Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/crimpro3.asc

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/* We conclude the federal rules of criminal procedure with part
3. */

Rule 33.  New Trial

The court on motion of defendant may grant a new trial to that
defendant if required in the interest of justice.  If trial was
by the court without a jury the court on motion of a defendant
for a new trial may vacate the judgment if entered, take
additional testimony and direct the entry of a new judgment.  A
motion for a new trial based on the ground of newly discovered
evidence may be made only before or within two years after final
judgment, but if an appeal is pending the court may grant the
motion only on remand of the case.  A motion for a new trial
based on any other grounds shall be made within 7 days after
verdict or finding of guilty or within such further time as the
court may fix during the 7-day period.

(Amended August 1, 1987.)

Rule 34.  Arrest of Judgment

The court on motion of a defendant shall arrest judgment if the
indictment or information does not charge an offense or if the
court was without jurisdiction of the offense charged.  The
motion in arrest of judgment shall be made within 7 days after
verdict or finding of guilty, or after plea of guilty or nolo
contendere, or with such further time as the court may fix during
the 7-day period.

/* One of the single most unusual occurrences, although it has in
fact taken place. */

Rule 35. Correction of Sentence

(a) Correction of a sentence on remand.  The court shall correct
a sentence that is determined on appeal number 18 USC 3742 [18
USC Section 3742] to have been imposed in violation of law, to
have been imposed as a result of an incorrect application of the
sentence guidelines, or to be unreasonable, upon remand of the
case to the court-

    (1) for imposition of a sentence in accord with the findings
of the court of appeals; or

    (2) for further sentencing proceedings if, after such
proceedings, the court determines that the original sentence
was incorrect.

(b) Correction of sentence for changed circumstances.  The court,
on motion of the Government, may within one year after the
imposition of a sentence, lower a sentence to reflect a
defendant's subsequent, substantial assistance in the
investigation or prosecution of another person who has committed

an offense, in accordance with the guidelines and policy
statements issued by the Sentencing Commission pursuant to
section 994 of title 28, United States Code.  The court's
authority to lower a sentence under this subdivision includes the
authority to lower such sentence to a level below the established
by statute as a minimum sentence.

/* The rule speaks to a limit of one year. In cases it has been
used beyond one year by clever attorneys. If no one objects... */

(Amended October 12, 1984, P. L. 98-473, Section 215(b), 98 Stat.
2015; December 26, 1985, P. L. 99-217, Section 1728; October 27,
1986, P. L. 99-570, Title I, Subtitle A, Section 1009(a), 100
Stat. 3215.)

Rule 36.  Clerical Mistakes

Clerical mistakes in judgments, orders or other parts of the
record and errors in the record arising from oversight or
omission may be corrected by the court at any time and after such
notice, if any, as the court orders.

Rule 37. [Abrogated]

Rule 38.  Stay of Execution, and Relief Pending Review

(a) Death.  A sentence of death shall be stayed if an appeal is
taken from the conviction or sentence.

(b) Imprisonment.  A sentence of imprisonment shall be stayed if
an appeal is taken from the conviction or sentence and the
defendant is released pending disposition of appeal pursuant to
Rule 9(b) of the Federal Rules of Appellate Procedure.  If not
stayed, the court may recommend to the Attorney General that the
defendant be retained at, or transferred to, a place of
confinement near the place of trial or the place where an appeal
is to be heard, for a period reasonably necessary to permit the
defendant to assist in the preparation of an appeal to the court
of appeals.

(c) Fine.  A sentence to pay a fine or a fine and costs, if an
appeal is taken, may be stayed by the district court or by the
court of appeals upon such terms as the court deems proper.  The
court may require the defendant pending appeal to deposit the
whole or any part of the fine and costs in the registry of the
district court, or to give bond for the payment thereof, or to
submit to an examination of assets, and it may make any
appropriate order to restrain the defendant from dissipating such
defendant's assets.

(d) Probation.  A sentence of probation may be stayed if an
appeal from the conviction or sentence is taken.  If the sentence
is stayed, the court shall fix the terms of the stay.

(e) Criminal forfeiture, notice to victims, and restitution.  A
sanction imposed as part of the sentence pursuant to 18 USC 3554,
3555, or 3556 may, if an appeal of the conviction or sentence is
taken, be stayed by the district court or by the court of appeals
upon such terms as the court finds appropriate.  The court may
issue such orders as may be reasonably necessary to ensure
compliance with the sanction upon disposition of the appeal,
including the entering of a restraining order or an injunction or
requiring a deposit in whole or in part of the monetary amount
involved into the registry of the district court or execution of
a performance bond.

(f) Disabilities.  A civil or employment disability arising under
a Federal statute by reason of the defendant's conviction or
sentence, may, in an appeal is taken, be stayed by the district
court or by the court of appeals upon such terms as the court
finds appropriate.  The court may enter a restraining order or an
injunction, or take any other action that may be reasonably
necessary to protect the interest represented by the disability
pending disposition of the appeal.

(Amended October 12, 1984, P. L. 98-473, Title II, Ch II, Section
215(c), 98 Stat. 2016; August 1, 1987.)

