alberti, 470 F.2d 878 (2d Cir. 1973); United States v.\nFoster, 469 F.2d 1 (1st Cir. 1972) (lack of sufficient inquiry shifts the burden of proof on the\nquestion of prejudice to the government); Campbell v. United States, 352 F.2d 359 (D.C. Cir.\n1965) (where joint representation, court \xe2\x80\x9chas a duty to ascertain whether each defendant has an\nawareness of the potential risks of that course and nevertheless has knowingly chosen it\xe2\x80\x9d). Some\nstates have taken a like position; see, e.g., State v. Olsen, \xe2\x80\x94\xe2\x80\x94 Minn. \xe2\x80\x94\xe2\x80\x94, 258 N.W.2d 898\n(1977).\nThis procedure is also consistent with that recommended in the ABA Standards Relating to\nthe Function of the Trial Judge (Approved Draft, 1972), which provide in \xc2\xa73.4(b):\nWhenever two or more defendants who have been jointly charged, or whose cases have\nbeen consolidated, are represented by the same attorney, the trial judge should inquire into\npotential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel.\nAvoiding a conflict-of-interest situation is in the first instance a responsibility of the\nattorney. If a lawyer represents \xe2\x80\x9cmultiple clients having potentially differing interests, he must\nweigh carefully the possibility that his judgment may be impaired or his loyalty divided if he\naccepts or continues the employment,\xe2\x80\x9d and he is to \xe2\x80\x9cresolve all doubts against the propriety of the\nrepresentation.\xe2\x80\x9d Code of Professional Responsibility, Ethical Consideration 5\xe2\x80\x9315. See also ABA\nStandards Relating to the Defense Function \xc2\xa73.5(b) (Approved Draft, 1971), concluding that the\n\xe2\x80\x9cpotential for conflict of interest in representing multiple defendants is so grave that ordinarily a\nlawyer should decline to act for more than one of several codefendants except in unusual situations\nwhen, after careful investigation, it is clear that no conflict is likely to develop and when the\nseveral defendants give an informed consent to such multiple representation.\xe2\x80\x9d\nIt by no means follows that the inquiry provided for by rule 44(c) is unnecessary. For one\nthing, even the most diligent attorney may be unaware of facts giving rise to a potential conflict.\nOften \xe2\x80\x9ccounsel must operate somewhat in the dark and feel their way uncertainly to an\nunderstanding of what their clients may be called upon to meet upon a trial\xe2\x80\x9d and consequently \xe2\x80\x9care\nfrequently unable to foresee developments which may require changes in strategy.\xe2\x80\x9d United States\nv. Carrigan, supra (concurring opinion). \xe2\x80\x9cBecause the conflicts are often subtle it is not enough to\nrely upon counsel, who may not be totally disinterested, to make sure that each of his joint clients\nhas made an effective waiver.\xe2\x80\x9d United States v. Lawriw, supra.\nMoreover, it is important that the trial judge ascertain whether the effective and fair\nadministration of justice would be adversely affected by continued joint representation, even when\nan actual conflict is not then apparent. As noted in United States v. Mari, supra (concurring\nopinion):\nTrial court insistence that, except in extraordinary circumstances, codefendants retain\nseparate counsel will in the long run . . . prove salutary not only to the administration of justice and\nthe appearance of justice but the cost of justice; habeas corpus petitions, petitions for new trials,\nappeals and occasionally retrials . . . can be avoided. Issues as to whether there is an actual conflict\nof interest, whether the conflict has resulted in prejudice, whether there has been a waiver, whether\nthe waiver is intelligent and knowledgeable, for example, can all be avoided. Where a conflict that\nfirst did not appear subsequently arises in or before trial, . . . continuances or mistrials can be\nsaved. Essentially by the time a case . . . gets to the appellate level the harm to the appearance of\njustice has already been done, whether or not reversal occurs; at the trial level it is a matter which\nis so easy to avoid.\n341\n\n\x0cA rule 44(c) inquiry is required whether counsel is assigned or retained. It \xe2\x80\x9cmakes no\ndifference whether counsel is appointed by the court or selected by the defendants; even where\nselected by the defendants the same dangers of potential conflict exist, and it is also possible that\nthe rights of the public to the proper administration of justice may be affected adversely.\xe2\x80\x9d United\nStates v. Mari, supra (concurring opinion). See also United States v. Lawriw, supra. When there\nhas been \xe2\x80\x9cno discussion as to possible conflict initiated by the court,\xe2\x80\x9d it cannot be assumed that the\nchoice of counsel by the defendants \xe2\x80\x9cwas intelligently made with knowledge of any possible\nconflict.\xe2\x80\x9d United States v. Carrigan, supra. As for assigned counsel, it is provided by statute that\n\xe2\x80\x9cthe court shall appoint separate counsel for defendants having interests that cannot properly be\nrepresented by the same counsel, or when other good cause is shown.\xe2\x80\x9d 18 U.S.C. \xc2\xa73006(A)(b).\nRule 44(c) is not intended to prohibit the automatic appointment of separate counsel in the first\ninstance, see Ford v. United States, 379 F.2d 123 (D.C. Cir. 1967); Lollar v. United States, 376\nF.2d 243 (D.C. Cir. 1967), which would obviate the necessity for an inquiry.\nUnder rule 44(c), an inquiry is called for when the joined defendants are represented by the\nsame attorney and also when they are represented by attorneys \xe2\x80\x9cassociated in the practice of law.\xe2\x80\x9d\nThis is consistent with Code of Professional Responsibility, Disciplinary Rule 5\xe2\x80\x93105(D)\n(providing that if \xe2\x80\x9ca lawyer is required to decline employment or to withdraw from employment\xe2\x80\x9d\nbecause of a potential conflict, \xe2\x80\x9cno partner or associate of his or his firm may accept or continue\nsuch employment\xe2\x80\x9d); and ABA Standards Relating to the Defense Function \xc2\xa73.5(b) (Approved\nDraft, 1971) (applicable to \xe2\x80\x9ca lawyer or lawyers who are associated in practice\xe2\x80\x9d). Attorneys\nrepresenting joined defendants should so advise the court if they are associated in the practice of\nlaw.\nThe rule 44(c) procedure is not limited to cases expected to go to trial. Although the more\ndramatic conflict situations, such as when the question arises as to whether the several defendants\nshould take the stand, Morgan v. United States, 396 F.2d 110 (2d Cir. 1968), tend to occur in a trial\ncontext, serious conflicts may also arise when one or more of the jointly represented defendants\npleads guilty.\nThe problem is that even where as here both codefendants pleaded guilty there are\nfrequently potential conflicts of interest . . . [T]he prosecutor may be inclined to accept a guilty\nplea from one codefendant which may harm the interests of the other. The contrast in the\ndispositions of the cases may have a harmful impact on the codefendant who does not initially\nplead guilty; he may be pressured into pleading guilty himself rather than face his codefendant\'s\nbargained-for testimony at a trial. And it will be his own counsel\'s recommendation to the initially\npleading codefendant which will have contributed to this harmful impact upon him . . . [I]n a given\ninstance it would be at least conceivable that the prosecutor would be willing to accept pleas to\nlesser offenses from two defendants in preference to a plea of guilty by one defendant to a greater\noffense.\nUnited States v. Mari, supra (concurring opinion). To the same effect is ABA Standards\nRelating to the Defense Function at 213\xe2\x80\x9314.\nIt is contemplated that under rule 44(c) the court will make appropriate inquiry of the\ndefendants and of counsel regarding the possibility of a conflict of interest developing. Whenever\nit is necessary to make a more particularized inquiry into the nature of the contemplated defense,\nthe court should \xe2\x80\x9cpursue the inquiry with defendants and their counsel on the record but in\nchambers\xe2\x80\x9d so as \xe2\x80\x9cto avoid the possibility of prejudicial disclosures to the prosecution.\xe2\x80\x9d United\nStates v. Foster, supra. It is important that each defendant be \xe2\x80\x9cfully advised of the facts underlying\nthe potential conflict and is given an opportunity to express his or her views.\xe2\x80\x9d United States v.\n342\n\n\x0cAlberti, supra. The rule specifically requires that the court personally advise each defendant of his\nright to effective assistance of counsel, including separate representation. See United States v.\nFoster, supra, requiring that the court make a determination that jointly represented defendants\n\xe2\x80\x9cunderstand that they may retain separate counsel, or if qualified, may have such counsel\nappointed by the court and paid for by the government.\xe2\x80\x9d\nUnder rule 44(c), the court is to take appropriate measures to protect each defendant\'s right\nto counsel unless it appears \xe2\x80\x9cthere is good cause to believe no conflict of interest is likely to arise\xe2\x80\x9d\nas a consequence of the continuation of such joint representation. A less demanding standard\nwould not adequately protect the Sixth Amendment right to effective assistance of counsel or the\neffective administration of criminal justice. Although joint representation \xe2\x80\x9cis not per se violative\nof constitutional guarantees of effective assistance of counsel, Holloway v. Arkansas, supra, it\nwould not suffice to require the court to act only when a conflict of interest is then apparent, for it\nis not possible \xe2\x80\x9cto anticipate with complete accuracy the course that a criminal trial may take.\xe2\x80\x9d\nFryar v. United States, 404 F.2d 1071 (10th Cir. 1968). This is particularly so in light of the fact\nthat if a conflict later arises and a defendant thereafter raises a Sixth Amendment objection, a court\nmust grant relief without indulging \xe2\x80\x9cin nice calculations as to the amount of prejudice arising from\nits denial.\xe2\x80\x9d Glasser v. United States, 315 U.S. 60 (1942). This is because, as the Supreme Court\nmore recently noted in Holloway v. Arkansas, supra, \xe2\x80\x9cin a case of joint representation of\nconflicting interests the evil . . . is in what the advocate finds himself compelled to refrain from\ndoing,\xe2\x80\x9d and this makes it \xe2\x80\x9cvirtually impossible\xe2\x80\x9d to assess the impact of the conflict.\nRule 44(c) does not specify what particular measures must be taken. It is appropriate to\nleave this within the court\'s discretion, for the measures which will best protect each defendant\'s\nright to counsel may well vary from case to case. One possible course of action is for the court to\nobtain a knowing, intelligent and voluntary waiver of the right to separate representation, for, as\nnoted in Holloway v. Arkansas, supra, \xe2\x80\x9ca defendant may waive his right to the assistance of an\nattorney unhindered by a conflict of interests.\xe2\x80\x9d See United States v. DeBerry, supra, holding that\ndefendants should be jointly represented only if \xe2\x80\x9cthe court has ascertained that . . . each\nunderstands clearly the possibilities of a conflict of interest and waives any rights in connection\nwith it.\xe2\x80\x9d It must be emphasized that a \xe2\x80\x9cwaiver of the right to separate representation should not be\naccepted by the court unless the defendants have each been informed of the probable hazards; and\nthe voluntary character of their waiver is apparent.\xe2\x80\x9d ABA Standards Relating to the Function of the\nTrial Judge at 45. United States v. Garcia, supra, spells out in significant detail what should be\ndone to assure an adequate waiver:\nAs in Rule 11 procedures, the district court should address each defendant personally and\nforthrightly advise him of the potential dangers of representation by counsel with a conflict of\ninterest. The defendant must be at liberty to question the district court as to the nature and\nconsequences of his legal representation. Most significantly, the court should seek to elicit a\nnarrative response from each defendant that he has been advised of his right to effective\nrepresentation, that he understands the details of his attorney\'s possible conflict of interest and the\npotential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes\nwith outside counsel, and that he voluntarily waives his Sixth Amendment protections. It is, of\ncourse, vital that the waiver be established by \xe2\x80\x9cclear, unequivocal, and unambiguous language.\xe2\x80\x9d . .\n. Mere assent in response to a series of questions from the bench may in some circumstances\nconstitute an adequate waiver, but the court should nonetheless endeavor to have each defendant\npersonally articulate in detail his intent to forego this significant constitutional protection.\nRecordation of the waiver colloque between defendant and judge, will also serve the government\'s\n343\n\n\x0cinterest by assisting in shielding any potential conviction from collateral attack, either on Sixth\nAmendment grounds or on a Fifth or Fourteenth Amendment \xe2\x80\x9cfundamental fairness\xe2\x80\x9d basis.\nSee also Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The\nCourt\'s Headache, 5 Hofstra L.Rev. 315, 334 (1977).\nAnother possibility is that the court will order that the defendants be separately represented\nin subsequent proceedings in the case. Though the court must remain alert to and take account of\nthe fact that \xe2\x80\x9ccertain advantages might accrue from joint representation,\xe2\x80\x9d Holloway v. Arkansas,\nsupra, it need not permit the joint representation to continue merely because the defendants express\na willingness to so proceed. That is,\nthere will be cases where the court should require separate counsel to represent certain\ndefendants despite the expressed wishes of such defendants. Indeed, failure of the trial court to\nrequire separate representation may . . . require a new trial, even though the defendants have\nexpressed a desire to continue with the same counsel. The right to effective representation by\ncounsel whose loyalty is undivided is so paramount in the proper administration of criminal justice\nthat it must in some cases take precedence over all other considerations, including the expressed\npreference of the defendants concerned and their attorney.\nUnited States v. Carrigan, supra (concurring opinion). See also United States v. Lawriw,\nsupra; Abraham v. United States, supra; ABA Standards Relating to the Defense Function at 213,\nconcluding that in some circumstances \xe2\x80\x9ceven full disclosure and consent of the client may not be\nan adequate protection.\xe2\x80\x9d As noted in United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978), such an\norder may be necessary where the trial judge is\nnot satisfied that the waiver is proper. For example, a defendant may be competent enough\nto stand trial, but not competent enough to understand the complex, subtle, and sometimes\nunforeseeable dangers inherent in multiple representation. More importantly, the judge may find\nthat the waiver cannot be intelligently made simply because he is not in a position to inform the\ndefendant of the foreseeable prejudices multiple representation might entail for him.\nAs concluded in Dolan, \xe2\x80\x9cexercise of the court\'s supervisory powers by disqualifying an\nattorney representing multiple criminal defendants in spite of the defendants\xe2\x80\x99 express desire to\nretain that attorney does not necessarily abrogate defendant\'s sixth amendment rights\xe2\x80\x9d. It does not\nfollow from the absolute right of self-representation recognized in Faretta v. California, 422 U.S.\n806 (1975), that there is an absolute right to counsel of one\'s own choice. Thus,\nwhen a trial court finds an actual conflict of interest which impairs the ability of a criminal\ndefendant\'s chosen counsel to conform with the ABA Code of Professional Responsibility, the\ncourt should not be required to tolerate an inadequate representation of a defendant. Such\nrepresentation not only constitutes a breach of professional ethics and invites disrespect for the\nintegrity of the court, but it is also detrimental to the independent interest of the trial judge to be\nfree from future attacks over the adequacy of the waiver or the fairness of the proceedings in his\nown court and the subtle problems implicating the defendant\'s comprehension of the waiver.\nUnder such circumstances, the court can elect to exercise its supervisory authority over members\nof the bar to enforce the ethical standard requiring an attorney to decline multiple representation.\nUnited States v. Dolan, supra. See also Geer, Conflict of Interest and Multiple Defendants\nin a Criminal Case: Professional Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119\n(1978); Note, Conflict of Interests in Multiple Representation of Criminal CoDefendants, 68\nJ.Crim.L.&C. 226 (1977).\nThe failure in a particular case to conduct a rule 44(c) inquiry would not, standing alone,\nnecessitate the reversal of a conviction of a jointly represented defendant. However, as is currently\n344\n\n\x0cthe case, a reviewing court is more likely to assume a conflict resulted from the joint representation\nwhen no inquiry or an inadequate inquiry was conducted. United States v. Carrigan, supra; United\nStates v. DeBerry, supra. On the other hand, the mere fact that a rule 44(c) inquiry was conducted\nin the early stages of the case does not relieve the court of all responsibility in this regard\nthereafter. The obligation placed upon the court by rule 44(c) is a continuing one, and thus in a\nparticular case further inquiry may be necessary on a later occasion because of new developments\nsuggesting a potential conflict of interest.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 44 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nRevised Rule 44 now refers to the \xe2\x80\x9cappointment\xe2\x80\x9d of counsel, rather than the assignment of\ncounsel; the Committee believed the former term was more appropriate. See 18 U.S.C. \xc2\xa73006A. In\nRule 44(c), the term \xe2\x80\x9cretained or assigned\xe2\x80\x9d has been deleted as being unnecessary, without\nchanging the court\'s responsibility to conduct an inquiry where joint representation occurs.\nEffective Date of 1979 Amendment\nAmendment of this rule by addition of subd. (c) by order of the United States Supreme\nCourt of Apr. 30, 1979, effective Dec. 1, 1980, see section 1(1) of Pub. L. 96\xe2\x80\x9342, July 31, 1979, 93\nStat. 326, set out as a note under section 2074 of Title 28, Judiciary and Judicial Procedure.\n\nRule 45. Computing and Extending Time\n(a) Computing Time. The following rules apply in computing any time period specified in\nthese rules, in any local rule or court order, or in any statute that does not specify a method of\ncomputing time.\n(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer\nunit of time:\n(A) exclude the day of the event that triggers the period;\n(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and\n(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal\nholiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or\nlegal holiday.