us_federal_rules_of_criminal_procedure_2007.pdf

FEDERAL RULES OF CRIMINAL PROCEDURE DECEMBER 1, 2007 E PL UR M IB NU U U S Printed for the use of THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES " ! 110TH CONGRESS COMMITTEE PRINT No. 3 1st Session FEDERAL RULES OF CRIMINAL PROCEDURE DECEMBER 1, 2007 E PL UR M IB NU U U S Printed for the use of THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2007 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 COMMITTEE ON THE JUDICIARY ONE HUNDRED TENTH CONGRESS JOHN CONYERS, JR., Michigan, Chairman HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, JR., Wisconsin JERROLD NADLER, New York HOWARD COBLE, North Carolina ROBERT C. SCOTT, Virginia ELTON GALLEGLY, California MELVIN L. WATT, North Carolina BOB GOODLATTE, Virginia ZOE LOFGREN, California STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California MAXINE WATERS, California CHRIS CANNON, Utah WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida ROBERT WEXLER, Florida DARRELL ISSA, California LINDA T. SÁNCHEZ, California MIKE PENCE, Indiana STEVE COHEN, Tennessee J. RANDY FORBES, Virginia HANK JOHNSON, Georgia STEVE KING, Iowa BETTY SUTTON, Ohio TOM FEENEY, Florida LUIS V. GUTIERREZ, Illinois TRENT FRANKS, Arizona BRAD SHERMAN, California LOUIE GOHMERT, Texas TAMMY BALDWIN, Wisconsin JIM JORDAN, Ohio ANTHONY D. WEINER, New York ADAM B. SCHIFF, California ARTUR DAVIS, Alabama DEBBIE WASSERMAN SCHULTZ, Florida KEITH ELLISON, Minnesota PERRY APELBAUM, Staff Director and Chief Counsel JOSEPH GIBSON, Minority Chief Counsel (II) FOREWORD This document contains the Federal Rules of Criminal Proce- dure, as amended to December 1, 2007. The rules have been promul- gated and amended by the United States Supreme Court pursuant to law, and further amended by Acts of Congress. This document has been prepared by the Committee in response to the need for an official up-to-date document containing the latest amendments to the rules. For the convenience of the user, where a rule has been amended a reference to the date the amendment was promulgated and the date the amendment became effective follows the text of the rule. The Committee on Rules of Practice and Procedure and the Ad- visory Committee on the Federal Rules of Criminal Procedure, Ju- dicial Conference of the United States, prepared notes explaining the purpose and intent of the amendments to the rules. The Com- mittee Notes may be found in the Appendix to Title 18, United States Code, following the particular rule to which they relate. Chairman, Committee on the Judiciary. DECEMBER 1, 2007. (III) AUTHORITY FOR PROMULGATION OF RULES TITLE 28, UNITED STATES CODE § 2072. Rules of procedure and evidence; power to prescribe (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any sub- stantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648, eff. Dec. 1, 1988; amended Pub. L. 101–650, title III, §§ 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.) § 2073. Rules of procedure and evidence; method of prescribing (a)(1) The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this sec- tion. (2) The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under sections 2072 and 2075 of this title. Each such committee shall consist of members of the bench and the profes- sional bar, and trial and appellate judges. (b) The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evi- dence under subsection (a) of this section. Such standing commit- tee shall review each recommendation of any other committees so appointed and recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules pro- posed by a committee appointed under subsection (a)(2) of this section as may be necessary to maintain consistency and other- wise promote the interest of justice. (c)(1) Each meeting for the transaction of business under this chapter by any committee appointed under this section shall be open to the public, except when the committee so meeting, in open session and with a majority present, determines that it is in the public interest that all or part of the remainder of the meet- ing on that day shall be closed to the public, and states the reason for so closing the meeting. Minutes of each meeting for the trans- action of business under this chapter shall be maintained by the committee and made available to the public, except that any por- tion of such minutes, relating to a closed meeting and made avail- able to the public, may contain such deletions as may be nec- essary to avoid frustrating the purposes of closing the meeting. (V) VI AUTHORITY FOR PROMULGATION OF RULES (2) Any meeting for the transaction of business under this chap- ter, by a committee appointed under this section, shall be pre- ceded by sufficient notice to enable all interested persons to at- tend. (d) In making a recommendation under this section or under section 2072 or 2075, the body making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minor- ity or other separate views. (e) Failure to comply with this section does not invalidate a rule prescribed under section 2072 or 2075 of this title. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988; amended Pub. L. 103–394, title I, § 104(e), Oct. 22, 1994, 108 Stat. 4110.) § 2074. Rules of procedure and evidence; submission to Congress; effective date (a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to pro- ceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies. (b) Any such rule creating, abolishing, or modifying an evi- dentiary privilege shall have no force or effect unless approved by Act of Congress. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988.) HISTORICAL NOTE The Supreme Court prescribes rules of criminal procedure for the district courts pursuant to section 2072 of Title 28, United States Code, as enacted by Title IV ‘‘Rules Enabling Act’’ of Pub. L. 100–702 (approved November 19, 1988, 102 Stat. 4648), effective De- cember 1, 1988. Pursuant to section 2074 of Title 28, the Supreme Court transmits to Congress (not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective) a copy of the proposed rule. The rule takes effect no earlier than December 1 of the year in which the rule is transmitted unless otherwise provided by law. Prior to enactment of Pub. L. 100–702, the Supreme Court pro- mulgated rules of criminal procedure for the district courts pursu- ant to two sections of Title 18, United States Code. Section 3771 authorized the Court to prescribe rules for all criminal proceed- ings prior to and including verdict, or finding of guilty or not guilty by the court, or plea of guilty. Section 3772 empowered the Court to prescribe rules with respect to all proceedings after ver- dict or finding of guilty by the court, or plea of guilty. Proceedings Prior to and Including Verdict By act of June 29, 1940, ch. 445, 54 Stat. 688 (subsequently 18 United States Code, § 3771), the Supreme Court was authorized to prescribe general rules of criminal procedure prior to and includ- ing verdict, finding of guilty or not guilty by the court, or plea of guilty, in criminal proceedings. The rules, and subsequent amend- ments, were not to take effect until (1) they had been first re- ported to Congress by the Attorney General at the beginning of a regular session and (2) after the close of that session. Under a 1949 amendment to 18 U.S.C., § 3771, the Chief Justice of the United States, instead of the Attorney General, reported the rules to Congress. In 1950, section 3771 was further amended so that amendments to the rules could be reported to Congress not later than May 1 each year and become effective 90 days after being reported. Effective December 1, 1988, section 3771 was re- pealed and supplanted by new sections 2072 and 2074 of Title 28, United States Code, see first paragraph of Historical Note above. The original rules pursuant to act of June 30, 1940, were adopted by order of the Court on December 26, 1944, transmitted to Con- gress by the Attorney General on January 3, 1945, and became ef- fective March 21, 1946 (327 U.S. 821; Cong. Rec., vol. 91, pt. 1, p. 17, Exec. Comm. 4; H. Doc. 12, 79th Cong.). Amendments were adopted by order of the Court dated Decem- ber 27, 1948, transmitted to Congress by the Attorney General on January 3, 1949, and became effective October 20, 1949 (335 U.S. 917, 949; Cong. Rec., vol. 95, pt. 1, p. 13, Exec. Comm. 16; H. Doc. 30, 81st (VII) VIII HISTORICAL NOTE Cong.). The amendments affected Rules 17(e)(2), 41(b)(3), 41(g), 54(a)(1), 54(b), 54(c), 55, 56, and 57(a) and Forms 1–27, inclusive. Further amendments were adopted by order of the Court dated April 9, 1956, transmitted to Congress by the Chief Justice on the same day, and became effective July 8, 1956 (350 U.S. 1017; Cong. Rec., vol. 102, pt. 5, p. 5973, Exec. Comm. 16; H. Doc. 377, 84th Cong.). The amendments affected Rules 41(a), 46(a)(2), 54(a)(1), and 54(c). Further amendments were adopted by order of the Court dated February 28, 1966, transmitted to Congress by the Chief Justice on the same day, and became effective July 1, 1966 (383 U.S. 1087; Cong. Rec., vol. 112, pt. 4, p. 4229, Exec. Comm. 2093; H. Doc. 390, 89th Cong.). The amendments affected Rules 4, 5, 6, 7, 11, 14, 16, 17, 18, 20, 21, 23, 24, 25, 28, 29, 30, 32, 33, 34, 35, 37, 38, 40, 44, 45, 46, 49, 54, 55, and 56, and Form 26, added new Rules 17.1 and 26.1, and re- scinded Rules 19 and 45(c). Further amendments were adopted by the Court by order dated December 4, 1967, transmitted to Congress by the Chief Justice on January 15, 1968, and became effective July 1, 1968, together with the new Federal Rules of Appellate Procedure (389 U.S. 1125; Cong. Rec., vol. 114, pt. 1, p. 113, Exec. Comm. 1361; H. Doc. 204, 90th Cong.). The amendments affected Rules 45(b), 49(c), 56, and 