Rule 39.  [Abrogated]

IX SUPPLEMENTARY AND SPECIAL PROCEEDINGS

Rule 40.  Commitment to Another District

(a) Appearance before federal magistrate.  If a person is
arrested in a district other than that in which the offense is
alleged to have been committed, that person shall be taken
without unnecessary delay before the nearest available federal
magistrate.  Preliminary proceedings concerning the defendant
shall be conducted in accordance with Rules 5 and 5.1 except that
if no preliminary examination is held because an indictment has
been returned or an information filed or because the defendant
elects to have the preliminary examination conducted in the
district in which the prosecution is pending, the person shall be
held to answer upon a finding that such person is the person
named in the indictment, information or warrant.  If held to
answer, the defendant shall be held to answer in the district
court in which the prosecution is pending, provided that a
warrant is issued in that district if the arrest was made without
a warrant, upon production of the warrant or a certified copy
thereof.

(b) Statement by Federal Magistrate.  In addition to the
statements required by Rule 5, the federal magistrate shall
inform the defendant of the provisions of Rule 20.

(c) Papers.  If a defendant is held or discharged, the papers in
the proceeding and any bail taken shall be transmitted to the
clerk of the district court in which the prosecution is pending.

(d) Arrest of probationer or supervised release.  If a person is
arrested for a violation of probation or supervised release in a
district other than the district having jurisdiction, such person
shall be taken without unnecessary delay before the nearest
available federal magistrate.  The federal magistrate shall:

    (1) Proceed under Rule 32.1 if jurisdiction over the person
is transferred to that district;

    (2) Hold a prompt preliminary hearing if the alleged
violation occurred in that district, and either (i) hold the
person to answer in the district court of the district
having jurisdiction or (ii) dismiss the proceedings and so
notify that court; or

    (3) otherwise order the person held to answer in the
district court of the district having jurisdiction upon
production of certified copies of the judgment, the warrant,
and the application for the warrant, and upon a finding that
the person before the magistrate is the person named in the
warrant.

(e) Arrest for failure to appear.  If a person is arrested on a
warrant in a district other than that in which the warrant was
issued, and the warrant was issued because of the failure of the
person named therein to appear as required pursuant to a subpoena
or the terms of that person's release, the person arrested shall
be taken without unnecessary delay before the nearest available
federal magistrate.  Upon production of the warrant or a
certified copy thereof and upon a finding that the person before
the magistrate is the person named in the warrant, the federal
magistrate shall hold the person to answer in the district in
which the warrant was issued.

(f) Release or detention.  If a person was previously detained or
conditionally released, pursuant to chapter 207 of title 18,
United States Code, in another district where a warrant,
information, or indictment issued, the federal magistrate shall
take into account the decision previously made and the reasons
set forth therefor, if any, but will not be bound by the
decision.  If the federal magistrate amends the release or
detention decision or alters the conditions of release, the
magistrate shall set forth the reasons therefor in writing.

(Amended October 12, 1984, P. L. 98-473, Section 215(d), 98 Stat.
2016, December 26, 1985, P. L. 99-217, Section 4, 99 Stat. 1728;
August 1, 1987; December 1, 1989.)

Rule 40.1 [Disapproved]

Rule 41.   Search and Seizure

(a) Authority to issue warrant.  Upon the request of a federal
law enforcement officer or an attorney for the government, a
search warrant authorized by this rule may be issued (1) by a
federal magistrate, or a state court of record within the federal
district, for a search of property or for a person within the
district and (2) by a federal magistrate for a search of property
or for a person either within or outside the district if the
property or person is within the district when the warrant is
sought but might move outside the district before the warrant is
executed.

(a) Authority to issue warrant.  A search warrant authorized by
this rule may be issued by a federal magistrate or a judge of a
state court of record within the district wherein the property or
person sought is located, upon request of a federal law
enforcement officer or an attorney for the government.

 b) Property or persons which may be seized with a warrant.  A
warrant may be issued under this rule to search for and seize and
(1) property that constitutes evidence of the commission of a
criminal offense; or (2) contraband, the fruits of crime, or
things otherwise criminally possessed; or (3) property designed
or intended for use or which is or has been used as the means of
committing a criminal offense; or (4) person for whose arrest
there is probable cause, or who is unlawfully restrained.

(c) Issuance and contents.

    (1) Warrant upon affidavit.  A warrant other than a warrant
upon oral testimony under paragraph (2) of this subdivision
shall issue only on an affidavit or affidavits sworn to
before the federal magistrate or state judge and
establishing the grounds for issuing the warrant.  If the
federal magistrate or state judge is satisfied that grounds
for the application exist or that there is probably cause to
believe that they exist, that magistrate or state judge
shall issue a warrant identifying the property or person to
be seized and naming or describing the person or place to be
searched.  The finding of probable cause may be based upon
hearsay evidence in whole or in part.  Before ruling on a
request for a warrant the federal magistrate or state judge
may require the affiant to appear personally and may examine
under oath the affiant and any witnesses the affiant may
produce, provided that such proceeding shall be taken down
by a court reporter or recording equipment and made part of
the affidavit.  The warrant shall be directed to a civil
officer of the United States authorized to enforce or assist
in enforcing any law therefor to a person so authorized by
the President of the United States.  It shall command the
officer to search, within a specified period of time not to
exceed 10 days, the person or place named for the property
or person specified.  The warrant shall be served in the
daytime, unless the issuing authority, by appropriate
provision in the warrant, and for reasonable cause shown,
authorizes its execution at times other than daytime.  It
shall designate a federal magistrate to whom it shall be
returned.