\n(2) Period Stated in Hours. When the period is stated in hours:\n345\n\n\x0c(A) begin counting immediately on the occurrence of the event that triggers the period;\n(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal\nholidays; and\n(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to\nrun until the same time on the next day that is not a Saturday, Sunday, or legal holiday.\n(3) Inaccessibility of the Clerk\'s Office. Unless the court orders otherwise, if the clerk\'s\noffice is inaccessible:\n(A) on the last day for filing under Rule 45(a)(1), then the time for filing is extended to the\nfirst accessible day that is not a Saturday, Sunday, or legal holiday; or\n(B) during the last hour for filing under Rule 45(a)(2), then the time for filing is extended to\nthe same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.\n(4) \xe2\x80\x9cLast Day\xe2\x80\x9d Defined. Unless a different time is set by a statute, local rule, or court order,\nthe last day ends:\n(A) for electronic filing, at midnight in the court\'s time zone; and\n(B) for filing by other means, when the clerk\'s office is scheduled to close.\n(5) \xe2\x80\x9cNext Day\xe2\x80\x9d Defined. The \xe2\x80\x9cnext day\xe2\x80\x9d is determined by continuing to count forward\nwhen the period is measured after an event and backward when measured before an event.\n(6) \xe2\x80\x9cLegal Holiday\xe2\x80\x9d Defined. \xe2\x80\x9cLegal holiday\xe2\x80\x9d means:\n(A) the day set aside by statute for observing New Year\'s Day, Martin Luther King Jr.\'s\nBirthday, Washington\'s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day,\nVeterans\xe2\x80\x99 Day, Thanksgiving Day, or Christmas Day;\n(B) any day declared a holiday by the President or Congress; and\n(C) for periods that are measured after an event, any other day declared a holiday by the\nstate where the district court is located.\n(b) Extending Time.\n(1) In General. When an act must or may be done within a specified period, the court on its\nown may extend the time, or for good cause may do so on a party\'s motion made:\n(A) before the originally prescribed or previously extended time expires; or\n(B) after the time expires if the party failed to act because of excusable neglect.\n(2) Exception. The court may not extend the time to take any action under Rule 35, except\nas stated in that rule.\n(c) Additional Time After Certain Kinds of Service. Whenever a party must or may act\nwithin a specified period after service and service is made in the manner provided under Federal\nRule of Civil Procedure 5 (b)(2)(C), (D), (E), or (F), 3 days are added after the period would\notherwise expire under subdivision (a).\nNotes\n(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971,\neff. July 1, 1971; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987,\neff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007,\neff. Dec. 1, 2007; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThe rule is in substance the same as Rule 6 of the Federal Rules of Civil Procedure [28\nU.S.C., Appendix]. It seems desirable that matters covered by this rule should be regulated in the\n346\n\n\x0csame manner for civil and criminal cases, in order to preclude possibility of confusion.\nNote to Subdivision (a). This rule supersedes the method of computing time prescribed by\nRule 13 of the Criminal Appeals Rules, promulgated on May 7, 1934, 292 U.S. 661.\nNote to Subdivision (c). This rule abolishes the expiration of a term of court as a time\nlimitation for the taking of any step in a criminal proceeding, as is done for civil cases by Rule 6(c)\nof the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. In view of the fact that the duration\nof terms of court varies among the several districts and the further fact that the length of time for\nthe taking of any step limited by a term of court depends on the stage within the term when the time\nbegins to run, specific time limitations have been substituted for the taking of any step which\npreviously had to be taken within the term of court.\nNote to Subdivision (d). Cf. Rule 47 (Motions) and Rule 49 (Service and filing of papers).\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nSubdivision (a).\xe2\x80\x94This amendment conforms the subdivision with the amendments made\neffective on July 1, 1963, to the comparable provision in Civil Rule 6(a). The only major change is\nto treat Saturdays as legal holidays for the purpose of computing time.\nSubdivision (b).\xe2\x80\x94The amendment conforms the subdivision to the amendments made\neffective in 1948 to the comparable provision in Civil Rule 6(b). One of these conforming changes,\nsubstituting the words \xe2\x80\x9cextend the time\xe2\x80\x9d for the words \xe2\x80\x9cenlarge the period\xe2\x80\x9d clarifies the ambiguity\nwhich gave rise to the decision in United States v. Robinson, 361 U.S. 220 (1960). The amendment\nalso, in connection with the amendments to Rules 29 and 37, makes it clear that the only\ncircumstances under which extensions can be granted under Rules 29, 33, 34, 35, 37(a)(2) and\n39(c) are those stated in them.\nSubdivision (c).\xe2\x80\x94Subdivision (c) of Rule 45 is rescinded as unnecessary in view of the\n1963 amendment to 28 U.S.C. \xc2\xa7138 eliminating terms of court.\nNotes of Advisory Committee on Rules\xe2\x80\x941968 Amendment\nThe amendment eliminates inappropriate references to Rules 37 and 39 which are to be\nabrogated.\nNotes of Advisory Committee on Rules\xe2\x80\x941971 Amendment\nThe amendment adds Columbus Day to the list of legal holidays to conform the\nsubdivision to the Act of June 28, 1968, 82 Stat. 250, which constituted Columbus Day a legal\nholiday effective after January 1, 1971.\nThe Act, which amended Title 5, U.S.C., \xc2\xa76103(a), changes the day on which certain\nholidays are to be observed. Washington\'s Birthday, Memorial Day and Veterans Day are to be\nobserved on the third Monday in February, the last Monday in May and the fourth Monday in\nOctober, respectively, rather than, as heretofore, on February 22, May 30, and November 11,\nrespectively. Columbus Day is to be observed on the second Monday in October. New Year\'s Day,\nIndependence Day, Thanksgiving Day and Christmas continue to be observed on the traditional\ndays.\nNotes of Advisory Committee on Rules\xe2\x80\x941982 Amendment\n\n347\n\n\x0cThe amendment to subdivision (a) takes account of the fact that on rare occasion severe\nweather conditions or other circumstances beyond control will make it impossible to meet a filing\ndeadline under Rule 45(a). Illustrative is an incident which occurred in Columbus, Ohio during the\n\xe2\x80\x9cgreat blizzard of 1978,\xe2\x80\x9d in which weather conditions deteriorated to the point where personnel in\nthe clerk\'s office found it virtually impossible to reach the courthouse, and where the GSA\nBuilding Manager found it necessary to close and secure the entire building. The amendment\ncovers that situation and also similar situations in which weather or other conditions made the\nclerk\'s office, though open, not readily accessible to the lawyer. Whether the clerk\'s office was in\nfact \xe2\x80\x9cinaccessible\xe2\x80\x9d on a given date is to be determined by the district court. Some state time\ncomputation statutes contain language somewhat similar to that in the amendment; see, e.g.,\nMd.Code Ann. art. 94, \xc2\xa72.\nNotes of Advisory Committee on Rules\xe2\x80\x941985 Amendment\nThe rule is amended to extend the exclusion of intermediate Saturdays, Sundays, and legal\nholidays to the computation of time periods less than 11 days. Under the current version of the\nRule, parties bringing motions under rules with 10-day periods could have as few as 5 working\ndays to prepare their motions. This change corresponds to the change being made in the\ncomparable provision in Fed.R.Civ.P. 6 (a).\nThe Birthday of Martin Luther King, Jr., which becomes a legal holiday effective January\n1986, has been added to the list of legal holidays enumerated in the Rule.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 45 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nThe additional three days provided by Rule 45(c) is extended to the means of service\nauthorized by the new paragraph (D) added to Rule 5(b) of the Federal Rules of Civil Procedure,\nincluding\xe2\x80\x94with the consent of the person served\xe2\x80\x94service by electronic means. The means of\nservice authorized in civil actions apply to criminal cases under Rule 49(b).\nRule 45(d), which governs the timing of written motions and affidavits, has been moved to\nRule 47.\nCommittee Notes on Rules\xe2\x80\x942005 Amendment\nRule 45(b) has been amended to conform to amendments to Rules 29, 33, and 34, which\nhave been amended to remove the requirement that the court must act within the seven-day period\nspecified in each of those rules if it sets another time for filing a motion under those rules.\nCurrently, Rules 29(c)(1), 33(b)(2), and 34(b) require the defendant to move for relief\nunder those rules within the seven-day periods specified in those rules or within some other time\n348\n\n\x0cset by the court in an order issued during that same seven-day period. Courts have held that the\nseven-day rule is jurisdictional. Thus, for example, if a defendant files a request for an extension of\ntime to file a motion for a judgment of acquittal or a motion for new trial within the seven-day\nperiod, the court must rule on that motion or request within the same seven-day period. If for some\nreason the court does not rule on the request for an extension of time within the seven days, the\ncourt loses jurisdiction to act on the underlying substantive motion. See, e.g., United States v.\nSmith, 331 U.S. 469, 473 \xe2\x80\x93474 (1947) (rejecting argument that trial court had power to grant new\ntrial on its own motion after expiration of time in Rule 33); United States v. Marquez, 291 F.3d 23,\n27\xe2\x80\x9328 (D.C. Cir. 2002) (citing language of Rule 33, and holding that \xe2\x80\x9cdistrict court forfeited the\npower to act when it failed to . . . fix a new time for filing a motion for a new trial within seven days\nof the verdict\xe2\x80\x9d).\nRule 45(b)(2) currently specifies that a court may not extend the time for taking action\nunder Rules 29, 33, or 34, except as provided in those rules.\nAssuming that the current provisions in Rules 29, 33, and 34 were intended to promote\nfinality, there is nothing to prevent the court from granting the defendant a significant extension of\ntime, under those rules, as long as it does so within the seven-day period. Thus, the Committee\nbelieved that those rules should be amended to be consistent with all of the other timing\nrequirements in the rules, which do not force the court to rule on a motion to extend the time for\nfiling, within a particular period of time or lose jurisdiction to do so. The change to Rule 45(b)(2) is\nthus a conforming amendment.\nThe defendant is still required to file motions under Rules 29, 33, and 34 within the\nseven-day period specified in those rules. The defendant, however, may consistently with Rule 45,\nseek an extension of time to file the underlying motion as long as the defendant does so within the\nseven-day period. But the court itself is not required to act on that motion within any particular\ntime. Further, under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying\nmotion within the specified time, the court may nonetheless consider that untimely motion if the\ncourt determines that the failure to file it on time was the result of excusable neglect.\nChanges Made After Publication and Comment. The Committee made no substantive\nchanges to Rule 45 following publication.\nCommittee Notes on Rules\xe2\x80\x942007 Amendment\nSubdivision (c). Rule 45(c) is amended to remove any doubt as to the method for extending\nthe time to respond after service by mail, leaving with the clerk of court, electronic means, or other\nmeans consented to by the party served. This amendment parallels the change in Federal Rule of\nCivil Procedure 6 (e). Three days are added after the prescribed period otherwise expires under\nRule 45(a). Intermediate Saturdays, Sundays, and legal holidays are included in counting these\nadded three days. If the third day is a Saturday, Sunday, or legal holiday, the last day to act is the\nnext day that is not a Saturday, Sunday, or legal holiday. The effect of invoking the day that the\nrule would otherwise expire under Rule 45(a) can be illustrated by assuming that the thirtieth day\nof a thirty-day period is a Saturday. Under Rule 45(a) the period expires on the next day that is not\na Sunday or legal holiday. If the following Monday is a legal holiday, under Rule 45(a) the period\nexpires on Tuesday. Three days are then added\xe2\x80\x94Wednesday, Thursday, and Friday as the third\nand final day to act unless that is a legal holiday. If the prescribed period ends on a Friday, the three\nadded days are Saturday, Sunday, and Monday, which is the third and final day to act unless it is a\nlegal holiday. If Monday is a legal holiday, the next day that is not a legal holiday is the third and\n349\n\n\x0cfinal day to act.\nApplication of Rule 45(c) to a period that is less than eleven days can be illustrated by a\npaper that is served by mailing on a Friday. If ten days are allowed to respond, intermediate\nSaturdays, Sundays, and legal holidays are excluded in determining when the period expires under\nRule 45(a). If there is no legal holiday, the period expires on the Friday two weeks after the paper\nwas mailed. The three added Rule 45(c) days are Saturday, Sunday, and Monday, which is the\nthird and final day to act unless it is a legal holiday. If Monday is a legal holiday, the next day that\nis not a legal holiday is the final day to act.\nChanges Made to Proposed Amendment Released for Public Comment. No change was\nmade in the rule as published for public comment.\nCommittee Notes on Rules\xe2\x80\x942008 Amendment\nThis amendment revises the cross references to Civil Rule 5, which have been renumbered\nas part of a general restyling of the Federal Rules of Civil Procedure. No substantive change is\nintended.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nSubdivision (a). Subdivision (a) has been amended to simplify and clarify the provisions\nthat describe how deadlines are computed. Subdivision (a) governs the computation of any time\nperiod found in a statute that does not specify a method of computing time, a Federal Rule of\nCriminal Procedure, a local rule, or a court order. In accordance with Rule 57(a)(1), a local rule\nmay not direct that a deadline be computed in a manner inconsistent with subdivision (a). In\nmaking these time computation rules applicable to statutory time periods, subdivision (a) is\nconsistent with Civil Rule 6(a). It is also consistent with the language of Rule 45 prior to restyling,\nwhen the rule applied to \xe2\x80\x9ccomputing any period of time.\xe2\x80\x9d Although the restyled Rule 45(a)\nreferred only to time periods \xe2\x80\x9cspecified in these rules, any local rule, or any court order,\xe2\x80\x9d some\ncourts nonetheless applied the restyled Rule 45(a) when computing various statutory periods.\nThe time-computation provisions of subdivision (a) apply only when a time period must be\ncomputed. They do not apply when a fixed time to act is set. The amendments thus carry forward\nthe approach taken in Violette v. P.A. Days, Inc., 427 F.3d 1015, 1016 (6th Cir. 2005) (holding that\nCivil Rule 6(a) \xe2\x80\x9cdoes not apply to situations where the court has established a specific calendar day\nas a deadline\xe2\x80\x9d), and reject the contrary holding of In re American Healthcare Management, Inc.,\n900 F.2d 827, 832 (5th Cir. 1990) (holding that Bankruptcy Rule 9006(a) governs treatment of a\ndate-certain deadline set by court order). If, for example, the date for filing is \xe2\x80\x9cno later than\nNovember 1, 2007,\xe2\x80\x9d subdivision (a) does not govern. But if a filing is required to be made \xe2\x80\x9cwithin\n10 days\xe2\x80\x9d or \xe2\x80\x9cwithin 72 hours,\xe2\x80\x9d subdivision (a) describes how that deadline is computed.\nSubdivision (a) does not apply when computing a time period set by a statute if the statute\nspecifies a method of computing time. See, e.g., 18 U.S.C. \xc2\xa73142(d) (excluding Saturdays,\nSundays, and holidays from 10 day period). In addition, because the time period in Rule 46(h) is\nderived from 18 U.S.C. \xc2\xa7\xc2\xa73142(d) and 3144, the Committee concluded that Rule 45(a) should not\nbe applied to Rule 46(h).\nSubdivision (a)(1). New subdivision (a)(1) addresses the computation of time periods that\nare stated in days. It also applies to time periods that are stated in weeks, months, or years. See,\ne.g., Rule 35(b)(1). Subdivision (a)(1)(B)\'s directive to \xe2\x80\x9ccount every day\xe2\x80\x9d is relevant only if the\n350\n\n\x0cperiod is stated in days (not weeks, months or years).\nUnder former Rule 45(a), a period of 11 days or more was computed differently than a\nperiod of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in\ncomputing the longer periods, but excluded in computing the shorter periods. Former Rule 45(a)\nthus made computing deadlines unnecessarily complicated and led to counterintuitive results. For\nexample, a 10-day period and a 14-day period that started on the same day usually ended on the\nsame day\xe2\x80\x94and the 10-day period not infrequently ended later than the 14-day period. See\nMiltimore Sales, Inc. v. Int\'1 Rectifier, Inc., 412 F.3d 685, 686 (6th Cir. 2005).\nUnder new subdivision (a)(1), all deadlines stated in days (no matter the length) are\ncomputed in the same way. The day of the event that triggers the deadline is not counted. All other\ndays\xe2\x80\x94including intermediate Saturdays, Sundays, and legal holidays\xe2\x80\x94are counted, with only one\nexception: if the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the\nnext day that is not a Saturday, Sunday, or legal holiday. An illustration is provided below in the\ndiscussion of subdivision (a)(5). Subdivision (a)(3) addresses filing deadlines that expire on a day\nwhen the clerk\'s office is inaccessible.\nWhere subdivision (a) formerly referred to the \xe2\x80\x9cact, event, or default\xe2\x80\x9d that triggers the\ndeadline, the new subdivision (a) refers simply to the \xe2\x80\x9cevent\xe2\x80\x9d that triggers the deadline; this\nchange in terminology is adopted for brevity and simplicity, and is not intended to change the\nmeaning.\nPeriods previously expressed as less than 11 days will be shortened as a practical matter by\nthe decision to count intermediate Saturdays, Sundays, and legal holidays in computing all\nperiods. Many of those periods have been lengthened to compensate for the change. See, e.g.,\nRules 29(c)(1), 33(b)(2), 34, and 35(a).\nMost of the 10-day periods were adjusted to meet the change in computation method by\nsetting 14 days as the new period. A 14-day period corresponds to the most frequent result of a\n10-day period under the former computation method\xe2\x80\x94two Saturdays and two Sundays were\nexcluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on\nthe same day of the week as the event that triggered the period\xe2\x80\x94the 14th day after a Monday, for\nexample, is a Monday. This advantage of using weeklong periods led to adopting 7-day periods to\nreplace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods.\nThirty-day and longer periods, however, were generally retained without change.\nSubdivision (a)(2). New subdivision (a)(2) addresses the computation of time periods that\nare stated in hours. No such deadline currently appears in the Federal Rules of Criminal Procedure.\nBut some statutes contain deadlines stated in hours, as do some court orders issued in expedited\nproceedings.\nUnder subdivision (a)(2), a deadline stated in hours starts to run immediately on the\noccurrence of the event that triggers the deadline. The deadline generally ends when the time\nexpires. If, however, the time period expires at a specific time (say, 2:17 p.m.) on a Saturday,\nSunday, or legal holiday, then the deadline is extended to the same time (2:17 p.m.) on the next day\nthat is not a Saturday, Sunday, or legal holiday. Periods stated in hours are not to be \xe2\x80\x9crounded up\xe2\x80\x9d\nto the next whole hour. Subdivision (a)(3) addresses situations when the clerk\'s office is\ninaccessible during the last hour before a filing deadline expires.\nSubdivision (a)(2)(B) directs that every hour be counted. Thus, for example, a 72-hour\nperiod that commences at 10:23 a.m. on Friday, November 2, 2007, will run until 9:23 a.m. on\nMonday, November 5; the discrepancy in start and end times in this example results from the\nintervening shift from daylight saving time to standard time.\n351\n\n\x0cSubdivision (a)(3). When determining the last day of a filing period stated in days or a\nlonger unit of time, a day on which the clerk\'s office is not accessible because of the weather or\nanother reason is treated like a Saturday, Sunday, or legal holiday. When determining the end of a\nfiling period stated in hours, if the clerk\'s office is inaccessible during the last hour of the filing\nperiod computed under subdivision (a)(2) then the period is extended to the same time on the next\nday that is not a weekend, holiday or day when the clerk\'s office is inaccessible.\nSubdivision (a)(3)\'s extensions apply \xe2\x80\x9c[u]nless the court orders otherwise.\xe2\x80\x9d In some\ncircumstances, the court might not wish a period of inaccessibility to trigger a full 24-hour\nextension; in those instances, the court can specify a briefer extension.\nThe text of the rule no longer refers to \xe2\x80\x9cweather or other conditions\xe2\x80\x9d as the reason for the\ninaccessibility of the clerk\'s office. The reference to \xe2\x80\x9cweather\xe2\x80\x9d was deleted from the text to\nunderscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the\nelectronic filing system. Weather can still be a reason for inaccessibility of the clerk\'s office. The\nrule does not attempt to define inaccessibility. Rather, the concept will continue to develop\nthrough caselaw, see, e.g., William G. Phelps, When Is Office of Clerk of Court Inaccessible Due\nto Weather or Other Conditions for Purpose of Computing Time Period for Filing Papers under\nRule 6(a) of Federal Rules of Civil Procedure , 135 A.L.R. Fed. 259 (1996) (collecting cases). In\naddition, many local provisions address inaccessibility for purposes of electronic filing, see, e.g.,\nD. Kan. Rule CR49.11 (\xe2\x80\x9cA Filing User whose filing is made untimely as the result of a technical\nfailure may seek appropriate relief from the court.\xe2\x80\x9d).\nSubdivision (a)(4). New subdivision (a)(4) defines the end of the last day of a period for\npurposes of subdivision (a)(1). Subdivision (a)(4) does not apply in computing periods stated in\nhours under subdivision (a)(2), and does not apply if a different time is set by a statute, local rule,\nor order in the case. A local rule may, for example, address the problems that might arise if a single\ndistrict has clerk\'s offices in different time zones, or provide that papers filed in a drop box after the\nnormal hours of the clerk\'s office are filed as of the day that is date-stamped on the papers by a\ndevice in the drop box.\n28 U.S.C. \xc2\xa7452 provides that \xe2\x80\x9c[a]ll courts of the United States shall be deemed always\nopen for the purpose of filing proper papers, issuing and returning process, and making motions\nand orders.\xe2\x80\x9d A corresponding provision exists in Rule 56(a). Some courts have held that these\nprovisions permit an after-hours filing by handing the papers to an appropriate official. See, e.g.,\nCasalduc v. Diaz, 117 F.2d 915, 917 (1st Cir. 1941). Subdivision (a)(4) does not address the effect\nof the statute on the question of after-hours filing; instead, the rule is designed to deal with filings\nin the ordinary course without regard to Section 452.\nSubdivision (a)(5). New subdivision (a)(5) defines the \xe2\x80\x9cnext\xe2\x80\x9d day for purposes of\nsubdivisions (a)(1)(C) and (a)(2)(C). The Federal Rules of Criminal Procedure contain both\nforward-looking time periods and backward-looking time periods. A forward-looking time period\nrequires something to be done within a period of time after an event. See, e.g., Rule 35(a) (stating\nthat a court may correct an arithmetic or technical error in a sentence \xe2\x80\x9c[w]ithin 14 days after\nsentencing\xe2\x80\x9d). A backward-looking time period requires something to be done within a period of\ntime before an event. See, e.g., Rule 47(c) (stating that a party must serve a written motion \xe2\x80\x9cat least\n7 days before the hearing date\xe2\x80\x9d). In determining what is the \xe2\x80\x9cnext\xe2\x80\x9d day for purposes of\nsubdivisions (a)(1)(C) and (a)(2)(C), one should continue counting in the same direction\xe2\x80\x94that is,\nforward when computing a forward-looking period and backward when computing a\nbackward-looking period. If, for example, a filing is due within 10 days after an event, and the\ntenth day falls on Saturday, September 1, 2007, then the filing is due on Tuesday, September 4,\n352\n\n\x0c2007 (Monday, September 3, is Labor Day). But if a filing is due 10 days before an event, and the\ntenth day falls on Saturday, September 1, then the filing is due on Friday, August 31. If the clerk\'s\noffice is inaccessible on August 31, then subdivision (a)(3) extends the filing deadline forward to\nthe next accessible day that is not a Saturday, Sunday, or legal holiday\xe2\x80\x94no earlier than Tuesday,\nSeptember 4.\nSubdivision (a)(6). New subdivision (a)(6) defines \xe2\x80\x9clegal holiday\xe2\x80\x9d for purposes of the\nFederal Rules of Criminal Procedure, including the time-computation provisions of subdivision\n(a). Subdivision (a)(6) continues to include within the definition of \xe2\x80\x9clegal holiday\xe2\x80\x9d days that are\ndeclared a holiday by the President or Congress.\nFor forward-counted periods\xe2\x80\x94 i.e., periods that are measured after an event\xe2\x80\x94subdivision\n(a)(6)(C) includes certain state holidays within the definition of legal holidays. However, state\nlegal holidays are not recognized in computing backward-counted periods. For both forward-and\nbackward-counted periods, the rule thus protects those who may be unsure of the effect of state\nholidays. For forward-counted deadlines, treating state holidays the same as federal holidays\nextends the deadline. Thus, someone who thought that the federal courts might be closed on a state\nholiday would be safeguarded against an inadvertent late filing. In contrast, for backward-counted\ndeadlines, not giving state holidays the treatment of federal holidays allows filing on the state\nholiday itself rather than the day before. Take, for example, Monday, April 21, 2008 (Patriot\'s\nDay, a legal holiday in the relevant state). If a filing is due 14 days after an event, and the\nfourteenth day is April 21, then the filing is due on Tuesday, April 22 because Monday, April 21\ncounts as a legal holiday. But if a filing is due 14 days before an event, and the fourteenth day is\nApril 21, the filing is due on Monday, April 21; the fact that April 21 is a state holiday does not\nmake April 21 a legal holiday for purposes of computing this backward-counted deadline. But note\nthat if the clerk\'s office is inaccessible on Monday, April 21, then subdivision (a)(3) extends the\nApril 21 filing deadline forward to the next accessible day that is not a Saturday, Sunday or legal\nholiday\xe2\x80\x94no earlier than Tuesday, April 22.\nChanges Made to Proposed Amendment Released for Public Comment. The Standing\nCommittee changed Rule 45(a)(6) to exclude state holidays from the definition of \xe2\x80\x9clegal holiday\xe2\x80\x9d\nfor purposes of computing backward-counted periods; conforming changes were made to the\nCommittee Note to subdivision (a)(6).\nReferences in Text\nThe Federal Rules of Civil Procedure, referred to in subd. (c), are set out in the Appendix to\nTitle 28, Judiciary and Judicial Procedure.\n\nRule 46. Release from Custody; Supervising Detention\n(a) Before Trial. The provisions of 18 U.S.C. \xc2\xa7\xc2\xa73142 and 3144 govern pretrial release.\n(b) During Trial. A person released before trial continues on release during trial under the\nsame terms and conditions. But the court may order different terms and conditions or terminate the\nrelease if necessary to ensure that the person will be present during trial or that the person\'s\nconduct will not obstruct the orderly and expeditious progress of the trial.\n(c) Pending Sentencing or Appeal. The provisions of 18 U.S.C. \xc2\xa73143 govern release\npending sentencing or appeal. The burden of establishing that the defendant will not flee or pose a\ndanger to any other person or to the community rests with the defendant.\n(d) Pending Hearing on a Violation of Probation or Supervised Release. Rule 32.1(a)(6)\n353\n\n\x0cgoverns release pending a hearing on a violation of probation or supervised release.\n(e) Surety. The court must not approve a bond unless any surety appears to be qualified.\nEvery surety, except a legally approved corporate surety, must demonstrate by affidavit that its\nassets are adequate. The court may require the affidavit to describe the following:\n(1) the property that the surety proposes to use as security;\n(2) any encumbrance on that property;\n(3) the number and amount of any other undischarged bonds and bail undertakings the\nsurety has issued; and\n(4) any other liability of the surety.\n(f) Bail Forfeiture.\n(1) Declaration. The court must declare the bail forfeited if a condition of the bond is\nbreached.\n(2) Setting Aside. The court may set aside in whole or in part a bail forfeiture upon any\ncondition the court may impose if:\n(A) the surety later surrenders into custody the person released on the surety\'s appearance\nbond; or\n(B) it appears that justice does not require bail forfeiture.\n(3) Enforcement.\n(A) Default Judgment and Execution. If it does not set aside a bail forfeiture, the court\nmust, upon the government\'s motion, enter a default judgment.\n(B) Jurisdiction and Service. By entering into a bond, each surety submits to the district\ncourt\'s jurisdiction and irrevocably appoints the district clerk as its agent to receive service of any\nfilings affecting its liability.\n(C) Motion to Enforce. The court may, upon the government\'s motion, enforce the surety\'s\nliability without an independent action. The government must serve any motion, and notice as the\ncourt prescribes, on the district clerk. If so served, the clerk must promptly mail a copy to the\nsurety at its last known address.\n(4) Remission. After entering a judgment under Rule 46(f)(3), the court may remit in whole\nor in part the judgment under the same conditions specified in Rule 46(f)(2).\n(g) Exoneration. The court must exonerate the surety and release any bail when a bond\ncondition has been satisfied or when the court has set aside or remitted the forfeiture. The court\nmust exonerate a surety who deposits cash in the amount of the bond or timely surrenders the\ndefendant into custody.\n(h) Supervising Detention Pending Trial.\n(1) In General. To eliminate unnecessary detention, the court must supervise the detention\nwithin the district of any defendants awaiting trial and of any persons held as material witnesses.\n(2) Reports. An attorney for the government must report biweekly to the court, listing each\nmaterial witness held in custody for more than 10 days pending indictment, arraignment, or trial.\nFor each material witness listed in the report, an attorney for the government must state why the\nwitness should not be released with or without a deposition being taken under Rule 15(a).\n(i) Forfeiture of Property. The court may dispose of a charged offense by ordering the\nforfeiture of 18 U.S.C. \xc2\xa73142(c)(1)(B) (xi) property under 18 U.S.C. \xc2\xa73146(d), if a fine in the\namount of the property\'s value would be an appropriate sentence for the charged offense.\n(j) Producing a Statement.\n(1) In General. Rule 26.2(a)\xe2\x80\x93(d) and (f) applies at a detention hearing under 18 U.S.C.\n\xc2\xa73142, unless the court for good cause rules otherwise.\n354\n\n\x0c(2) Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to\nproduce a witness\'s statement, the court must not consider that witness\'s testimony at the detention\nhearing.\nNotes\n(As amended Apr. 9, 1956, eff. July 8, 1956; Feb. 28, 1966, eff. July 1, 1966; Apr. 24,\n1972, eff. Oct. 1, 1972; Pub. L. 98\xe2\x80\x93473, title II, \xc2\xa7209(d), Oct. 12, 1984, 98 Stat. 1987; Mar. 9,\n1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Pub. L.\n103\xe2\x80\x93322, title XXXIII, \xc2\xa7330003(h), Sept. 13, 1994, 108 Stat. 2141; Apr. 29, 2002, eff. Dec. 1,\n2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a)(1). This rule is substantially a restatement of existing law, 18\nU.S.C. 596, 597 [now 3141].\nNote to Subdivision (a)(2). This rule is substantially a restatement of Rule 6 of Criminal\nAppeals Rules, with the addition of a reference to bail pending certiorari. This rule does not\nsupersede 18 U.S.C. 682 [now 3731] (Appeals; on behalf of the United States; rules of practice and\nprocedure), which provides for the admission of the defendant to bail on his own recognizance\npending an appeal taken by the Government.\nNote to Subdivision (b). This rule is substantially a restatement of existing law, 28 U.S.C.\n[former] 657.\nNote to Subdivision (d). This rule is a restatement of existing practice, and is based in part\non 6 U.S.C. 15 [now 31 U.S.C. 9103 ] (Bonds or notes of United States in lieu of recognizance,\nstipulation, bond, guaranty, or undertaking; place of deposit; return to depositor; contractors\xe2\x80\x99\nbonds).\nNote to Subdivision (e). This rule is similar to Sec. 79 of A.L.I. Code of Criminal Procedure\nintroducing, however, an element of flexibility. Corporate sureties are regulated by 6 U.S.C. 6 \xe2\x80\x9314\n[now 31 U.S.C. 9304 \xe2\x80\x939308].\nNote to Subdivision (f). 1. With the exception hereafter noted, this rule is substantially a\nrestatement of existing law in somewhat greater detail than contained in 18 U.S.C. [former] 601\n(Remission of penalty of recognizance).\n2. Subdivision (f)(2) changes existing law in that it increases the discretion of the court to\nset aside a forfeiture. The present power of the court is limited to cases in which the defendant\'s\ndefault had not been willful.\n3. The second sentence of paragraph (3) is similar to Rule 73(f) of the Federal Rules of\nCivil Procedure [28 U.S.C., Appendix]. This paragraph also substitutes simple motion procedure\nfor enforcing forfeited bail bonds for the procedure by scire facias, which was abolished by Rule\n81(b) of the Federal Rules of Civil Procedure.\nNote to Subdivision (g). This rule is a restatement of existing law and practice. It is based in\npart on 18 U.S.C. 599 [now 3142] (Surrender by bail).\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nSubdivision (c).\xe2\x80\x94The more inclusive word \xe2\x80\x9cterms\xe2\x80\x9d is substituted for \xe2\x80\x9camount\xe2\x80\x9d in view of\nthe amendment to subdivision (d) authorizing releases without security on such conditions as are\n355\n\n\x0cnecessary to insure the appearance of the defendant. The phrase added at the end of this\nsubdivision is designed to encourage commissioners and judges to set the terms of bail so as to\neliminate unnecessary detention. See Stack v. Boyle, 342 U.S. 1 (1951); Bandy v. United States, 81\nS.Ct. 197 (1960); Bandy v. United States, 82 S.Ct. 11 (1961); Carbo v. United States, 82 S.Ct. 662\n(1962); review den. 369 U.S. 868 (1962).\nSubdivision (d).\xe2\x80\x94The amendments are designed to make possible (and to encourage) the\nrelease on bail of a greater percentage of indigent defendants than now are released. To the extent\nthat other considerations make it reasonably likely that the defendant will appear it is both good\npractice and good economics to release him on bail even though he cannot arrange for cash or\nbonds in even small amounts. In fact it has been suggested that it may be a denial of constitutional\nrights to hold indigent prisoners in custody for no other reason than their inability to raise the\nmoney for a bond. Bandy v. United States, 81 S.Ct. 197 (1960).\nThe first change authorizes the acceptance as security of a deposit of cash or government\nsecurities in an amount less than the face amount of the bond. Since a defendant typically\npurchases a bail bond for a cash payment of a certain percentage of the face of the bond, a direct\ndeposit with the court of that amount (returnable to the defendant upon his appearance) will often\nbe equally adequate as a deterrent to flight. Cf. Ill.CodeCrim.Proc. \xc2\xa7110\xe2\x80\x937 (1963).\nThe second change authorizes the release of the defendant without financial security on his\nwritten agreement to appear when other deterrents appear reasonably adequate. See the discussion\nof such deterrents in Bandy v. United States, 81 S.Ct. 197 (1960). It also permits the imposition of\nnonfinancial conditions as the price of dispensing with security for the bond. Such conditions are\ncommonly used in England. Devin, The Criminal Prosecution in England, 89 (1958). See the\nsuggestion in Note, Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 975 (1961) that such\nconditions \xe2\x80\x9c * might include release in custody of a third party, such as the accused\'s employer,\nminister, attorney, or a private organization; release subject to a duty to report periodically to the\ncourt or other public official; or even release subject to a duty to return to jail each night.\xe2\x80\x9d Willful\nfailure to appear after forfeiture of bail is a separate criminal offense and hence an added deterrent\nto flight. 18 U.S.C. \xc2\xa73146.\nFor full discussion and general approval of the changes made here see Report of the\nAttorney General\'s Committee on Poverty and the Administration of Criminal Justice 58\xe2\x80\x9389\n(1963).\nSubdivision (h).