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Federal Rules of Crimnal Proceedure #2
We continue with the Federal Rules of Criminal Procedure, part
two. */
Rule 13. Trial Together of Indictments or Information
The court may order two or more indictments or informations or
both to be tried together if the offenses, and the defendants if
there is more than one, could have been joined in a single
indictment or information. The procedure shall be the same as if
the prosecution were under such single indictment or information.
Rule 14. Relief from Prejudicial Joinder
If it appears that a defendant or the government is prejudiced by
a joinder of offenses or of defendants in an indictment or
information or by such joinder for trial together, the court may
order an election or separate trials of counts, grant a severance
of defendants or provide whatever other relief justice requires.
In ruling on a motion by a defendant for severance the court may
order the attorney for the government to deliver to the court for
inspection in camera any statements or confessions made by the
defendants which the government intends to introduce in evidence
at the trial.
/* Even if defendants allege antagonistic defenses relief under
this rule is the exception rather than the rule. */
Rule 15. Depositions
(a) When taken. Whenever due to exceptional circumstances of the
case it is in the interest of justice that the testimony of a
prospective witness of a party be taken and preserved for use at
trial, the court may upon motion of such party and notice to the
parties order that testimony of such witness be taken by
deposition and that any designated book, paper, document, record,
recording, or other material not privileged, be produced at the
same time and place. If a witness is detained pursuant to
section 3144 of title 18, United States Code, the court on
written motion of the witness and upon notice to the parties may
direct that the witness' deposition be taken. After the
deposition has been subscribed the court may discharge the
witness.
(b) Notice of taking. The party at whose instance a deposition
is to be taken shall give to every party reasonable written
notice of the time and place for taking the deposition. The
notice shall state the name and address of each person to be
examined. On motion of a party upon whom the notice is served,
the court for cause shown may extend or shorten the time or
change the place for taking the deposition. The place set for
the examination and shall, unless the defendant waives in writing
the right to be present, produce the defendant at the examination
and keep the defendant in the presence of the witness during the
examination, unless, after being warned by the court that
disruptive conduct will cause the defendant's removal from the
place of the taking of the deposition, the defendant persists in
conduct which is such as to justify exclusion from that place. A
defendant not in custody shall have the right to be present at
the examination upon request subject to such terms as may be
fixed by the court, but a failure, absent good cause shown, to
appear after notice and tender of expenses in accordance with
subdivision © of this rule shall constitute a waiver of that
right and of any objection to the taking and use of the
deposition based upon that right.
© Payment of expenses. Whenever a deposition is taken at the
instance of the government, or whenever a deposition is taken at
the instance of a defendant who is unable to bear the expenses of
the taking of the deposition, the court may direct that the
expense of travel and subsistence of the defendant and the
defendant's attorney for attendance at the examination and the
cost of the transcript of the deposition shall be paid by the
government.
(d) How taken. Subject to such additional conditions as the
court shall provide, a deposition shall be taken and filed in the
manner provided in civil actions except as otherwise provided in
these rules, provided that (1) in no event shall a deposition be
taken of a party defendant without the defendant's consent, and
(2) the scope and manner of examination and cross-examination
shall be such as would be allowed in the trial itself. The
government shall make available to the defendant or the
defendant's counsel for examination and use at the taking of the
deposition any statement of the witness being deposed which is in
the possession of the government and to which the defendant would
be entitled at the trial.
(e) Use. At the trial or upon any hearing, a part or all of a
deposition, so far as otherwise admissible under the rules of
evidence, may be used as substantive evidence if the witness is
unavailable, as unavailability is defined in Rule 804(a) of the
Federal Rules of Evidence, or the witness gives testimony at the
trial or hearing inconsistent with that witness' deposition. Any
deposition may also be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness. If only a part of a deposition is offered in evidence
by a party, an adverse party may require the offering of all of
it which is relevant to the part offered and any party may offer
other parts.
(f) Objections to deposition testimony. Objections to deposition
testimony or evidence or parts thereof and the grounds for the
objection shall be stated at the time of the taking of the
deposition.
(g) Deposition by agreement not precluded. Nothing in this rule
shall preclude the taking of a deposition, orally or upon written
questions, or the use of a deposition, by agreement of the
parties with the consent of the court.
(Amended August 1, 1987.)
Rule 16. Discovery and Inspection
(a) Disclosure of evidence by the government.
(1) Information subject to disclosure.