    (2) Warrant upon oral testimony.

    (A) General rule. If the circumstances make it reasonable to
dispense with a written affidavit, a Federal magistrate may
issue a warrant based upon sworn oral testimony communicated
by telephone or other appropriate means.

    (B) Application.  The person who is requesting the warrant
shall prepare a document to be known as a duplicate original
warrant and shall read such duplicate original warrant,
verbatim, to the Federal magistrate.  The Federal magistrate
shall enter, verbatim, what is so read to such magistrate on
a document to be known as the original warrant.  The Federal
magistrate may direct that the warrant be modified.

    (C) Issuance.  If the Federal magistrate is satisfied that
the circumstances are such as to make it reasonable to
dispense with a written affidavit and that grounds for the
application exist or that there is probable cause to believe
that they exist, the Federal magistrate shall order the
issuance of a warrant by directing the person requesting the
warrant to sign the Federal magistrate's name on the
duplicate original warrant.  The Federal magistrate shall
immediately sign the original warrant and enter on the face
of the original warrant the exact time when the warrant was
ordered to be issued.  The finding of probable cause for a
warrant upon oral testimony may be based on the same kind of
evidence as is sufficient for a warrant upon affidavit.

    (D) Recording and certification of testimony.  When a caller
informs the Federal magistrate that the purpose of the call
is to request a warrant, the Federal magistrate shall
immediately place under oath each person whose testimony
forms a basis of the application and each person applying
for that warrant.  If a voice recording device is available,
the Federal magistrate shall record by means of such device
all of the call after the caller informs the Federal
magistrate that the purpose of the call is to request a
warrant.  Otherwise a stenographic or longhand verbatim
record shall be made.  If a voice recording device is used
or a stenographic record made, the Federal magistrate shall
have the record transcribed, shall certify the accuracy of
the transcription, and shall file a copy of the original
record and the transcription with the court.  If a longhand
verbatim record is made, the Federal magistrate shall file a
signed copy with the court.

/* Note that only federal magistrates may issue telephonic
warrants. */

    (E) Contents.  The contents of a warrant upon oral testimony
shall be the same as the contents of a warrant upon
affidavit.

    (F) Additional rule for execution.  The person who executes
the warrant shall enter the exact time of execution on the
face of the duplicate original warrant.

    (G) Motion to suppress precluded.  Absent a finding of bad
faith, evidence obtained pursuant to a warrant issued under
this paragraph is not subject to a motion to suppress on the
ground that the circumstances were not such as to make it
reasonable to dispense with a written affidavit.

(d) Execution and return with inventory.  The officer taking
property under the warrant shall give to the person from whom or
from whose premises the property was taken a copy of the warrant
and a receipt for the property taken or shall leave the copy and
receipt at the place from which the property was taken.  The
return shall be made promptly and shall be accompanied by a
written inventory of any property taken.  The inventory shall be
made in the presence of the applicant for the warrant and the
person from whose possession or premises the property was taken,
if they are present, or in the presence of at least one credible
person other than the applicant for the warrant or the person
from whose possession or premises the property was taken, and
shall be verified by the officer.  The Federal magistrate shall
upon request deliver a copy of the inventory to the person from
whom or from whose premises the property was taken and to the
applicant for the warrant.

(e) Motion for return of property.  A person aggrieved by an
unlawful search and seizure or by the deprivation of property may
move the district court for the district in which the property
was seized for the return of the property on the ground that such
person is entitled to lawful possession of the property.  The
court shall receive evidence on any issue of fact necessary to
the decision of the motion.  If the motion is granted, the
property shall be returned to the movant, although reasonable
conditions may be imposed to protect access and use of the
property in subsequent proceedings.  If a motion for return of
property is made or comes on for hearing in the district of trial
after an indictment of information is filed, it shall be treated
also as a motion to suppress under Rule 12.

(f) Motion to suppress.  A motion to suppress evidence may be
made in the court of the district of trial as provided in Rule
12.

(g) Return of papers to clerk.  The federal magistrate before
whom the warrant is returned shall attach to the warrant a copy
of the return, inventory and all other papers in connection
therewith and shall file them with the clerk of the district
court for the district in which the property was seized.

(h) Scope and definition.  The rule does not modify any act,
inconsistent with it, regulating search, seizure and the issuance
and execution of search warrants in circumstances for which
special provision is made.  The term "property" is used in this
rule to include documents, books, papers and any other tangible
objects.  The term "daytime" is used in this rule to mean the
hours from 6:00 am to 10:00 pm according to local time.  The
phrase "federal law enforcement officer" is used in this rule to
mean any government agent, other than an attorney for the
government as defined in Rule 54(c), who is engaged in the
enforcement of the criminal laws and is within any category of
officers authorized by the Attorney General to request the
issuance of a search warrant.

(Amended August 1, 1987; December 1, 1989; December 1, 1990.)

Rule 42.  Criminal Contempt

(a) Summary disposition.  A criminal contempt may be punished
summarily if the judge certifies that the judge saw or heard the
conduct constituting the contempt and that it was committed in
the actual presence of the court.  The order of contempt shall
recite the facts and shall be signed by the judge and entered of
record.

