Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/crimpro1.asc

Text File | 1993-07-23 | 50.4 KB | 1,073 lines

/* Welcome to the federal rules of criminal procedure together
with our annotations. */
I.  SCOPE, PURPOSE AND CONSTRUCTION

Rule 1.  Scope

These rules govern the procedure in all criminal proceedings in
the courts of the United States, as provided in Rule 54(a); and,
whenever specifically provided in one of the rules, to
preliminary, supplementary, and special proceedings before United
States magistrates and at proceedings before state and local
judicial officers.

Rule 2.  Purpose and Construction

These rules are intended to provide for the just determination of
every criminal proceeding.  They shall be construed to secure
simplicity in procedure, fairness in administration and the
elimination of unjustifiable expense and delay.

II.  PRELIMINARY PROCEEDINGS

Rule 3.  The Complaint

The complaint is a written statement of the essential facts
constituting the offense charged.  It shall be made upon oath
before a magistrate.

Rule 4.  Warrant or Summons upon Complaint

(a) Issuance.  If it appears from the complaint, or from an
affidavit or affidavits filed with the complaint, that there is
probable cause to believe that an offense has been committed and
that the defendant has committed it, a warrant for the arrest of
the defendant shall issue to any officer authorized by law to
execute it.  Upon the request of the attorney for the government
a summons instead of a warrant shall issue.  More than one
warrant or summons may issue on the same complaint.  If a
defendant fails to appear in response to the summons, a warrant
shall issue.

(b) Probable cause.  The finding of probably cause may be based
upon hearsay evidence in whole or in part.

(c) Form.

    (1) Warrant.  The warrant shall be signed by the magistrate
and shall contain the name of the defendant or, if the
defendant's name is unknown, any name or description  by
which the defendant can be identified with reasonable
certainty.  It shall describe the offense charged in the
complaint.  It shall command that the defendant be arrested
and brought before the nearest available magistrate.


    (2) Summons.  The summons shall be in the same form as the
warrant except that it shall summon the defendant to appear
before a magistrate at a stated time and place.

(d) Execution or service; and return.

    (1) By whom.  The warrant shall be executed by a marshal or
by some other officer authorized by law.  The summons may be
served by any person authorized to serve a summons in a
civil action.

    (2) Territorial limits.  The warrant may be executed or the
summons may be served at any place within the jurisdiction
of the United States.

    (3) Manner.  The warrant shall be executed by the arrest of
the defendant.  The officer need not have the warrant at the
time of the arrest by upon request shall show the warrant to
the defendant as soon as possible.  If the officer does not
have the warrant at the time of the arrest, the officer
shall then inform the defendant of the offense charged and
of the fact that a warrant has been issued.  The summons
shall be served upon a defendant by delivering a copy to the
defendant personally, or by leaving it at the defendant's
dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein and by
mailing a copy of the summons to the defendant's last known
address.

    (4) Return.  The officer executing a warrant shall make
return thereof to the magistrate or other officer before
whom the defendant is brought pursuant to Rule 5.  At the
request of the attorney for the government any unexecuted
warrant shall be returned to and canceled by the magistrate
by whom it was issued.  On or before the return day the
person to whom a summons was delivered for service shall
make return thereof to the magistrate before whom the
summons is returnable.  At the request of the attorney for
the government made at any time while the complaint is
pending, a warrant returned unexecuted and not canceled or a
summons returned unserved or a duplicate thereof may be
delivered by the magistrate to the marshal or other
authorized person for execution or service.

Rule 5.  Initial Appearance Before the Magistrate

(a) In general.  An officer making an arrest under a warrant
issued upon a complaint or any person making an arrest without a
warrant shall take the arrested person without unnecessary delay
before the nearest available federal magistrate or , in the event
that a federal magistrate is not reasonable available, before a
state or local judicial officer authorized by 18 USC 3041.  If a
person arrested without a warrant is brought before a magistrate,
a complaint shall be filed forthwith which shall comply with the
requirements of Rule 4(a) with respect to the showing of probably
cause.  When a person, arrested with or without a warrant or
given a summons, appears initially before the magistrate, the
magistrate shall proceed in accordance with the applicable
subdivisions of this rule.

(b) Misdemeanors and other petty offenses.  If the charge against
the defendant is a misdemeanor or other petty offense triable by
a United States magistrate under 18 USC 3401, the magistrate
shall proceed in accordance with Rule 58.

(c) Offenses not triable by the United States Magistrate.  If the
charge against the defendant is not triable by the United States
magistrate, the defendant shall not be called upon to plead.  The
magistrate shall inform the defendant of the complaint against
the defendant and of any affidavit filed therewith, of the
defendant's right to retain counsel or to request the assignment
of counsel if the defendant is unable to obtain counsel, and of
the general circumstances under which the defendant may secure
pretrial release.  The magistrate shall inform the defendant that
the defendant is not required to make a statement and that any
statement  made by the defendant may be used against the
defendant.  The magistrate shall also inform the defendant of the
right to a preliminary examination.  The magistrate shall allow
the defendant reasonable time and opportunity to consult counsel
and shall detain or conditionally release the defendant as
provided by statute or in these rules.