57, and abrogated the chapter heading ‘‘VIII. Appeal’’, Rules 37, 38(b), (c), and 39, and Forms 26 and 27. On March 1, 1971, the Court adopted additional amendments which were transmitted to Congress by the Chief Justice on March 1, 1971. These amendments became effective July 1, 1971 (401 U.S. 1025; Cong. Rec., vol. 117, pt. 4, p. 4629, Exec. Comm. 341; H. Doc. 92–57). The amendments affected Rules 45(a) and 56. Additional amendments were adopted by the Court by order dated April 24, 1972, transmitted to Congress by the Chief Justice, accompanied by his letter of transmittal dated April 24, 1972. These amendments became effective October 1, 1972 (406 U.S. 979; Cong. Rec., vol. 118, pt. 11, p. 14262, Exec. Comm. 1903; H. Doc. 92–285). The amendments affected Rules 1, 3, 4(b), (c), 5, 5.1, 6(b), 7(c), 9(b), (c), (d), 17(a), (g), 31(e), 32(b), 38(a), 40, 41, 44, 46, 50, 54, and 55. Additional amendments were adopted by the Court by order dated March 18, 1974, transmitted to Congress by the Chief Justice on the same date. These amendments became effective July 1, 1974 (415 U.S. 1056; Cong. Rec., vol. 120, pt. 5, p. 7012, Exec. Comm. 2062; H. Doc. 93–241). The amendments affected Rules 41(a) and 50. Further amendments were proposed by the Court in its order dated November 20, 1972, transmitted to Congress by the Chief Jus- tice on February 5, 1973 (409 U.S. 1132 and 419 U.S. 1133, 1136; Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359; H. Doc. 93–46). Al- though these amendments were to have become effective July 1, 1973, Public Law 93–12 (approved March 30, 1973, 87 Stat. 9) pro- vided that the proposed amendments ‘‘shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress.’’ Section 3 of Public Law 93–595 (approved January 2, 1975, 88 Stat. 1949) approved the amendments proposed by the Court, to be effective July 1, 1975. The amendments affected Rules 26, 26.1, and 28. HISTORICAL NOTE IX In its order dated April 22, 1974, the Court proposed additional amendments which were transmitted to Congress by the Chief Justice on the same day. The amendments were to have become effective August 1, 1974 (416 U.S. 1001; Cong. Rec., vol. 120, pt. 9, p. 11472, Exec. Comm. 2223; H. Doc. 93–292). The effective date of the proposed amendments was postponed until August 1, 1975, by Pub- lic Law 93–361 (approved July 30, 1974, 88 Stat. 397). Public Law 94–64 (approved July 31, 1975, 89 Stat. 370) approved the amend- ments proposed by the Court and further amended the rules, to be effective December 1, 1975, except Rule 11(e)(6), to be effective Au- gust 1, 1975. The amendments affected Rules 4, 9(a), 11, 12, 15, 16, 17(f), 20, 32(a), (c), (e), and 43, and added Rules 12.1, 12.2, and 29.1. Technical amendments to Rules 9(b), 9(c), 16(a), and 16(b) were made by section 5 of Public Law 94–149 (approved Dec. 12, 1975, 89 Stat. 806). Additional amendments were proposed by the Court by order dated April 26, 1976, were transmitted to Congress by the Chief Justice on the same day (425 U.S. 1157; Cong. Rec., vol. 122, pt. 9, p. 11117, Exec. Comm. 3084; H. Doc. 94–464), and were to be effective August 1, 1976. Public Law 94–349 (approved July 8, 1976, 90 Stat. 822) delayed the effective date of the amendments to Rules 6(e), 23, 24, and 41(c)(2), and the addition of Rule 40.1 until August 1, 1977, or until and to the extent approved by Act of Congress, whichever is earlier. Also, it approved the amendments to Rules 6(f), 41(a), and 50(b), to be effective August 1, 1976. Public Law 95–78 (approved July 30, 1977, 91 Stat. 319) disapproved the amendment to Rule 24 and the addition of Rule 40.1, approved amendments to Rule 23, and modified and approved amendments to Rules 6(e) and 41(c), to be effective October 1, 1977. Additional amendments were proposed by the Court by order dated April 30, 1979, were transmitted to Congress by the Chief Justice on the same day (441 U.S. 970, 985; Cong. Rec., vol. 125, pt. 8, p. 9366, Exec. Comm. 1456; H. Doc. 96–112), and were to be effec- tive August 1, 1979. Amendments to Rules 6(e), 7(c)(2), 9(a), 11(e)(2), 18, 32(c)(3)(E), 35, and 41(a), (b), and (c) became effective August 1, 1979. Public Law 96–42 (approved July 31, 1979, 93 Stat. 326) delayed the effective date of the amendments to Rules 11(e)(6), 17(h), 32(f), and 44(c), and the addition of new Rules 26.2 and 32.1, until Decem- ber 1, 1980, or until and to the extent approved by Act of Congress, whichever is earlier, and modified and approved the amendment to Rule 40 to be effective August 1, 1979. In the absence of further ac- tion by Congress, the amendments that were the subject of a de- layed effective date pursuant to Public Law 96–42 became effective December 1, 1980. Additional amendments were adopted by the Court by order dated April 28, 1982, transmitted to Congress by the Chief Justice on the same day (456 U.S. 1021; Cong. Rec., vol. 128, pt. 6, p. 8191, Exec. Comm. 3822; H. Doc. 97–173), and became effective August 1, 1982. The amendments affected Rules 1, 5(b), 9(a), (b)(1), (2), (c)(1), (2), 11(c)(1), (4), (5), 20(b), 40(d)(1), (2), 45(a), 54(a), (b)(4), (c), and ab- rogated Rule 9(d). An amendment to Rule 32(c)(2) was made by section 3 of Public Law 97–291 (approved October 12, 1982, 96 Stat. 1249.) Additional amendments were adopted by the Court by order dated April 28, 1983, transmitted to Congress by the Chief Justice X HISTORICAL NOTE on the same day (461 U.S. 1117; Cong. Rec., vol. 129, pt. 8, p. 10479, Exec. Comm. 1028; H. Doc. 98–55), and became effective August 1, 1983. The amendments affected Rules 6(e), (g), 11(a), (h), 12(i), 12.2(b), (c), (d), (e), 16(a), 23(b), 32(a), (c), (d), 35(b), and 55, and abro- gated Rule 58 and the Appendix of Forms. Section 209 of Public Law 98–473 (approved October 12, 1984, 98 Stat. 1986) amended Rules 5(c), 15(a), 40(f), 46(a), (c), (e)(2), and 54(b)(3), and added Rule 46(h). Section 215 of Public Law 98–473 (98 Stat. 2014, as amended) amended Rules 6(e)(3)(C), 32(a)(1), (2), (c)(1) to (3), (d), 35, 38, 40(d)(1), and 54(c), effective on the first day of the first calendar month beginning 36 months after October 12, 1984 (November 1, 1987). Section 404(a) of Public Law 98–473 (98 Stat. 2067) amended Rule 12.2(a). Section 404(b) to (d) of Public Law 98–473 would have amended Rule 12.2(b) to (d), but the amendments by section 404(b) and (d) were repealed by section 11(b) of Public Law 98–596 (ap- proved October 30, 1984, 98 Stat. 3138) and the amendment by sec- tion 404(c) of Public Law 98–473 could not be executed because it directed the deletion of language not found in the text of the Rule [that defect being cured by section 11(a) of Public Law 98–596, which amended Rule 12.2(c) and (d)]. The amendments and repeals by section 11 of Public Law 98–596 are effective on and after the date of enactment of Public Law 98–473 (October 12, 1984). Additional amendments were adopted by the Court by order dated April 29, 1985, transmitted to Congress by the Chief Justice on the same day (471 U.S. 1167; Cong. Rec., vol. 131, pt. 7, p. 9826, Exec. Comm. 1154; H. Doc. 99–64), and became effective August 1, 1985. The amendments affected Rules 6(e)(3), 11(c)(1), 12.1(f), 12.2(e), 35(b), 45(a), 49(e), and 57. The amendment to Rule 35(b) was effec- tive until November 1, 1986, when section 215(b) of Public Law 98–473 (approved October 12, 1984, 98 Stat. 2015) was to go into ef- fect. Section 235(a)(1) of Public Law 98–473, which originally pro- vided for an effective date of November 1, 1986, for the amend- ments made by section 215(b) of Public Law 98–473, was later amended by section 4 of Public Law 99–217 to provide for an effec- tive date of November 1, 1987. Section 1009 of Public Law 99–570 (approved October 27, 1986, 100 Stat. 3207–8) amended Rule 35(b), effective on the date (November 1, 1987) of the taking effect of Rule 35(b) as amended by section 215(b) of Public Law 98–473. Sections 12(b), 24, 25(a), and 54(a) of Public Law 99–646 (approved November 10, 1986, 100 Stat. 3594, 3597, 3607) affected Rules 12.2(c), 29(d), 32(c)(2)(B), and 32.1(b). The amendments to Rules 29(d) and 32.1(b) became effective 30 days after the date of enactment of Public Law 99–646. The amendment to Rule 32(c)(2)(B) became ef- fective November 1, 1987, when the amendment made by section 215(a)(5) of Public Law 98–473 went into effect. Additional amendments were adopted by the Court by order dated March 9, 1987, transmitted to Congress by the Chief Justice on the same day (480 U.S. 1041; Cong. Rec., vol. 133, pt. 4, p. 5256, Exec. Comm. 825; H. Doc. 100–47), and became effective August 1, 1987. The amendments affected Rules 4(c)(1), (d)(3), (4), 5(c), 5.1(a), (c), 6(a), (c), (f), 7(b), (c)(1), (3), 10, 11(a)(2), (c)(2) to (5), (d), (e)(2), (4), 12(h), 12.1(a), (b) to (d), 12.2(a), (b), (d), 15(a) to (e), 16(a)(1)(A) HISTORICAL NOTE XI to (C), (b)(1)(B), (2), (c), 17(a), (d), (g), 17.1, 20, 21(a), (b), 24(a), 25, 26.2(a), (c), (f)(1), 30, 32(a), (c)(3)(A) to (E), 32.1, 33, 38(a)(2), (3), 40(a), (d)(3), (e), (f), 41(c)(1), (e), 42, 43(b), 44(a), (c), 45(e), 46(b), (d), (g), 49(b), and 51. Additional amendments were adopted by the Court by order dated April 25, 1988, transmitted to Congress by the Chief Justice on the same day (485 U.S. 1057; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3516; H. Doc. 100–186), and became effective August 1, 1988. The amendments affected Rules 30 and 56. Sections 6483, 7076, and 7089(c) of Public Law 100–690 (approved November 18, 1988, 102 Stat. 4382, 4406, 4409) amended Rules 11(c)(1) and 54(c), and added Rule 12.3. Additional amendments were adopted by the Court by order dated April 25, 1989, transmitted to Congress by the Chief Justice on the same day (490 U.S. 1135; Cong. Rec., vol. 135, pt. 6, p. 