(b) Disposition upon notice and hearing.  A criminal contempt
except as provided in subdivision (a) of this rule shall be
prosecuted on notice.  The notice shall state the time and place
of hearing, allowing a reasonable time for the preparation of the
defense, and shall state the essential facts constituting the
criminal contempt charged and describe it as such.  The notice
shall be given orally by the judge in open court in the presence
of the defendant or, on application of the United States attorney
or of an attorney appointed by the court for that purpose, by an
order to show cause or an order of arrest.  The defendant is
entitled to a trial by jury in any case in which an act of
Congress so provides.  The defendant is entitled to admission to
bail as provided in these rules.  If the contempt charged
involves disrespect to or criticism of a judge, that judge is
disqualified from presiding at the trial or hearing except with
the defendant's consent.  Upon a verdict or finding of guilt the
court shall enter an order fixing the punishment.

/* Note that any indirect contempt involving criticism of a Judge
may not be heard by that Judge. */

(Amended August 1, 1987.)

X.  GENERAL PROVISIONS

Rule 43.  Presence of the Defendant

(a) Presence required.  The defendant shall be present at the
arraignment, at the time of the plea, at every stage of the trial
including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as otherwise
provided by this rule.

(b) Continued presence not required.  The further progress of the
trial to and including the return of the verdict shall not be
prevented and the defendant shall be considered to have waived
the right to be present whenever a defendant, initially present,

    (1) is voluntarily absent after the trial has commenced
(whether or not the defendant has been informed by the court
of the obligation to remain during the trial), or

    (2) after being warned by the court that disruptive conduct
will cause the removal of the defendant from the courtroom,
persists in conduct which is such as to justify exclusion
from the courtroom.

(c) Presence not required.  A defendant need not be present in
the following situations:

    (1) A corporation may appear by counsel for all purposes.

    (2) In prosecutions for offenses punishable by fine or by
imprisonment for not more than one year or both, the court,
with the written consent of the defendant, may permit
arraignment, plea, trial, and imposition of sentence in the
defendant's absence.

    (3) At a conference of argument upon a question of law.

    (4) At a reduction of sentence under Rule 35.

(Amended August 1, 1987.)

Rule 44.   Right to and Assignment of Counsel

(a) Right to assigned counsel.  Every defendant who is unable to
obtain counsel shall be entitled to have counsel assigned to
represent that defendant at every stage of the proceedings from
initial appearance before the federal magistrate or the court
through appeal, unless that defendant waives such appointment.

(b) Assignment procedure.  The procedures for implementing the
right set out in subdivision (a) shall be those provided by law
and by local rules of court established pursuant thereto.

(c) Joint representation.  Whenever two or more defendants have
been jointly charged pursuant to Rule 8(b) or have been joined
for trial pursuant to Rule 8(b) or have been joined for trial
pursuant to Rule 13, and are represented by the same retained or
assigned counsel or by retained or assigned counsel who are
associated in the practice of law, the court shall promptly
inquire with respect to such joint representation and shall
personally advise each defendant of the right to the effective
assistance of counsel, including separate representation.  Unless
it appears that there is good cause to believe no conflict of
interest is likely to arise, the court shall take such measures
as may be appropriate to protect each defendant's right to
counsel.

(Amended August 1, 1987.)

Rule 45.  Time

(a) Computation.  In computing any period of time the day of the
act or event from which the designated period of time begins to
run shall not be included.  The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or
a legal holiday, or, when the act to be done is the filing of
some paper in court, a day on which weather or other conditions
have made the office of the clerk of the district court
inaccessible, in which event the period runs until the end of the
next day which is not one of the aforementioned days.  When a
period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays and legal holidays shall be
excluded in the computation.  As used in these rules "legal
holiday" includes New Year's Day, Birthday of Martin Luther King,
Jr., Washington's Birthday, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day,
and any other day appointed as a holiday by the President or the
Congress of the United States, or by the state in which the
district court is held.

(b) Enlargement.  When an act is required or allowed to be done
at or within a specified time, the court for cause shown may at
any time in its discretion (1) with or without motion or notice,
order the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by
a previous order or (2) upon motion made after the expiration of
the specified period permit the act to be done if the failure to
act was the result of excusable neglect; but the court may not
extend the time for taking any action under Rules 29, 33, 34, and
35, except to the extent and under the conditions stated in them.

(c) [Abrogated]

(d) For motions; affidavits.  A written motion, other than one
which may be heard ex parte, and notice of the hearing thereof
shall be served not later than 5 days before the time specified
for the hearing unless a different period is fixed by rule or
order of the court.  For cause shown such an order may be made on
ex parte application.  When a motion is supported by affidavits
may be served not less than 1 day before the hearing unless the
court permits them to be served at a later time.

(e) Additional time after service by mail.  Whenever a party has
the right of it required to do an act within a prescribed period
after the service of a notice or other paper upon the party and
the notice or other paper is served by mail, 3 days shall be
added to the prescribed period.

(Amended August 1, 1987.)

Rule 46.  Release from Custody

(a) Release prior to trial.  Eligibility for release prior to
trail shall be in accordance with 18 USC Section 3142 and 3144.

(b) Release during trial.  A person released before trial shall
continue on release during trial under the same terms and
conditions as were previously imposed unless the court determines
that other terms and conditions or termination of release are
necessary to assure such person's presence during the trial or to
assure that such person's conduct will not obstruct the orderly
and expeditious progress of the trial.