A defendant is entitled to a preliminary examination, unless
waived, when charged with any offense, other than a petty
offense, which is to be tried by a judge of the district court.
If the defendant waived preliminary examination, the magistrate
shall forthwith hold the defendant to answer in the district
court.  If the defendant does not waive the preliminary
examination.  Such examination shall be held within a reasonable
time but in any event not later than 10 days following the
initial appearance if the defendant is not in custody, and no
later than 20 days if the defendant is not in custody, provided,
however, that the preliminary examination shall not be held if
the defendant is indicted or if an information against the
defendant is filed in district court before the date set for the
preliminary examination.  With the consent of the defendant and
upon a showing of good cause, taking into account the public
interest in the prompt disposition of criminal cases, time limits
specified in this subdivision may be extended one or more times
by a federal magistrate.  In the absence of such consent by the
defendant, time limited may be extended by a judge of the United
States only upon a showing that extraordinary circumstances exist
and that delay is indispensable to the interest of justice.
(Amended August 1, 1987; December 1, 1990)


Rule 5.1 Preliminary Examination

(a) Probable cause finding.  If from the evidence it appears that
there is probably cause to believe that an offense has been
committed and that the defendant committed it, the federal
magistrate shall forthwith hold the defendant to answer in
district court.  The finding of probably cause may be based upon
hearsay evidence in whole or in part.  The defendant may cross-
examine adverse witnesses and may introduce evidence.  Objections
to evidence on the ground that it was acquired by unlawful means
are not properly made at the preliminary examination.  Motions to
suppress must be made to the trial court as provided in Rule 12.

/* A pro forma rule. The odds of a court failing to find probable
cause are slim and none. However, criminal lawyers look on these
hearings as a chance to learn something about the government's
case. */

(b)  Discharge of defendant.  If from the evidence it appears
that there is no probably cause to believe that an offense has
been committed or that the defendant committed it, the federal
magistrate shall dismiss the complaint and discharge the
defendant.  The discharge of the defendant shall not precluded
the government from instituting a subsequent prosecution for the
same offense.

(c)  Records.  After concluding the proceeding the federal
magistrate shall transmit forthwith to the clerk of the district
court all papers in the proceeding.   The magistrate shall
promptly make or cause to be made a record or summary of such
proceeding.

    (1) On timely application to a federal magistrate, the
attorney for a defendant in a criminal case may be given the
opportunity to have the recording of the hearing on
preliminary examination made available to that attorney in
connection with any further hearing or preparation for
trial.  The court may, by local rule, appoint the place for
and define the conditions under which such opportunity may
be afforded counsel.

    (2) On application of a defendant addressed to the court or
any judge thereof, an order may issue that the federal
magistrate make available a copy of the transcript, or of a
portion thereof, to defense counsel.  Such order shall
provide for prepayment of costs of such transcript by the
defendant unless the defendant makes a sufficient affidavit
that the defendant is unable to pay or to give security
therefor, in which case the expense shall be paid by the
Director of the Administrative Office of the United States
Courts from available appropriate funds.  Counsel for the
government may move also that a copy of the transcript, in
whole or in part, be made available to it, for good cause
show, and an order may be entered granting such motion in
whole or in part, on appropriate terms, except that the
government need not prepay costs nor furnish security
therefor.

    (Amended August 1, 1987.)

III.  INDICTMENT AND INFORMATION

Rule 6.  The Grand Jury

(a) Summoning grand juries.

    (1) Generally.  The court shall order one or more grand
juries to be summoned at such time as the public interest
requires.  The grand jury shall consist of not less that 16
nor more than 23 members.  The court shall direct that a
sufficient number of legally qualified persons be summoned
to meet this requirement.

    (2) Alternate jurors.  The court may direct that alternate
jurors may be designated at the time a grand jury is
selected.  Alternate jurors in the order in which they were
designated may thereafter be impanelled as provided in
subdivision (g) of this rule.  Alternate jurors shall be
drawn in the same manner and shall have the same
qualifications as the regular jurors, and if impanelled
shall be subject to the same challenges, shall take the same
oath and shall have the same functions, powers, facilities
and privileges as the regular jurors.

(b) Objections to grand jury and to grand jurors.

    (1) Challenges.  The attorney for the government or a
defendant who has been held to answer in the district court
may challenge the array of jurors on the ground that the
grand jury was not selected, drawn or summoned in accordance
with law, and may challenge an individual juror on the
ground that the juror is not legally qualified.  Challenges
shall be made before the administration of the oath to the
jurors and shall be tried by the court.

/* Another rare circumstance. Courts generally go to great
lengths to get a proper grand jury. */

    (2) Motion to Dismiss.  A motion to dismiss the indictment
may be based on objections to the array or on the lack of legal
qualification of an individual juror, if not previously
determined upon challenge.  It shall be made in the manner
prescribed in 28 USC 1867(e) and shall be granted under the
conditions prescribed in that statute.  An indictment shall not
be dismissed on the ground that one or more members of the grand
jury were not legally qualified if it appears from the record
kept pursuant to subdivision (c) of this rule that 12 or more
jurors, after deducting the number not legally qualified,
concurred in finding the indictment.