\xe2\x80\x94The purpose of this new subdivision is to place upon the court in each\ndistrict the responsibility for supervising the detention of defendants and witnesses and for\neliminating all unnecessary detention. The device of the report by the attorney for the government\nis used because in many districts defendants will be held in custody in places where the court sits\nonly at infrequent intervals and hence they cannot be brought personally before the court without\nsubstantial delay. The magnitude of the problem is suggested by the facts that during the fiscal\nyear ending June 30, 1960, there were 23,811 instances in which persons were held in custody\npending trial and that the average length of detention prior to disposition (i.e., dismissal, acquittal,\nprobation, sentence to imprisonment, or any other method of removing the case from the court\ndocket) was 25.3 days. Federal Prisons 1960, table 22, p. 60. Since 27,645 of the 38,855\ndefendants whose cases were terminated during the fiscal year ending June 30, 1960, pleaded\nguilty (United States Attorneys Statistical Report, October 1960, p. 1 and table 2), it would appear\nthat the greater part of the detention reported occurs prior to the initial appearance of the defendant\nbefore the court.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\n356\n\n\x0cThe amendments are intended primarily to bring rule 46 into general conformity with the\nBail Reform Act of 1966 and to deal in the rule with some issues not now included within the rule.\nSubdivision (a) makes explicit that the Bail Reform Act of 1966 controls release on bail\nprior to trial. 18 U.S.C. \xc2\xa73146 refers to release of a defendant. 18 U.S.C. \xc2\xa73149 refers to release of\na material witness.\nSubdivision (b) deals with an issue not dealt with by the Bail Reform Act of 1966 or\nexplicitly in former rule 46, that is, the issue of bail during trial. The rule gives the trial judge\ndiscretion to continue the prior conditions of release or to impose such additional conditions as are\nadequate to insure presence at trial or to insure that his conduct will not obstruct the orderly and\nexpeditious progress of the trial.\nSubdivision (c) provides for release during the period between a conviction and sentencing\nand for the giving of a notice of appeal or of the expiration of the time allowed for filing notice of\nappeal. There are situations in which defense counsel may informally indicate an intention to\nappeal but not actually give notice of appeal for several days. To deal with this situation the rule\nmakes clear that the district court has authority to release under the terms of 18 U.S.C. \xc2\xa73148\npending notice of appeal (e.g., during the ten days after entry of judgment; see rule 4(b) of the\nRules of Appellate Procedure). After the filing of notice of appeal, release by the district court\nshall be in accordance with the provisions of rule 9(b) of the Rules of Appellate Procedure. The\nburden of establishing that grounds for release exist is placed upon the defendant in the view that\nthe fact of conviction justifies retention in custody in situations where doubt exists as to whether a\ndefendant can be safely released pending either sentence or the giving of notice of appeal.\nSubdivisions (d), (e), (f), and (g) remain unchanged. They were formerly lettered (e), (f),\n(g), and (h).\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941991 Amendment\nThe amendment is technical. No substantive change is intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe addition of subdivision (i) is one of a series of similar amendments to Rules 26.2, 32,\n32.1, and Rule 8 of the Rules Governing Proceedings Under 28 U.S.C. \xc2\xa72255 which extend Rule\n26.2 to other proceedings and hearings. As pointed out in the Committee Note to the amendment to\nRule 26.2, there is continuing and compelling need to assess the credibility and reliability of\ninformation relied upon by the court, whether the witness\'s testimony is being considered at a\npretrial proceeding, at trial, or a post-trial proceeding. Production of a witness\'s prior statements\ndirectly furthers that goal.\nThe need for reliable information is no less crucial in a proceeding to determine whether a\ndefendant should be released from custody. The issues decided at pretrial detention hearings are\nimportant to both a defendant and the community. For example, a defendant charged with criminal\n357\n\n\x0cacts may be incarcerated prior to an adjudication of guilt without bail on grounds of future\ndangerousness which is not subject to proof beyond a reasonable doubt. Although the defendant\nclearly has an interest in remaining free prior to trial, the community has an equally compelling\ninterest in being protected from potential criminal activity committed by persons awaiting trial.\nIn upholding the constitutionality of pretrial detention based upon dangerousness, the\nSupreme Court in United States v. Salerno, 481 U.S. 739 (1986), stressed the existence of\nprocedural safeguards in the Bail Reform Act. The Act provides for the right to counsel and the\nright to cross-examine adverse witnesses. See, e.g., 18 U.S.C. \xc2\xa73142(f) (right of defendant to\ncross-examine adverse witness). Those safeguards, said the Court, are \xe2\x80\x9cspecifically designed to\nfurther the accuracy of that determination.\xe2\x80\x9d 481 U.S. at 751. The Committee believes that\nrequiring the production of a witness\'s statement will further enhance the fact-finding process.\nThe Committee recognized that pretrial detention hearings are often held very early in a\nprosecution, and that a particular witness\'s statement may not yet be on file, or even known about.\nThus, the amendment recognizes that in a particular case, the court may decide that good cause\nexists for not applying the rule.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 46 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nAlthough the general rule is that an appeal to a circuit court deprives the district court of\njurisdiction, Rule 46(c) recognizes the apparent exception to that rule\xe2\x80\x94that the district court\nretains jurisdiction to decide whether the defendant should be detained, even if a notice of appeal\nhas been filed. See, e.g., United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996), cert. denied, 522\nU.S. 1006 (1997) (initial decision of whether to release defendant pending appeal is to be made by\ndistrict court); United States v. Affleck, 765 F.2d 944 (10th Cir. 1985); Jago v. United States\nDistrict Court, 570 F.2d 618 (6th Cir. 1978) (release of defendant pending appeal must first be\nsought in district court). See also Federal Rule of Appellate Procedure 9 (b) and the accompanying\nCommittee Note.\nRevised Rule 46(h) deletes the requirement that the attorney for the government file\nbiweekly reports with the court concerning the status of any defendants in pretrial detention. The\nCommittee believed that the requirement was no longer necessary in light of the Speedy Trial Act\nprovisions. 18 U.S.C. \xc2\xa7\xc2\xa73161, et seq. On the other hand, the requirement that the attorney for the\ngovernment file reports regarding detained material witnesses has been retained in the rule.\nRule 46(i) addresses the ability of a court to order forfeiture of property where a defendant\nhas failed to appear as required by the court. The language in the current rule, Rule 46(h), was\noriginally included by Congress. The new language has been restyled with no change in substance\nor practice intended. Under this provision, the court may only forfeit property as permitted under\n18 U.S.C. \xc2\xa7\xc2\xa73146(d) and 3142(c)(1)(B)(xi). The term \xe2\x80\x9cappropriate sentence\xe2\x80\x9d means a sentence\nthat is consistent with the Sentencing Guidelines.\nAmendment by Public Law\n1994 \xe2\x80\x94Subd. (i)(1). Pub. L. 103\xe2\x80\x93322 substituted \xe2\x80\x9c3142\xe2\x80\x9d for \xe2\x80\x9c3144\xe2\x80\x9d.\n1984 \xe2\x80\x94Subd. (a). Pub. L. 98\xe2\x80\x93473, \xc2\xa7209(d)(1), substituted \xe2\x80\x9c\xc2\xa7\xc2\xa73142 and 3144\xe2\x80\x9d for \xe2\x80\x9c\xc2\xa73146,\n358\n\n\x0c\xc2\xa73148, or \xc2\xa73149\xe2\x80\x9d.\nSubd. (c). Pub. L. 98\xe2\x80\x93473, \xc2\xa7209(d)(2), substituted \xe2\x80\x9c3143\xe2\x80\x9d for \xe2\x80\x9c3148\xe2\x80\x9d.\nSubd. (e)(2). Pub. L. 98\xe2\x80\x93473, \xc2\xa7209(d)(3), substituted \xe2\x80\x9cbe set aside in whole or in part upon\nsuch conditions as the court may impose, if a person released upon execution of an appearance\nbond with a surety is subsequently surrendered by the surety into custody or if it otherwise appears\nthat justice does not require the forfeiture\xe2\x80\x9d for \xe2\x80\x9cset aside, upon such conditions as the court may\nimpose, if it appears that justice does not require the enforcement of the forfeiture\xe2\x80\x9d.\nSubd. (h). Pub. L. 98\xe2\x80\x93473, \xc2\xa7209(d)(4), added subd. (h).\nEffective Date of 1956 Amendment\nAmendment by Order of April 9, 1956, became effective 90 days thereafter.\n\nRule 47. Motions and Supporting Affidavits\n(a) In General. A party applying to the court for an order must do so by motion.\n(b) Form and Content of a Motion. A motion\xe2\x80\x94except when made during a trial or\nhearing\xe2\x80\x94must be in writing, unless the court permits the party to make the motion by other means.\nA motion must state the grounds on which it is based and the relief or order sought. A motion may\nbe supported by affidavit.\n(c) Timing of a Motion. A party must serve a written motion\xe2\x80\x94other than one that the court\nmay hear ex parte\xe2\x80\x94and any hearing notice at least 7 days before the hearing date, unless a rule or\ncourt order sets a different period. For good cause, the court may set a different period upon ex\nparte application.\n(d) Affidavit Supporting a Motion. The moving party must serve any supporting affidavit\nwith the motion. A responding party must serve any opposing affidavit at least one day before the\nhearing, unless the court permits later service.\nNotes\n(As amended Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. This rule is substantially the same as the corresponding civil rule (first sentence of Rule\n7(b)(1), Federal Rules of Civil Procedure) [28 U.S.C., Appendix], except that it authorizes the\ncourt to permit motions to be made orally and does not require that the grounds upon which a\nmotion is made shall be stated \xe2\x80\x9cwith particularity,\xe2\x80\x9d as is the case with the civil rule.\n2. This rule is intended to state general requirements for all motions. For particular\nprovisions applying to specific motions, see Rules 6(b)(2), 12, 14, 15, 16, 17(b) and (c), 21, 22, 29\nand Rule 41(e). See also Rule 49.\n3. The last sentence providing that a motion may be supported by affidavit is not intended\nto permit \xe2\x80\x9cspeaking motions\xe2\x80\x9d (e.g. motion to dismiss an indictment for insufficiency supported by\naffidavits), but to authorize the use of affidavits when affidavits are appropriate to establish a fact\n(e.g. authority to take a deposition or former jeopardy).\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\n\n359\n\n\x0cThe language of Rule 47 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nIn Rule 47(b), the word \xe2\x80\x9corally\xe2\x80\x9d has been deleted. The Committee believed, first, that the\nterm should not act as a limitation on those who are not able to speak orally and, second, a court\nmay wish to entertain motions through electronic or other reliable means. Deletion of the term also\ncomports with a similar change in Rule 26, regarding the taking of testimony during trial. In place\nof that word, the Committee substituted the broader phrase \xe2\x80\x9cby other means.\xe2\x80\x9d\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nThe time set in the former rule at 5 days, which excluded intermediate Saturdays, Sundays,\nand legal holidays, has been expanded to 7 days. See the Committee Note to Rule 45(a).\n\nRule 48. Dismissal\n(a) By the Government. The government may, with leave of court, dismiss an indictment,\ninformation, or complaint. The government may not dismiss the prosecution during trial without\nthe defendant\'s consent.\n(b) By the Court. The court may dismiss an indictment, information, or complaint if\nunnecessary delay occurs in:\n(1) presenting a charge to a grand jury;\n(2) filing an information against a defendant; or\n(3) bringing a defendant to trial.\nNotes\n(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). 1. The first sentence of this rule will change existing law. The\ncommon-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without\nany action by the court, prevails in the Federal courts, Confiscation Cases, 7 Wall. 454, 457;\nUnited States v. Woody, 2 F.2d 262 (D.Mont.). This provision will permit the filing of a nolle\nprosequi only by leave of court. This is similar to the rule now prevailing in many States. A.L.I.\nCode of Criminal Procedure, Commentaries, pp. 895\xe2\x80\x93897.\n2. The rule confers the power to file a dismissal by leave of court on the Attorney General,\nas well as on the United States attorney, since under existing law the Attorney General exercises\n\xe2\x80\x9cgeneral superintendence and direction\xe2\x80\x9d over the United States attorneys \xe2\x80\x9cas to the manner of\ndischarging their respective duties,\xe2\x80\x9d 5 U.S.C. 317 [now 28 U.S.C. 509, 547]. Moreover it is the\nadministrative practice for the Attorney General to supervise the filing of a nolle prosequi by\nUnited States attorneys. Consequently it seemed appropriate that the Attorney General should\nhave such power directly.\n3. The rule permits the filing of a dismissal of an indictment, information or complaint. The\nword \xe2\x80\x9ccomplaint\xe2\x80\x9d was included in order to resolve a doubt prevailing in some districts as to\n360\n\n\x0cwhether the United States attorney may file a nolle prosequi between the time when the defendant\nis bound over by the United States commissioner and the finding of an indictment. It has been\nassumed in a few districts that the power does not exist and that the United States attorney must\nawait action of the grand jury, even if he deems it proper to dismiss the prosecution. This situation\nis an unnecessary hardship to some defendants.\n4. The second sentence is a restatement of existing law, Confiscation Cases, 7 Wall. 454\xe2\x80\x93\n457; United States v. Shoemaker, 27 Fed. Cases No. 16, 279 (C.C.Ill.). If the trial has commenced,\nthe defendant has a right to insist on a disposition on the merits and may properly object to the\nentry of a nolle prosequi.\nNote to Subdivision (b). This rule is a restatement of the inherent power of the court to\ndismiss a case for want of prosecution. Ex parte Altman, 34 F.Supp. 106 (S.D.Cal.).\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 48 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nThe Committee considered the relationship between Rule 48(b) and the Speedy Trial Act.\nSee 18 U.S.C. \xc2\xa7\xc2\xa73161, et seq. Rule 48(b), of course, operates independently from the Act. See,\ne.g., United States v. Goodson, 204 F.3d 508 (4th Cir. 2000) (noting purpose of Rule 48(b));\nUnited States v. Carlone, 666 F.2d 1112, 1116 (7th Cir. 1981) (suggesting that Rule 48(b) could\nprovide an alternate basis in an extreme case to dismiss an indictment, without reference to Speedy\nTrial Act); United States v. Balochi, 527 F.2d 562, 563\xe2\x80\x9364 (4th Cir. 1976) (per curiam) (Rule\n48(b) is broader in compass). In re-promulgating Rule 48(b), the Committee intends no change in\nthe relationship between that rule and the Speedy Trial Act.\n\nRule 49.1 Privacy Protection For Filings Made with the Court\n(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with\nthe court that contains an individual\'s social-security number, taxpayer-identification number, or\nbirth date, the name of an individual known to be a minor, a financial-account number, or the home\naddress of an individual, a party or nonparty making the filing may include only:\n(1) the last four digits of the social-security number and taxpayer-identification number;\n(2) the year of the individual\'s birth;\n(3) the minor\'s initials;\n(4) the last four digits of the financial-account number; and\n(5) the city and state of the home address.\n(b) Exemptions from the Redaction Requirement. The redaction requirement does not\napply to the following:\n(1) a financial-account number or real property address that identifies the property\nallegedly subject to forfeiture in a forfeiture proceeding;\n(2) the record of an administrative or agency proceeding;\n(3) the official record of a state-court proceeding;\n(4) the record of a court or tribunal, if that record was not subject to the redaction\nrequirement when originally filed;\n(5) a filing covered by Rule 49.1(d);\n(6) a pro se filing in an action brought under 28 U.S.C. \xc2\xa7\xc2\xa72241, 1 2254, or 2255;\n361\n\n\x0c(7) a court filing that is related to a criminal matter or investigation and that is prepared\nbefore the filing of a criminal charge or is not filed as part of any docketed criminal case;\n(8) an arrest or search warrant; and\n(9) a charging document and an affidavit filed in support of any charging document.\n(c) Immigration Cases. A filing in an action brought under 28 U.S.C. \xc2\xa72241 that relates to\nthe petitioner\'s immigration rights is governed by Federal Rule of Civil Procedure 5.2.\n(d) Filings Made Under Seal. The court may order that a filing be made under seal without\nredaction. The court may later unseal the filing or order the person who made the filing to file a\nredacted version for the public record.\n(e) Protective Orders. For good cause, the court may by order in a case:\n(1) require redaction of additional information; or\n(2) limit or prohibit a nonparty\'s remote electronic access to a document filed with the\ncourt.\n(f) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing\nmay also file an unredacted copy under seal. The court must retain the unredacted copy as part of\nthe record.\n(g) Option for Filing a Reference List. A filing that contains redacted information may be\nfiled together with a reference list that identifies each item of redacted information and specifies an\nappropriate identifier that uniquely corresponds to each item listed. The list must be filed under\nseal and may be amended as of right. Any reference in the case to a listed identifier will be\nconstrued to refer to the corresponding item of information.\n(h) Waiver of Protection of Identifiers. A person waives the protection of Rule 49.1(a) as to\nthe person\'s own information by filing it without redaction and not under seal.\nNotes\n(Added Apr. 30, 2007, eff. Dec. 1, 2007.)\nCommittee Notes on Rules\xe2\x80\x942007\nThe rule is adopted in compliance with section 205(c)(3) of the E-Government Act of\n2002, Public Law No. 107\xe2\x80\x93347. Section 205(c)(3) requires the Supreme Court to prescribe rules\n\xe2\x80\x9cto protect privacy and security concerns relating to electronic filing of documents and the public\navailability . . . of documents filed electronically.\xe2\x80\x9d The rule goes further than the E-Government\nAct in regulating paper filings even when they are not converted to electronic form. But the\nnumber of filings that remain in paper form is certain to diminish over time. Most districts scan\npaper filings into the electronic case file, where they become available to the public in the same\nway as documents initially filed in electronic form. It is electronic availability, not the form of the\ninitial filing, that raises the privacy and security concerns addressed in the E-Government Act.