(c) Pending sentence and notice of appeal.  Eligibility for
release pending sentence or pending notice of appeal or
expiration of the time allowed for filing notice of appeal, shall
be in accordance with 18 USC 3143.  The burden of establishing
that the defendant will not flee or pose a danger to any other
person or to the community rests with the defendant.

(d) Justification of sureties.  Every surety, except a corporate
surety which is approved as provided by law, shall justify by
affidavit and may be required to describe in the affidavit the
property by which the surety proposes to justify and the
encumbrances thereon, the number and amount of other bonds and
undertakings for bail entered into by the surety and remaining
undischarged and all the other liabilities of the surety.  No
bond shall be approved unless the surety thereon appears to be
qualified.

(e) Forfeiture.

    (1) Declaration.  If there is a breach of condition of a
bond, the district court shall declare a forfeiture of the
bail.

    (2) Setting aside.  The court direct that a forfeiture be
set aside in whole or in part, upon such conditions as the
court may impose, if a person released upon execution of an
appearance bond with a surety is subsequently surrendered by
the surety into custody or if it otherwise appears that
justice does not require the forfeiture.

    (3) Enforcement:  When a forfeiture has not been set aside,
the court shall on motion enter a judgment of default and
execution may issue thereon.  By entering into a bond the
obligors submit to the jurisdiction of the district court
and irrevocably appoint the clerk of the court as their
agent upon whom any papers affecting their liability may be
served.  Their liability may be enforced on motion without
the necessity of an independent action.  The motion and such
notice of the motion as the court prescribes may be served
on the clerk of the court, who shall forthwith mail copies
to the obligors to their last known addresses.

    (4) Remission.  After entry of such judgment, the court may
remit it in whole or in part under the conditions applying
to the setting aside of forfeiture in paragraph (2) of this
subdivision.

(f) Exoneration.  When the condition of the bond has been
satisfied or the forfeiture thereof has been set aside or
remitted, the court shall exonerate the obligors and release any
bail.  A surety may be exonerated by a deposit of cash in the
amount of the bond or by a timely surrender of the defendant into
custody.

(g) Supervision of detention pending trial.  The court shall
exercise supervision over the detention of defendants and
witnesses within the district pending trial for the purpose of
eliminating all unnecessary detention.  The attorney for the
government shall make a biweekly report to the court listing each
defendant and witness who has been held in custody pending
indictment, arraignment or trial for a period in excess of ten
days.  As to each witness so listed the attorney for the
government shall make a statement of the reasons why such witness
should not be released with or without the taking of a deposition
pursuant to Rule 15(a).  As to each defendant so listed the
attorney for the government shall make a statement of the reasons
why the defendant is still held in custody.

(h) Forfeiture of property.  Nothing in this rule or in chapter
207 of title 18, United States Code, shall prevent the court from
disposing of any charge by entering an order directing forfeiture
of property pursuant to 18 USC 3142(c)(2)(K) if the value of the
property is an amount that would be an appropriate sentence after
conviction of the offense charged and if such forfeiture is
authorized by statute or regulation.

(Amended August 1, 1987.)

Rule 47.  Motions

An application to the court for an order shall be by motion.  A
motion other than one made during a trial or hearing shall be in
writing unless the court permits it to be made orally.  It shall
state the grounds upon which it is made and shall set forth the
relief or order sought.  It may be supported by affidavit.

Rule 48.  Dismissal

(a) By attorney for Government.  The attorney General or the
United States attorney may by leave of court file a dismissal of
an indictment, information or complaint and the prosecution shall
thereupon terminate.  Such a dismissal may not be filed during
the trial without the consent of the defendant.

/* The second clause is an unusual one. The defendant

(b) By Court.  If there is unnecessary delay in presenting the
charge to a grand jury or in filing an information against a
defendant who has been held to answer to the district court, or
if there is unnecessary delay in bringing a defendant to trial,
the court may dismiss the indictment, information or complaint.

Rule 49.  Service and Filing of Papers

(a) Service:  when required.  Written motions other than those
which are heard ex parte, written notices, designations of record
on appeal and similar papers shall be served upon each of the
parties.

(b) Service:  how made. Whenever under these rules or by an order
of the court service is required or permitted to be made upon a
party represented by an attorney, the service shall be made upon
the attorney unless service upon the party personally is ordered
by the court.  Service upon the attorney or upon a party shall be
made in the manner provided in civil actions.

(c) Notice of orders.  Immediately upon the entry of an order
made on a written subsequent to arraignment the clerk shall mail
to each party a notice thereof and shall make a note in the
docket of the mailing.  Lack of notice of the entry by the clerk
does not affect the time to appeal or relieve or authorize the
court to relieve a party for failure to appeal within the time
allowed, except as permitted by Rule 4(b) of the Federal Rules of
Appellate Procedure.

(d)  Filing.  Papers required to be served shall be filed with
the court.  Papers shall be filed in the manner provided in civil
actions.

(e) Filing of dangerous offender notice.  A filing with the court
pursuant to 18 USC Section 3575(a) or 21 USC Section 849(a) shall
be made by filing the notice with the clerk of the court.  The
clerk shall transmit the notice to the chief judge or, if the
chief judge is the presiding judge in the case, to another judge
or United States magistrate in the district, except that in a
district having a single judge and no United States magistrate,
the clerk shall transmit the notice to the court only after the
time for disclosure specified in the aforementioned statutes and
shall seal the notice as permitted by local rule.