(c) Foreperson and deputy foreperson.  The court shall appoint
one of the jurors to be foreperson and another to be deputy
foreperson.  The foreperson shall have power to administer oaths
and affirmations and shall sign all indictments.  The foreperson
or another juror designated by the foreperson shall keep a record
of the number of jurors concurring in the finding of every
indictment and shall file the record with the clerk of the court,
but the record shall not be made public except on order of the
court.  During the absence of the foreperson, the deputy
foreperson shall act as foreperson.

(d) Who may be present.  Attorneys for the government, the
witness under examination, interpreters when needed and, for the
purpose of taking the evidence, a stenographer or operator of a
recording device may be present while the grand jury is in
session, but no person other than the jurors may be present while
the grand jury is deliberating or voting.

/* The rule provides that person's counsel may not be present
when he testifies before a grand jury. This results in frequent
occasions when persons have to walk out of the room to talk to
their lawyer and then come back in. */

(e) Recording and disclosure of proceedings.

    (1) Recording of proceedings.  All proceedings, except when
the grand jury is deliberating or voting, shall be recorded
stenographically or by an electronic recording device.  An
unintentional failure of any recording to reproduce all or
any portion of a proceeding shall not affect the validity of
the prosecution.  The recording or reporter's notes or any
transcript prepared therefrom shall remain in the custody or
control of the attorney for the government unless otherwise
ordered by the court in a particular case.

    (2) General rule of Secrecy.  A grand juror, an interpreter,
a stenographer, an operator of a recording device, a typist
who transcribed recorded testimony, an attorney for the
government, or any person to whom disclosure is made under
paragraph (3)(A)(ii) of this subdivision shall not disclose
matters occurring before the grand jury, except as otherwise
provided for in these rules.  No obligation of secrecy may
be imposed on any person except in accordance with this
rule.  A knowing violation of Rule 6 may be punished as a
contempt of court.

    (3) Exceptions

    (A) Disclosure otherwise prohibited by this rule of matters
occurring before the grand jury, other than its
deliberations and the vote of any grand juror, may be made
to-

    (i) an attorney for the government for use in the
performance of such attorney's duty; and

    (ii) such government personnel (including personnel of a
state or subdivision of a state) as are deemed necessary by
an attorney for the government to assist an attorney for the
government in the performance of such attorney's duty to
enforce federal criminal law.

    (B) Any person to whom matters are disclosed under
subparagraph (A)(ii) of this paragraph shall not utilize
that grand jury material for any purpose other than
assisting the attorney for the government in the performance
of such attorney's duty to enforce federal criminal law.  An
attorney for the government shall promptly provide the
district court, before which was impaneled the grand jury whose
material has been so disclosed, with the names of the persons to
whom such disclosure has been made, and shall certify that the
attorney has advised such persons of their obligation of secrecy
under this rule.

    (C) Disclosure otherwise prohibited by this rule of matters
occurring before the grand jury may also be made-

    (i) when so directed by a court preliminarily to or in
connection with a judicial proceeding;

    (ii) when permitted by a court at the request of the
defendant, upon a showing that grounds may exist for a
motion to dismiss the indictment because of matters
occurring before the grand jury;

    (iii) when the disclosure is made by an attorney for the
government to another federal grand jury; or

    (iv) when permitted by a court at the request of an attorney
for the government, upon a showing that such matters may
disclose a violation of state criminal law, to an
appropriate official of a state or subdivision of a state
for the purpose of enforcing such law.

    If the court orders disclosure of matters occurring before
the grand jury, the disclosure shall be made in such manner, at
such time, and under such conditions as the court may direct.

    (D) A petition for disclosure pursuant to subdivision
(e)(3)(C)(i) shall be filed in the district where the grand
jury convened.  Unless the hearing is ex parte, which it may
be when the petitioner is the government, the petitioner
shall serve written notice of the petition upon (i) the
attorney for the government, (ii) the parties to the
judicial proceeding if disclosure is sought in connection
with such a proceeding, and (iii) such other persons as the
court may direct.  The court shall afford those persons a
reasonable opportunity to appear and be heard.

    (E) If the judicial proceeding giving rise to the petition
is in a federal district court in another district, the
court shall transfer the matter to that court unless it can
reasonably obtain sufficient knowledge of the proceeding to
determine whether disclosure is proper.  The court shall
order transmitted to the court to which the matter is
transferred the material sought to be disclosed, if
feasible, and a written evaluation of the need for continued
grand jury secrecy.  The court to which the matter is
transferred shall afford the aforementioned persons a
reasonable opportunity to appear and be heard.

    (4) Sealed indictments.  The federal magistrate to whom an
indictment is returned may direct that the indictment be
kept secret until the defendant is in custody or has been
released pending trial.  Thereupon the clerk shall seal the
indictment and no person shall disclose the return of the
indictment except when necessary for the issuance and
execution of a warrant or summons.