\nThe rule is derived from and implements the policy adopted by the Judicial Conference in\nSeptember 2001 to address the privacy concerns resulting from public access to electronic case\nfiles. See http://www.privacy.uscourts.gov/Policy.htm. The Judicial Conference policy is that\ndocuments in case files generally should be made available electronically to the same extent they\nare available at the courthouse, provided that certain \xe2\x80\x9cpersonal data identifiers\xe2\x80\x9d are not included in\nthe public file.\nWhile providing for the public filing of some information, such as the last four digits of an\naccount number, the rule does not intend to establish a presumption that this information never\n362\n\n\x0ccould or should be protected. For example, it may well be necessary in individual cases to prevent\nremote access by nonparties to any part of an account number or social security number. It may\nalso be necessary to protect information not covered by the redaction requirement\xe2\x80\x94such as\ndriver\'s license numbers and alien registration numbers\xe2\x80\x94in a particular case. In such cases,\nprotection may be sought under subdivision (d) or (e). Moreover, the Rule does not affect the\nprotection available under other rules, such as Criminal Rule 16(d) and Civil Rules 16 and 26(c),\nor under other sources of protective authority.\nParties must remember that any personal information not otherwise protected by sealing or\nredaction will be made available over the internet. Counsel should notify clients of this fact so that\nan informed decision may be made on what information is to be included in a document filed with\nthe court.\nThe clerk is not required to review documents filed with the court for compliance with this\nrule. The responsibility to redact filings rests with counsel and the party or nonparty making the\nfiling.\nSubdivision (e) provides that the court can order in a particular case more extensive\nredaction than otherwise required by the Rule, where necessary to protect against disclosure to\nnonparties of sensitive or private information. Nothing in this subdivision is intended to affect the\nlimitations on sealing that are otherwise applicable to the court.\nSubdivision (f) allows a person who makes a redacted filing to file an unredacted document\nunder seal. This provision is derived from section 205(c)(3)(iv) of the E-Government Act.\nSubdivision (g) allows the option to file a register of redacted information. This provision is\nderived from section 205(c)(3)(v) of the E-Government Act, as amended in 2004.\nIn accordance with the E-Government Act, subdivision (f) of the rule refers to \xe2\x80\x9credacted\xe2\x80\x9d\ninformation. The term \xe2\x80\x9credacted\xe2\x80\x9d is intended to govern a filing that is prepared with abbreviated\nidentifiers in the first instance, as well as a filing in which a personal identifier is edited after its\npreparation.\nSubdivision (h) allows a person to waive the protections of the rule as to that person\'s own\npersonal information by filing it unsealed and in unredacted form. One may wish to waive the\nprotection if it is determined that the costs of redaction outweigh the benefits to privacy. If a person\nfiles an unredacted identifier by mistake, that person may seek relief from the court.\nTrial exhibits are subject to the redaction requirements of Rule 49.1 to the extent they are\nfiled with the court. Trial exhibits that are not initially filed with the court must be redacted in\naccordance with the rule if and when they are filed as part of an appeal or for other reasons.\nThe Judicial Conference Committee on Court Administration and Case Management has\nissued \xe2\x80\x9cGuidance for Implementation of the Judicial Conference Policy on Privacy and Public\nAccess to Electronic Criminal Case Files\xe2\x80\x9d (March 2004). This document sets out limitations on\nremote electronic access to certain sensitive materials in criminal cases. It provides in part as\nfollows:\nThe following documents shall not be included in the public case file and should not be\nmade available to the public at the courthouse or via remote electronic access:\n\xe2\x80\xa2 unexecuted summonses or warrants of any kind (e.g., search warrants, arrest warrants);\n\xe2\x80\xa2 pretrial bail or presentence investigation reports;\n\xe2\x80\xa2 statements of reasons in the judgment of conviction;\n\xe2\x80\xa2 juvenile records;\n\xe2\x80\xa2 documents containing identifying information about jurors or potential jurors;\n\xe2\x80\xa2 financial affidavits filed in seeking representation pursuant to the Criminal Justice Act;\n363\n\n\x0c\xe2\x80\xa2 ex parte requests for authorization of investigative, expert or other services pursuant to\nthe Criminal Justice Act; and\n\xe2\x80\xa2 sealed documents (e.g., motions for downward departure for substantial assistance, plea\nagreements indicating cooperation).\nTo the extent that the Rule does not exempt these materials from disclosure, the privacy\nand law enforcement concerns implicated by the above documents in criminal cases can be\naccommodated under the rule through the sealing provision of subdivision (d) or a protective order\nprovision of subdivision (e).\nChanges Made to Proposed Amendment Released for Public Comment. Numerous changes\nwere made in the rule after publication in response to the public comments as well as continued\nconsultation among the reporters and chairs of the advisory committees as each committee\nreviewed its own rule.\nA number of revisions were made in all of the e-government rules. These include: (1) using\nof the term \xe2\x80\x9cindividual\xe2\x80\x9d rather than \xe2\x80\x9cperson\xe2\x80\x9d where possible, (2) clarifying that the responsibility\nfor redaction lies with the person making the filing, (3) rewording the exemption from redaction\nfor information necessary to identify property subject to forfeiture, so that it is clearly applicable in\nancillary proceedings related to forfeiture, and (4) rewording the exemption from redaction for\njudicial decisions that were not subject to redaction when originally filed. Additionally, some\nchanges of a technical or stylistic nature (involving matters such as hyphenation and the use of \xe2\x80\x9ca\xe2\x80\x9d\nor \xe2\x80\x9cthe\xe2\x80\x9d) were made to achieve clarity as well as consistency among the various e-government\nrules.\nTwo changes were made to the provisions concerning actions under \xc2\xa7\xc2\xa72241, 2254, and\n2255, which the published rule exempted from the redaction requirement. First, in response to\ncriticism that the original exemption was unduly broad, the Committee limited the exemption to\npro se filings in these actions. Second, a new subdivision (c) was added to provide that all actions\nunder \xc2\xa72241 in which immigration claims were made would be governed exclusively by Civil\nRule 5.2. This change (which was made after the Advisory Committee meeting) was deemed\nnecessary to ensure consistency in the treatment of redaction and public access to records in\nimmigration cases. The addition of the new subdivision required renumbering of the subdivisions\ndesignated as (c) to (g) at the time of publication.\nThe provision governing protective orders was revised to employ the flexible \xe2\x80\x9ccause\nshown\xe2\x80\x9d standard that governs protective orders under the Federal Rules of Civil Procedure.\nFinally, language was added to the Note clarifying the impact of the CACM policy that is\nreprinted in the Note: if the materials enumerated in the CACM policy are not exempt from\ndisclosure under the rule, the sealing and protective order provisions of the rule are applicable.\nReferences in Text\nThe Federal Rules of Civil Procedure, referred to in subd. (c), are set out in the Appendix to\nTitle 28, Judiciary and Judicial Procedure.\n1\nSo in original. Probably should be only one section symbol.\n\nRule 50. Prompt Disposition\nScheduling preference must be given to criminal proceedings as far as practicable.\nNotes\n\n364\n\n\x0c(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July 1, 1974; Apr. 26 and\nJuly 8, 1976, eff. Aug. 1, 1976; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule is a restatement of the inherent residual power of the court over its own calendars,\nalthough as a matter of practice in most districts the assignment of criminal cases for trial is\nhandled by the United States attorney. Cf. Federal Rules of Civil Procedure, Rules 40 and 78 [28\nU.S.C., Appendix]. The direction that preference shall be given to criminal proceedings as far as\npracticable is generally recognized as desirable in the orderly administration of justice.\nNotes of Advisory Committee on Rules\xe2\x80\x941972 Amendment\nThe addition to the rule proposed by subdivision (b) is designed to achieve the more\nprompt disposition of criminal cases.\nPreventing undue delay in the administration of criminal justice has become an object of\nincreasing interest and concern. This is reflected in the Congress. See, e.g., 116 Cong.Rec. S7291\xe2\x80\x93\n97 (daily ed. May 18, 1970) (remarks of Senator Ervin). Bills have been introduced fixing specific\ntime limits. See S. 3936, H.R. 14822, H.R. 15888, 91st Cong., 2d Sess. (1970).\nProposals for dealing with the problem of delay have also been made by the President\'s\nCommission on Law Enforcement and Administration of Justice, Task Force Report: The Courts\n(1967) especially pp. 84\xe2\x80\x9390, and by the American Bar Association Project on Standards for\nCriminal Justice, Standards Relating to Speedy Trial (Approved Draft, 1968). Both recommend\nspecific time limits for each stage in the criminal process as the most effective way of achieving\nprompt disposition of criminal cases. See also Note, Nevada\'s 1967 Criminal Procedure Law from\nArrest to Trial: One State\'s Response to a Widely Recognized Need, 1969 Utah L.Rev. 520, 542\nno. 114.\nHistorically, the right to a speedy trial has been thought of as a protection for the defendant.\nDelay can cause a hardship to a defendant who is in custody awaiting trial. Even if afforded the\nopportunity for pretrial release, a defendant nonetheless is likely to suffer anxiety during a period\nof unwanted delay, and he runs the risk that his memory and those of his witnesses may suffer as\ntime goes on.\nDelay can also adversely affect the prosecution. Witnesses may lose interest or disappear\nor their memories may fade thus making them more vulnerable to cross-examination. See Note,\nThe Right to a Speedy Criminal Trial, 57 Colum.L.Rev. 846 (1957).\nThere is also a larger public interest in the prompt disposition of criminal cases which may\ntranscend the interest of the particular prosecutor, defense counsel, and defendant. Thus there is\nneed to try to expedite criminal cases even when both prosecution and defense may be willing to\nagree to a continuance or continuances. It has long been said that it is the certain and prompt\nimposition of a criminal sanction rather than its severity that has a significant deterring effect upon\npotential criminal conduct. See Banfield and Anderson, Continuances in the Cook County\nCriminal Courts, 35 U.Chi.L.Rev. 259, 259\xe2\x80\x9363 (1968).\nProviding specific time limits for each stage of the criminal justice system is made\ndifficult, particularly in federal courts, by the widely varying conditions which exist between the\nvery busy urban districts on the one hand and the far less busy rural districts on the other hand. In\nthe former, account must be taken of the extremely heavy caseload, and the prescription of\n365\n\n\x0crelatively short time limits is realistic only if there is provided additional prosecutorial and judicial\nmanpower. In some rural districts, the availability of a grand jury only twice a year makes\nunrealistic the provision of short time limits within which an indictment must be returned. This is\nnot to say that prompt disposition of criminal cases cannot be achieved. It means only that the\nachieving of prompt disposition may require solutions which vary from district to district. Finding\nthe best methods will require innovation and experimentation. To encourage this, the proposed\ndraft mandates each district court to prepare a plan to achieve the prompt disposition of criminal\ncases in the district. The method prescribed for the development and approval of the district plans\nis comparable to that prescribed in the Jury Selection and Service Act of 1968, 28 U.S.C. \xc2\xa71863(a).\nEach plan shall include rules which specify time limits and a means for reporting the status\nof criminal cases. The appropriate length of the time limits is left to the discretion of the individual\ndistrict courts. This permits each district court to establish time limits that are appropriate in light\nof its criminal caseload, frequency of grand jury meetings, and any other factors which affect the\nprogress of criminal actions. Where local conditions exist which contribute to delay, it is\ncontemplated that appropriate efforts will be made to eliminate those conditions. For example,\nexperience in some rural districts demonstrates that grand juries can be kept on call thus\neliminating the grand jury as a cause for prolonged delay. Where manpower shortage is a major\ncause for delay, adequate solutions will require congressional action. But the development and\nanalysis of the district plans should disclose where manpower shortages exist; how large the\nshortages are; and what is needed, in the way of additional manpower, to achieve the prompt\ndisposition of criminal cases.\nThe district court plans must contain special provision for prompt disposition of cases in\nwhich there is reason to believe that the pretrial liberty of a defendant poses danger to himself, to\nany other person, or to the community. Prompt disposition of criminal cases may provide an\nalternative to the pretrial detention of potentially dangerous defendants. See 116 Cong.Rec.\nS7291\xe2\x80\x9397 (daily ed. May 18, 1970) (remarks of Senator Ervin). Prompt disposition of criminal\ncases in which the defendant is held in pretrial detention would ensure that the deprivation of\nliberty prior to conviction would be minimized.\nApproval of the original plan and any subsequent modification must be obtained from a\nreviewing panel made up of one judge from the district submitting the plan (either the chief judge\nor another active judge appointed by him) and the members of the judicial council of the circuit.\nThe makeup of this reviewing panel is the same as that provided by the Jury Selection and Service\nAct of 1968, 28 U.S.C. \xc2\xa71863(a). This reviewing panel is also empowered to direct the\nmodification of a district court plan.\nThe Circuit Court of Appeals for the Second Circuit recently adopted a set of rules for the\nprompt disposition of criminal cases. See 8 Cr.L. 2251 (Jan. 13, 1971). These rules, effective July\n5, 1971, provide time limits for the early trial of high risk defendants, for court control over the\ngranting of continuances, for criteria to control continuance practice, and for sanction against the\nprosecution or defense in the event of noncompliance with prescribed time limits.\nNotes of Advisory Committee on Rules\xe2\x80\x941974 Amendment\nThe amendment designates the first paragraph of Rule 50 as subdivision (a) entitled\n\xe2\x80\x9cCalendars,\xe2\x80\x9d in view of the recent addition of subdivision (b) to the rule.\nNotes of Advisory Committee on Rules\xe2\x80\x941976 Amendment\n\n366\n\n\x0cThis amendment to rule 50(b) takes account of the enactment of The Speedy Trial Act of\n1974, 18 U.S.C. \xc2\xa7\xc2\xa73152\xe2\x80\x933156, 3161\xe2\x80\x933174. As the various provisions of the Act take effect, see 18\nU.S.C. \xc2\xa73163, they and the district plans adopted pursuant thereto will supplant the plans\nheretofore adopted under rule 50(b). The first such plan must be prepared and submitted by each\ndistrict court before July 1, 1976. 18 U.S.C. \xc2\xa73165(e)(1).\nThat part of rule 50(b) which sets out the necessary contents of district plans has been\ndeleted, as the somewhat different contents of the plans required by the Act are enumerated in 18\nU.S.C. \xc2\xa73166. That part of rule 50(b) which describes the manner in which district plans are to be\nsubmitted, reviewed, modified and reported upon has also been deleted, for these provisions now\nappear in 18 U.S.C. \xc2\xa73165(c) and (d).\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 50 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nThe first sentence in current Rule 50(a), which says that a court may place criminal\nproceedings on a calendar, has been deleted. The Committee believed that the sentence simply\nstated a truism and was no longer necessary.\nCurrent Rule 50(b), which simply mirrors 18 U.S.C. \xc2\xa73165, has been deleted in its entirety.\nThe rule was added in 1971 to meet congressional concerns in pending legislation about deadlines\nin criminal cases. Provisions governing deadlines were later enacted by Congress and protections\nwere provided in the Speedy Trial Act. The Committee concluded that in light of those enactments,\nRule 50(b) was no longer necessary.\nEffective Date of 1976 Amendment\nAmendment of subd. (b) by the order of the United States Supreme Court of Apr. 26, 1976,\neffective Aug. 1, 1976, see section 1 of Pub. L. 94\xe2\x80\x93349, July 8, 1976, 90 Stat. 822, set out as a note\nunder section 2074 of Title 28, Judiciary and Judicial Procedure.\n\nRule 51. Preserving Claimed Error\n(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.\n(b) Preserving a Claim of Error. A party may preserve a claim of error by informing the\ncourt\xe2\x80\x94when the court ruling or order is made or sought\xe2\x80\x94of the action the party wishes the court\nto take, or the party\'s objection to the court\'s action and the grounds for that objection. If a party\ndoes not have an opportunity to object to a ruling or order, the absence of an objection does not\nlater prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal\nRule of Evidence 103.\n367\n\n\x0cNotes\n\n(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. This rule is practically identical with Rule 46 of the Federal Rules of Civil Procedure [28\nU.S.C., Appendix]. It relates to a matter of trial practice which should be the same in civil and\ncriminal cases in the interest of avoiding confusion. The corresponding civil rule has been\nconstrued in Ulm v. Moore-McCormack Lines, Inc., 115 F.2d 492 (C.C.A. 2d), and Bucy v. Nevada\nConstruction Company, 125 F.2d 213, 218 (C.C.A. 9th). See, also, Orfield, 22 Texas L.R. 194,\n221. As to the method of taking objections to instructions to the jury, see Rule 30.\n2. Many States have abolished the use of exceptions in criminal and civil cases. See, e.g.,\nCal.Pen. Code (Deering, 1941), sec. 1259; Mich.Stat.Ann. (Henderson, 1938), secs. 28.1046,\n28.1053; Ohio Gen Code Ann. (Page, 1938), secs. 11560, 13442\xe2\x80\x937; Oreg.Comp. Laws Ann.\n(1940), secs. 5\xe2\x80\x93704, 26\xe2\x80\x931001.