(Amended August 1, 1987.)

Rule 50.  Calendars  Plan for Prompt Disposition

(a) Calendars.  The district courts may provide for placing
criminal proceedings upon appropriate calendars.  Preference
shall be given to criminal proceedings as far as practicable.

(b) Plans for achieving prompt disposition of criminal cases.  To
minimize undue delay and to further the prompt disposition of
criminal cases, each district court shall conduct a continuing
study of the administration of criminal justice in the district
court and before United States magistrates of the district and
shall prepare plans for the prompt disposition of criminal cases
in accordance with the provisions of Chapter 208 of Title 18,
United States Code.

Rule 51.  Exceptions Unnecessary

Exceptions to rulings or orders of the court are unnecessary and
for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling
or order of the court is made or sought, makes known to the court
the action which that party desires the court to take or that
party's objection to the action of the court and the grounds
therefor; but if a party has no opportunity to object to a ruling
or order, the absence of an objection does not thereafter
prejudice that party.

(Amended August 1, 1987.)

Rule 52.  Harmless Error and Plain Error

(a) Harmless error.  An error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded.

(b) Plain error.  Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court.

Rule 53.  Regulation of Conduct in the Court Room

The taking of photographs in the court room during the progress
of judicial proceedings or radio broadcasting of judicial
proceedings from the court room shall not be permitted by the
court.

Rule 54.  Application and Exception

(a) Courts.  These rules apply to all criminal proceedings in the
United States District Courts; in the District Court of Guam; in
the District Court of the Northern Mariana Islands, except as
otherwise provided in articles IV and V of the covenant provided
by the Act of March 24, 1976 (90 Stat. 263); in the District
Court of the Virgin Islands; and (except as otherwise provided in
the Canal Zone Code) in the United States District Court for the
District of the Canal Zone; in the United States Courts of
Appeals; and in the Supreme Court of the United States; except
that all offenses shall continue to be prosecuted in the District
of Guam and in the District Court of the Virgin Islands by
information as heretofore except such as may be required by local
law to be prosecuted by indictment by grand jury.

(b) Proceedings.

    (1) Removed proceedings.  These rules apply to criminal
prosecution removed to the United States district courts
from state courts and govern all procedure after removal,
except that dismissal by the attorney for the prosecution
shall be governed by state law.

    (2) Offenses outside a district or state.  These rules apply
to proceedings for offenses committed upon the high seas or
elsewhere out of the jurisdiction of any particular state or
district, except that such proceedings may be had in any
district authorized by 18 USC Section 3238.

    (3) Peace bonds.  These rules do not alter the power of
judges of the United States or of United States magistrates
to hold to security of the peach and for good behavior under
Revised Statutes, Section 4069, 50 USC Section 23, but in
such cases the procedure shall conform to these rules so far
as they are applicable.

    (4) Proceedings Before United States Magistrates.
Proceedings involving misdemeanors and other petty offenses
are governed by Rule 58.

    (5) Other proceedings.  These rules are not applicable to
extradition and rendition of fugitives; civil forfeiture of
property for violation of a statute of the United States; or
the collection of fines and penalties.  Except as provided
in Rule 20(d) they do not apply to proceedings under 18 USC,
Chapter 403 - Juvenile Delinquency - so far as they are
inconsistent with that chapter.  They do not apply to
summary trials for offenses against the navigation laws
under Revised Statutes Sections 4300-4305, 33 USC Sections
391-396, or to proceedings involving disputes between seamen
under Revised Statutes, Sections 4079-4081, as amended, 22
USC Sections 256-258, or to proceedings for fishery offenses
under the Act of June 28, 1937, c. 392, 50 Stat 325-327, 16
USC Sections 772-772i, or to proceedings against a witness
in a foreign country under 28 USC Section 1784.

(c) Application of terms.  As used in these rules the following
terms have the designated meanings.

"Act of Congress" includes any act of Congress locally applicable
to and in force in the District of Columbia, in Puerto Rico, in a
territory or in an insular possession.

"Attorney for the government" means the Attorney General, an
authorized assistant of the Attorney General, a United States
Attorney, an authorized assistant of a United States Attorney,
when applicable to cases arising under the laws of Guam the
Attorney General of Guam or such other person or persons as may
be authorized by the laws of Guam to act therein, and when
applicable to cases arising under the laws of the Northern
Mariana Islands the Attorney General of the Northern Mariana
Islands or any other person or persons as may be authorized by
the laws of the Northern Marianas to act therein.

"Civil action" refers to a civil action in a district court.

The words "demurrer," "motion to quash," "plea in abatement,"
"plea in bar" and "special plea in bar" or words to the same
affect, in any act of Congress shall be construed to mean the
motion raising a defense or objection provided in Rule 12.

"District court" includes all district courts named in
subdivision (a) of this rule.

"Federal magistrate" means a United States magistrate as defined
in  28 USC Sections 631-639, a judge of the United States or
another judge or judicial officer specifically empowered by
statute in force in any territory or possession, the Commonwealth
of Puerto Rico, or the District of Columbia, to perform a
function to which a particular rule relates.

"Judge of the United States" includes a judge of a district
court, court of appeals, or the Supreme Court.

"Law" includes statutes and judicial decisions.

