The Supreme Court/The Supreme Court.iso/pc/ascii/1994/order/042994.zr2

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SUPREME COURT OF THE UNITED STATES

Friday, April 29, 1994










ORDERED:

1.That the Federal Rules of Criminal Procedure
for the United States District Courts be, and they
hereby are, amended by including therein amendments to
Criminal Rules 16, 29, 32, and 40.

[See infra., pp.                  .]

2.That the foregoing amendments to the Federal
Rules of Criminal Procedure shall take effect on
December 1, 1994, and shall govern all proceedings in
criminal cases thereafter commenced and, insofar as
just and practicable, all proceedings in criminal cases
then pending.

3.That THE CHIEF JUSTICE be, and he hereby is,
authorized to transmit to the Congress the foregoing
amendments to the Federal Rules of Criminal Procedure
in accordance with the provisions of Section 2072 of
Title 28, United States Code.

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 16. Discovery and Inspection
(a)  GOVERNMENTAL DISCLOSURE OF
EVIDENCE.
     (1)  Information Subject to
     Disclosure.
          (A) STATEMENT OF DEFENDANT.
     Upon request of a defendant the
     government must disclose to the
     defendant and make available for
     inspection, copying, or
     photographing: any relevant written
     or recorded statements made by the
     defendant, or copies thereof,
     within the possession, custody, or
     control of the government, the
     existence of which is known, or by
     the exercise of due diligence may
     become known, to the attorney for
     the government; that portion of any
     written record containing the
     substance of any relevant oral
     statement made by the defendant
     whether before or after arrest in
     response to interrogation by any
     person then known to the defendant
     to be a government agent; and
     recorded testimony of the defendant
     before a grand jury which relates
     to the offense charged.  The
     government must also disclose to
     the defendant the substance of any
     other relevant oral statement made
     by the defendant whether before or
     after arrest in response to
     interrogation by any person then
     known by the defendant to be a
     government agent if the government
     intends to use that statement at
     trial.  Upon request of a defendant
     which is an organization such as a
     corporation, partnership,
     association or labor union, the
     government must disclose to the
     defendant any of the foregoing
     statements made by a person who the
     government contends (1) was, at the
     time of making the statement, so
     situated as a director, officer,
     employee, or agent as to have been
     able legally to bind the defendant
     in respect to the subject of the
     statement, or (2) was, at the time
     of the offense, personally involved
     in the alleged conduct constituting
     the offense and so situated as a
     director, officer, employee, or
     agent as to have been able legally
     to bind the defendant in respect to
     that alleged conduct in which the

     person was involved.
               * * * * *


Rule 29. Motion for Judgment of

Acquittal
              * * * * *
     (b) RESERVATION OF DECISION ON
MOTION.  The court may reserve decision
on a motion for judgment of acquittal,
proceed with the trial (where the motion
is made before the close of all the
evidence), submit the case to the jury
and decide the motion either before the
jury returns a verdict or after it
returns a verdict of guilty or is
discharged without having returned a
verdict.  If the court reserves
decision, it must decide the motion on
the basis of the evidence at the time
the ruling was reserved.
* * * * *


[Rule 32 is deleted and replaced with
the following]