\nNotes of Advisory Committee on Rules\xe2\x80\x941987 Amendment\nThe amendments are technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 51 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nThe Rule includes a new sentence that explicitly states that any rulings regarding evidence\nare governed by Federal Rule of Evidence 103. The sentence was added because of concerns about\nthe Supersession Clause, 28 U.S.C. \xc2\xa72072(b), of the Rules Enabling Act, and the possibility that an\nargument might have been made that Congressional approval of this rule would supersede that\nRule of Evidence.\nReferences in Text\nThe Federal Rules of Evidence, referred to in subd. (b), are set out in the Appendix to Title\n28, Judiciary and Judicial Procedure.\n\nRule 52. Harmless and Plain Error\n(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect\nsubstantial rights must be disregarded.\n(b) Plain Error. A plain error that affects substantial rights may be considered even though\nit was not brought to the court\'s attention.\nNotes\n\n368\n\n\x0c(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). This rule is a restatement of existing law, 28 U.S.C. [former] 391\n(second sentence): \xe2\x80\x9cOn the hearing of any appeal, certiorari, writ of error, or motion for a new trial,\nin any case, civil or criminal, the court shall give judgment after an examination of the entire\nrecord before the court, without regard to technical errors, defects, or exceptions which do not\naffect the substantial rights of the parties\xe2\x80\x9d; 18 U.S.C. [former] 556; \xe2\x80\x9cNo indictment found and\npresented by a grand jury in any district or other court of the United States shall be deemed\ninsufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any\ndefect or imperfection in matter of form only, which shall not tend to the prejudice of the\ndefendant, *.\xe2\x80\x9d A similar provision is found in Rule 61 of the Federal Rules of Civil Procedure\n[28 U.S.C., Appendix].\nNote to Subdivision (b). This rule is a restatement of existing law, Wiborg v. United States,\n163 U.S. 632, 658; Hemphill v. United States, 112 F.2d 505 (C.C.A. 9th), reversed 312 U.S. 657.\nRule 27 of the Rules of the Supreme Court provides that errors not specified will be disregarded,\n\xe2\x80\x9csave as the court, at its option, may notice a plain error not assigned or specified.\xe2\x80\x9d Similar\nprovisions are found in the rules of several circuit courts of appeals.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 53 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nRule 52(b) has been amended by deleting the words \xe2\x80\x9cor defect\xe2\x80\x9d after the words \xe2\x80\x9cplain\nerror\xe2\x80\x9d. The change is intended to remove any ambiguity in the rule. As noted by the Supreme\nCourt, the language \xe2\x80\x9cplain error or defect\xe2\x80\x9d was misleading to the extent that it might be read in the\ndisjunctive. See United States v. Olano, 507 U.S. 725, 732 (1993) (incorrect to read Rule 52(b) in\nthe disjunctive); United States v. Young, 470 U.S. 1, 15 n. 12 (1985) (use of disjunctive in Rule\n52(b) is misleading).\n\nRule 53. Courtroom Photographing and Broadcasting Prohibited\nExcept as otherwise provided by a statute or these rules, the court must not permit the\ntaking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial\nproceedings from the courtroom.\nNotes\n(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nWhile the matter to which the rule refers has not been a problem in the Federal courts as it\nhas been in some State tribunals, the rule was nevertheless included with a view to giving\nexpression to a standard which should govern the conduct of judicial proceedings, Orfield, 22\n369\n\n\x0cTexas L.R. 194, 222\xe2\x80\x933; Robbins, 21 A.B.A.Jour. 301, 304. See, also, Report of the Special\nCommittee on Cooperation between Press, Radio and Bar, as to Publicity Interfering with Fair\nTrial of Judicial and Quasi-Judicial Proceedings (1937), 62 A.B.A.Rep. 851, 862\xe2\x80\x93865; (1932) 18\nA.B.A.Jour. 762; (1926) 12 Id. 488; (1925) 11 Id. 64.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 53 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only, except as noted below.\nAlthough the word \xe2\x80\x9cradio\xe2\x80\x9d has been deleted from the rule, the Committee does not believe\nthat the amendment is a substantive change but rather one that accords with judicial interpretation\napplying the current rule to other forms of broadcasting and functionally equivalent means. See,\ne.g., United States v. Hastings, 695 F.2d 1278, 1279, n. 5 (11th Cir. 1983) (television proceedings\nprohibited); United States v. McVeigh, 931 F. Supp. 753 (D. Colo. 1996) (release of tape\nrecordings of proceedings prohibited). Given modern technology capabilities, the Committee\nbelieved that a more generalized reference to \xe2\x80\x9cbroadcasting\xe2\x80\x9d is appropriate.\nAlso, although the revised rule does not explicitly recognize exceptions within the rules\nthemselves, the restyled rule recognizes that other rules might permit, for example, video\nteleconferencing, which clearly involves \xe2\x80\x9cbroadcasting\xe2\x80\x9d of the proceedings, even if only for\nlimited purposes.\n\nRule 54. [Transferred] 1\nNotes\n\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nCertain provisions in current Rule 54 have been moved to revised Rule 1 as part of a\ngeneral restyling of the Criminal Rules to make them more easily understood and to make style\nand terminology consistent throughout the rules. Other provisions in Rule 54 have been deleted as\nbeing unnecessary.\n1\nAll of Rule 54 was moved to Rule 1.\n\nRule 55. Records\nThe clerk of the district court must keep records of criminal proceedings in the form\nprescribed by the Director of the Administrative Office of the United States Courts. The clerk must\nenter in the records every court order or judgment and the date of entry.\nNotes\n(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 24,\n1972, eff. Oct. 1, 1972; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29,\n2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n370\n\n\x0cThe Federal Rules of Civil Procedure Rule 79 [28 U.S.C., Appendix], prescribed in detail\nthe books and records to be kept by the clerk in civil cases. Subsequently to the effective date of the\ncivil rules, however, the Act establishing the Administrative Office of the United States Courts\nbecame law (Act of August 7, 1939; 53 Stat. 1223; 28 U.S.C. 444 \xe2\x80\x93450 [now 332\xe2\x80\x93333, 456, 601\xe2\x80\x93\n610]). One of the duties of the Director of that Office is to have charge, under the supervision and\ndirection of the Conference of Senior Circuit Judges, of all administrative matters relating to the\noffices of the clerks and other clerical and administrative personnel of the courts, 28 U.S.C. 446\n[now 604, 609]. In view of this circumstance it seemed best not to prescribe the records to be kept\nby the clerks of the district courts and by the United States commissioners, in criminal\nproceedings, but to vest the power to do so in the Director of the Administrative Office of the\nUnited States Courts with the approval of the Conference of Senior Circuit Judges.\nNotes of Advisory Committee on Rules\xe2\x80\x941948 Amendment\nTo incorporate nomenclature provided for by Revised Title 28 U.S.C., \xc2\xa7331.\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nRule 37(a)(2) provides that for the purpose of commencing the running of the time for\nappeal a judgment or order is entered \xe2\x80\x9cwhen it is entered in the criminal docket.\xe2\x80\x9d The sentence\nadded here requires that such a docket be kept and that it show the dates on which judgments or\norders are entered therein. Cf. Civil Rule 79(a).\nNotes of Advisory Committee on Rules\xe2\x80\x941983 Amendment\nThe Advisory Committee Note to original Rule 55 observes that, in light of the authority\nwhich the Director and Judicial Conference have over the activities of clerks, \xe2\x80\x9cit seems best not to\nprescribe the records to be kept by clerks.\xe2\x80\x9d Because of current experimentation with automated\nrecord-keeping, this approach is more appropriate than ever before. The amendment will make it\npossible for the Director to permit use of more sophisticated record-keeping techniques, including\nthose which may obviate the need for a \xe2\x80\x9ccriminal docket\xe2\x80\x9d book. The reference to the Judicial\nConference has been stricken as unnecessary. See 28 U.S.C. \xc2\xa7604.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 55 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\n371\n\n\x0cRule 56. When Court Is Open\n(a) In General. A district court is considered always open for any filing, and for issuing and\nreturning process, making a motion, or entering an order.\n(b) Office Hours. The clerk\'s office\xe2\x80\x94with the clerk or a deputy in attendance\xe2\x80\x94must be\nopen during business hours on all days except Saturdays, Sundays, and legal holidays.\n(c) Special Hours. A court may provide by local rule or order that its clerk\'s office will be\nopen for specified hours on Saturdays or legal holidays other than those set aside by statute for\nobserving New Year\'s Day, Martin Luther King, Jr.\'s Birthday, Washington\'s Birthday, Memorial\nDay, Independence Day, Labor Day, Columbus Day, Veterans\xe2\x80\x99 Day, Thanksgiving Day, and\nChristmas Day.\nNotes\n(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Dec. 4,\n1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 25, 1988, eff. Aug. 1, 1988; Apr. 29,\n2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\n1. The first sentence of this rule is substantially the same as Rule 77(a) of the Federal Rules\nof Civil Procedure [28 U.S.C., Appendix], except that it is applicable to circuit courts of appeals as\nwell as to district courts.\n2. In connection with this rule, see 28 U.S.C. [former] 14 (Monthly adjournments for trial\nof criminal causes) and sec. 15 [now 141] (Special terms). These sections \xe2\x80\x9cindicate a policy of\navoiding the hardships consequent upon a closing of the court during vacations,\xe2\x80\x9d Abbott v. Brown,\n241 U.S. 606, 611.\n3. The second sentence of the rule is identical with the first sentence of Rule 77(c) of the\nFederal Rules of Civil Procedure [28 U.S.C., Appendix].\n4. The term \xe2\x80\x9clegal holidays\xe2\x80\x9d includes Federal holidays as well as holidays prescribed by\nthe laws of the State where the clerk\'s office is located.\nNotes of Advisory Committee on Rules\xe2\x80\x941948 Amendment\nTo incorporate nomenclature provided for by Revised Title 28, U.S.C. \xc2\xa743(a).\nNotes of Advisory Committee on Rules\xe2\x80\x941966 Amendment\nThe change is in conformity with the changes made in Rule 45. See the similar changes in\nCivil Rule 77(c) made effective July 1, 1963.\nNotes of Advisory Committee on Rules\xe2\x80\x941968 Amendment\nThe provisions relating to courts of appeals are included in Rule 47 of the Federal Rules of\nAppellate Procedure.\nNotes of Advisory Committee on Rules\xe2\x80\x941971 Amendment\n372\n\n\x0cThe amendment adds Columbus Day to the list of legal holidays. See the Note\naccompanying the amendment of Rule 45(a).\nNotes of Advisory Committee on Rules\xe2\x80\x941988 Amendment\nThe amendment is technical. No substantive change is intended.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 56 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\n\nRule 57. District Court Rules\n(a) In General.\n(1) Adopting Local Rules. Each district court acting by a majority of its district judges may,\nafter giving appropriate public notice and an opportunity to comment, make and amend rules\ngoverning its practice. A local rule must be consistent with\xe2\x80\x94but not duplicative of\xe2\x80\x94federal\nstatutes and rules adopted under 28 U.S.C. \xc2\xa72072 and must conform to any uniform numbering\nsystem prescribed by the Judicial Conference of the United States.\n(2) Limiting Enforcement. A local rule imposing a requirement of form must not be\nenforced in a manner that causes a party to lose rights because of an unintentional failure to\ncomply with the requirement.\n(b) Procedure When There Is No Controlling Law. A judge may regulate practice in any\nmanner consistent with federal law, these rules, and the local rules of the district. No sanction or\nother disadvantage may be imposed for noncompliance with any requirement not in federal law,\nfederal rules, or the local district rules unless the alleged violator was furnished with actual notice\nof the requirement before the noncompliance.\n(c) Effective Date and Notice. A local rule adopted under this rule takes effect on the date\nspecified by the district court and remains in effect unless amended by the district court or\nabrogated by the judicial council of the circuit in which the district is located. Copies of local rules\nand their amendments, when promulgated, must be furnished to the judicial council and the\nAdministrative Office of the United States Courts and must be made available to the public.\nNotes\n(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Dec. 4, 1967, eff. July 1, 1968; Apr. 29,\n1985, eff. Aug. 1, 1985; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29,\n2002, eff. Dec. 1, 2002.)\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nNote to Subdivision (a). This rule is substantially a restatement of 28 U.S.C. 731 [now\n2071] (Rules of practice in district courts). A similar provision is found in Rule 83 of the Federal\n373\n\n\x0cRules of Civil Procedure [28 U.S.C., Appendix].\nNote to Subdivision (b). 1. One of the purposes of this rule is to abrogate any existing\nrequirement of conformity to State procedure on any point whatsoever. The Federal Rules of Civil\nProcedure [28 U.S.C., Appendix] have been held to repeal the Conformity Act, Sibbach v. Wilson,\n312 U.S. 1, 10.\n2. While the rules are intended to constitute a comprehensive procedural code for criminal\ncases in the Federal courts, nevertheless it seemed best not to endeavor to prescribe a uniform\npractice as to some matters of detail, but to leave the individual courts free to regulate them, either\nby local rules or by usage. Among such matters are the mode of impaneling a jury, the manner and\norder of interposing challenges to jurors, the manner of selecting the foreman of a trial jury, the\nmatter of sealed verdicts, the order of counsel\'s arguments to the jury, and other similar details.\nNotes of Advisory Committee on Rules\xe2\x80\x941948 Amendment\nTo incorporate nomenclature provided for by Revised Title 28, U.S.C., \xc2\xa743(a).\nNotes of Advisory Committee on Rules\xe2\x80\x941968 Amendment\nThe provisions relating to the court of appeals are included in Rule 47 of the Federal Rules\nof Appellate Procedure.\nNotes of Advisory Committee on Rules\xe2\x80\x941985 Amendment\nRule 57 has been reformulated to correspond to Fed.R.Civ.P. 83, including the proposed\namendments thereto. The purpose of the reformulation is to emphasize that the procedures for\nadoption of local rules by a district court are the same under both the civil and the criminal rules. In\nparticular, the major purpose of the reformulation is to enhance the local rulemaking process by\nrequiring appropriate public notice of proposed rules and an opportunity to comment on them. See\nCommittee Note to Fed.R.Civ.P. 83.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nNotes of Advisory Committee on Rules\xe2\x80\x941995 Amendment\nSubdivision (a). This rule is amended to reflect the requirement that local rules be\nconsistent not only with the national rules but also with Acts of Congress. The amendment also\nstates that local rules should not repeat national rules and Acts of Congress.\nThe amendment also requires that the numbering of local rules conform with any\nnumbering system that may be prescribed by the Judicial Conference. Lack of uniform numbering\nmight create unnecessary traps for counsel and litigants. A uniform numbering system would\nmake it easier for an increasingly national bar to locate a local rule that applies to a particular\nprocedural issue.\n374\n\n\x0cParagraph (2) is new. Its aim is to protect against loss of rights in the enforcement of local\nrules relating to matters of form. The proscription of paragraph (2) is narrowly drawn\xe2\x80\x94covering\nonly nonwillful violations and only those involving local rules directed to matters of form. It does\nnot limit the court\'s power to impose substantive penalties upon a party if it or its attorney\nstubbornly or repeatedly violates a local rule, even one involving merely a matter of form. Nor\ndoes it affect the court\'s power to enforce local rules that involve more than mere matters of\nform\xe2\x80\x94for example, a local rule requiring that the defendant waive a jury trial within a specified\ntime.\nSubdivision (b). This rule provides flexibility to the court in regulating practice when there\nis no controlling law. Specifically, it permits the court to regulate practice in any manner consistent\nwith Acts of Congress, with rules adopted under 28 U.S.C. \xc2\xa72072, and with the district\'s local\nrules. This rule recognizes that courts rely on multiple directives to control practice. Some courts\nregulate practice through the published Federal Rules and the local rules of the court. Some courts\nalso have used internal operating procedures, standing orders, and other internal directives.\nAlthough such directives continue to be authorized, they can lead to problems. Counsel or litigants\nmay be unaware of the various directives. In addition, the sheer volume of directives may impose\nan unreasonable barrier. For example, it may be difficult to obtain copies of the directives. Finally,\ncounsel or litigants may be unfairly sanctioned for failing to comply with a directive. For these\nreasons, the amendment disapproves imposing any sanction or other disadvantage on a person for\nnoncompliance with such an internal directive, unless the alleged violator has been furnished in a\nparticular case with actual notice of the requirement.\nThere should be no adverse consequence to a party or attorney for violating special\nrequirements relating to practice before a particular judge unless the party or attorney has actual\nnotice of those requirements. Furnishing litigants with a copy outlining the judge\'s practices\xe2\x80\x94or\nattaching instructions to a notice setting a case for conference or trial\xe2\x80\x94would suffice to give actual\nnotice, as would an order in a case specifically adopting by reference a judge\'s standing order and\nindicating how copies can be obtained.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 57 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\n\nRule 58. Petty Offenses and Other Misdemeanors\n(a) Scope.\n(1) In General. These rules apply in petty offense and other misdemeanor cases and on\nappeal to a district judge in a case tried by a magistrate judge, unless this rule provides otherwise.\n(2) Petty Offense Case Without Imprisonment. In a case involving a petty offense for which\nno sentence of imprisonment will be imposed, the court may follow any provision of these rules\nthat is not inconsistent with this rule and that the court considers appropriate.