(A) Statement of defendant. Upon request of a defendant the
government shall permit the defendant to inspect and copy or
photograph: any relevant written or recorded statements made
by the defendant, or copies thereof, with the possession,
custody or the control of the government, the existence of
which is known, or by the exercise of due diligence may
become known, to the attorney for the government; the
substance of any oral statement which the government intends
to offer in evidence at the trial made by the defendant
whether before or after arrest in response to interrogation
by any person then known to the defendant to be a government
agent; and recorded testimony of the defendant before a
grand jury which relates to the offense charged. Where the
defendant is a corporation, partnership, association or
labor union, the court may grant the defendant, upon its
motion, discovery of relevant recorded testimony of any
witness before a grand jury who (1) was, at the time of that
testimony, so situated as an officer or employee as to have
been able legally to bind the defendant in respect to
conduct constituting the offense, or (2) was, at the time of
the offense, personally involved in the alleged conduct
constituting the offense and so situated as an officer or
employee as to have been able legally to bind the defendant
in respect to that alleged conduct in which the witness was
involved.
(B) Defendant's prior record. Upon request of the
defendant, the government shall furnish to the defendant
such copy of the defendant's prior criminal record, if any,
as is within the possession, custody, or control of the
government, the existence of which is known, or by the
exercise of due diligence may become known, to the attorney
for the government.
(C) Documents and tangible objects. Upon request of the
defendant the government shall permit the defendant to inspect
and copy or photograph books, papers, documents, photographs,
tangible objects, buildings or places, or copies or portions
thereof, which are within the possession, custody or control of
the government, and which are material to the preparation of the
defendant's defense or are intended for use by the government as
evidence in chief at the trial, or were obtained from or belong
to the defendant.
(D) Reports of examinations and tests. Upon request of a
defendant the government shall permit the defendant to inspect
and copy or photograph any results or reports of physical or
mental examinations, and of scientific tests or experiments, or
copies thereof, which are within the possession, custody, or
control of the government, the existence of which is known, or by
the exercise of due diligence may become known, to the attorney
for the government, and which are material to the preparation of
the defense or are intended for use by the government as evidence
in chief at the trial.
(2) Information not subject to disclosure. Except as provided in
paragraphs (A), (B), and (D) of subdivision (a)(1), this rule
does not authorize the discovery or inspection of reports,
memoranda, or other internal government documents made by the
attorney for the government or other government agents in
connection with the investigation or prosecution of the case, or
of statements made by government witnesses or prospective
government witnesses except as provided in 18 USC Section 3500.
(3) Grand jury transcripts. Except as provided in Rules 6, 12(i)
and 26.2, and subdivision (a)(1)(A) of this rule, these rules do
not relate to discovery or inspection of recorded proceedings of
a grand jury.
(b) Disclosure of evidence by the defendant.
(1) Information subject to disclosure.
(A) Documents and tangible objects. If the defendant
requests disclosure under subdivision (a)(1)(C) or (D) of this
rule, upon compliance with such request by the government, the
defendant, on request of the government, shall permit the
government to inspect and copy or photograph books, papers,
documents, photographs, tangible objects, or copies or portions
thereof, which are within the possession, custody, or control of
the defendant and which the defendant intends to introduce as
evidence in chief at the trial.
/* A subtle point in this section of the rule. Evidence that the
defendant does not intend to produce until rebuttal, or which is
contingent on the turns of the government case does not come
within this rule. */
(B) Reports of examinations and tests. If the defendant
requests disclosure under subdivision (a)(1)(C) or (D) of this
rule, upon compliance with such request by the government, the
defendant, on request of the government, shall permit the
government to inspect and copy or photograph any results or
reports of physical or mental examinations and of scientific
tests or experiments made in connection with the particular case,
or copies thereof, within the possession or control of the
defendant, which the defendant intends to introduce as evidence
in chief at the trial or which were prepared by a witness whom
the defendant intends to call at the prepared by a witness whom
the defendant intends to call at the trial when the results or
reports relate to that witness' testimony.
(2) Information not subject to disclosure. Except as to
scientific or medical reports, this subdivision does not
authorize the discovery or inspection of reports, memoranda, or
other internal defense documents made by the defendant, or the
defendant's attorneys or agents in connection with the
investigation or defense of the case, or of statements made by
the defendant, or by government or defense witnesses, or by
prospective government or defense witnesses, to the defendant,
the defendant's agents or attorneys.
© Continuing duty to disclose. If, prior to or during trial, a
party discovers additional evidence or material previously
requested or ordered, which is subject to discovery or inspection
under this rule, such party shall promptly notify the other party
or that other party's attorney or the court of the existence of
the additional evidence or material.
(d) Regulation of discovery.
(1) Protective and modifying orders. Upon a sufficient
showing the court may at any time order that the discovery or
inspection be denied, restricted, or deferred, or make such other
order as is appropriate. Upon motion by a party, the court may
permit the party to make such showing, in whole or in part, in
the form of a written statement to be inspected by the judge
alone. If the court enters an order granting relief following
such an ex parte showing, the entire text of the party's
statement shall be sealed and preserved in the records of the
court to be made available to the appellate court in the event of
an appeal.