7542, Exec. Comm. 1059; H. Doc. 101–55), and became effective December 1, 1989. The amendments affected Rules 11(c)(1), 32(a), (c), 32.1(a), (b), 40(d), and 41(e). Additional amendments were adopted by the Court by order dated May 1, 1990, transmitted to Congress by the Chief Justice on the same day (495 U.S. 967; Cong. Rec., vol. 136, pt. 6, p. 9091, Ex. Comm. 3098; H. Doc. 101–185), and became effective December 1, 1990. The amendments affected Rules 5(b), 41(a), and 54(b)(4), (c), and added new Rule 58. Additional amendments were adopted by the Court by order dated April 30, 1991, transmitted to Congress by the Chief Justice on the same day (500 U.S. 991; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1191; H. Doc. 102–78), and became effective December 1, 1991. The amendments affected Rules 16(a), 32(c), 32.1(a), 35(b), (c), 46(h), 54(a), and 58(b), (d). Additional amendments were adopted by the Court by order dated April 22, 1993, transmitted to Congress by the Chief Justice on the same day (507 U.S. 1161; Cong. Rec., vol. 139, pt. 6, p. 8127, Ex. Comm. 1103; H. Doc. 103–75), and became effective December 1, 1993. The amendments affected Rules 1, 3, 4(c)(1), (d), 5, 5.1, 6(e)(4), (f), 9(a) to (c), 12(i), 16(a)(1)(E), (2), (b)(1)(C), 17(a), (g), 26.2(c), (d), (g), 32(e), 32.1(c), 40(a), (b), (d), (e), (f), 41(a), (c), (d), (g), 44(a), 46(i), 49(e), 50(b), 54(b)(3), (4), (c), 55, 57, and 58(a)(1), (b)(2), (3), (c)(2), (d)(2), (g)(2), and added new Rule 26.3. Additional amendments were adopted by the Court by order dated April 29, 1994, transmitted to Congress by the Chief Justice on the same day (511 U.S. 1175; Cong. Rec., vol. 140, pt. 7, p. 8903, Ex. Comm. 3084; H. Doc. 103–249), and became effective December 1, 1994. The amendments affected Rules 16(a)(1)(A), 29(b), 32, and 40(d). Sections 230101(b), (c) and 330003(h) of Public Law 103–322 (ap- proved September 13, 1994, 108 Stat. 2078, 2141) affected Rules 32 and 46(i)(1). The amendments to Rule 32 became effective Decem- ber 1, 1994. The amendment to Rule 46 became effective September 13, 1994. Additional amendments were adopted by the Court by order dated April 27, 1995, transmitted to Congress by the Chief Justice on the same day (514 U.S. 1159; Cong. Rec., vol. 141, pt. 8, p. 11745, Ex. Comm. 805; H. Doc. 104–65), and became effective December 1, 1995. The amendments affected Rules 5, 40, 43, 49, and 57. XII HISTORICAL NOTE An additional amendment was adopted by the Court by order dated April 23, 1996, transmitted to Congress by the Chief Justice on the same day (517 U.S. 1285; Cong. Rec., vol. 142, pt. 6, p. 8831, Ex. Comm. 2488; H. Doc. 104–202), and became effective December 1, 1996. The amendment affected Rule 32(d)(2). Sections 207(a) and 211 of Public Law 104–132 (approved April 24, 1996, 110 Stat. 1236, 1241) amended Rule 32(b), effective, to the ex- tent constitutionally permissible, for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of Public Law 104–132. Additional amendments were adopted by the Court by order dated April 11, 1997, transmitted to Congress by the Chief Justice on the same day (520 U.S. 1313; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2796; H. Doc. 105–68), and became effective December 1, 1997. The amendments affected Rules 16 and 58. Additional amendments were adopted by the Court by order dated April 24, 1998, transmitted to Congress by the Chief Justice on the same day (523 U.S. 1227; H. Doc. 105–267), and became effec- tive December 1, 1998. The amendments affected Rules 5.1, 26.2, 31, 33, 35, and 43. Additional amendments were adopted by the Court by order dated April 26, 1999, transmitted to Congress by the Chief Justice on the same day (526 U.S. 1189; Cong. Rec., vol. 145, pt. 6, p. 7907, Ex. Comm. 1788; H. Doc. 106–55), and became effective December 1, 1999. The amendments affected Rules 6, 11, 24, and 54. Additional amendments were adopted by the Court by order dated April 17, 2000, transmitted to Congress by the Chief Justice on the same day (529 U.S. 1179; Cong. Rec., vol. 146, pt. 5, p. 6328, Ex. Comm. 7335; H. Doc. 106–227), and became effective December 1, 2000. The amendments affected Rules 7, 31, 32, and 38, and added new Rule 32.2. Sections 203(a) and 219 of Public Law 107–56 (approved October 26, 2001, 115 Stat. 278, 291) amended Rules 6(e)(3)(C), (D) and 41(a). Additional amendments were adopted by the Court by order dated April 29, 2002, transmitted to Congress by the Chief Justice on the same day (535 U.S. 1157; Cong. Rec., vol. 148, pt. 5, p. 6813, Ex. Comm. 6621; H. Doc. 107–203), and became effective December 1, 2002. The amendments affected Rules 1 to 60. Section 11019(b), (c) of Pub. L. 107–273 (approved November 2, 2002, 116 Stat. 1825, 1826) amended Rule 16(a)(1)(G), (b)(1)(C), effec- tive December 1, 2002. Sections 4 and 895 of Pub. L. 107–296 (approved November 25, 2002, 116 Stat. 2142, 2256) which directed the amendment of Rule 6(e)(2), (3)(A)(ii), (C)(i), (iii), effective 60 days after the date of enactment of Pub. L. 107–296, could not be executed after the amendments of April 29, 2002, effective December 1, 2002. Section 610(b) of Pub. L. 108–21 (approved April 30, 2003, 117 Stat. 692) amended Rule 7(c)(1). An additional amendment was adopted by the Court by order dated April 26, 2004, transmitted to Congress by the Chief Justice on the same day (541 U.S. 1103; Cong. Rec., vol. 150, p. H2482, Daily Issue, Ex. Comm. 7865; H. Doc. 108–182), and became effective De- cember 1, 2004. The amendment affected Rule 35. Section 6501(a) of Pub. L. 108–458 (approved December 17, 2004, 118 Stat. 3760) amended Rule 6(e). HISTORICAL NOTE XIII Additional amendments were adopted by the Court by order dated April 25, 2005, transmitted to Congress by the Chief Justice on the same day (544 U.S. 1181; Cong. Rec., vol. 151, p. H3060, Daily Issue, Ex. Comm. 1905; H. Doc. 109–22), and became effective De- cember 1, 2005. The amendments affected Rules 12.2, 29, 32.1, 33, 34, and 45, and added new Rule 59. Additional amendments were adopted by the Court by order dated April 12, 2006, transmitted to Congress by the Chief Justice on the same day (547 U.S. ——; Cong. Rec., vol. 152, p. H2179, Daily Issue, Ex. Comm. 7316; H. Doc. 109–104), and became effective De- cember 1, 2006. The amendments affected Rules 5, 6, 32.1, 40, 41, and 58. Additional amendments were adopted by the Court by order dated April 30, 2007, transmitted to Congress by the Chief Justice on the same day (550 U.S. ——; Cong. Rec., vol. 153, p. H4208, Daily Issue, Ex. Comm. 1376; H. Doc. 110–26), and became effective De- cember 1, 2007. The amendments affected Rules 11, 32, 35, 45, added a new Rule 49.1, and abrogated the Model Form for Use in 28 U.S.C. § 2254 Cases Involving a Rule 9 Issue. Proceedings After Verdict By act of February 24, 1933, ch. 119, 47 Stat. 904, as amended (sub- sequently 18 United States Code, § 3772), the Supreme Court was authorized to prescribe general rules of criminal procedure with respect to proceedings after verdict or finding of guilty by the court, or plea of guilty, which became effective on dates fixed by the Court. These rules were not required to be submitted to Con- gress. Rules 32 to 39, inclusive, were adopted by order of the Court on February 8, 1946, and became effective on March 21, 1946 (327 U.S. 825). Prior rules promulgated on May 7, 1934 (292 U.S. 659), were not specifically rescinded by that order but were superseded by these later rules. Amendments to Rules 37(a)(1), 38(a)(3), (c), and 39(b)(2) were adopted by order of the Court dated December 27, 1948, and became effective on January 1, 1949 (335 U.S. 917). Additional amendment to Rule 37 was adopted by order of the Court dated April 12, 1954, and became effective on July 1, 1954 (346 U.S. 941). The Court adopted separate Federal Rules of Appellate Proce- dure by order dated December 4, 1967, transmitted to Congress on January 15, 1968, effective July 1, 1968. As noted above, Rules 37, 38(b), (c), and 39, and Forms 26 and 27, were abrogated effective July 1, 1968, by that same order. Effective December 1, 1988, section 3772 of Title 18 was repealed and supplanted by section 2072 of Title 28, United States Code, see first paragraph of Historical Note above. Committee Notes Committee Notes prepared by the Committee on Rules of Prac- tice and Procedure and the Advisory Committee on the Federal Rules of Criminal Procedure, Judicial Conference of the United States, explaining the purpose and intent of the amendments are set out in the Appendix to Title 18, United States Code, following XIV HISTORICAL NOTE the particular rule to which they relate. In addition, the rules and amendments, together with Committee Notes, are set out in the House documents listed above. TABLE OF CONTENTS Page Foreword.............................................................................................................. III Authority for promulgation of rules.................................................................... V Historical note..................................................................................................... VII RULES Title I. Applicability Rule 1. Scope; Definitions.............................................................................. 1 Rule 2. Interpretation.................................................................................... 2 Title II. Preliminary Proceedings Rule 3. The Complaint................................................................................... 2 Rule 4. Arrest Warrant or Summons on a Complaint.................................... 2 Rule 5. Initial Appearance............................................................................. 4 Rule 5.1. Preliminary Hearing....................................................................... 