    (5) Closed hearing.  Subject to any right to an open hearing
in contempt proceedings, the court shall order a hearing on
matters affecting a grand jury proceeding to be closed to
the extent necessary to prevent disclosure of matters
occurring before a grand jury.

    (6) Sealed records.  Records, orders and subpoenas relating
to grand jury proceedings shall be kept under seal to the
extent and for such time as is necessary to prevent
disclosure of matters occurring before a grand jury.

(f) Finding and return of indictment.  An indictment may be found
only upon the concurrence of 12 or more jurors.  The indictment
shall be returned by the grand jury to a federal magistrate in
open court.  If a complaint or information is pending against the
defendant and 12 jurors do not concur in finding an indictment,
the foreperson shall so report to a federal magistrate in writing
forthwith.

(g) Discharge and excuse.  A grand jury shall serve until
discharged by the court, but no grand jury may serve more the 18
months unless the court extends the service of the grand jury for
a period of six months or less upon a determination that such
extension is in the public interest.  At any time for cause shown
the court may excuse a juror either temporarily or permanently,
and in the latter event the court may inpanel another person in
place of the juror excused.
(Amended August 1, 1987.)

Rule 7.  The Indictment and the Information

(a) Use of Indictment or information.  An offense which may be
punished by death shall be prosecuted by indictment.  An offense
which may be punished by imprisonment for a term exceeding on
year or at hard labor, shall be prosecuted by indictment or, if
indictment is waived, it may be prosecuted by information.  Any
other offense may be prosecuted by indictment or by information.
An information may be filed without leave of court.

/* This is due to the fact that the U.S. constitution requires
that the prosecution of all felonies be by indictment. This
formality is waived in most cases of plea bargains. */

(b) Waiver of indictment.  An offense which may be punished by
imprisonment for a term exceeding one year or at hard labor may
be prosecuted by information if the defendant, after having been
advised of the nature of the charge and of the rights of the
defendant, waives in open court prosecution by indictment.

(c) Nature and contents.

    (1) In general.  The indictment or the information shall be
a plain, concise and definite written statement of the
essential facts constituting the offense charged.  It shall
be signed by the attorney for the government.  It need not
contain a formal commencement, a formal conclusion or any
other matter not necessary to such statement.  Allegations
made in one count may be incorporated by reference in
another count.  It may be alleged in a single count that the
means by which the defendant committed the offense are
unknown or that the defendant committed it by one or more
specified means.  The indictment or information shall state
for each count the official or customary citation of the
statute, rule, regulation or other provision of law which
the defendant is alleged therein to have violated.

    (2) Criminal Forfeiture.  No judgment of forfeiture may be
entered in a criminal proceeding unless the indictment or
the information shall allege the extent of the interest or
property subject to forfeiture.

    (3) Harmless error. Error in the citation or its omission
shall not be ground for dismissal of the indictment or
information or for reversal of a conviction if the error or
omission did not mislead the defendant to the defendant's
prejudice.

(d) Surplusage.  The court on motion of the defendant may strike
surplusage from the indictment or information.

(e) Amendment of information.  The court may permit an
information to be amended at any time before verdict or finding
if no additional or different offense is charged and if
substantial rights of the defendant are not prejudiced.

(f) Bill of particulars.  The court may direct the filing of a
bill of particulars.  A motion for a bill of particulars may be
made before arraignment or within ten days after arraignment or
at such other later time as the court may permit.  A bill of
particulars may be amended at any time subject to such conditions
as justice requires.
(Amended August 1, 1987.)

/* A bill of particulars is a statement of specific facts
relative to an offense. The rule sounds good, but in practice it
is very hard to get many specifics. */


Rule 8.  Joinder of Offenses and of Defendants

(a) Joinder of offenses.  Two or more offenses may be charged in
the same indictment or information in a separate count for each
offense 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 on two or more acts or transactions
connected together or constituting parts of a common scheme or
plan.

(b) Joinder of defendants.  Two or more defendants may be charged
in the same indictment or information if they are alleged to have
participated in the same act or transaction or in the same series
of acts or transactions constituting an offense or offenses.
Such defendants may be charged in one or more counts together or
separately and all of the defendants need not be charged in each
count.

Rule 9. Warrant or Summons upon Indictment or Information

(a) Issuance.  Upon the request of the attorney for the
government the court shall issue a warrant for each defendant
named in an information supported by a showing of probable cause
under oath as is required by Rule 4(a), or in an indictment.
Upon the request of the attorney for the government a summons
instead of a warrant shall issue.  If no request is made, the
court may issue either a warrant or a summons in its discretion.
More than one warrant or summons may issue for the same
defendant.  The clerk shall deliver the warrant or summons to the
marshal or other person authorized by law to execute or serve it.
If a defendant fails to appear in response to the summons, a
warrant shall issue.  When a defendant arrested with a warrant or
given a summons appears initially before a magistrate, the
magistrate shall proceed in accordance with the applicable
subdivisions of Rule 5.