Rule 32.  Sentence and Judgment
     (a) IN GENERAL; TIME FOR
SENTENCING.  When a presentence
investigation and report are made under
subdivision (b)(1), sentence should be
imposed without unnecessary delay
following completion of the process
prescribed by subdivision (b)(6).  The
time limits prescribed in subdivision
(b)(6) may be either shortened or
lengthened for good cause.
     (b) PRESENTENCE INVESTIGATION AND
REPORT.
          (1) When Made.  The probation
     officer must make a presentence
     investigation and submit a report
     to the court before the sentence is
     imposed, unless:
               (A) the court finds that
          the information in the record
          enables it to exercise its
          sentencing authority
          meaningfully under 18 U.S.C.
           3553; and
               (B) the court explains
          this finding on the record.
          (2) Presence of Counsel.  On
     request, the defendant's counsel is
     entitled to notice and a reasonable
     opportunity to attend any interview
     of the defendant by a probation
     officer in the course of a
     presentence investigation.
          (3) Nondisclosure.  The report
     must not be submitted to the court
     or its contents disclosed to anyone
     unless the defendant has consented
     in writing, has pleaded guilty or
     nolo contendere, or has been found
     guilty.
          (4) Contents of the
     Presentence Report.  The
     presentence report must contain --
               (A) information about the
          defendant's history and
          characteristics, including any
          prior criminal record,
          financial condition, and any
          circumstances  that,  because
          they affect the defendant's
          behavior, may be helpful in
          imposing sentence or in
          correctional treatment;
               (B) the classification of
          the offense and of the
          defendant under the categories
          established by the Sentencing
          Commission under 28 U.S.C.
           994(a), as the probation
          officer believes to be
          applicable to the defendant's
          case; the kinds of sentence
          and the sentencing range
          suggested for such a category
          of offense committed by such a
          category of defendant as set
          forth in the guidelines issued
          by the Sentencing Commission
          under 28 U.S.C.  994(a)(1);
          and the probation officer's
          explanation of any factors
          that may suggest a different
          sentence -- within or without
          the  applicable  guideline --
          that would  be  more
          appropriate, given all the
          circumstances;
               (C) a reference to any
          pertinent policy statement
          issued by the Sentencing
          Commission under 28 U.S.C.
           994(a)(2);
               (D) verified information,
          stated in a nonargumentative
          style, containing  an
          assessment of the financial,
          social, psychological, and
          medical impact on any
          individual against whom the
          offense has been committed;
               (E) in appropriate cases,
          information about the nature
          and extent of nonprison
          programs and resources
          available for the defendant;
               (F) any report and
          recommendation resulting from
          a study ordered by the court
          under 18 U.S.C.  3552(b); and
               (G) any other information
          required by the court.
          (5) Exclusions.  The
     presentence report must exclude:
               (A) any diagnostic
          opinions that, if disclosed,
          might seriously disrupt a
          program of rehabilitation;
               (B) sources of
          information obtained upon a
          promise of confidentiality; or
               (C) any other information
          that, if disclosed, might
          result in harm, physical or
          otherwise, to the defendant or
          other persons.
          (6) Disclosure and Objections.
               (A) Not less than 35
          days before the sentencing
          hearing -- unless the
          defendant waives this minimum
          period -- the probation
          officer must furnish the
          presentence report to the
          defendant, the defendant's
          counsel, and the attorney for
          the Government.  The court
          may, by local rule or in
          individual cases, direct that
          the probation officer not
          disclose the probation
          officer's recommendation, if
          any, on the sentence.
               (B) Within 14 days after
          receiving the presentence
          report, the parties shall
          communicate in writing to the
          probation officer, and to each
          other, any objections to any
          material information,
          sentencing classifications,
          sentencing guideline ranges,
          and policy statements
          contained in or omitted from
          the presentence report.  After
          receiving objections, the
          probation officer may meet
          with the defendant, the
          defendant's counsel, and the
          attorney for the Government to
          discuss those objections. The
          probation officer may also
          conduct a further
          investigation and revise the
          presentence report as
          appropriate.
               (C) Not later than 7 days
          before the  sentencing
          hearing, the probation officer
          must submit the presentence
          report to the court, together
          with an addendum setting
          forth any unresolved
          objections, the grounds for
          those objections, and the
          probation officer's comments
          on the objections.  At the