(2) Failure to comply with a request. If at any time during
the course of the proceedings it is brought to the attention of
the court that a party has failed to comply with this rule, the
court may order such party to permit the discovery or inspection,
grant a continuance, or prohibit the party from introducing
evidence not disclosed, or it may enter such other order as it
deems just under the circumstances. The court may specify the
time, place and manner of making the discovery and inspection and
may prescribe such terms and conditions as are just.
(e) Alibi witnesses. Discovery of alibi witnesses is governed by
Rule 12.1.
(Amended August 1, 1987.)
Rule 17. Subpoena
(a) For attendance of witnesses; form; issuance. A subpoena
shall be issued by the clerk under the seal of the court. It
shall state the name of the court and the title, if any, of the
proceeding, and shall command each person to whom it is directed
to attend and give testimony at the time and place specified
therein. The clerk shall issue a subpoena, signed and sealed but
otherwise in blank to a party requesting it, who shall fill in
the blanks before it is served. A subpoena shall be issued by a
United States magistrate in a proceeding before that magistrate,
but it need not be under the seal of the court.
/* In many districts the clerk by local rule does not issue
subpoenas in blank due to occasionally abuse. */
(b) Defendants unable to pay. The court shall order at any time
that a subpoena be issued for service on a named witness upon an
ex parte application of a defendant upon a satisfactory showing
that the defendant is financially unable to pay the fees of the
witness and that the presence of the witness is necessary to an
adequate defense. If the court orders the subpoena to be issued
the costs incurred by the process and the fees of the witness so
subpoenaed shall be paid in the same manner in which similar
costs and fees are paid in case of a witness subpoenaed in behalf
of the government.
© For production of documentary evidence and of objects. A
subpoena may also command the person to whom it is directed to
produce the books, papers, documents or other objects designated
therein. The court on motion made promptly may quash or modify
the subpoena if compliance would be unreasonable or oppressive.
The court may direct that books, papers, documents or objects
designated in the subpoena be produced before the court at a time
prior to the trial or prior to the time when they are to be
offered in evidence and may upon their production permit the
books, papers, documents, or objects or portions thereof to be
inspected by the parties and their attorneys.
(d) Service. A subpoena may be served by the marshal, by a
deputy marshal or by any other person who is not a party and who
is not less than 18 years of age. Service of a subpoena shall be
made by delivering a copy thereof to the person named and by
tendering to that person the fee for 1 day's attendance and the
mileage allowed by law. Fees and mileage need not be tendered to
the witness upon service of a subpoena issued in behalf of the
United States or an officer or agency thereof.
(e) Place of service.
(1) In United States. A subpoena requiring the attendance of
a witness at a hearing or trial may be served at any place within
the United States.
/* Unlike the civil rule with its 100 mile general limit. */
(2) Abroad. A subpoena directed to a witness in a foreign
country shall issue under the circumstances and in the manner and
be served as provided in Title 28, USC Section 1783.
(f) For Taking deposition; place of examination.
(1) Issuance. An order to take a deposition authorizes the
issuance by the clerk of the court for the district in which the
deposition is to be taken of subpoenas for the persons named or
described therein.
(2) Place. The witness whose deposition is to be taken may be
required by subpoena to attend at any place designated by the
trial court, taking into account the convenience of the witness
and the parties.
(g) Contempt. Failure by any person without adequate excuse to
obey a subpoena served upon that person may be deemed a contempt
of the court from which the subpoena issued or of the court for
the district in which it issued if it was issued by a United
States magistrate.
(h) Information not subject to subpoena. Statements made by
witnesses or prospective witnesses may not be subpoenaed from the
government or the defendant under this rule, but shall be subject
to production only in accordance with the provisions of Rule
26.2.
(Amended August 1, 1987.)
Rule 17.1 Pretrial Conference
At any time after the filing of the indictment or information the
court upon motion of any party or upon its own motion may order
one or more conferences to consider such matters as will promote
a fair and expeditious trial. At the conclusion of a conference
the court shall prepare and file a memorandum of the matters
agreed upon. No admissions made by the defendant or the
defendant's attorney at the conference shall be used against the
defendant unless the admissions are reduced in writing and signed
by the defendant and the defendant's attorney. This rule shall
not be invoked in the case of a defendant who is not represented
by counsel.
(Amended August 1, 1987.)
V. VENUE
Rule 18. Place of Prosecution and Trial
Except as otherwise permitted by statute or by these rules, the
prosecution shall be had in a district in which the offense was
committed. The court shall fix the place of trial within the
district with due regard to the convenience of the defendant and
the witnesses and the prompt administration of justice.