\n(3) Definition. As used in this rule, the term \xe2\x80\x9cpetty offense for which no sentence of\nimprisonment will be imposed\xe2\x80\x9d means a petty offense for which the court determines that, in the\nevent of conviction, no sentence of imprisonment will be imposed.\n(b) Pretrial Procedure.\n375\n\n\x0c(1) Charging Document. The trial of a misdemeanor may proceed on an indictment,\ninformation, or complaint. The trial of a petty offense may also proceed on a citation or violation\nnotice.\n(2) Initial Appearance. At the defendant\'s initial appearance on a petty offense or other\nmisdemeanor charge, the magistrate judge must inform the defendant of the following:\n(A) the charge, and the minimum and maximum penalties, including imprisonment, fines,\nany special assessment under 18 U.S.C. \xc2\xa73013, and restitution under 18 U.S.C. \xc2\xa73556;\n(B) the right to retain counsel;\n(C) the right to request the appointment of counsel if the defendant is unable to retain\ncounsel\xe2\x80\x94unless the charge is a petty offense for which the appointment of counsel is not required;\n(D) the defendant\'s right not to make a statement, and that any statement made may be used\nagainst the defendant;\n(E) the right to trial, judgment, and sentencing before a district judge\xe2\x80\x94unless:\n(i) the charge is a petty offense; or\n(ii) the defendant consents to trial, judgment, and sentencing before a magistrate judge;\n(F) the right to a jury trial before either a magistrate judge or a district judge\xe2\x80\x94unless the\ncharge is a petty offense; and\n(G) any right to a preliminary hearing under Rule 5.1, and the general circumstances, if\nany, under which the defendant may secure pretrial release.; and\n(H) that a defendant who is not a United States citizen may request that an attorney for the\ngovernment or a federal law enforcement official notify a consular officer from the defendant\xe2\x80\x99s\ncountry of nationality that the defendant has been arrested \xe2\x80\x94 but that even without the defendant\xe2\x80\x99s\nrequest, a treaty or other international agreement may require consular notification.\n(3) Arraignment.\n(A) Plea Before a Magistrate Judge. A magistrate judge may take the defendant\'s plea in a\npetty offense case. In every other misdemeanor case, a magistrate judge may take the plea only if\nthe defendant consents either in writing or on the record to be tried before a magistrate judge and\nspecifically waives trial before a district judge. The defendant may plead not guilty, guilty, or\n(with the consent of the magistrate judge) nolo contendere.\n(B) Failure to Consent. Except in a petty offense case, the magistrate judge must order a\ndefendant who does not consent to trial before a magistrate judge to appear before a district judge\nfor further proceedings.\n(c) Additional Procedures in Certain Petty Offense Cases. The following procedures also\napply in a case involving a petty offense for which no sentence of imprisonment will be imposed:\n(1) Guilty or Nolo Contendere Plea. The court must not accept a guilty or nolo contendere\nplea unless satisfied that the defendant understands the nature of the charge and the maximum\npossible penalty.\n(2) Waiving Venue.\n(A) Conditions of Waiving Venue. If a defendant is arrested, held, or present in a district\ndifferent from the one where the indictment, information, complaint, citation, or violation notice is\npending, the defendant may state in writing a desire to plead guilty or nolo contendere; to waive\nvenue and trial in the district where the proceeding is pending; and to consent to the court\'s\ndisposing of the case in the district where the defendant was arrested, is held, or is present.\n(B) Effect of Waiving Venue. Unless the defendant later pleads not guilty, the prosecution\nwill proceed in the district where the defendant was arrested, is held, or is present. The district\nclerk must notify the clerk in the original district of the defendant\'s waiver of venue. The\n376\n\n\x0cdefendant\'s statement of a desire to plead guilty or nolo contendere is not admissible against the\ndefendant.\n(3) Sentencing. The court must give the defendant an opportunity to be heard in mitigation\nand then proceed immediately to sentencing. The court may, however, postpone sentencing to\nallow the probation service to investigate or to permit either party to submit additional\ninformation.\n(4) Notice of a Right to Appeal. After imposing sentence in a case tried on a not-guilty plea,\nthe court must advise the defendant of a right to appeal the conviction and of any right to appeal the\nsentence. If the defendant was convicted on a plea of guilty or nolo contendere, the court must\nadvise the defendant of any right to appeal the sentence.\n(d) Paying a Fixed Sum in Lieu of Appearance.\n(1) In General. If the court has a local rule governing forfeiture of collateral, the court may\naccept a fixed-sum payment in lieu of the defendant\'s appearance and end the case, but the fixed\nsum may not exceed the maximum fine allowed by law.\n(2) Notice to Appear. If the defendant fails to pay a fixed sum, request a hearing, or appear\nin response to a citation or violation notice, the district clerk or a magistrate judge may issue a\nnotice for the defendant to appear before the court on a date certain. The notice may give the\ndefendant an additional opportunity to pay a fixed sum in lieu of appearance. The district clerk\nmust serve the notice on the defendant by mailing a copy to the defendant\'s last known address.\n(3) Summons or Warrant. Upon an indictment, or upon a showing by one of the other\ncharging documents specified in Rule 58(b)(1) of probable cause to believe that an offense has\nbeen committed and that the defendant has committed it, the court may issue an arrest warrant or,\nif no warrant is requested by an attorney for the government, a summons. The showing of probable\ncause must be made under oath or under penalty of perjury, but the affiant need not appear before\nthe court. If the defendant fails to appear before the court in response to a summons, the court may\nsummarily issue a warrant for the defendant\'s arrest.\n(e) Recording the Proceedings. The court must record any proceedings under this rule by\nusing a court reporter or a suitable recording device.\n(f) New Trial. Rule 33 applies to a motion for a new trial.\n(g) Appeal.\n(1) From a District Judge\'s Order or Judgment. The Federal Rules of Appellate Procedure\ngovern an appeal from a district judge\'s order or a judgment of conviction or sentence.\n(2) From a Magistrate Judge\'s Order or Judgment.\n(A) Interlocutory Appeal. Either party may appeal an order of a magistrate judge to a\ndistrict judge within 14 days of its entry if a district judge\'s order could similarly be appealed. The\nparty appealing must file a notice with the clerk specifying the order being appealed and must\nserve a copy on the adverse party.\n(B) Appeal from a Conviction or Sentence. A defendant may appeal a magistrate judge\'s\njudgment of conviction or sentence to a district judge within 14 days of its entry. To appeal, the\ndefendant must file a notice with the clerk specifying the judgment being appealed and must serve\na copy on an attorney for the government.\n(C) Record. The record consists of the original papers and exhibits in the case; any\ntranscript, tape, or other recording of the proceedings; and a certified copy of the docket entries.\nFor purposes of the appeal, a copy of the record of the proceedings must be made available to a\ndefendant who establishes by affidavit an inability to pay or give security for the record. The\nDirector of the Administrative Office of the United States Courts must pay for those copies.\n377\n\n\x0c(D) Scope of Appeal. The defendant is not entitled to a trial de novo by a district judge. The\nscope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by\na district judge.\n(3) Stay of Execution and Release Pending Appeal. Rule 38 applies to a stay of a judgment\nof conviction or sentence. The court may release the defendant pending appeal under the law\nrelating to release pending appeal from a district court to a court of appeals.\nNotes\n(Added May 1, 1990, eff. Dec. 1, 1990; amended Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22,\n1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12,\n2006, eff. Dec. 1, 2006; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 25, 2014, eff. Dec. 1, 2014.)\nNotes of Advisory Committee on Rules\xe2\x80\x941990\nThis new rule is largely a restatement of the Rules of Procedure for the Trial of\nMisdemeanors before United States Magistrates which were promulgated in 1980 to replace the\nRules for the Trial of Minor Offenses before United States Magistrates (1970). The Committee\nbelieved that a new single rule should be incorporated into the Rules of Criminal Procedure where\nthose charged with its execution could readily locate it and realize its relationship with the other\nRules. A number of technical changes have been made throughout the rule and unless otherwise\nnoted, no substantive changes were intended in those amendments. The Committee envisions no\nmajor changes in the way in which the trial of misdemeanors and petty offenses are currently\nhandled.\nThe title of the rule has been changed by deleting the phrase \xe2\x80\x9cBefore United States\nMagistrates\xe2\x80\x9d to indicate that this rule may be used by district judges as well as magistrates. The\nphrase \xe2\x80\x9cand Petty Offenses\xe2\x80\x9d has been added to the title and elsewhere throughout the rule because\nthe term \xe2\x80\x9cmisdemeanor\xe2\x80\x9d does not include an \xe2\x80\x9cinfraction.\xe2\x80\x9d See 18 U.S.C. \xc2\xa73559(a). A petty\noffense, however, is defined in 18 U.S.C. \xc2\xa719 as a Class B misdemeanor, a Class C misdemeanor,\nor an infraction, with limitations on fines of no more than $5,000 for an individual and $10,000 for\nan organization.\nSubdivision (a) is an amended version of current Magistrates Rule 1. Deletion of the phrase\n\xe2\x80\x9cbefore United States Magistrates under 18 U.S.C. \xc2\xa73401 \xe2\x80\x9d in Rule 1(a) will enable district judges\nto use the abbreviated procedures of this rule. Consistent with that change, the term \xe2\x80\x9cmagistrate\xe2\x80\x9d is\namended to read \xe2\x80\x9cthe court,\xe2\x80\x9d wherever appropriate throughout the rule, to indicate that both judges\nand magistrates may use the rule. The last sentence in (a)(1) has been amended to reflect that the\nrule also governs an appeal from a magistrate\'s decision to a judge of the district court. An appeal\nfrom a district judge\'s decision would be governed by the Federal Rules of Appellate Procedure.\nSubdivision (a)(2) rephrases prior language in Magistrate Rule 1(b). Subdivision (a)(3) adds a\nstatutory reference to 18 U.S.C. \xc2\xa719, which defines a petty offense as a \xe2\x80\x9cClass B misdemeanor, a\nClass C misdemeanor, or an infraction\xe2\x80\x9d with the $5,000 and $10,000 fine limitations noted supra.\nThe phrase \xe2\x80\x9cregardless of the penalty authorized by law\xe2\x80\x9d has been deleted.\nSubdivision (b) is an amended version of current Magistrates Rule 2. The last sentence in\ncurrent Rule 2(a) has been deleted because 18 U.S.C. \xc2\xa73401(a), provides that a magistrate will\nhave jurisdiction to try misdemeanor cases when specially designated to do so by the district court\nor courts served by the Magistrate.\nSubdivision (b)(2) reflects the standard rights advisements currently included in\n378\n\n\x0cMagistrates Rule 2 with several amendments. Subdivision (b)(2)(A) specifically requires that the\ndefendant be advised of all penalties which may be imposed upon conviction, including\nspecifically a special assessment and restitution. A number of technical, nonsubstantive, changes\nhave been made in the contents of advisement of rights. A substantive change is reflected in\nsubdivision (b)(2)(G), currently Magistrates Rule 2(b)(7), and (8). That rule currently provides\nthat, unless the prosecution is on an indictment or information, a defendant who is charged with a\nmisdemeanor other than a petty offense has a right to a preliminary hearing, if the defendant does\nnot consent to be tried by the magistrate. As amended, only a defendant in custody has a right to a\npreliminary hearing.\nSubdivision (b)(3)(A) is based upon Magistrates Rule 2(c) and has been amended by\ndeleting the last sentence, which provides that trial may occur within 30 days \xe2\x80\x9cupon written\nconsent of the defendant.\xe2\x80\x9d The change is warranted because the Speedy Trial Act does not apply to\npetty offenses. See 18 U.S.C. \xc2\xa73172(2). Subdivision (b)(3)(B), \xe2\x80\x9cFailure to Consent,\xe2\x80\x9d currently\nappears in Magistrates Rule 3(a). The first sentence has been amended to make it applicable to all\nmisdemeanor and petty offense defendants who fail to consent. The last sentence of Rule 3(a) has\nbeen deleted entirely. Because the clerk is responsible for all district court case files, including\nthose for misdemeanor and petty offense cases tried by magistrates, it is not necessary to state that\nthe file be transmitted to the clerk of court.\nSubdivision (c) is an amended version of current Magistrates Rule 3 with the exception of\nRule 3(a), which, as noted supra is now located in subdivision (b)(3)(B) of the new rule. The\nphrase \xe2\x80\x9cpetty offense for which no sentence of imprisonment will be imposed\xe2\x80\x9d has been deleted\nbecause the heading for subdivision (c) limits its application to those petty offenses. The\nCommittee recognizes that subdivision (c)(2) might result in attempted forum shopping. See, e.g.,\nUnited States v. Shaw, 467 F. Supp. 86 (W.D. La. 1979), affm\'d, 615 F. 2d 251 (5th Cir. 1980). In\norder to maintain a streamlined and less formal procedure which is consistent with the remainder\nof the Rule, subdivision (c)(2) does not require the formal \xe2\x80\x9cconsent\xe2\x80\x9d of the United States Attorneys\ninvolved before a waiver of venue may be accomplished. Cf. Rule 20 (Transfer From the District\nfor Plea and Sentence). The Rule specifically envisions that there will be communication and\ncoordination between the two districts involved. To that end, reasonable efforts should be made to\ncontact the United States Attorney in the district in which the charges were instituted. Subdivision\n(c)(4), formerly Rule 3(d), now specifically provides that the defendant be advised of the right to\nappeal the sentence. This subdivision is also amended to provide for advising the defendant of the\nright to appeal a sentence under the Sentencing Reform Act when the defendant is sentenced\nfollowing a plea of guilty. Both amendments track the language of Rule 32(a)(2), as amended by\nthe Sentencing Reform Act.\nSubdivision (d) is an amended version of Magistrates Rule 4. The amendments are\ntechnical in nature and no substantive change is intended.\nSubdivision (e) consists of the first sentence of Magistrates Rule 5. The second sentence of\nthat Rule was deleted as being inconsistent with 28 U.S.C. \xc2\xa7753(b) which gives the court\ndiscretion to decide how the proceedings will be recorded. The third sentence is deleted to\npreclude routine waivers of a verbatim record and to insure that all petty offenses are recorded.\nSubdivision (f) replaces Magistrates Rule 6 and simply incorporates by reference Rule 33.\nSubdivision (g) is an amended version of Magistrates Rule 7. Because the new rule may be\nused by both magistrates and judges, subdivision (g)(1) was added to make it clear that the Federal\nRules of Appellate Procedure govern any appeal in a case tried by a district judge pursuant to the\nnew rule. Subdivision (g)(2)(B), based upon Magistrates Rule 7(b), now provides for appeal of a\n379\n\n\x0csentence by a magistrate and is thus consistent with the provisions of 18 U.S.C. \xc2\xa73742(f). Finally,\nsubdivision (g)(3) is based upon Magistrates Rule 7(d) but has been amended to provide that a stay\nof execution is applicable, if an appeal is taken from a sentence as well as from a conviction. This\nchange is consistent with the recent amendment of Rule 38 by the Sentencing Reform Act.\nThe new rule does not include Magistrates Rules 8 and 9. Rule 8 has been deleted because\nthe subject of local rules is covered in Rule 57. Rule 9, which defined a petty offense, is now\ncovered in 18 U.S.C. \xc2\xa719.\nNotes of Advisory Committee on Rules\xe2\x80\x941991 Amendment\nThe amendments are technical. No substantive changes are intended.\nNotes of Advisory Committee on Rules\xe2\x80\x941993 Amendment\nThe Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101\xe2\x80\x93650,\nTitle III, Section 321] which provides that each United States magistrate appointed under section\n631 of title 28, United States Code, shall be known as a United States magistrate judge.\nNotes of Advisory Committee on Rules\xe2\x80\x941997 Amendment\nThe Federal Courts Improvement Act of 1996, Sec. 202, amended 18 U.S.C. \xc2\xa73401(b) and\n28 U.S.C. \xc2\xa7636(a) to remove the requirement that a defendant must consent to a trial before a\nmagistrate judge in a petty offense that is a class B misdemeanor charging a motor vehicle offense,\na class C misdemeanor, or an infraction. Section 202 also changed 18 U.S.C. \xc2\xa73401(b) to provide\nthat in all other misdemeanor cases, the defendant may consent to trial either orally on the record\nor in writing. The amendments to Rule 58(b)(2) and (3) conform the rule to the new statutory\nlanguage and include minor stylistic changes.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nThe language of Rule 58 has been amended as part of the general restyling of the Criminal\nRules to make them more easily understood and to make style and terminology consistent\nthroughout the rules. These changes are intended to be stylistic only.\nThe title of the rule has been changed to \xe2\x80\x9cPetty Offenses and Other Misdemeanors.\xe2\x80\x9d In\nRule 58(c)(2)(B) (regarding waiver of venue), the Committee amended the rule to require that the\n\xe2\x80\x9cdistrict clerk,\xe2\x80\x9d instead of the magistrate judge, inform the original district clerk if the defendant\nwaives venue and the prosecution proceeds in the district where the defendant was arrested. The\nCommittee intends no change in practice.\nIn Rule 58(g)(1) and (g)(2)(A), the Committee deleted as unnecessary the word \xe2\x80\x9cdecision\xe2\x80\x9d\nbecause its meaning is covered by existing references to an \xe2\x80\x9corder, judgment, or sentence\xe2\x80\x9d by a\ndistrict judge or magistrate judge. In the Committee\'s view, deletion of that term does not amount\nto a substantive change.\nCommittee Notes on Rules\xe2\x80\x942006 Amendment\nSubdivision (b)(2)(G). Rule 58(b)(2)(G) sets out the advice to be given to defendants at an\n380\n\n\x0cinitial appearance on a misdemeanor charge, other than a petty offense. As currently written, the\nrule is restricted to those cases where the defendant is held in custody, thus creating a conflict and\nsome confusion when compared to Rule 5.1(a) concerning the right to a preliminary hearing.\nParagraph (G) is incomplete in its description of the circumstances requiring a preliminary\nhearing. In contrast, Rule 5.1(a) is a correct statement of the law concerning the defendant\'s\nentitlement to a preliminary hearing and is consistent with 18 U.S.C. \xc2\xa73060 in this regard. Rather\nthan attempting to define, or restate, in Rule 58 when a defendant may be entitled to a Rule 5.1\npreliminary hearing, the rule is amended to direct the reader to Rule 5.1.