"Magistrate" includes a United States magistrate as defined in 28
USC Sections 631-639, a judge of the United States, another judge
or judicial officer specifically empowered by statute in force in
any territory or possession, the Commonwealth of Puerto Rico, or
the District of Columbia, to perform a function to which a
particular rule relates, and a state or local judicial officer,
authorized in 18 USC Section 3041 to perform the functions
prescribed in Rules 3, 4, and 5.

"Minor offense" [deleted]

"Oath" includes affirmations

"Petty offense" is defined in 18 USC 19.

"State" includes District of Columbia, Puerto Rico, territory and
insular possession.

"United States magistrate" means the officer authorized by 28 USC
Sections 631-639.

(Amended October 12, 1984, P. L. 98-473, Section 215(e), 98 Stat.
2016; November 18, 1988, P. L. 100-690, Title VII, Subtitle B,
Section 7089(c), 102 Stat. 4409; December 1, 1990.)

Rule 55.  Records

The clerk of the district court and each United States magistrate
shall keep records in criminal proceedings in such form as the
Director of the Administrative Office of the United States Courts
may prescribe.  The clerk shall enter in the records each order
or judgment of the court and the date such entry is made.

Rule 56.  Courts and Clerks

The district court shall be deemed always open for the purpose of
filing any proper paper, of issuing and returning process and of
making motions and orders.  The clerk's office with the clerk or
a deputy in attendance shall be open during business hours on all
days except Saturdays, Sundays, and legal holidays, but a court
may provide by local rule or order that its clerk's office shall
be open for specified hours on Saturdays or particular legal
holidays other than New Year's Day, Birthday of Martin Luther
King, Jr., Washington's Birthday, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and
Christmas Day.

(Amended August 1, 1988.)

Rule 57.  Rules by District Courts

Each district court by action of a majority of the judges thereof
may from time to time, after giving appropriate public notice and
an opportunity to comment, make and amend rules governing its
practice not inconsistent with these rules.  A local rule so
adopted shall take effect upon the date specified by the district
court and shall remain in effect unless amended by the district
court or abrogated by the judicial council of the circuit in
which the district is located.  Copies of the rules and
amendments so made by any district court shall upon their
promulgation be furnished to the judicial council and the
Administrative Office of the United States Courts and be made
available to the public.  In all cases not provided for by rule,
the district judges and magistrates may regulate their practice
in any manner not inconsistent with these rules or those of the
district in which they act.

Rule 58.  Procedure for Misdemeanors and Other Petty Offenses

(a) Scope.

    (1) In general.  This rule governs the procedure and
practice for the conduct of proceedings involving
misdemeanors and other petty offenses, and for appeals to
judges of the district courts in such cases tried by
magistrates.

    (2) Applicability of other Federal Rules of Criminal
Procedure.  In proceedings concerning petty offenses for
which no sentence of imprisonment will be imposed the court
may follow such provisions of these rules as it deems
appropriate, to the extent not inconsistent with this rule.
In all other proceedings the other rules govern except as
specifically provided in this rule.

    (3) Definition.  The term "petty offenses for which not
sentence of imprisonment will be imposed" as used in this
rule, means any petty offenses as defined in 18 USC Section
19 as to which the court determines, that, in the event of
conviction, no sentence of imprisonment will actually be
imposed.

(b) Pretrial procedures.

    (1) Trial document.  The trial of a misdemeanor may proceed
on an indictment, information, or complaint or, in the case
of a petty offense, on a citation or violation notice.

    (2) Initial appearance.  At the defendant's initial
appearance on a misdemeanor or other petty offense charge,
the court shall inform the defendant of:

    (A) The charge, and the maximum possible penalties provided
by law, including payment of a special assessment under 18 USC
Section 3013, and restitution under 18 USC Section 3663;

    (B) the right to retain counsel;

    (C) unless the charge is a petty offense for which
appointment of counsel is not required, the right to request
the assignment of counsel if the defendant is unable to
obtain counsel;

    (D) The right to remain silent and that any statement made
by the defendant may be used against the defendant;

    (E) the right to trial, judgment, and sentencing before a
judge of the district court, unless the defendant consents
to trial, judgment, and sentencing before a magistrate;

    (F) unless the charge is a petty offense, the right to trial
by jury before either a magistrate or a judge of the
district court; and

    (G) if the defendant is held in custody and charged with a
misdemeanor other than a petty offense, the right to a
preliminary examination in accordance with 18 USC Section
3060, and the general circumstances under which the
defendant may secure pretrial release.

    (3) Consent and arraignment.

    (A) Trial before a magistrate.  If the defendant signs a
written consent to be tried before the magistrate which
specifically waives trial before a judge of the district
court, the magistrate shall take the defendant's plea.  The
defendant may plead not guilty, guilty, or with the consent
of the magistrate, nolo contendere.

    (B) Failure to consent.  If the defendant does not consent
to trial before the magistrate, the defendant shall be
ordered to appear before a judge of the district court for
further proceedings on notice.

(c) Additional procedures applicable only to petty offenses for
which not sentence of imprisonment will be imposed.  With respect
to petty offenses for which no sentence of imprisonment will be
imposed, the following additional procedures are applicable:

    (1) Plea of guilty or nolo contendere.  No plea of guilty or
nolo contendere shall be accepted unless the court is
satisfied that the defendant understands the nature of the
charge and the maximum possible penalties provided by law.