6 Title III. The Grand Jury, the Indictment, and the Information Rule 6. The Grand Jury.................................................................................. 7 Rule 7. The Indictment and the Information................................................. 11 Rule 8. Joinder of Offenses or Defendants..................................................... 12 Rule 9. Arrest Warrant or Summons on an Indictment or Information........ 12 Title IV. Arraignment and Preparation for Trial Rule 10. Arraignment..................................................................................... 13 Rule 11. Pleas................................................................................................. 14 Rule 12. Pleadings and Pretrial Motions....................................................... 16 Rule 12.1. Notice of an Alibi Defense............................................................. 17 Rule 12.2. Notice of an Insanity Defense; Mental Examination..................... 18 Rule 12.3. Notice of a Public-Authority Defense............................................ 20 Rule 12.4. Disclosure Statement.................................................................... 21 Rule 13. Joint Trial of Separate Cases........................................................... 22 Rule 14. Relief from Prejudicial Joinder........................................................ 22 Rule 15. Depositions....................................................................................... 22 Rule 16. Discovery and Inspection................................................................. 23 Rule 17. Subpoena.......................................................................................... 26 Rule 17.1. Pretrial Conference....................................................................... 28 Title V. Venue Rule 18. Place of Prosecution and Trial......................................................... 28 Rule 19. (Reserved) Rule 20. Transfer for Plea and Sentence........................................................ 28 Rule 21. Transfer for Trial............................................................................. 29 Rule 22. (Transferred) Title VI. Trial Rule 23. Jury or Nonjury Trial...................................................................... 29 Rule 24. Trial Jurors...................................................................................... 30 Rule 25. Judge’s Disability............................................................................ 31 Rule 26. Taking Testimony............................................................................ 31 Rule 26.1. Foreign Law Determination.......................................................... 32 Rule 26.2. Producing a Witness’s Statement.................................................. 32 Rule 26.3. Mistrial.......................................................................................... 33 Rule 27. Proving an Official Record............................................................... 33 Rule 28. Interpreters...................................................................................... 33 Rule 29. Motion for a Judgment of Acquittal................................................ 33 Rule 29.1. Closing Argument.......................................................................... 34 Rule 30. Jury Instructions............................................................................. 34 Rule 31. Jury Verdict..................................................................................... 35 Title VII. Post-Conviction Procedures Rule 32. Sentence and Judgment................................................................... 35 Rule 32.1. Revoking or Modifying Probation or Supervised Release.............. 39 (XV) XVI CONTENTS Title VII. Post-Conviction Procedures—Continued Page Rule 32.2. Criminal Forfeiture....................................................................... 41 Rule 33. New Trial.......................................................................................... 43 Rule 34. Arresting Judgment......................................................................... 44 Rule 35. Correcting or Reducing a Sentence.................................................. 44 Rule 36. Clerical Error................................................................................... 45 Rule 37. (Reserved) Rule 38. Staying a Sentence or a Disability.................................................. 45 Rule 39. (Reserved) Title VIII. Supplementary and Special Proceedings Rule 40. Arrest for Failing to Appear in Another District or for Violating Conditions of Release Set in Another District................................. 46 Rule 41. Search and Seizure........................................................................... 46 Rule 42. Criminal Contempt........................................................................... 50 Title IX. General Provisions Rule 43. Defendant’s Presence....................................................................... 51 Rule 44. Right to and Appointment of Counsel.............................................. 52 Rule 45. Computing and Extending Time....................................................... 52 Rule 46. Release from Custody; Supervising Detention................................. 53 Rule 47. Motions and Supporting Affidavits.................................................. 55 Rule 48. Dismissal.......................................................................................... 55 Rule 49. Serving and Filing Papers................................................................ 55 Rule 49.1. Privacy Protection For Filings Made with the Court................... 56 Rule 50. Prompt Disposition.......................................................................... 57 Rule 51. Preserving Claimed Error................................................................ 57 Rule 52. Harmless and Plain Error................................................................. 57 Rule 53. Courtroom Photographing and Broadcasting Prohibited................. 57 Rule 54. (Transferred) Rule 55. Records............................................................................................. 58 Rule 56. When Court Is Open.......................................................................... 58 Rule 57. District Court Rules......................................................................... 58 Rule 58. Petty Offenses and Other Misdemeanors.......................................... 59 Rule 59. Matters Before a Magistrate Judge.................................................. 62 Rule 60. Title................................................................................................. 63 FEDERAL RULES OF CRIMINAL PROCEDURE Effective March 21, 1946, as amended to December 1, 2007 TITLE I. APPLICABILITY Rule 1. Scope; Definitions (a) Scope. (1) In General. These rules govern the procedure in all crimi- nal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States. (2) State or Local Judicial Officer. When a rule so states, it applies to a proceeding before a state or local judicial officer. (3) Territorial Courts. These rules also govern the procedure in all criminal proceedings in the following courts: (A) the district court of Guam; (B) the district court for the Northern Mariana Islands, except as otherwise provided by law; and (C) the district court of the Virgin Islands, except that the prosecution of offenses in that court must be by indict- ment or information as otherwise provided by law. (4) Removed Proceedings. Although these rules govern all proceedings after removal from a state court, state law gov- erns a dismissal by the prosecution. (5) Excluded Proceedings. Proceedings not governed by these rules include: (A) the extradition and rendition of a fugitive; (B) a civil property forfeiture for violating a federal stat- ute; (C) the collection of a fine or penalty; (D) a proceeding under a statute governing juvenile de- linquency to the extent the procedure is inconsistent with the statute, unless Rule 20(d) provides otherwise; (E) a dispute between seamen under 22 U.S.C. §§ 256–258; and (F) a proceeding against a witness in a foreign country under 28 U.S.C. § 1784. (b) Definitions. The following definitions apply to these rules: (1) ‘‘Attorney for the government’’ means: (A) the Attorney General or an authorized assistant; (B) a United States attorney or an authorized assistant; (C) when applicable to cases arising under Guam law, the Guam Attorney General or other person whom Guam law authorizes to act in the matter; and (D) any other attorney authorized by law to conduct pro- ceedings under these rules as a prosecutor. (2) ‘‘Court’’ means a federal judge performing functions au- thorized by law. (1) Rule 2 FEDERAL RULES OF CRIMINAL PROCEDURE 2 (3) ‘‘Federal judge’’ means: (A) a justice or judge of the United States as these terms are defined in 28 U.S.C. § 451; (B) a magistrate judge; and (C) a judge confirmed by the United States Senate and empowered by statute in any commonwealth, territory, or possession to perform a function to which a particular rule relates. (4) ‘‘Judge’’ means a federal judge or a state or local judicial officer. (5) ‘‘Magistrate judge’’ means a United States magistrate judge as defined in 28 U.S.C. §§ 631–639. (6) ‘‘Oath’’ includes an affirmation. (7) ‘‘Organization’’ is defined in 18 U.S.C. § 18. (8) ‘‘Petty offense’’ is defined in 18 U.S.C. § 19. (9) ‘‘State’’ includes the District of Columbia, and any com- monwealth, territory, or possession of the United States. (10) ‘‘State or local judicial officer’’ means: (A) a state or local officer authorized to act under 18 U.S.C. § 3041; and (B) a judicial officer empowered by statute in the Dis- trict of Columbia or in any commonwealth, territory, or possession to perform a function to which a particular rule relates. (c) Authority of a Justice or Judge of the United States. When these rules authorize a magistrate judge to act, any other federal judge may also act. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 2. Interpretation These rules are to be interpreted to provide for the just deter- mination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate un- justifiable expense and delay. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE II. PRELIMINARY PROCEEDINGS Rule 3. The Complaint The complaint is a written statement of the essential facts con- stituting the offense charged. It must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 4. Arrest Warrant or Summons on a Complaint (a) Issuance. If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an of- fense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of an attorney for the government, the 3 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 4 judge must issue a summons, instead of a warrant, to a person au- thorized to serve it. A judge may issue more than one warrant or summons on the same complaint. If a defendant fails to appear in response to a summons, a judge may, and upon request of an at- torney for the government must, issue a warrant. (b) Form. (1) Warrant. A warrant must: (A) contain the defendant’s name or, if it is unknown, a name or description by which the defendant can be identi- fied with reasonable certainty; (B) describe the offense charged in the complaint; (C) command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judi- cial officer; and (D) be signed by a judge. (2) Summons. A summons must be in the same form as a war- rant except that it must require the defendant to appear be- fore a magistrate judge at a stated time and place. (c) Execution or Service, and Return. (1) By Whom. Only a marshal or other authorized officer may execute a warrant. Any person authorized to serve a summons in a federal civil action may serve a summons. (2) Location. A warrant may be executed, or a summons served, within the jurisdiction of the United States or any- where else a federal statute authorizes an arrest. (3) Manner. (A) A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the warrant must show it to the defendant. If the officer does not possess the war- rant, the officer must inform the defendant of the war- rant’s existence and of the offense charged and, at the de- fendant’s request, must show the warrant to the defendant as soon as possible. (B) A summons is served on an individual defendant: (i) by delivering a copy to the defendant personally; or (ii) by leaving a copy at the defendant’s residence or usual place of abode with a person of suitable age and discretion residing at that location and by mailing a copy to the defendant’s last known address. (C) A summons is served on an organization by deliver- ing a copy to an officer, to a managing or general agent, or to another agent appointed or legally authorized to re- ceive service of process. A copy must also be mailed to the organization’s last known address within the district or to its principal place of business elsewhere in the United States. (4) Return. (A) After executing a warrant, the officer must return it to the judge before whom the defendant is brought in ac- cordance with Rule 5. At the request of an attorney for the government, an unexecuted warrant must be brought back to and canceled by a magistrate judge or, if none is reason- ably available, by a state or local judicial officer. Rule 5 FEDERAL RULES OF CRIMINAL PROCEDURE 4 (B) The person to whom a summons was delivered for service must return it on or before the return day. (C) At the request of an attorney for the government, a judge may deliver an unexecuted warrant, an unserved summons, or a copy of the warrant or summons to the marshal or other authorized person for execution or serv- ice. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 5. Initial Appearance (a) In General. (1) Appearance Upon an Arrest. (A) A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial offi- cer as Rule 5(c) provides, unless a statute provides other- wise. (B) A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise. (2) Exceptions. (A) An officer making an arrest under a warrant issued upon a complaint charging solely a violation of 18 U.S.C. § 1073 need not comply with this rule if: (i) the person arrested is transferred without unnec- essary delay to the custody of appropriate state or local authorities in the district of arrest; and (ii) an attorney for the government moves promptly, in the district where the warrant was issued, to dis- miss the complaint. (B) If a defendant is arrested for violating probation or supervised release, Rule 32.1 applies. (C) If a defendant is arrested for failing to appear in an- other district, Rule 40 applies. (3) Appearance Upon a Summons. When a defendant appears in response to a summons under Rule 4, a magistrate judge must proceed under Rule 5(d) or (e), as applicable. (b) Arrest Without a Warrant. If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)’s requirement of prob- able cause must be promptly filed in the district where the offense was allegedly committed. (c) Place of Initial Appearance; Transfer to Another District. (1) Arrest in the District Where the Offense Was Allegedly Committed. If the defendant is arrested in the district where the offense was allegedly committed: (A) the initial appearance must be in that district; and (B) if a magistrate judge is not reasonably available, the initial appearance may be before a state or local judicial officer. (2) Arrest in a District Other Than Where the Offense Was Al- legedly Committed. If the defendant was arrested in a district 5 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 5 other than where the offense was allegedly committed, the ini- tial appearance must be: (A) in the district of arrest; or (B) in an adjacent district if: (i) the appearance can occur more promptly there; or (ii) the offense was allegedly committed there and the initial appearance will occur on the day of arrest. (3) Procedures in a District Other Than Where the Offense Was Allegedly Committed. If the initial appearance occurs in a district other than where the offense was allegedly committed, the following procedures apply: (A) the magistrate judge must inform the defendant about the provisions of Rule 20; (B) if the defendant was arrested without a warrant, the district court where the offense was allegedly committed must first issue a warrant before the magistrate judge transfers the defendant to that district; (C) the magistrate judge must conduct a preliminary hearing if required by Rule 5.1; (D) the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if: (i) the government produces the warrant, a certified copy of the warrant, or a reliable electronic form of ei- ther; and (ii) the judge finds that the defendant is the same person named in the indictment, information, or war- rant; and (E) when a defendant is transferred and discharged, the clerk must promptly transmit the papers and any bail to the clerk in the district where the offense was allegedly committed. (d) Procedure in a Felony Case. (1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following: (A) the complaint against the defendant, and any affida- vit filed with it; (B) the defendant’s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel; (C) the circumstances, if any, under which the defendant may secure pretrial release; (D) any right to a preliminary hearing; and (E) the defendant’s right not to make a statement, and that any statement made may be used against the defend- ant. (2) Consulting with Counsel. The judge must allow the de- fendant reasonable opportunity to consult with counsel. (3) Detention or Release. The judge must detain or release the defendant as provided by statute or these rules. (4) Plea. A defendant may be asked to plead only under Rule 10. (e) Procedure in a Misdemeanor Case. If the defendant is charged with a misdemeanor only, the judge must inform the de- fendant in accordance with Rule 58(b)(2). Rule 5.1 FEDERAL RULES OF CRIMINAL PROCEDURE 6 (f) Video Teleconferencing. Video teleconferencing may be used to conduct an appearance under this rule if the defendant con- sents. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1982, eff. Aug. 1, 1982; Oct. 12, 1984; Mar. 9, 1987, eff. Aug. 1, 1987; May 1, 1990, eff. Dec. 1, 1990; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule 5.1. Preliminary Hearing (a) In General. If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a prelimi- nary hearing unless: (1) the defendant waives the hearing; (2) the defendant is indicted; (3) the government files an information under Rule 7(b) charging the defendant with a felony; (4) the government files an information charging the defend- ant with a misdemeanor; or (5) the defendant is charged with a misdemeanor and con- sents to trial before a magistrate judge. (b) Selecting a District. A defendant arrested in a district other than where the offense was allegedly committed may elect to have the preliminary hearing conducted in the district where the pros- ecution is pending. (c) Scheduling. The magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 10 days after the initial appearance if the defendant is in custody and no later than 20 days if not in custody. (d) Extending the Time. With the defendant’s consent and upon a showing of good cause—taking into account the public interest in the prompt disposition of criminal cases—a magistrate judge may extend the time limits in Rule 5.1(c) one or more times. If the defendant does not consent, the magistrate judge may extend the time limits only on a showing that extraordinary circumstances exist and justice requires the delay. (e) Hearing and Finding. At the preliminary hearing, the defend- ant may cross-examine adverse witnesses and may introduce evi- dence but may not object to evidence on the ground that it was unlawfully acquired. If the magistrate judge finds probable cause to believe an offense has been committed and the defendant com- mitted it, the magistrate judge must promptly require the defend- ant to appear for further proceedings. (f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the de- fendant committed it, the magistrate judge must dismiss the com- plaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense. (g) Recording the Proceedings. The preliminary hearing must be recorded by a court reporter or by a suitable recording device. A recording of the proceeding may be made available to any party upon request. A copy of the recording and a transcript may be pro- vided to any party upon request and upon any payment required by applicable Judicial Conference regulations. 