\nChanges Made After Publication and Comment. The Committee [made] no changes to the\nRule or Committee note after publication.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nThe times set in the former rule at 10 days have been revised to 14 days. See the Committee\nNote to Rule 45(a).\nCommittee Notes on Rules\xe2\x80\x942014 Amendment\nRule 58(b)(2)(H). Article 36 of the Vienna Convention on Consular Relations provides that\ndetained foreign nationals shall be advised that they may have the consulate of their home country\nnotified of their arrest and detention, and bilateral agreements with numerous countries require\nconsular notification whether or not the detained foreign national requests it. Article 36 requires\nconsular notification advice to be given "without delay," and arresting officers are primarily\nresponsible for providing this advice.\nProviding this advice at the initial appearance is designed, not to relieve law enforcement\nofficers of that responsibility, but to provide additional assurance that U.S. treaty obligations are\nfulfilled, and to create a judicial record of that action. The Committee concluded that the most\neffective and efficient method of conveying this information is to provide it to every defendant,\nwithout attempting to determine the defendant\'s citizenship.\nAt the time of this amendment, many questions remain unresolved by the courts\nconcerning Article 36, including whether it creates individual rights that may be invoked in a\njudicial proceeding and what, if any, remedy may exist for a violation of Article 36.\nSanchez-Llamas v. Oregon, 548 U.S. 331 (2006). This amendment does not address those\nquestions. More particularly, it does not create any such rights or remedies.\nChanges Made After Publication and Comment\nIn response to public comments the amendment was rephrased to state that the information\nregarding consular notification should be provided to all defendants who are arraigned. Although\nit is anticipated that ordinarily only defendants who are held in custody will ask the government to\nnotify a consular official of their arrest, it is appropriate to provide this information to all\ndefendants at the initial appearance. The new phrasing also makes it clear that the advice should be\nprovided toevery defendant, without any attempt to determine the defendant\'s citizenship. A\nconforming change was made to the Committee Note.\nReferences in Text\nThe Federal Rules of Appellate Procedure, referred to in subd. (g)(1), are set out in the\n381\n\n\x0cAppendix to Title 28, Judiciary and Judicial Procedure.\n\nRule 59. Matters Before a Magistrate Judge\n(a) Nondispositive Matters. A district judge may refer to a magistrate judge for\ndetermination any matter that does not dispose of a charge or defense. The magistrate judge must\npromptly conduct the required proceedings and, when appropriate, enter on the record an oral or\nwritten order stating the determination. A party may serve and file objections to the order within\n14 days after being served with a copy of a written order or after the oral order is stated on the\nrecord, or at some other time the court sets. The district judge must consider timely objections and\nmodify or set aside any part of the order that is contrary to law or clearly erroneous. Failure to\nobject in accordance with this rule waives a party\'s right to review.\n(b) Dispositive Matters.\n(1) Referral to Magistrate Judge. A district judge may refer to a magistrate judge for\nrecommendation a defendant\'s motion to dismiss or quash an indictment or information, a motion\nto suppress evidence, or any matter that may dispose of a charge or defense. The magistrate judge\nmust promptly conduct the required proceedings. A record must be made of any evidentiary\nproceeding and of any other proceeding if the magistrate judge considers it necessary. The\nmagistrate judge must enter on the record a recommendation for disposing of the matter, including\nany proposed findings of fact. The clerk must immediately serve copies on all parties.\n(2) Objections to Findings and Recommendations. Within 14 days after being served with\na copy of the recommended disposition, or at some other time the court sets, a party may serve and\nfile specific written objections to the proposed findings and recommendations. Unless the district\njudge directs otherwise, the objecting party must promptly arrange for transcribing the record, or\nwhatever portions of it the parties agree to or the magistrate judge considers sufficient. Failure to\nobject in accordance with this rule waives a party\'s right to review.\n(3) De Novo Review of Recommendations. The district judge must consider de novo any\nobjection to the magistrate judge\'s recommendation. The district judge may accept, reject, or\nmodify the recommendation, receive further evidence, or resubmit the matter to the magistrate\njudge with instructions.\nNotes\n(Added Apr. 25, 2005, eff. Dec. 1, 2005; amended Mar. 26, 2009, eff. Dec. 1, 2009.)\nCommittee Notes on Rules\xe2\x80\x942002\nRule 59, which dealt with the effective date of the Federal Rules of Criminal Procedure, is\nno longer necessary and has been deleted.\nCommittee Notes on Rules\xe2\x80\x942005\nRule 59 is a new rule that creates a procedure for a district judge to review nondispositive\nand dispositive decisions by magistrate judges. The rule is derived in part from Federal Rule of\nCivil Procedure 72.\nThe Committee\'s consideration of a new rule on the subject of review of a magistrate\njudge\'s decisions resulted from United States v. Abonce-Barrera, 257 F.3d 959 (9th Cir. 2001). In\n382\n\n\x0cthat case the Ninth Circuit held that the Criminal Rules do not require appeals from nondispositive\ndecisions by magistrate judges to district judges as a requirement for review by a court of appeals.\nThe court suggested that Federal Rule of Civil Procedure 72 could serve as a suitable model for a\ncriminal rule.\nRule 59(a) sets out procedures to be used in reviewing nondispositive matters, that is, those\nmatters that do not dispose of the case. The rule requires that if the district judge has referred a\nmatter to a magistrate judge, the magistrate judge must issue an oral or written order on the record.\nTo preserve the issue for further review, a party must object to that order within 10 days after being\nserved with a copy of the order or after the oral order is stated on the record or at some other time\nset by the court. If an objection is made, the district court is required to consider the objection. If\nthe court determines that the magistrate judge\'s order, or a portion of the order, is contrary to law or\nis clearly erroneous, the court must set aside the order, or the affected part of the order. See also 28\nU.S.C. \xc2\xa7636(b)(1)(A).\nRule 59(b) provides for assignment and review of recommendations made by magistrate\njudges on dispositive matters, including motions to suppress or quash an indictment or\ninformation. The rule directs the magistrate judge to consider the matter promptly, hold any\nnecessary evidentiary hearings, and enter his or her recommendation on the record. After being\nserved with a copy of the magistrate judge\'s recommendation, under Rule 59(b)(2), the parties\nhave a period of 10 days to file any objections. If any objections are filed, the district court must\nconsider the matter de novo and accept, reject, or modify the recommendation, or return the matter\nto the magistrate judge for further consideration.\nBoth Rule 59(a) and (b) contain a provision that explicitly states that failure to file an\nobjection in accordance with the rule amounts to a waiver of the issue. This waiver provision is\nintended to establish the requirements for objecting in a district court in order to preserve appellate\nreview of magistrate judges\xe2\x80\x99 decisions. In Thomas v. Arn, 474 U.S. 140, 155 (1985), the Supreme\nCourt approved the adoption of waiver rules on matters for which a magistrate judge had made a\ndecision or recommendation. The Committee believes that the waiver provisions will enhance the\nability of a district court to review a magistrate judge\'s decision or recommendation by requiring a\nparty to promptly file an objection to that part of the decision or recommendation at issue. Further,\nthe Supreme Court has held that a de novo review of a magistrate judge\'s decision or\nrecommendation is required to satisfy Article III concerns only where there is an objection. Peretz\nv. United States, 501 U.S. 293 (1991).\nDespite the waiver provisions, the district judge retains the authority to review any\nmagistrate judge\'s decision or recommendation whether or not objections are timely filed. This\ndiscretionary review is in accord with the Supreme Court\'s decision in Thomas v. Arn, supra, at\n154. See also Matthews v. Weber, 423 U.S. 261, 270 \xe2\x80\x93271 (1976).\nAlthough the rule distinguishes between \xe2\x80\x9cdispositive\xe2\x80\x9d and \xe2\x80\x9cnondispositive\xe2\x80\x9d matters, it\ndoes not attempt to define or otherwise catalog motions that may fall within either category.\nInstead, that task is left to the case law.\nChanges Made After Publication and Comment. The Committee adopted almost all of the\nstyle suggestions by the Style Subcommittee, and several of the suggestions by the Federal\nMagistrate Judges\xe2\x80\x99 Association. In particular the Committee adopted a variation of the language\nsuggested by the Association concerning matters disposing of a \xe2\x80\x9ccharge or defense.\xe2\x80\x9d The\ncommittee also addressed the issue in Rule 59(a) of clarifying the starting point for the 10 days in\nwhich to file objections by changing the word \xe2\x80\x9cmade\xe2\x80\x9d in line 9 to read \xe2\x80\x9cstated.\xe2\x80\x9d In Rule 59(b)(1)\nthe Committee rearranged the order of the sample motions that would be considered \xe2\x80\x9cdispositive.\xe2\x80\x9d\n383\n\n\x0cFinally, the Committee included a paragraph at the end of the Committee Note, addressing the\ndecision not to further specify in the rule, or the Note, what matters might be dispositive or\nnondispositive.\nCommittee Notes on Rules\xe2\x80\x942009 Amendment\nThe times set in the former rule at 10 days have been revised to 14 days. See the Committee\nNote to Rule 45(a).\n\nRule 60. Victim\'s Rights\n(a) In General.\n(1) Notice of a Proceeding. The government must use its best efforts to give the victim\nreasonable, accurate, and timely notice of any public court proceeding involving the crime.\n(2) Attending the Proceeding. The court must not exclude a victim from a public court\nproceeding involving the crime, unless the court determines by clear and convincing evidence that\nthe victim\'s testimony would be materially altered if the victim heard other testimony at that\nproceeding. In determining whether to exclude a victim, the court must make every effort to permit\nthe fullest attendance possible by the victim and must consider reasonable alternatives to\nexclusion. The reasons for any exclusion must be clearly stated on the record.\n(3) Right to Be Heard on Release, a Plea, or Sentencing. The court must permit a victim to\nbe reasonably heard at any public proceeding in the district court concerning release, plea, or\nsentencing involving the crime.\n(b) Enforcement and Limitations.\n(1) Time for Deciding a Motion. The court must promptly decide any motion asserting a\nvictim\'s rights described in these rules.\n(2) Who May Assert the Rights. A victim\'s rights described in these rules may be asserted\nby the victim, the victim\'s lawful representative, the attorney for the government, or any other\nperson as authorized by 18 U.S.C. \xc2\xa73771(d) and (e).\n(3) Multiple Victims. If the court finds that the number of victims makes it impracticable to\naccord all of them their rights described in these rules, the court must fashion a reasonable\nprocedure that gives effect to these rights without unduly complicating or prolonging the\nproceedings.\n(4) Where Rights May Be Asserted. A victim\'s rights described in these rules must be\nasserted in the district where a defendant is being prosecuted for the crime.\n(5) Limitations on Relief. A victim may move to reopen a plea or sentence only if:\n(A) the victim asked to be heard before or during the proceeding at issue, and the request\nwas denied;\n(B) the victim petitions the court of appeals for a writ of mandamus within 10 days after the\ndenial, and the writ is granted; and\n(C) in the case of a plea, the accused has not pleaded to the highest offense charged.\n(6) No New Trial. A failure to afford a victim any right described in these rules is not\ngrounds for a new trial.\nNotes\n(Added Apr. 23, 2008, eff. Dec. 1, 2008.)\n384\n\n\x0cCommittee Notes on Rules\xe2\x80\x942008\nThis rule implements several provisions of the Crime Victims\xe2\x80\x99 Rights Act, codified at 18\nU.S.C. \xc2\xa73771, in judicial proceedings in the federal courts.\nSubdivision (a)(1). This subdivision incorporates 18 U.S.C. \xc2\xa73771(a)(2), which provides\nthat a victim has a \xe2\x80\x9cright to reasonable, accurate, and timely notice of any public court proceeding.\n. . .\xe2\x80\x9d The enactment of 18 U.S.C. \xc2\xa73771(a)(2) supplemented an existing statutory requirement that\nall federal departments and agencies engaged in the detection, investigation, and prosecution of\ncrime identify victims at the earliest possible time and inform those victims of various rights,\nincluding the right to notice of the status of the investigation, the arrest of a suspect, the filing of\ncharges against a suspect, and the scheduling of judicial proceedings. See 42 U.S.C. \xc2\xa710607(b) &\n(c)(3)(A)\xe2\x80\x93(D).\nSubdivision (a)(2). This subdivision incorporates 18 U.S.C. \xc2\xa73771(a)(3), which provides\nthat the victim shall not be excluded from public court proceedings unless the court finds by clear\nand convincing evidence that the victim\'s testimony would be materially altered by attending and\nhearing other testimony at the proceeding, and 18 U.S.C. \xc2\xa73771(b), which provides that the court\nshall make every effort to permit the fullest possible attendance by the victim.\nRule 615 of the Federal Rules of Evidence addresses the sequestration of witnesses.\nAlthough Rule 615 requires the court upon the request of a party to order the witnesses to be\nexcluded so they cannot hear the testimony of other witnesses, it contains an exception for \xe2\x80\x9ca\nperson authorized by statute to be present.\xe2\x80\x9d Accordingly, there is no conflict between Rule 615 and\nthis rule, which implements the provisions of the Crime Victims\xe2\x80\x99 Rights Act.\nSubdivision (a)(3). This subdivision incorporates 18 U.S.C. \xc2\xa73771(a)(4), which provides\nthat a victim has the \xe2\x80\x9cright to be reasonably heard at any public proceeding in the district court\ninvolving release, plea, [or] sentencing. . . .\xe2\x80\x9d\nSubdivision (b). This subdivision incorporates the provisions of 18 U.S.C. \xc2\xa73771(d)(1),\n(2), (3), and (5). The statute provides that the victim, the victim\'s lawful representative, and the\nattorney for the government, and any other person as authorized by 18 U.S.C. \xc2\xa7377l(d) and (e) may\nassert the victim\'s rights. In referring to the victim and the victim\'s lawful representative, the\ncommittee intends to include counsel. 18 U.S.C. \xc2\xa73771(e) makes provision for the rights of\nvictims who are incompetent, incapacitated, or deceased, and 18 U.S.C. \xc2\xa73771(d)(1) provides that\n\xe2\x80\x9c[a] person accused of the crime may not obtain any form of relief under this chapter.\xe2\x80\x9d\nThe statute provides that those rights are to be asserted in the district court where the\ndefendant is being prosecuted (or if no prosecution is underway, in the district where the crime\noccurred). Where there are too many victims to accord each the rights provided by the statute, the\ndistrict court is given the authority to fashion a reasonable procedure to give effect to the rights\nwithout unduly complicating or prolonging the proceedings.\nFinally, the statute and the rule make it clear that failure to provide relief under the rule\nnever provides a basis for a new trial. Failure to afford the rights provided by the statute and\nimplementing rules may provide a basis for reopening a plea or a sentence, but only if the victim\ncan establish all of the following: the victim asserted the right before or during the proceeding, the\nright was denied, the victim petitioned for mandamus within 10 days as provided by 18 U.S.C.\n\xc2\xa73771(d)(5)(B), and\xe2\x80\x94in the case of a plea\xe2\x80\x94the defendant did not plead guilty to the highest\noffense charged.\nChanges Made to Proposed Amendment Released for Public Comment. Subdivision (a)(2)\n385\n\n\x0cwas revised to make it clear that the duty to permit fullest attendance arises in the context of the\nvictim\'s possible exclusion.\nSubdivision(b)(2) was revised to respond to concerns that the amendments did not clearly\nstate that the victim\'s lawful representative could assert the victim\'s rights. The Committee Note\nmakes it clear that a victim or the lawful representative of a victim may generally participate\nthrough counsel, and provides that any other person authorized by 18 U.S.C. \xc2\xa73771(d) and (e) may\nassert the victim\'s rights, such as persons authorized to raise the rights of victims who are minors or\nare incompetent.\nReferences throughout subdivision (b) were revised to indicate that they were applicable to\nthe victim\'s rights described in the Federal Rules of Criminal Procedure, not merely subdivision\n(a) of Rule 60.\nOther minor changes were made at the suggestion of the Style Consultant to improve\nclarity.\n\nRule 61. Title\nThese rules may be known and cited as the Federal Rules of Criminal Procedure.\nNotes\n(As amended Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008.)\nShort Title of 1975 Amendment\nPub. L. 94\xe2\x80\x9364, \xc2\xa71, July 31, 1975, 89 Stat. 370, provided: \xe2\x80\x9cThat this Act [amending rules 4,\n9, 11, 12, 12.1, 12.2, 15, 16, 17, 20, 32 and 43 of these rules and enacting provisions set out as a\nnote under rule 4] may be cited as the \xe2\x80\x98 Federal Rules of Criminal Procedure Amendments Act of\n1975\xe2\x80\x99.\xe2\x80\x9d\nNotes of Advisory Committee on Rules\xe2\x80\x941944\nThis rule is similar to Rule 85 of the Federal Rules of Civil Procedure [28 U.S.C.,\nAppendix], which reads as follows:\nThese rules may be known and cited as the Federal Rules of Civil Procedure.\nCommittee Notes on Rules\xe2\x80\x942002 Amendment\nNo changes have been made to Rule 60, as a result of the general restyling of the Criminal\nRules.\nCommittee Notes on Rules\xe2\x80\x942008 Amendment\nExcerpt from Report of the Advisory Committee on Federal Rules of Criminal Procedure.\nThis amendment renumbers current Rule 60 as Rule 61 to accommodate the new victims\xe2\x80\x99 rights\nrule.\nChanges Made to Proposed Amendment Released for Public Comment. No changes were\nmade.\n386\n\n\x0c387\n\n\x0c388\n\n\x0c'