/* Which seems to be a substantial limitation but which in fact
is not. If any part of the offense is committed in a district,
the case may be brought there. In addition, in conspiracy cases
is possible for offenses to end up being tried in places far away
from the nucleus of the crimes, so long as crimes did occur in
that district within the rather expansive blanket that conspiracy
provides. */
Rule 19. [Abrogated]
Rule 20. Transfer from the District for Plea and Sentence
(a) Indictment or information pending. A defendant arrested,
held, or present in a district other than that in which an
indictment or information is pending against that defendant may
state in writing a wish to plead guilty or nolo contendere, to
waive trial in the district in which the indictment or
information is pending, and to consent to disposition of the case
in the district in which that defendant was arrested, held or
present, subject to the approval of the United States attorney
for each district. Upon receipt of the defendant's statement and
of the written approval of the United States attorneys, the clerk
of the courts in which the indictment or information is pending
shall transmit the papers in the proceeding or certified copies
thereof to the clerk of the court for the district in which the
defendant is arrested, held, or present, and the prosecution
shall continue in that district.
(b) Indictment or information not pending. A defendant arrested,
held, or present, in a district other than the district in which
a complaint is pending against that defendant may state in
writing a wish to plead guilty or nolo contendere, to waive venue
and trial in the district in which the warrant was issued, and to
consent to disposition of the case in the district in which that
defendant was arrested, held, or present, subject to the approval
of the United States attorney for each district. Upon filing the
written waiver of venue in the district in which the defendant is
present, the prosecution may proceed as if venue were in such
district.
© Effect of not guilty plea. If after the proceeding has been
transferred pursuant to subdivision (a) or (b) of this rule the
defendant pleads not guilty, the clerk shall return the papers to
the court in which the prosecution was commenced, and the
proceeding shall be restored to the docket of that court. The
defendant's statement that the defendant wishes to plead guilty
or nolo contendere shall not be used against the defendant.
(d) Juveniles. A juvenile (as defined in 18 USC Section 5031)
who is arrested, held, or present in a district other than that
in which the juvenile is alleged to have committed an act in
violation of a law of the United States not punishable by death
or life imprisonment may, after having been advised by counsel
and with the approval of the court and the United States attorney
for each district, consent to be proceeded against as a juvenile
delinquent in the district in which the juvenile is arrested,
held, or present. The consent shall be given in writing before
the court but only after the court has apprised the juvenile of
the juvenile's rights, including the right to be returned to the
district in which the juvenile is alleged to have committed the
act, and of the consequences of such consent.
(Amended August 1, 1987.)
Rule 21. Transfer From the District for Trial
(a) For prejudice in the district. The court upon motion of the
defendant shall transfer the proceeding as to that defendant to
another district whether or not such district is specified in the
defendant's motion if the court is satisfied that there exists in
the district where the prosecution is pending so great a
prejudice against the defendant that the defendant cannot obtain
a fair and impartial trial at any place fixed by law for holding
court in that district.
(b) Transfer in other cases. For the convenience of parties and
witnesses, and in the interest of justice, the court upon motion
of the defendant may transfer the proceeding as to the defendant
or any one or more of the courts thereof to another district.
© Proceedings on transfer. When a transfer is ordered the
clerk shall transmit to the clerk of the court to which the
proceeding is transferred all papers in the proceeding or
duplicates thereof and any bail taken, and the prosecution shall
continue in that district.
(Amended August 1, 1987.)
Rule 22. Time of Motion to Transfer
A motion to transfer under these rules may be made at or before
arraignment or at such other time as the court or these rules may
prescribe.
VI TRIAL
Rule 23. Trial by Jury or by the Court
(a) Trial by jury. Cases required to be tried by jury shall be
so tried unless the defendant waives a jury trial in writing with
the approval of the court and the consent of the government.
(b) Jury of less than twelve. Juries shall be of 12 but at any
time before verdict the parties may stipulate in writing with the
approval of the court that the jury shall consist of any number
less than 12 or that a valid verdict may be returned by a jury of
less than 12 should the court find it necessary to excuse one or
more jurors for any just cause after trial commences. Even
absent such stipulation, if the court finds it necessary to
excuse a juror for just cause after the jury has retired to
consider its verdict, in the discretion of the court a valid
verdict may be returned by the remaining 11 jurors.
/* Something that many attorneys and Judges are unaware of.. The
Jury of 11. */
© Trial without a jury. In a case tried without a jury the
court shall make a general finding and shall in addition, on
request made before the general finding, find that facts
specially. Such findings may be oral. If an opinion or
memorandum of decision is filed, it will be sufficient if the
findings of fact appear therein.