(b) Form.

    (1) Warrant.  The form of the warrant shall be as provided
in Rule 4(c)(1) except that it shall be signed by the clerk,
it shall describe the offense charged in the indictment or
information and it shall command that the defendant be
arrested and brought before the nearest available
magistrate.  The amount of bail may be fixed by the court
and endorsed on the warrant.

    (2) Summons.  The summons shall be in the same form as the
warrant except that it shall summon the defendant to appear
before a magistrate at a stated time and place.

(c) Execution or service; and return.

    (1) Execution or Service.  The warrant shall be executed or
the summons served as provided in Rule 4(d)(1), (2), and
(3).  A summons to a a corporation shall be served by
delivering a copy to an officer or to a managing or general
agent or to any other agent authorized by appointment or by
law to receive service of process and, if the agent is one
authorized by statute to receive service and the statute so
requires, by also mailing a copy to the corporation's last
known address within the district or at its principal place
of business elsewhere in the United States.  The officer
executing the warrant shall bring the arrested person
without unnecessary delay before the nearest available
federal magistrate or, in the event that a federal
magistrate is not reasonably available, before a state or
local judicial officer authorized by 18 USC 3041.

    (2) Return.  The officer executing a warrant shall make
return thereof to the magistrate or other officer before
whom the defendant is brought.  At the request of the
attorney for the government any unexecuted warrant shall be
returned and canceled.  On or before the return day the
person to whom a summons was delivered for service shall
make return thereof.  At the request of the attorney for the
government made at any time while the indictment or
information is pending, a warrant returned unexecuted and
not canceled or a summons returned unserved or a duplicate
thereof may be delivered by the clerk to the marshal or
other authorized person for execution or service.

(d) [Abrogated]

IV. ARRAIGNMENT AND PREPARATION FOR TRIAL

Rule 10.  Arraignment

Arraignment shall be conducted in open court and shall consist of
reading the indictment or information to the defendant or stating
to the defendant the substance of the charge and calling on the
defendant to plead thereto.  The defendant shall be given a copy
of the indictment or information before being called upon to
plead.
(Amended August 1, 1987.)

Rule 11.  Pleas

(a) Alternatives.

    (1) In general.  A defendant may plead not guilty, guilty,
or nolo contendere.  If a defendant refuses to plead or if a
defendant corporation fails to appear, the court shall enter
a plea of not guilty.

    (2) Conditional pleas.  With the approval of the court and
the consent of the government, a defendant may enter a
conditional plea of guilty or nolo contendere, reserving in
writing the right, on appeal from the judgment, to review of
the adverse determination of any specified pretrial motion.
A defendant who prevails on appeal he shall be allowed to
withdraw the plea.

/* This usually is in connection with a motion to suppress
narcotics. */

(b) Nolo Contendere.  A defendant may plead nolo contendere only
with the consent of the court.  Such  a plea shall be accepted by
the court only after due consideration of the views of the
parties and the interest of the public in the effective
administration of justice.

/* Nolo contendere means no contest. This plea means that the
person does not contest the case, but does not admit guilt. This
is usually done if there is a related civil suit on the same
matter. */

(c) Advice to defendant.  Before accepting a plea of guilty or
nolo contendere, the court must address the defendant personally
in open court and inform the defendant of, and determine that the
defendant understands, the following:

    (1) the nature of the charge to which the plea is offered,
the mandatory minimum penalty provided by law, if any, and
the maximum possible penalty provided by law, including the
effect of any special parole term or supervised release
term, the fact that the court is required to consider any
applicable sentencing guidelines but may depart from those
guidelines under some circumstances, and, when applicable,
that the court may also order the defendant to make
restitution to any victim of the offense; and

    (2) if the defendant is not represented by an attorney, that
the defendant has the right to be represented by an attorney
at every stage of the proceeding and, if necessary, one will
be appointed to represent the defendant; and

    (3) that the defendant has the right to plead not guilty or
to persist in that plea if it has already been made, the
right to be tried by a jury and at that trial the right to
the assistance of counsel, the right to confront and cross-
examine adverse witnesses, and the right against compelled
self-incrimination; and

    (4) that if a plea of guilty or nolo contendere is accepted
by the court there will not be a further trial of any kind,
so that by pleading guilty or nolo contendere the defendant
waives the right to a trial; and

    (5) if the court intends to question the defendant under
oath, on the record, and in the presence of counsel about
the offense to which the defendant has pleaded, that the
defendant's answers may later be used against the defendant
in a prosecution for perjury or false statement.

(d) Insuring that the plea is voluntary.  The court shall not
accept a plea of guilty or nolo contendere without first, by
addressing the defendant personally in open court, determining
that the plea is voluntary and not the result of force or threats
or of promises apart from a plea agreement.  The court shall also
inquire as to whether the defendant's willingness to plead guilty
or nolo contendere results from prior discussions between the
attorney from the government and the defendant or the defendant's
attorney.

(e) Plea agreement procedure.

