Federal Rules of Criminal Procedure Deadlines

Federal Rules of Criminal Procedure -deadlines, etc

Rule 5.1:

Preliminary Hearing must be held
• within 10 days of arrest if in custody
• within 20 days of arrest is not in custody
• may be extend by agreement of parties for good cause
• if defendant objects - court may extend if "extraordinary circumstances exist and justice requires delay"

Rule 6:

The Grand Jury
• 16 to 23 members
• 12 must concur to indict
• May not serve more than 18 months unless court determines it is in the "public's interest" - may extend for 6 months

Rule 7:

The Indictment and the Information
• Motion for Bill of Particulars - requesting the facts supporting the allegations in the indictment/information - must be filed within 10 days after arraignment

Rule 12:

Pleading and Pretrial Motions - Following must be raised before trial:
• Alleging a defect in instituting the prosecution
• Defect in the charging doc - unless jurisdictional or does not state an offense
• Motion to suppress
• Motion to sever
• Motion for discovery

Rule 12.1

Notice of Alibi
• after request from the government - 10 days to provide notice of alibi defense, including the place and the witness and their contact information
• Then Gov must disclose within 10 days after receiving notice (but not later than 10 days before trial) the pertaining witness to place def and scene of offense
• Undisclosed witnesses may be excluded
• Continuing duty to disclose - court may grant exceptions for good cause

Rule 12.2

Notice of an Insanity Defense; Mental Examination
• Must notify the gov as determined by pre-trial order of intent to use Insanity Defense/Offer Expert Evidence of Mental Condition

Rule 12.3

Public Authority Defense
• State must file written response to Notice of Public-Authority Defense within 10 days, but not later than 20 days before trial
• State may request notice of witnesses - must be at least 20 days before trial
• Defense has 7 days to respond providing witnesses
• State has 7 days to respond providing witnesses after getting the defense witnesses

Rule 12.4

Corporate parties must file a disclosure statement at the intial appearance

Rule 16

Discovery
• Government's Disclosure -Upon def's request - must disclose/permit inspection or copying of
• def's oral statements before or after arrest in response to interrogation
• Defendant's Written or Recorded Statements - in response to interrogation or before the grand jury
• Organizational defendants - statements of agents of the organizational defendant
• Defendant's Prior Record
• Documents and Objects - if material to prepare the defense, will be offered in case-in-chief, or defendant's property
• Reports of Examinations and Tests
• Expert witnesses - provide a written summary of testimony - opinions, basis, qualifications
• Witness statements controlled by 18 USC 3500 - get them after direct exam - part of statement that relates to testimony - if gov does not compyàstrike testimony
• Defendant's Disclosure - If def requests and gov complies - def must disclose/permit inspection or copying of
• Documents and Objects - that defendant intends to use in case-in-chief
• Reports of Examinations and Tests - intends to use in case-in-chief or relates to a witness's testimony
• Expert Witnesses - provide a written summary of testimony - if gov has disclosed as required or def has given notice of intent to present expert testimony on mental condition
• No duty to disclose witness statements pretrial - made to def or def team - see 26.2.

Rule 17

Subpoena
• def must pay witness fees unless files an Ex Parte Application showing inability to pay/necessity of the witness
• No party may sub witness statements

Rule 20

Transfer for Trial - for prejudice or convenience
• must be made at or before arraignment

Rule 24

Trial Jurors
• 20 peremptory challenges in Capital Cases for each side
• Gov has 6 - Def or Defs have 10 total for felonies
• Each side has 3 in misdemeanors
• may empanel up to 6 alternate jurors - additional peremptories
• 1 for 1 or 2
• 2 for 3 or 4
• 3 for 5 or 6

Rule 26.2

Producing Witness Statements - after direct related to subject matter that is not privileged
• applies at trial, suppression hearing, preliminary hearing, sentencing, revocation/modifications, detention hearings, writ of habeas corpus/federal custody

Rule 29

Motion for Judgment of Acquittal - evidence is insufficient to sustain a conviction
• after gov closes evidence,
• after the close of all evidence
• within 7 days after a guilty verdict
• if court sets aside guilty verdict - may conditionally grant or deny a new trial if the acquittal is later reversed
• if court conditionally denies a new trial - appellate court may order new trial if the denial is erroneous

Rule 30

Must object to instructions before jury retires and deliberates- waive appellate review unless "plain error"

Rule 32

Sentencing and judgment
• probation must give the PSR to all parties at least 35 days before sentencing unless def waives
• Objections to PSR must be in writing with 14 days after receiving the PSR probation can revise
• At least 7 days prior to sentencing - probation must submit the PSR to the court/parties plus an addendum with any unresolved objections
• Court must give "reasonable notice" of intent to depart from guidelines