Rule 24. Trial Jurors
(a) Examination. The court may permit the defendant or the
defendant's attorney and the attorney for the government to
conduct the examination of prospective jurors or may itself
conduct the examination. In the latter event the court shall
permit the defendant or the defendant's attorney and the attorney
for the government to supplement the examination by such further
inquiry as it deems proper or shall itself submit to the
prospective jurors such additional questions by the parties or
their attorneys as it deems proper.
(b) Peremptory challenges. If the offense charged is punishable
by death, each side is entitled to 20 peremptory challenges. If
the offense charged id punishable by imprisonment for more than
one year, the government is entitled to 6 peremptory challenges
and the defendant or defendant jointly to 10 peremptory
challenges. If the offense charged is punishable by imprisonment
for not more than one year or by fine or both, each side in
entitled to 3 peremptory challenges. If there is more than one
defendant, the court may allow the defendants additional
peremptory challenges and permit them to be exercised separately
or jointly.
/* Such challenges are of course regulated in much more
significant part by U.S. Supreme Court decisions which limit
their use to avoid racial discrimination. */
© Alternate jurors. The court may direct that not more than 6
jurors in addition to the regular jury be called and impanelled
to sit as alternate jurors. Alternate jurors in the order in
which they are called shall replace jurors who, prior to the time
the jury retires to consider its verdict, become or are found to
be unable or disqualified to perform their duties. Alternate
jurors shall be drawn in the same manner, shall have the same
qualifications, shall be subject to the same examination and
challenges, shall take the same oath and shall have the same
functions, power, facilities and privileges as the regular
jurors. An alternate juror who does not replace a regular juror
shall be discharged after the jury returns to consider its
verdict. Each side is entitled to 1 peremptory challenge in
addition to those otherwise allowed by law if 1 or 2 alternate
jurors are to be impanelled, 2 and 3 peremptory challenges if 5
or 6 alternate jurors are to be an alternate juror only, and the
other peremptory challenges allowed by these rules may not be
used against an alternate juror.
Rule 25. Judge; Disability
(a) During trial. If by reason of death, sickness, or other
disability the judge before whom a jury trial has commenced is
unable to proceed with the trial, any other judge regularly
sitting in or assigned to the court, upon certifying familiarity
with the record of the trial, may proceed with and finish the
trial.
(b) After verdict or finding of guilt. If by reason of absence,
death, sickness or other disability the judge before whom the
defendant has been tried is unable to perform the duties to be
performed by the court after a verdict or finding of guilt, any
other judge regularly sitting in or assigned to the court may
perform those duties; but if that judge is satisfied that a judge
who did not preside at the trial cannot perform those duties or
that it is appropriate for any other reason, that judge may grant
a new trial.
(Amended August 1, 1987.)
Rule 26. Taking of Testimony
In all trials the testimony of witnesses shall be taken orally in
open court, unless otherwise provided by an Act of Congress or by
these rules, the Federal Rules of Evidence, or other rules
adopted by the Supreme Court.
26.1. Determination of Foreign Law
A party who intends to raise an issue concerning the law of a
foreign country shall give reasonable written notice. The court,
in determining foreign law, may consider any relevant material or
source, including testimony, whether or not submitted by a party
or admissible under the Federal Rules of Evidence. The court's
determination shall be treated as a ruling on a question of law.
Rule 26.2 Production of Statements of Witnesses
(a) Motion for production. After a witness other than the
defendant has testified on direct examination, the court, on
motion of a party who did not call the witness, shall order the
attorney for the government or the defendant and the defendant's
attorney, as the case may be, to produce for the examination and
use of the moving party, any statement of witness that is in
their possession and that relates to the subject matter
concerning which the witness has testified.
(b) Production of entire statement. If the entire contents of
the statement relate to the subject matter concerning which the
witness has testified, the court shall order that the statement
be delivered to the moving party.
© Production of excised statement. If the other party claims
that the statement contains matter that does not relate to the
subject matter concerning which the witness has testified, the
court shall order that it be delivered to the court in camera.
Upon inspection, the court shall excise the portions of the
statement that do not relate to the subject matter concerning
which the witness has testified, and shall order that the
statement, with such material excised, be delivered to the moving
party. Any portion of the statement that is withheld from the
defendant over the defendant's objection shall be preserved by
the attorney for the government, and, in the event of a
conviction and an appeal by the defendant, shall be made
available to the appellate court for the purpose of determining
the correctness of the decision to excise the portion of the
statement.
(d) Recess for examination of statement. Upon delivery of the
statement to the moving party, the court, upon application of
that party, may recess proceedings in the trial for the
examination of such statement and for preparation for its use in
the trial.