    (1) In general.  The attorney for the government and the
attorney for the defendant or the defendant when acting pro
se may engage in discussions with a view toward reaching an
agreement that, upon the entering of a plea of guilty or
nolo contendere to a charged offense or to a lesser or
related offense, the attorney for the government will do any
of the following:

    (A) move for dismissal of other charges; or

    (B) make a recommendation, or agree not to oppose the
defendant's request, for a particular sentence, with the
understanding that such recommendation or request shall not
be binding upon the court; or

    (C) agree that a specific sentence is the appropriate
disposition of the case.

    The court shall not participate in any such discussions.

/* This part of the rule is important. Unlike many state courts
in which Judges actively badger people to plead out. */

    (2) Notice of such agreement.  If a plea agreement has been
reached by the parties, the court shall, on the record,
require the disclosure of the agreement in open court or, on
a showing of good cause, in camera, at the time the plea is
offered.  If the agreement is of the type specified in
subdivision (e)(1)(A) or (C), the court may accept or reject
the agreement, or may defer its decision as to the
acceptance or rejection until there has been an opportunity
to consider the presentence report.  If the agreement is of
the type specified in subdivision (e)(1)(B), the court shall
advise the defendant that if the court does not accept the
recommendation or request the defendant nevertheless has no
right to withdraw the plea.

    (3) Acceptance of a plea agreement.  If the court accepts
the plea agreement, the court shall inform the defendant
that it will embody in the judgment and sentence the
disposition provided for in the plea agreement.

    (4) Rejection of a plea agreement.  If the court rejects the
plea agreement, the court shall, on the record, inform the
parties of this fact, advise the defendant personally in
open court or, on a showing of good cause, in camera, that
the court is not bound by the plea agreement, afford the
defendant the opportunity to then withdraw the plea, and
advise the defendant that if the defendant persists in a
guilty plea or plea of nolo contendere the disposition of
the case may be less favorable to the defendant than that
contemplated by the plea agreement.

    (5) Time of plea agreement procedure.  Except for good cause
shown, notification to the court of the existence of a plea
agreement shall be given at the arraignment or at such other
time, prior to trial, as may be fixed by the court.

    (6) Inadmissibility of pleas, plea discussions, and related
statements.  Except as otherwise provided in this paragraph,
evidence of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made the
plea or was a participant in the plea discussions:

    (A) a plea of guilty which was later withdrawn;

    (B) a plea of nolo contendere;

    (C) any statement made in the course of any proceedings
under this rule regarding either of the foregoing pleas; or

    (D) any statement made in the course of plea discussions
with an attorney for the government which do not result in a
plea of guilty or which result in a plea of guilty later
withdrawn.

/* A rule which is fairly important. Generally, before accepting
a plea bargain the government will require a "plea proffer" in
which the defendant states his or her participation in the
crimes. These "proffers" are not admissible in evidence if the
person does not plead guilty. However, this does not mean that
evidence which is derived from the proffer is inadmissible. Savvy
defense lawyers are aware that if their client divulges
information which is not previously known, then the government
can use the same, plea or no plea. However, any statements which
are made in a plea proffer can be used if the client testified in
rebuttal. */

    However, such a statement is admissible (i) in any
proceeding wherein another statement made in the course of
the same plea or plea discussions has been introduced and
the statement ought in fairness by considered
contemporaneously with it, or (ii) in a criminal proceeding
for perjury or false statement if the statement was made by
the defendant under oath, on the record, and in the presence
of counsel.

(f) Determining accuracy of plea.  Notwithstanding the acceptance
of a plea of guilty, the court should not enter a judgment upon
such plea without making such inquiry as shall satisfy it that
there is a factual basis for the plea.

/* This section is an interesting and difficult one. The law does
not require that the Court find that the person is guilty of the
offense. However, it does require that the court find a factual
basis for the plea. This is to accomodate a plea of guilty when
the evidence is there but the defendant chooses to indicate that
the plea is given because the defendant feels that the plea is in
his or her best interests as compared to going to trial on a plea
of not guilty. */

(g) Record of proceedings.  A verbatim record of the proceedings
at which the defendant enters a plea shall be made and, if there
is a plea of guilty or nolo contendere, the record shall include,
without limitation, the court's advice to the defendant, the
inquiry into the voluntariness of the plea including any plea
agreement, and the inquiry into the accuracy of a guilty plea.

(h) Harmless error.  Any variance from the procedures required by
this rule which does not affect substantial rights shall be
disregarded.

(Amended August 1, 1987; November 18, 1988, P. L. 100-690, Title
VII, Subtitle B, 7076, 102 Stat. 4406; December 1, 1989.)

Rule 12.  Pleadings and Motions before Trial;  Defenses and
Objections

(a) Pleadings and motions.  Pleadings in criminal proceedings
shall be the indictment and the information, and the pleas of not
guilty, guilty and nolo contendere.  All other pleas, and
demurrers and motions to quash are abolished, and defenses and
objections raised before trial which heretofore could have been
raised by one or more of them shall be raised only by motion to
dismiss or to grant appropriate relief, as provided in these
rules.

