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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
any other grounds  within 7 days after the verdict or finding of guilty

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
By Brian Corrigan
Board Certified Dallas Criminal Defense Attorney
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