/* In fact in most courts local rules or local practice (to
shorten the time of trial so that constant breaks need not be
taken) has the statements delivered the day before or even
earlier. */
(e) Sanction for failure to produce statement. If the other
party elects not to comply with an order to deliver a statement
to the moving party, the court shall order that the testimony of
the witness be stricken from the record and that the trial
proceed, or, if it is the attorney for the government who elects
not to comply, shall declare a mistrial if required by the
interest of justice.
(f) Definition. As used in this rule, a "statement" of a witness
means:
(1) a written statement made by the witness that is signed or
otherwise adopted or approved by the witness;
(2) a substantially verbatim recital of an oral statement made
by the witness that is recorded contemporaneously with the making
of the oral statement and that is contained in a stenographic,
mechanical, electrical, or other recording or a transcription
thereof; or
(3) a statement, however taken or recorded, or a transcription
thereof, made by the witness to a grand jury.
(Amended August 1, 1987.)
Rule 27. Proof of Official Record
An official record or an entry therein or the lack of such a
record or entry may be proved in the same manner as in civil
actions.
Rule 28. Interpreters
The court may appoint an interpreter of its own selection and may
fix the reasonable compensation of such interpreter. Such
compensation shall be paid out of funds provided by law or by the
government, as the court may direct.
Rule 29. Motion for Judgment of Acquittal
(a) Motion before submission to jury. Motions directed verdict
are abolished and motions for judgment of acquittal shall be used
in their place. The court on motion of a defendant or of its own
motion shall order the entry of judgment of acquittal of one or
more offenses charged in the indictment or information after the
evidence on either side is closed if the evidence is insufficient
to sustain a conviction of such offense or offenses. If a
defendant's motion for judgment of acquittal at the close of the
evidence offered by the government is not granted, the defendant
may offer evidence without having reserved the right.
(b) Reservation of decision on motion. If a motion for judgment
of acquittal is made at the close of all the evidence, the court
may reserve decision on the motion, submit the case to the jury
and decide the motion either before the jury returns a verdict or
after it returns a verdict of guilty or is discharged without
having returned a verdict.
© Motion after discharge of jury. If the jury returns a
verdict of guilty or is discharged without having returned a
verdict, a motion for judgment of acquittal may be made or
renewed within 7 days after the jury is discharged or within such
further time as the court may fix during the 7-day period. If a
verdict of guilty is returned the court may on such motion set
aside the verdict and enter judgment of acquittal. If shall not
be necessary to the making of such a motion that a similar motion
has been made prior to the submission of the case to the jury.
(d) Same: conditional ruling on grant of motion. If a motion
for judgment of acquittal after verdict of guilty under this Rule
is granted, the court shall also determine whether any motion for
a new trial should be granted if the judgment of acquittal is
thereafter vacated or reversed, specifying the grounds for such
determination. If the motion for a new trial is granted
conditionally and the judgment is reversed on appeal, the new
trial shall proceed unless the appellate court has otherwise
ordered. If such motion has been denied conditionally, the
appellee on appeal may assert error in that denial, and if the
judgment is reversed on appeal, subsequent proceedings shall be
in accordance with the order of the appellate court.
/* Much of the technical wriggling which formerly occurred in
relation to these motion is greatly simplified. */
(Amended November 10, 1986.)
Rule 30. Instructions
At the close of the evidence or at such earlier time during the
trial as the court reasonably directs, any party may file written
requests that the court instruct the jury on the law as set forth
in the requests. At the same time copies of such requests shall
be furnished to all parties. The court shall inform counsel of
this proposed action upon the requests prior to their arguments
to the jury. The court may instruct the jury before or after the
arguments are completed or at both times. No party may assign as
error any portion of the charge or omission therefrom unless that
party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which that party
objects and the grounds of the objection. Opportunity shall be
given to make the objection out of the hearing of the jury and,
on request of any party, out of the presence of the jury.
(Amended August 1, 1987; August 1, 1988.)
Rule 31. Verdict
(a) Return. The verdict shall be unanimous. It shall be returned
by the jury to the judge in open court.
(b) Several defendants. If there are two or more defendants, the
jury at any time during its deliberations may return a verdict or
verdicts with respect to a defendant or defendants as to whom it
has agreed; if the jury cannot agree with respect to all, the
defendant or defendants as to whom it does not agree may be tried
again.
© Conviction of less offense. The defendant may be found
guilty of an offense necessarily included in the offense charged
or of an attempt to commit either the offense charged or an
offense necessarily included therein if the attempt is an
offense.
(d) Poll of jury. When a verdict is returned and before it is
recorded the jury shall be polled at the request of any party or
upon the court's own motion. If upon the poll there is not
unanimous concurrence, the jury may be directed to retire for
further deliberations or may be discharged.