7 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 6 (h) Producing a Statement. (1) In General. Rule 26.2(a)–(d) and (f) applies at any hearing under this rule, unless the magistrate judge for good cause rules otherwise in a particular case. (2) Sanctions for Not Producing a Statement. If a party dis- obeys a Rule 26.2 order to deliver a statement to the moving party, the magistrate judge must not consider the testimony of a witness whose statement is withheld. (As added Apr. 24, 1972, eff. Oct. 1, 1972; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE III. THE GRAND JURY, THE INDICTMENT, AND THE INFORMATION Rule 6. The Grand Jury (a) Summoning a Grand Jury. (1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement. (2) Alternate Jurors. When a grand jury is selected, the court may also select alternate jurors. Alternate jurors must have the same qualifications and be selected in the same manner as any other juror. Alternate jurors replace jurors in the same se- quence in which the alternates were selected. An alternate juror who replaces a juror is subject to the same challenges, takes the same oath, and has the same authority as the other jurors. (b) Objection to the Grand Jury or to a Grand Juror. (1) Challenges. Either the government or a defendant may challenge the grand jury on the ground that it was not law- fully drawn, summoned, or selected, and may challenge an in- dividual juror on the ground that the juror is not legally qualified. (2) Motion to Dismiss an Indictment. A party may move to dismiss the indictment based on an objection to the grand jury or on an individual juror’s lack of legal qualification, unless the court has previously ruled on the same objection under Rule 6(b)(1). The motion to dismiss is governed by 28 U.S.C. § 1867(e). The court must not dismiss the indictment on the ground that a grand juror was not legally qualified if the record shows that at least 12 qualified jurors concurred in the indictment. (c) Foreperson and Deputy Foreperson. The court will appoint one juror as the foreperson and another as the deputy foreperson. In the foreperson’s absence, the deputy foreperson will act as the foreperson. The foreperson may administer oaths and affirmations and will sign all indictments. The foreperson—or another juror designated by the foreperson—will record the number of jurors concurring in every indictment and will file the record with the clerk, but the record may not be made public unless the court so orders. Rule 6 FEDERAL RULES OF CRIMINAL PROCEDURE 8 (d) Who May Be Present. (1) While the Grand Jury Is in Session. The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a record- ing device. (2) During Deliberations and Voting. No person other than the jurors, and any interpreter needed to assist a hearing-im- paired or speech-impaired juror, may be present while the grand jury is deliberating or voting. (e) Recording and Disclosing the Proceedings. (1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a court reporter or by a suitable recording device. But the valid- ity of a prosecution is not affected by the unintentional fail- ure to make a recording. Unless the court orders otherwise, an attorney for the government will retain control of the record- ing, the reporter’s notes, and any transcript prepared from those notes. (2) Secrecy. (A) No obligation of secrecy may be imposed on any per- son except in accordance with Rule 6(e)(2)(B). (B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury: (i) a grand juror; (ii) an interpreter; (iii) a court reporter; (iv) an operator of a recording device; (v) a person who transcribes recorded testimony; (vi) an attorney for the government; or (vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii). (3) Exceptions. (A) Disclosure of a grand-jury matter—other than the grand jury’s deliberations or any grand juror’s vote—may be made to: (i) an attorney for the government for use in per- forming that attorney’s duty; (ii) any government personnel—including those of a state, state subdivision, Indian tribe, or foreign gov- ernment—that an attorney for the government consid- ers necessary to assist in performing that attorney’s duty to enforce federal criminal law; or (iii) a person authorized by 18 U.S.C. § 3322. (B) A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information only to assist an attorney for the government in performing that attor- ney’s duty to enforce federal criminal law. An attorney for the government must promptly provide the court that im- paneled the grand jury with the names of all persons to whom a disclosure has been made, and must certify that the attorney has advised those persons of their obligation of secrecy under this rule. (C) An attorney for the government may disclose any grand-jury matter to another federal grand jury. 9 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 6 (D) An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counter- intelligence (as defined in 50 U.S.C. § 401a), or foreign intel- ligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, im- migration, national defense, or national security official to assist the official receiving the information in the per- formance of that official’s duties. An attorney for the gov- ernment may also disclose any grand-jury matter involv- ing, within the United States or elsewhere, a threat of at- tack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate federal, state, state sub- division, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities. (i) Any official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information. Any state, state subdivision, Indian trib- al, or foreign government official who receives infor- mation under Rule 6(e)(3)(D) may use the information only in a manner consistent with any guidelines issued by the Attorney General and the Director of National Intelligence. (ii) Within a reasonable time after disclosure is made under Rule 6(e)(3)(D), an attorney for the government must file, under seal, a notice with the court in the district where the grand jury convened stating that such information was disclosed and the departments, agencies, or entities to which the disclosure was made. (iii) As used in Rule 6(e)(3)(D), the term ‘‘foreign in- telligence information’’ means: (a) information, whether or not it concerns a United States person, that relates to the ability of the United States to protect against— actual or potential attack or other grave hos- tile acts of a foreign power or its agent; sabotage or international terrorism by a for- eign power or its agent; or clandestine intelligence activities by an intel- ligence service or network of a foreign power or by its agent; or (b) information, whether or not it concerns a United States person, with respect to a foreign power or foreign territory that relates to— the national defense or the security of the United States; or the conduct of the foreign affairs of the United States. Rule 6 FEDERAL RULES OF CRIMINAL PROCEDURE 10 (E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it di- rects—of a grand-jury matter: (i) preliminarily to or in connection with a judicial proceeding; (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury; (iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation; (iv) at the request of the government if it shows that the matter may disclose a violation of State, Indian tribal, or foreign criminal law, as long as the disclo- sure is to an appropriate state, state-subdivision, In- dian tribal, or foreign government official for the pur- pose of enforcing that law; or (v) at the request of the government if it shows that the matter may disclose a violation of military crimi- nal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military of- ficial for the purpose of enforcing that law. (F) A petition to disclose a grand-jury matter under Rule 6(e)(3)(E)(i) must be filed in the district where the grand jury convened. Unless the hearing is ex parte—as it may be when the government is the petitioner—the petitioner must serve the petition on, and the court must afford a reasonable opportunity to appear and be heard to: (i) an attorney for the government; (ii) the parties to the judicial proceeding; and (iii) any other person whom the court may designate. (G) If the petition to disclose arises out of a judicial pro- ceeding in another district, the petitioned court must transfer the petition to the other court unless the peti- tioned court can reasonably determine whether disclosure is proper. If the petitioned court decides to transfer, it must send