Rule 32.3

Criminal Forfeiture
• Court should enter a preliminary order of forfeiture after a verdict of guilty
• determine whether "the gov has established the requisite nexus between the property and the offense"
• at a party's request, a jury may determine the "nexus" issue
• Order allows AG to seize and conduct discovery to id., locate, or dispose of property
• prelim order becomes final at judgment
• no right to jury trial for subsequently located property found in discovery

Rule 33

New Trial
• based on "newly discovered evidence"  within 3 years after verdict of guilty - unless an appeal is pending

Rule 34

Arresting Judgment - indictment does not charge an offense or court has no jurisdiction motion to arrest judgment must be filed within 7 days after verdict or plea

Rule 35

Correcting or Reducing Sentence
• "arithmetical or technical error" - within 7 days after sentencing
• For "Substantial Assistance" - within 1 year after sentencing  def helped to investigate another person after they were sentenced
• may file later if:
• info was not known to the def until more than a year after sentencing,
• provide within a year but not useful to gov until later, OR
• usefulness of the information could not reas have been anticipated by the defendant until more than a year after sentencing - then promptly tendere
• may go below the minimum sentence establish by statute

Rule 41

Search and Seizure
• Authority to issue warrants:
• for persons or property INSIDE the district -magistrate with authority in the district or (if none reas available) judge of a state court of record (not jp's)
• person or property inside the district BUT may move/be moved before the warrant is executed - magistrate with authority in the district ("MWAITD")
• Activities related to TERRORISM – "MWAITD" within or OUTSIDE the district
• "MWAITD" - may authorize INSTALLATION of tracking device  may monitor outside the district, too
• Warrant by telephonic or other means - by "MWAITD"
• place affiant under oath read from "proposed duplicate original warrant"
• record it/have a court reporter/write it down verbatim - enter it into "Original Warrant"
• if fax, may serve as original
• judge may modify and fax back or instruct to modify
• sign "Original" with date and time, send it electronically or direct applicant to sign the judge's name
• transcribe if necessary/certify it/file with clerk
• Warrants must be executed within 10 days
• during the daytime unless good cause authorizes in the warrant
• Warrant for tracking device
• may not exceed 45 days - may grant extensions for additional 45 day periods for good cause
• Must complete the installation within a specified time no longer than 10 days
• must enter on the warrant the exact time and date installed
• return the warrant within 10 days after period ends to the judge, showing the exact period
• serve a copy of the warrant on the person tracked within 10 days after use has ended
• Executing and Returning the Warrant
• date and time
• inventory - witnessed by another officer and person from whom the property was taken / or in front of at least one other credible person
• Motion to return Property - file in district court where property was seized

Rule 43

Defendant must be present - initial appearance, arraignment, plea, every trial stage, and sentencing
• not required
• organizational defendant
• misdemeanor (with def written consent)
• conference on a legal question
• sentence correction
• waives right to be present if
• voluntary absence after trial begins
• non-capital voluntary absence during sentencing, or
• persistent disruptive behavior

Rule 45

Computing time
• day of event excluded
• exclude Saturdays, Sundays, legal holidays, inaccessible courthouse (bad weather) if period is less than 11 days
• include the last day unless an "excluded day"
• court may extend on its own motion for good cause 
• on party's motion if filed before time expires
• after time expires if party failed to act because of "excusable neglect"
• if you don't fax it or personally serve it, add 3 days to the period

Rule 46

Release from custody; Supervising Detention governs pretrial release of def's but also
• Gov must report every 2 weeks listing material witnesses held in custody for more than 10 days,  state why they should not be released

Rule 47

Motions and Supporting Affidavits
• must be in writing unless during trial or hearing
• must serve motion and any hearing notice at least 5 days before hearing date, unless a rule or court order says differently
• responding party must serve opposing affidavits at least one day before hearing

Rule 48

Dismissals:
• Gov may not dismiss during trial without the defendant's consent
• Court may dismiss for unnecessary delay in
• presenting to the grand jury
• filing an information
• bringing a defendant to trial

Rule 52

Harmless and Plain Error
• Harmless error - any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded
• Plain error  error that affects substantial rights may be considered even though it was not brought to the court's attention

Rule 58

Petty Offenses and Misdemeanors
• appeal to district judge from magistrate within 10 days - not trial de novo district judge acts as appellate court

Rule 59

Matters before a Magistrate Judge
• May refer any matter that does not dispose of a charge or defense
• Parties may object to orders of magistrate within 10 days  district judge may set aside rulings that are "contrary to the law" or "clearly erroneous"
• Dispositive matters can go before a magistrate - decided as "recommendations"
• must object within 10 days
• must get a record on relevant portions unless district judge says otherwise
• district judge considers de novo any objection - accepts, rejects, or modifies recommendation