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 compyà strike 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

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