    (2) Waiver of venue of plea and sentence.  A defendant who
is arrested, held, or present in a district other than that
in which the indictment, information, complaint, citation or
violation notice is pending against that defendant may state
in writing a wish a plead guilty or nolo contendere, to
waive venue and trial in the district in which the
proceeding is pending, and to consent to disposition of the
case in the district in which that defendant was arrested,
is held, or is present.  Unless the defendant thereafter
pleads not guilty, the prosecution shall be had as if venue
were in such district, and notice of the same shall be given
to the magistrate in the district where the proceeding was
originally commenced.   The defendant's statement of a
desire to plead guilty or nolo contendere is not admissible
against the defendant.

    (3) Sentence.  The court shall afford the defendant an
opportunity to be heard in mitigation.  The court shall then
immediately proceed to sentence the defendant, except that
in the discretion of the court, sentencing may be continued
to allow an investigation by the probation service or
submission of additional information by either party.

    (4) Notification of right to appeal.  After imposing
sentence in a case which has gone to trial on a plea of not
guilty, the court shall advise the defendant of the
defendant's right to appeal including any right to appeal
the sentence.  There shall be no duty on the court to advise
the defendant of any right of appeal after sentence is
imposed following a plea of guilty or nolo contendere,
except that the court shall advise the defendant of any
right to appeal the sentence.

(d) Securing the defendant's appearance; payment in lieu of
appearance.

    (1) Forfeiture of Collateral.  When authorized by local
rules of the district court, payment of a fixed sum may be
accepted in suitable cases in lieu of appearance and as
authorizing the termination of the proceedings.  Local rules
may make provision for increases in fixed sums not to exceed
the maximum fine which could be imposed.

    (2) Notice to Appear.  If a defendant fails to pay a fixed
sum, request a hearing, or appear in response to a citation
or violation notice, the clerk or magistrate may issue a
notice for the defendant to appear before the court on a
date certain.  The notice may also afford the defendant an
additional opportunity to pay a fixed sum in lieu of
appearance, and shall be served upon the defendant by
mailing a copy to the defendant's last known address.

    (3) Summons or Warrant.  Upon an indictment or a showing by
one of the other documents specified in (b)(1) of probable
cause to believe that an offense has been committed and that
the defendant has committed it, the court may issue an
arrest warrant or, if not warrant is requested by the
attorney for the prosecution, a summons.  The showing of
probable cause shall be made in writing upon oath or under
penalty for perjury, but the affiant need not appear before
the court.  If the defendant fails to appear before the
court in response to a summons, the court may summarily
issue a warrant for the defendant's immediate arrest and
appearance before the court.

(e) Record.  Proceedings under this rule shall be taken down by a
reporter or recorded by suitable sound equipment.

(f) New trial.  The provisions of Rule 33 shall apply.

(g) Appeal

    (1) Decision, order, judgment or sentence by a district
judge.  An appeal from a decision, order, judgment or
conviction or sentence by a judge of the district court
shall be taken in accordance with the Federal Rules of
Appellate Procedure.

    (2) Decision, order, judgment or sentence by a magistrate.

    (A) Interlocutory appeal.  A decision or order by a
magistrate which, if made by a judge of the district court,
could be appealed by the government or defendant under any
provision of law, shall be subject to an appeal to a judge
of the district court provided such appeal is taken within
10 days of the entry of the decision or order.  An appeal
shall be taken by filing with the clerk of court a statement
specifying the decision or order from which an appeal is
taken and by serving a copy of the statement upon the
adverse party, personally or by mail, and by filing a copy
with the magistrate.

    (B) Appeal from conviction or sentence.  An appeal from a
judgment of conviction or sentence by a magistrate to a
judge of the district court shall be taken within 10 days
after entry of the judgment.  An appeal shall be taken by
filing with the clerk of court a statement specifying the
judgment from which an appeal is taken, and by serving a
copy of the statement upon the United States Attorney,
personally or by mail, and by filing a copy with the
magistrate.

    (C) Record.  The record shall consist of the original papers
and exhibits in the case together with any transcript, tape,
or other recording of the proceedings and a certified copy
of the docket entries which shall be transmitted promptly to
the clerk of court.  For purposes of the appeal, a copy of
the record of such proceedings shall be made available at
the expense of the United States to a person who establishes
by affidavit the inability to pay or give security therefor,
and the expense of such copy shall be paid by the Director
of the Administrative Office of the United States Courts.

    (D) Scope of appeal.  The defendant shall not be entitled to
a trial de novo by a judge of the district court.  The scope
of the appeal shall be the same as an appeal from a judgment
of a district court to a court of appeals.

    (3) Stay of execution; release pending appeal.  The
provisions of Rule 38 relating to stay of execution shall be
applicable to a judgment of conviction or sentence.  The
defendant may be released pending appeal in accordance with
the provisions of law relating to release pending appeal
from a judgment of a district court to a court of appeals.

(Added December 1, 1990.)

Rule 59.  Effective Date

These rules take effect on the day which is 3 months subsequent
to the adjournment of the first regular session of the 79th
Congress, but if that day is prior to September 1, 1945, then
they take effect on September 1, 1945.  They govern all criminal
proceedings thereafter commenced and so far just and practicable
all proceedings then pending.

Rule 60.  Title

These rules may be known and cited as the Federal Rules of
Criminal Procedure.