(e) Criminal forfeiture. If the indictment or the information
alleges that an interest or property is subject to criminal
forfeiture, a special verdict shall be returned as to the extent
of the interest or property subject to forfeiture, in any.
Rule 32. Sentence and Judgment
(a) Sentence
(1) Imposition of sentence. Sentence shall be imposed without
unnecessary delay, but the court may, when there is a factor
important to the sentencing determination that is not then
capable of being resolved, postpone the imposition of sentence
for a reasonable time until the factor is capable of being
resolved. Prior to the sentencing hearing, the court shall
provide the counsel for the defendant and the attorney for the
Government with notice of the probation officer's determination,
pursuant to the provisions of subdivision ©(2)(B), of the
sentencing classifications and sentencing guideline range
believed to be applicable to the case. At the sentencing
hearing, the court shall afford the counsel for the defendant and
the attorney for the Government an opportunity to comment upon
the probation officer's determination and on other matters
relating to the appropriate sentence. Before imposing sentence,
the court shall also-
(A) determine that the defendant and defendant's counsel have
had the opportunity to read and discuss the presentence
investigation report made available pursuant to subdivision
©(3)(A) or summary thereof made available pursuant to
subdivision ©(3)(B);
(B) afford counsel for the defendant an opportunity to speak on
behalf of the defendant; and
(C) address the defendant personally and determine if the
defendant wishes to make a statement and to present any
information in mitigation of the sentence. The attorney for the
Government shall have an equivalent opportunity to speak to the
court. Upon a motion that is jointly filed by the defendant and
by the attorney for the Government, the court may hear in camera
such a statement by the defendant, counsel for the defendant, or
the attorney for the Government.
(2) Notification of right to appeal. After imposing
sentence in a case which has gone to trial on a plea of not
guilty, the court shall advise the defendant of the defendant's
right to appeal, including any right to appeal the sentence, and
the right of a person who is unable to pay the cost of an appeal
to apply to leave to appeal in forma pauperis. There shall be no
duty on the court to advise the defendant of any right of appeal
after sentence is imposed following a plea of guilty or nolo
contendere, except that the court shall advise the defendant of
any right to appeal the sentence. If the defendant so requests,
the clerk of the court shall prepare and file forthwith a notice
of appeal on behalf of the defendant.
(b) Judgment.
(1) In general. A judgment of conviction shall set forth
the plea, the verdict or findings, and the adjudication and
sentence. If the defendant is found not guilty or for any
other reason is entitled to be discharged, judgment shall be
entered accordingly. The judgment shall be signed by the
judge and entered by the clerk.
(2) Criminal forfeiture. When a verdict contains a finding
of property subject to a criminal forfeiture, the judgment
of criminal forfeiture shall authorize the Attorney General
to seize the interest or property subject to forfeiture,
fixing such terms and conditions as the court shall deem
proper.
© Presentence investigation.
(1) When made. A probation officer shall make a presentence
investigation and report to the court before the imposition
of sentence unless the court finds that there is in the
record information sufficient to enable the meaningful
exercise of sentencing authority pursuant to 18 USC 3553,
and the court explains this finding on the record. Except
with the written consent of the defendant, the report shall
not be submitted to the court or its contents disclosed to
anyone unless the defendant has pleaded guilty or nolo
contendere or has been found guilty.
(2) Report. The report of the presentence investigation
shall contain -
(A) information about the history an characteristics of the
defendant, including prior criminal record, if any,
financial condition, and any circumstances affecting the
defendant's behavior that may be helpful in imposing
sentence or in the correctional treatment of the defendant.
(B) the classification of the offense and of the defendant
under the categories established by the Sentencing
Commission pursuant to section 994(a) of title 28, that the
probation officer believes to be applicable to the
defendant's case; the kinds of sentence and the sentencing
range suggested for such a category of offense committed by
such a category of defendant as set forth in the guidelines
issued by the Sentencing Commission pursuant to 28 USC
994(a)(1); and an explanation by the probation officer of
any factors that may indicate that a sentence of a different
kind or of a different length from one within the applicable
guideline would be more appropriate under all the
circumstances;
(C) any pertinent policy statement issued by the Sentencing
Commission pursuant to 28 USC 994(a)(2);
(D) verified information stated in a nonargumentative style
containing an assessment of the financial, social,
psychological, and medical impact upon, and cost to, any
individual against whom the offense has been committed;
(E) unless the court orders otherwise, information
concerning the nature and extent of nonprison programs and
resources available for the defendant; and
(F) such other information as may be required by the court.
