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

o   def’s oral statements before or after arrest in response to interrogation

o   Defendant’s Written or Recorded Statements – in response to interrogation or before the grand jury

o   Organizational defendants – statements of agents of the organizational defendant

o   Defendant’s Prior Record

o   Documents and Objects – if material to prepare the defense, will be offered in case-in-chief, or defendant’s property

o   Reports of Examinations and Tests

o   Expert witnesses – provide a written summary of testimony – opinions, basis, qualifications

o   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

o   Documents and Objects  - that defendant intends to use in case-in-chief

o   Reports of Examinations and Tests – intends to use in case-in-chief or relates to a witness’s testimony

o   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

o    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

o   1 for 1 or 2

o   2 for 3 or 4

o   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

o   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

o   determine whether “the gov has established the requisite nexus between the property and the offense”

o   at a party’s request – a jury may determine the “nexus” issue

o   Order allows AG to seize and conduct discovery to id., locate, or dispose of property

o   prelim order becomes final at judgment

o   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

o   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

o   may go below the minimum sentence establish by statute

Rule 41         Search and Seizure

·         Authority to issue warrants –

o   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) –

o   person or property inside the district BUT may move/be moved before the warrant is executed - magistrate with authority in the district (“MWAITD”)

o   Activities related to TERRORISM – “MWAITD” within or OUTSIDE the district

o   “MWAITD” – may authorize INSTALLATION of tracking device – may monitor outside the district, too

·         Warrant by telephonic or other means – by “MWAITD”      

o   place affiant under oath – read from “proposed duplicate original warrant”

o   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

o   transcribe if necessary/certify it/file with clerk

·         Warrants must be executed within 10 days

o   during the daytime unless good cause authorizes in the warrant

·         Warrant for tracking device           

o   may not exceed 45 days – may grant extensions for additional 45 day periods for good cause

o   Must complete the installation within a specified time no longer than 10 days

o   must enter on the warrant the exact time and date installed

o   return the warrant  within 10 days after period ends to the judge – showing the exact period

o   serve a copy of the warrant on the person tracked within 10 days after use has ended

·         Executing and Returning the Warrant

o   date and time

o   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 –

o   organizational defendant

o    misdemeanor (with def written consent)

o   conference on a legal question

o   sentence correction

·         waives right to be present if

o   voluntary absence after trial begins

o   non-capital voluntary absence during sentencing, or

o   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 –

o   on party’s motion if filed before time expires

o   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

o   presenting to the grand jury

o   filing an information

o   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”

o   must object within 10 days

o   must get a record on relevant portions unless district judge says otherwise

o   district judge considers de novo any objection – accepts, rejects, or modifies recommendation