          same time, the probation
          officer must furnish the
          revisions of the presentence
          report and the addendum to the
          defendant, the defendant's
          counsel, and the attorney for
          the Government.
               (D) Except for any
          unresolved objection under
          subdivision (b)(6)(B), the
          court may, at the hearing,
          accept the  presentence report
          as its findings of fact.  For
          good cause shown, the court
          may allow a new objection to
          be raised at  any time before
          imposing sentence.
     (c) SENTENCE
          (1) Sentencing Hearing.  At
     the sentencing hearing, the court
     must afford counsel for the
     defendant and for the Government an
     opportunity to comment on the
     probation officer's determinations
     and on other matters relating to
     the appropriate sentence, and must
     rule on any unresolved objections
     to the presentence report.  The
     court may, in its discretion,
     permit the parties to introduce
     testimony or other evidence on the
     objections.  For each matter
     controverted, the court must make
     either a finding on the allegation
     or a determination that no finding
     is necessary because the
     controverted matter will not be
     taken into account in, or will not
     affect, sentencing. A  written
     record of these findings and
     determinations must be appended to
     any copy of the presentence report
     made available to the Bureau of
     Prisons.
          (2) Production of Statements
     at Sentencing Hearing.  Rule
     26.2(a)-(d) and (f) applies at a
     sentencing hearing under this rule.
     If a party elects not to comply
     with an order under Rule 26.2(a) to
     deliver a statement to the movant,
     the court may not consider the
     affidavit or testimony of the
     witness whose statement is
     withheld.
          (3) Imposition of Sentence.
     Before imposing sentence, the court
     must:
               (A) verify that the
          defendant and defendant's
          counsel have read and
          discussed the presentence
          report made available under
          subdivision (b)(6)(A).  If the
          court has received information
          excluded from the presentence
          report under subdivision
          (b)(5) the court -- in lieu of
          making that information
          available -- must summarize it
          in writing, if the information
          will be relied on in
          determining sentence.  The
          court must also give the
          defendant and the defendant's
          counsel a reasonable
          opportunity to comment on that
          information;
               (B) afford defendant's
          counsel an opportunity to
          speak on behalf of the
          defendant;
               (C) address the defendant
          personally and determine
          whether the defendant wishes
          to make a statement and to
          present any information in
          mitigation of the sentence;
          and
               (D) afford the attorney
          for the Government an
          equivalent opportunity to
          speak to the court.
          (4) In Camera Proceedings.
     The court's summary of information
     under subdivision (c)(3)(A) may be
     in camera.  Upon joint motion by
     the defendant and by the attorney
     for the Government, the court may
     hear in camera the statements --
     made under subdivision (c)(3)(B),
     (C), and (D) -- by the defendant,
     the defendant's counsel, or the
     attorney for the Government.
          (5) Notification of Right to
     Appeal.  After imposing sentence in
     a case which has gone to trial on a
     plea of not guilty, the court must
     advise the defendant of the right
     to appeal.  After imposing sentence
     in any case, the court must advise
     the defendant of any right to
     appeal the sentence, and of the
     right of a person who is unable to
     pay the cost of an appeal to apply
     for leave to appeal in forma
     pauperis.  If the defendant so
     requests, the clerk of the court
     must immediately prepare and file a
     notice of appeal on behalf of the
     defendant.
     (d) JUDGMENT.
          (1) In General.  A judgment of
     conviction must set forth the plea,
     the verdict or findings, the
     adjudication, and the sentence.  If
     the defendant is found not guilty
     or for any other reason is entitled
     to be discharged, judgment must be
     entered accordingly.  The judgment
     must be signed by the judge and
     entered by the clerk.
          (2) Criminal Forfeiture.  When
     a verdict contains a finding of
     criminal forfeiture, the judgment
     must authorize the Attorney General
     to seize the interest or property
     subject to forfeiture on terms that
     the court considers proper.
          (e) PLEA WITHDRAWAL.  If a
     motion to withdraw a plea of guilty
     or nolo contendere is made before
     sentence is imposed, the court may
     permit the plea to be withdrawn if
     the defendant shows any fair and
     just reason.  At any later time, a
     plea may be set aside only on
     direct appeal or by motion under 28
     U.S.C.  2255.







Rule 40.  Commitment to Another District

               * * * * *


            (d) ARREST OF PROBATIONER OR
     SUPERVISED RELEASEE.  If a person
     is arrested for a violation of
     probation or supervised release in
     a district other than the district
     having jurisdiction, such person
     must be taken without unnecessary
     delay before the nearest available
     federal magistrate judge.  The
     person may be released under Rule
     46(c).  The federal magistrate
     judge 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 judge is the person


          named in the warrant.
               * * * * *