(3) Disclosure
(A) At least 10 days before imposing sentence, unless this
minimum period is waived by the defendant, the court shall
provide the defendant and the defendant's counsel with a
copy of the report of the presentence investigation,
including the information required by subdivision ©(2) but
not including any final recommendation as to sentence, and
not to the extent that in the opinion of the court the
report contains diagnostic opinions, which if disclosed,
might seriously disrupt a program of rehabilitation; or
sources of information obtained upon a promise of
confidentiality; or any other information which, if
disclosed, might result in harm, physical or otherwise, to
the defendant or other persons. The court shall afford the
defendant and the defendant's counsel an opportunity to
comment on the report and, in the discretion of the court,
to introduce testimony or other information relating to any
alleged factual inaccuracy contained in it.
(B) If the court is of the view that there is information in
the presentence report which should not be disclosed under
subdivision ©(3)(A) of this rule, the court in lieu of
making the report or part thereof available shall state
orally or in writing a summary of the factual information
contained therein to be relied on in determining sentence,
and shall give the defendant and the defendant's counsel an
opportunity to comment thereon. The statement may be made
to the parties in camera.
(C) An material which may be disclosed to the defendant and
the defendant's counsel shall be disclosed to the attorney
for the government.
(D) If the comments of the defendant and the defendant's
counsel or testimony or other information introduced by them
allege any factual inaccuracy in the presentence
investigation report or the summary of the report or part
thereof, the court shall, as to each matter controverted,
make (i) a finding as to the allegation, or (ii) a
determination that no such findings and determinations shall
be appended to and accompany any copy of the presentence
investigation report thereafter made available to the Bureau
of Prisons.
/* The result is that sentencing hearings, since the sentence is
determined in large part by the number of "points" which set the
level of the offense, can be longer and more contentious than the
trial. */
(E) The reports of studies and recommendations contained therein
made by the Director of the Bureau of Prisons pursuant to 18 USC
Section 3552(b) shall be considered a presentence investigation
within the meaning of subdivision ©(3) of this rule.
(F) [Redesignated]
(d) Plea withdrawal. If a motion for withdrawal of plea of
guilty or nolo contendere is made before sentence is imposed, the
court may permit withdrawal of the plea upon a showing by the
defendant of any fair and just reason. At any later time, a plea
may be set aside only on direct appeal or by motion under 28 USC
Section 2255.
(e) Probation. After conviction of an offense not
punishable by death or by life imprisonment, the defendant may be
placed on probation if permitted by law.
(f) [Abrogated]
(Amended October 12, 1984, P. L. 98-473, Section 215(a), 98 Stat.
2017; December 226, 1985, P. L. 99-217, Section 4, 99 Stat. 1728;
November 10, 1986, P. L. 99-646, Section 25(a), 100 Stat. 3597;
August 1, 1987; December 1, 1989.)
Rule 32.1 Revocation or Modification of Probation or Supervised
Release
(a) Revocation of probation or supervised release.
(1) Preliminary hearing. Whenever a person is held in
custody on the grounds that the person has violated a condition
of probation or supervised release, the person shall be afforded
a prompt hearing before any judge, or a United States magistrate
who has been given authority pursuant to 28 USC Section 636 to
conduct such hearings, in order to determine whether there is
probable cause to hold the person for a revocation hearing. The
person shall be given:
(A) notice of the preliminary hearing and its purpose and
of the alleged violation;
(B) an opportunity to appear at the hearing and present
evidence in the person's own behalf;
(C) upon request, the opportunity to question witnesses
against the person unless, for good cause, the federal magistrate
decides that justice does not require the appearance of the
witness; and
(D) notice of the person's right to be represented by
counsel.
The proceedings shall be recorded stenographically or by an
electronic recording device. If probable cause is found to
exist, the person shall be held for a revocation hearing. The
person may be released pursuant to Rule 46© pending the
revocation hearing. If probable cause is not found to exist, the
proceeding shall be dismissed.
(2) Revocation hearing. The revocation hearing, unless
waived by the person, shall be held within a reasonable time
in the district of jurisdiction. The person shall be given
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(C) an opportunity to appear and to present evidence in the
person's own behalf;
(D) the opportunity to question adverse witnesses; and
(E) notice of the person's right to be represented by
counsel.
(b) Modification of probation or supervised release. A hearing
and assistance of counsel are required before the terms or
conditions of probation or supervised release can be modified,
unless the relief to be granted to the person on probation or
supervised release upon the person's request or the court's own
motion is favorable to the person, and the attorney for the
government, after having been given notice of the proposed relief
and a reasonable opportunity to object, has not objected. An
extension of the term of probation or supervised release is not
favorable to the person for the purposes of this rule.
(Amended November 10, 1986, P. L. 99-646, Section 12(b), 100
Stat. 3594; August 1, 1987; December 1, 1989.)
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