/* In a fashion similar to the civil procedure rules, the types
of pleas and pleading have been significantly simplified. */

(b) Pretrial motions.  Any defense, objection, or request which
is capable of determination without the trial of the general
issue may be raised before trial by motion.  Motions may be
written or oral at the discretion of the judge.  The following
must be raised prior to trial:

    (1) Defenses and objections based on defects in the
institution of the prosecution; or

    (2) Defenses and objections based on defects in the
indictment or information (other than that it fails to show
jurisdiction in the court or to charge an offense which
objections shall be noticed by the court at any time during
the pendency of the proceedings); or

    (3) Motions to suppress evidence; or

    (4) Requests for discovery under Rule 16; or

    (5) Requests for a severance of charges or defendants under
Rule 14.

(c) Motion date.  Unless otherwise provided by local rule, the
court may, at the time of the arraignment or as soon thereafter
as practicable, set a time for the making of pretrial motions or
requests and, if required, a later date of hearing.

(d) Notice by the Government of the intention to use evidence.

    (1) At the discretion of the government.  At the arraignment
or as soon thereafter as is practicable, the government may
give notice to the defendant of its intention to use
specified evidence at trial in order to afford the defendant
an opportunity to raise objections to such evidence prior to
trial under subdivision (b)(3) of this rule.

    (2) At the request of the defendant.  At the arraignment or
as soon thereafter as is practicable the defendant may, in
order to afford an opportunity to move to suppress evidence
under subdivision (b)(3) of this rule, request notice of the
government's intention to use (in its evidence in chief at
trial) any evidence which the defendant may be entitled to
discover under Rule 16 subject to any relevant limitations
prescribed in Rule 16.

(e) Ruling on motion.  A motion made before trial shall be
determined before trial unless the court, for good cause, orders
that it be deferred for determination at the trial of the general
issue or until after verdict, but no such determination shall be
deferred if a party's right to appeal is adversely affected.
Where factual issues are involved in determining a motion, the
court shall state its essential findings on the record.

(f) Effect of failure to raise defenses or objections.  Failure
by a party to raise defenses or objections or to make requests
which must be made prior to trial, at the time set by the court
pursuant to subdivision (c), or prior to any extension thereof
made by the court, shall constitute waiver thereof, but the court
for cause shown may grant relief from the waiver.

(g) Records.  A verbatim record shall be made of all proceedings
at the hearing, including such findings of fact and conclusions
of law as are made orally.

(h) Effect of determination.  If the court grants a motion based
on a defect in the institution of the prosecution or in the
indictment or information, if may also order that the defendant
be continued in custody or that bail be continued for a specified
time pending the filing of a new indictment or information.
Nothing in this rule shall be deemed to affect the provisions of
any Act of Congress relating to periods of limitations.

(i) Production of statements at suppression hearing.  Except as
herein provided, rule 26.2 shall apply at a hearing on a motion
to suppress evidence under subdivision (b)(3) of this rule.  For
purposes of this subdivision, a law enforcement officer shall be
deemed a witness called by the government, and upon a claim of
privilege the court shall excise the portions of the statement
containing privileged matter.

(Amended August 1, 1987.)

Rule 12.1.  Notice of Alibi

(a) Notice by defendant.  Upon written demand of the attorney for
the government stating the time, date, and place at which the
alleged offense was committed, the defendant shall serve within
ten days, or at such different time as the court may direct, upon
the attorney for the government a written notice of the
defendant's intention to offer a defense of alibi.  Such notice
by the defendant shall state the specific place or places at
which the defendant claims to have been at the time of the
alleged offense and the names and addresses of the witnesses upon
whom the defendant intends to rely to establish such alibi.

(b) Disclosure of information and witness.  Within ten days
thereafter, but in no event less than ten days before trial,
unless the court otherwise directs, the attorney for the
government shall serve upon the defendant or the defendant's
attorney a written notice stating the names and addresses of the
witnesses upon whom the government intends to rely to establish
the defendant's presence at the scene of the alleged offense and
any other witnesses to be relied on to rebut testimony of any of
the defendant's alibi witnesses.

(c) Continuing duty to disclose.  If prior to or during trial, a
party learns of an additional witness whose identity, if known,
should have been included in the information furnished under
subdivision (a) or (b), the party shall promptly notify the other
party or the other party's attorney of the existence and identity
of such additional witness.

(d) Failure to comply.  Upon the failure of either party to
comply with the requirements of this rule, the court may exclude
the testimony of any undisclosed witness offered by such party as
to the defendant's absence from or presence at, the scene of the
alleged offense.  This rule shall not limit the right of the
defendant to testify.

(e) Exceptions.  For good cause shown, the court may grant an
exception to any of the requirements of subdivisions (a) through
(d) of this rule.

(f) Inadmissibility of withdrawn alibi.  Evidence of an intention
to rely upon an alibi defense, later withdrawn, or of statements
made in connection with such intention, is not, in any civil or
criminal proceeding, admissible against the person who gave
notice of the intention.

(Amended August 1, 1987.)