to the transferee court the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand-jury secrecy. The transferee court must afford those persons identified in Rule 6(e)(3)(F) a reasonable opportunity to appear and be heard. (4) Sealed Indictment. The magistrate judge to whom an in- dictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment’s existence except as nec- essary to issue or execute a warrant or summons. (5) Closed Hearing. Subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent disclosure of a matter occur- ring before a grand jury. (6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the ex- tent and as long as necessary to prevent the unauthorized dis- closure of a matter occurring before a grand jury. 11 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 7 (7) Contempt. A knowing violation of Rule 6, or of any guide- lines jointly issued by the Attorney General and the Director of National Intelligence under Rule 6, may be punished as a contempt of court. (f) Indictment and Return. A grand jury may indict only if at least 12 jurors concur. The grand jury—or its foreperson or deputy foreperson—must return the indictment to a magistrate judge in open court. If a complaint or information is pending against the defendant and 12 jurors do not concur in the indictment, the fore- person must promptly and in writing report the lack of concur- rence to the magistrate judge. (g) Discharging the Grand Jury. A grand jury must serve until the court discharges it, but it may serve more than 18 months only if the court, having determined that an extension is in the public interest, extends the grand jury’s service. An extension may be granted for no more than 6 months, except as otherwise provided by statute. (h) Excusing a Juror. At any time, for good cause, the court may excuse a juror either temporarily or permanently, and if perma- nently, the court may impanel an alternate juror in place of the excused juror. (i) ‘‘Indian Tribe’’ Defined. ‘‘Indian tribe’’ means an Indian tribe recognized by the Secretary of the Interior on a list published in the Federal Register under 25 U.S.C. § 479a–1. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; July 30, 1977, eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, eff. Nov. 1, 1987; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 1999, eff. Dec. 1, 1999; Oct. 26, 2001; Apr. 29, 2002, eff. Dec. 1, 2002; Nov. 25, 2002; Dec. 17, 2004; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule 7. The Indictment and the Information (a) When Used. (1) Felony. An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year. (2) Misdemeanor. An offense punishable by imprisonment for one year or less may be prosecuted in accordance with Rule 58(b)(1). (b) Waiving Indictment. An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant’s rights—waives prosecution by indictment. (c) Nature and Contents. (1) In General. The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion. A count may incorporate by ref- erence an allegation made in another count. A count may al- lege that the means by which the defendant committed the of- fense are unknown or that the defendant committed it by one Rule 8 FEDERAL RULES OF CRIMINAL PROCEDURE 12 or more specified means. For each count, the indictment or in- formation must give the official or customary citation of the statute, rule, regulation, or other provision of law that the de- fendant is alleged to have violated. For purposes of an indict- ment referred to in section 3282 of title 18, United States Code, for which the identity of the defendant is unknown, it shall be sufficient for the indictment to describe the defendant as an individual whose name is unknown, but who has a particular DNA profile, as that term is defined in section 3282. (2) Criminal Forfeiture. No judgment of forfeiture may be en- tered in a criminal proceeding unless the indictment or the in- formation provides notice that the defendant has an interest in property that is subject to forfeiture in accordance with the applicable statute. (3) Citation Error. Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a cita- tion’s omission is a ground to dismiss the indictment or infor- mation or to reverse a conviction. (d) Surplusage. Upon the defendant’s motion, the court may strike surplusage from the indictment or information. (e) Amending an Information. Unless an additional or different offense is charged or a substantial right of the defendant is preju- diced, the court may permit an information to be amended at any time before the verdict or finding. (f) Bill of Particulars. The court may direct the government to file a bill of particulars. The defendant may move for a bill of par- ticulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2003.) Rule 8. Joinder of Offenses or Defendants (a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both— are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a com- mon scheme or plan. (b) Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to have partici- pated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defend- ants may be charged in one or more counts together or separately. All defendants need not be charged in each count. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 9. Arrest Warrant or Summons on an Indictment or Informa- tion (a) Issuance. The court must issue a warrant—or at the govern- ment’s request, a summons—for each defendant named in an in- dictment or named in an information if one or more affidavits ac- companying the information establish probable cause to believe 13 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 10 that an offense has been committed and that the defendant com- mitted it. The court may issue more than one warrant or sum- mons for the same defendant. If a defendant fails to appear in re- sponse to a summons, the court may, and upon request of an at- torney for the government must, issue a warrant. The court must issue the arrest warrant to an officer authorized to execute it or the summons to a person authorized to serve it. (b) Form. (1) Warrant. The warrant must conform to Rule 4(b)(1) ex- cept that it must be signed by the clerk and must describe the offense charged in the indictment or information. (2) Summons. The summons must be in the same form as a warrant except that it must require the defendant to appear before the court at a stated time and place. (c) Execution or Service; Return; Initial Appearance. (1) Execution or Service. (A) The warrant must be executed or the summons served as provided in Rule 4(c)(1), (2), and (3). (B) The officer executing the warrant must proceed in accordance with Rule 5(a)(1). (2) Return. A warrant or summons must be returned in ac- cordance with Rule 4(c)(4). (3) Initial Appearance. When an arrested or summoned de- fendant first appears before the court, the judge must proceed under Rule 5. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Dec. 12, 1975; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL Rule 10. Arraignment (a) In General. An arraignment must be conducted in open court and must consist of: (1) ensuring that the defendant has a copy of the indictment or information; (2) reading the indictment or information to the defendant or stating to the defendant the substance of the charge; and then (3) asking the defendant to plead to the indictment or infor- mation. (b) Waiving Appearance. A defendant need not be present for the arraignment if: (1) the defendant has been charged by indictment or mis- demeanor information; (2) the defendant, in a written waiver signed by both the de- fendant and defense counsel, has waived appearance and has affirmed that the defendant received a copy of the indictment or information and that the plea is not guilty; and (3) the court accepts the waiver. (c) Video Teleconferencing. Video teleconferencing may be used to arraign a defendant if the defendant consents. (As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 11 FEDERAL RULES OF CRIMINAL PROCEDURE 14 Rule 11. Pleas (a) Entering a Plea. (1) In General. A defendant may plead not guilty, guilty, or (with the court’s consent) nolo contendere. (2) Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. (3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties’ views and the public interest in the effective administration of justice. (4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty. (b) Considering and Accepting a Guilty or Nolo Contendere Plea. (1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defend- ant personally in open court. During this address, the court must inform the defendant of, and determine that the defend- ant understands, the following: (A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any state- ment that the defendant gives under oath; (B) the right to plead not guilty, or having already so pleaded, to persist in that plea; (C) the right to a jury trial; (D) the right to be represented by counsel—and if nec- essary have the court appoint counsel—at trial and at every other stage of the proceeding; (E) the right at trial to confront and cross-examine ad- verse witnesses, to be protected from compelled self-in- crimination, to testify and present evidence, and to com- pel the attendance of witnesses; (F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere; (G) the nature of each charge to which the defendant is pleading; (H) any maximum possible penalty, including imprison- ment, fine, and term of supervised release; (I) any mandatory minimum penalty; (J) any applicable forfeiture; (K) the court’s authority to order restitution; (L) the court’s obligation to impose a special assess- ment; (M) in determining a sentence, the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sen- tencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a); and (N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence. 15 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 11 (2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement). (3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. (c) Plea Agreement Procedure. (1) In General. An attorney for the government and the de- fendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or re- lated offense, the plea agreement may specify that an attor- ney for the government will: (A) not bring, or will move to dismiss, other charges; (B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentenc- ing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particu- lar provision of the Sentencing Guidelines, or policy state- ment, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement). (2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, un- less the court for good cause allows the parties to disclose the plea agreement in camera. (3) Judicial Consideration of a Plea Agreement. (A) To the extent the plea agreement is of the type speci- fied in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report. (B) To the extent the plea agreement is of the type speci- fied in Rule 11(c)(1)(B), the court must advise the defend- ant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or re- quest. (4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgment. (5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera): (A) inform the parties that the court rejects the plea agreement; (B) advise the defendant personally that the court is not required to follow the plea agreement and give the defend- ant an opportunity to withdraw the plea; and Rule 12 FEDERAL RULES OF CRIMINAL PROCEDURE 16 (C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favor- ably toward the defendant than the plea agreement con- templated. (d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere: (1) before the court accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but before it imposes sentence if: (A) the court rejects a plea agreement under Rule 11(c)(5); or (B) the defendant can show a fair and just reason for re- questing the withdrawal. (e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack. (f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410. (g) Recording the Proceedings. The proceedings during which the defendant enters a plea must be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant required under Rule 11(b) and (c). (h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Aug. 1 and Dec. 1, 1975; Apr. 30, 1979, eff. Aug. 1, 1979, and Dec. 1, 1980; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Nov. 18, 1988; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 12. Pleadings and Pretrial Motions (a) Pleadings. The pleadings in a criminal proceeding are the in- dictment, the information, and the pleas of not guilty, guilty, and nolo contendere. (b) Pretrial Motions. (1) In General. Rule 47 applies to a pretrial motion. (2) Motions That May Be Made Before Trial. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue. (3) Motions That Must Be Made Before Trial. The following must be raised before trial: (A) a motion alleging a defect in instituting the prosecu- tion; (B) a motion alleging a defect in the indictment or infor- mation—but at any time while the case is pending, the 17 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 12.1 court may hear a claim that the indictment or informa- tion fails to invoke the court’s jurisdiction or to state an offense; (C) a motion to suppress evidence; (D) a Rule 14 motion to sever charges or defendants; and (E) a Rule 16 motion for discovery. (4) Notice of the Government’s Intent to Use Evidence. (A) At the Government’s Discretion. At the arraignment or as soon afterward as practicable, the government may no- tify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to ob- ject before trial under Rule 12(b)(3)(C). (B) At the Defendant’s Request. At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government’s intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16. (c) Motion Deadline. The court may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing. (d) Ruling on a Motion. The court must decide every pretrial mo- tion before trial unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party’s right to appeal. When factual issues are involved in deciding a motion, the court must state its essen- tial findings on the record. (e) Waiver of a Defense, Objection, or Request. A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver. (f) Recording the Proceedings. All proceedings at a motion hear- ing, including any findings of fact and conclusions of law made orally by the court, must be recorded by a court reporter or a suit- able recording device. (g) Defendant’s Continued Custody or Release Status. If the court grants a motion to dismiss based on a defect in instituting the prosecution, in the indictment, or in the information, it may order the defendant to be released or detained under 18 U.S.C. § 3142 for a specified time until a new indictment or information is filed. This rule does not affect any federal statutory period of limitations. (h) Producing Statements at a Suppression Hearing. Rule 26.2 ap- plies at a suppression hearing under Rule 12(b)(3)(C). At a suppres- sion hearing, a law enforcement officer is considered a govern- ment witness. (As amended Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 12.1. Notice of an Alibi Defense (a) Government’s Request for Notice and Defendant’s Response. (1) Government’s Request. An attorney for the government may request in writing that the defendant notify an attorney Rule 12.2 FEDERAL RULES OF CRIMINAL PROCEDURE 18 for the government of any intended alibi defense. The request must state the time, date, and place of the alleged offense. (2) Defendant’s Response. Within 10 days after the request, or at some other time the court sets, the defendant must serve written notice on an attorney for the government of any in- tended alibi defense. The defendant’s notice must state: (A) each specific place where the defendant claims to have been at the time of the alleged offense; and (B) the name, address, and telephone number of each alibi witness on whom the defendant intends to rely. (b) Disclosing Government Witnesses. (1) Disclosure. If the defendant serves a Rule 12.1(a)(2) notice, an attorney for the government must disclose in writing to the defendant or the defendant’s attorney: (A) the name, address, and telephone number of each witness the government intends to rely on to establish the defendant’s presence at the scene of the alleged offense; and (B) each government rebuttal witness to the defendant’s alibi defense. (2) Time to Disclose. Unless the court directs otherwise, an attorney for the government must give its Rule 12.1(b)(1) dis- closure within 10 days after the defendant serves notice of an intended alibi defense under Rule 12.1(a)(2), but no later than 10 days before trial. (c) Continuing Duty to Disclose. Both an attorney for the gov- ernment and the defendant must promptly disclose in writing to the other party the name, address, and telephone number of each additional witness if: (1) the disclosing party learns of the witness before or during trial; and (2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness earlier. (d) Exceptions. For good cause, the court may grant an excep- tion to any requirement of Rule 12.1(a)–(c). (e) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the defendant’s alibi. This rule does not limit the de- fendant’s right to testify. (f) Inadmissibility of Withdrawn Intention. Evidence of an inten- tion to rely on an alibi defense, later withdrawn, or of a statement made in connection with that intention, is not, in any civil or criminal proceeding, admissible against the person who gave no- tice of the intention. (As added Apr. 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975, eff. Dec. 1, 1975; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 12.2. Notice of an Insanity Defense; Mental Examination (a) Notice of an Insanity Defense. A defendant who intends to as- sert a defense of insanity at the time of the alleged offense must so notify an attorney for the government in writing within the time provided for filing a pretrial motion, or at any later time the court sets, and file a copy of the notice with the clerk. A defend- ant who fails to do so cannot rely on an insanity defense. The 19 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 12.2 court may, for good cause, allow the defendant to file the notice late, grant additional trial-preparation time, or make other ap- propriate orders. (b) Notice of Expert Evidence of a Mental Condition. If a defend- ant intends to introduce expert evidence relating to a mental dis- ease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punish- ment in a capital case, the defendant must—within the time pro- vided for filing a pretrial motion or at any later time the court sets—notify an attorney for the government in writing of this in- tention and file a copy of the notice with the clerk. The court may, for good cause, allow the defendant to file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders. (c) Mental Examination. (1) Authority to Order an Examination; Procedures. (A) The court may order the defendant to submit to a competency examination under 18 U.S.C. § 4241. (B) If the defendant provides notice under Rule 12.2(a), the court must, upon the government’s motion, order the defendant to be examined under 18 U.S.C. § 4242. If the de- fendant provides notice under Rule 12.2(b) the court may, upon the gov

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