Rule 12.2.  Notice of Insanity Defense or Expert Testimony of
Defendant's Mental Condition

(a) Defense of insanity.  If a defendant intends to rely upon the
defense of insanity at the time of the alleged offense, the
defendant shall, within the time provided for the filing of
pretrial motions or at such later time as the court may direct,
notify the attorney for the government in writing of such
intention and file a copy of such notice with the clerk.  If
there is a failure to comply with the requirements of this
subdivision, insanity may not be raised as a defense.  The court
may for cause shown allow late filing of the notice or grant
additional time to the parties to prepare for trial or make such
other order as may be appropriate.

(b) Expert testimony of defendants mental condition.  If a
defendant intends to introduce expert testimony relating to a
mental disease or defect or any other mental condition of the
defendant bearing upon the issue of guilt, the defendant shall,
within the time provided for the filing of pretrial motions or at
such later time as the court may direct, notify the attorney for
the government in writing of such intention and file a copy of
such notice with the clerk.  The court may for cause shown allow
late filing of the notice or grant additional time to the parties
to prepare for trial or make such other order as may be
appropriate.

(c) Mental examination of defendant.  In an appropriate case the
court may, upon motion of the attorney for the government, order
the defendant to submit to an examination pursuant to 18 USC 4241
or 4242.  No statement made by the defendant in the course of any
examination provided for by this rule, whether the examination be
with or without the consent of the defendant, no testimony by the
expert based upon such statement, and no other fruits of the
statement shall be admitted in evidence against the defendant in
any criminal proceeding except on an issue respecting mental
condition on which the defendant has introduced testimony.

(d) Failure to comply.  If there is a failure to give notice when
required by subdivision (b) of this rule or to submit to an
examination when ordered under subdivision (c) of this rule, the
court may exclude the testimony of any expert witness offered by
the defendant on the issue of the defendant's guilt.

(e) Inadmissibility of withdrawn intention.  Evidence of an
intention as to which notice was given under subdivision (a) or
(b), later withdrawn, is not, in any civil or criminal
proceeding, admissible against the person who gave notice of the
intention.

(Amended November 10, 1986; August 1, 1987)

Rule 12.3.  Notice of Defense Based Upon Public Authority

(a) Notice by defendant; Government response; disclosure of
witnesses.

    (1) Defendant's notice and Government's response.  A
defendant intending to claim a defense of actual or believed
exercise of public authority of behalf of a law enforcement
or Federal intelligence agency at the time of the alleged
offense shall, within the time provided for the filing of
pretrial motions or at such later time as the court may
direct, serve upon the attorney for the Government a written
notice of such intention and file a copy of such notice with
the clerk.  Such notice shall identify the law enforcement
or Federal intelligence agency and any member of such agency
on behalf of which and the period of time in which the
defendant claims the actual or believed exercise of public
authority occurred.  If the notice identifies a Federal
intelligence agency, the copy filed with the clerk shall be
under seal.  Within ten days after receiving the defendant's
notice, but in no event less than twenty days before the
trial, the attorney for the Government shall serve upon the
defendant or the defendant's attorney a written response
which shall admit or deny that the defendant exercised the
public authority identified in the defendant's notice.

    (2) Disclosure of witnesses.  At the time that the
Government serves its response to the notice or thereafter,
but in no event less than twenty days before the trial, the
attorney for the Government may serve upon the defendant or
the defendant's attorney a written demand for the names and
addresses of the witnesses, if any, upon whom the defendant
intends to rely in establishing the defense identified in
the notice.  Within seven days after receiving the
Government's demand, the defendant shall serve upon the
attorney for the Government a written statement of the names
and addresses of any such witnesses.  Within seven days
after receiving the defendant's written statement, the
attorney for the Government shall serve upon the defendant
or the defendant's attorney a written statement of the names
and addresses of the witnesses, if any, upon whom the
Government intends to rely in opposing the defense
identified in the notice.

    (3) Additional time.  If good cause is shown, the court may
allow a party additional time to comply with any obligation
imposed by this rule.

(b) Continuing duty to disclose.  If, prior to or during trial, a
party learns of any additional witness whose identity, if known,
should have been included in the written statement furnished
under subdivision (a)(2) of this rule, that party shall promptly
notify in writing the other party or the other party's attorney
of the name and address of any such witness.

(c) Failure to comply.  If a party fails to comply with the
requirements of this rule, the court may exclude the testimony of
any undisclosed witness offered in support of or in opposition to
the defense, or enter such other order as it deems just under the
circumstances.  This rule shall not limit the right of the
defendant to testify.

(d) Protective procedures unaffected.  This rule shall be in
addition to and shall not supersede the authority of the court to
issue appropriate protective orders, or the authority of the
court to order that any pleading be filed under seal.

(e) Inadmissibility of withdrawn defense based upon public
authority.  Evidence of an intention as to which notice was given
under subdivision (a), later withdrawn, is not, in any civil or
criminal proceeding, admissible against the person who gave
notice of the intention.

(Added November 18, 1988, P. L. 100-690, Title VI, Subtitle N,
6483, 102 Stat. 4382.)