T:\TS\PAMP2016\AFTERP~1\CRIMINAL\CRIM2016.XY

FEDERAL RULES

CRIMINAL PROCEDURE

DECEMBER 16, 2016

Printed for the use

THE COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

114

ONGRESS

" COMMITTEE PRINT ! No. 9

2nd Session

FEDERAL RULES

CRIMINAL PROCEDURE

DECEMBER 16, 2016

Printed for the use

THE COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

GOVERNMENT PUBLISHING OFFICE

WASHINGTON

2016

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

COMMITTEE ON THE JUDICIARY

UNDRED

OURTEENTH

ONGRESS

BOB GOODLATTE, Virginia, Chairman

F. JAMES SENSENBRENNER, J

., Wisconsin

LAMAR S. SMITH, Texas

STEVE CHABOT, Ohio

DARRELL E. ISSA, California

J. RANDY FORBES, Virginia

STEVE KING, Iowa

TRENT FRANKS, Arizona

LOUIE GOHMERT, Texas

JIM JORDAN, Ohio

TED POE, Texas

JASON CHAFFETZ, Utah

TOM MARINO, Pennsylvania

TREY GOWDY, South Carolina

RAU

L LABRADOR, Idaho

BLAKE FARENTHOLD, Texas

DOUG COLLINS, Georgia

RON DeSANTIS, Florida

MIMI WALTERS, California

KEN BUCK, Colorado

JOHN RATCLIFFE, Texas

DAVE TROTT, Michigan

MIKE BISHOP, Michigan

JOHN CONYERS, J

., Michigan

JERROLD NADLER, New York

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

STEVE COHEN, Tennessee

HENRY C. ‘‘HANK’’ JOHNSON, J

., Georgia

PEDRO R. PIERLUISI, Puerto Rico

JUDY CHU, California

TED DEUTCH, Florida

LUIS V. GUTIERREZ, Illinois

KAREN BASS, California

CEDRIC RICHMOND, Louisiana

SUZAN DelBENE, Washington

HAKEEM JEFFRIES, New York

DAVID N. CICILLINE, Rhode Island

SCOTT PETERS, California

HELLEY

USBAND

, Chief of Staff & General Counsel

ERRY

PELBAUM

, Minority Staff Director & Chief Counsel

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FOREWORD

This document contains the Federal Rules of Criminal Proce-

dure, as amended to December 16, 2016. The rules have been pro-

mulgated and amended by the United States Supreme Court pur-

suant to law, and further amended by Acts of Congress. This docu-

ment has been prepared by the Committee in response to the need

for an official up-to-date document containing the latest amend-

ments to the rules.

For the convenience of the user, where a rule has been amended

a reference to the date the amendment was promulgated and the

date the amendment became effective follows the text of the rule.

The Committee on Rules of Practice and Procedure and the Ad-

visory Committee on the Federal Rules of Criminal Procedure, Ju-

dicial Conference of the United States, prepared notes explaining

the purpose and intent of the amendments to the rules. The Com-

mittee Notes may be found in the Appendix to Title 18, United

States Code, following the particular rule to which they relate.

Chairman, Committee on the Judiciary.

ECEMBER

16, 2016.

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AUTHORITY FOR PROMULGATION OF RULES

TITLE 28, UNITED STATES CODE

§ 2072. Rules of procedure and evidence; power to prescribe

(a) The Supreme Court shall have the power to prescribe general

rules of practice and procedure and rules of evidence for cases in

the United States district courts (including proceedings before

magistrate judges thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any sub-

stantive right. All laws in conflict with such rules shall be of no

further force or effect after such rules have taken effect.

final for the purposes of appeal under section 1291 of this title.

(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648,

eff. Dec. 1, 1988; amended Pub. L. 101–650, title III, §§ 315, 321, Dec.

1, 1990, 104 Stat. 5115, 5117.)

§ 2073. Rules of procedure and evidence; method of prescribing

(a)(1) The Judicial Conference shall prescribe and publish the

procedures for the consideration of proposed rules under this sec-

tion.

(2) The Judicial Conference may authorize the appointment of

committees to assist the Conference by recommending rules to be

prescribed under sections 2072 and 2075 of this title. Each such

committee shall consist of members of the bench and the profes-

sional bar, and trial and appellate judges.

(b) The Judicial Conference shall authorize the appointment of

a standing committee on rules of practice, procedure, and evi-

dence under subsection (a) of this section. Such standing commit-

tee shall review each recommendation of any other committees so

appointed and recommend to the Judicial Conference rules of

practice, procedure, and evidence and such changes in rules pro-

posed by a committee appointed under subsection (a)(2) of this

section as may be necessary to maintain consistency and other-

wise promote the interest of justice.

(c)(1) Each meeting for the transaction of business under this

chapter by any committee appointed under this section shall be

open to the public, except when the committee so meeting, in

open session and with a majority present, determines that it is in

the public interest that all or part of the remainder of the meet-

ing on that day shall be closed to the public, and states the reason

for so closing the meeting. Minutes of each meeting for the trans-

action of business under this chapter shall be maintained by the

committee and made available to the public, except that any por-

tion of such minutes, relating to a closed meeting and made avail-

able to the public, may contain such deletions as may be nec-

essary to avoid frustrating the purposes of closing the meeting.

AUTHORITY FOR PROMULGATION OF RULES

(2) Any meeting for the transaction of business under this chap-

ter, by a committee appointed under this section, shall be pre-

ceded by sufficient notice to enable all interested persons to at-

tend.

(d) In making a recommendation under this section or under

section 2072 or 2075, the body making that recommendation shall

provide a proposed rule, an explanatory note on the rule, and a

written report explaining the body’s action, including any minor-

ity or other separate views.

(e) Failure to comply with this section does not invalidate a rule

prescribed under section 2072 or 2075 of this title.

(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649,

eff. Dec. 1, 1988; amended Pub. L. 103–394, title I, § 104(e), Oct. 22,

1994, 108 Stat. 4110.)

§ 2074. Rules of procedure and evidence; submission to Congress;

effective date

(a) The Supreme Court shall transmit to the Congress not later

than May 1 of the year in which a rule prescribed under section

2072 is to become effective a copy of the proposed rule. Such rule

shall take effect no earlier than December 1 of the year in which

such rule is so transmitted unless otherwise provided by law. The

Supreme Court may fix the extent such rule shall apply to pro-

ceedings then pending, except that the Supreme Court shall not

require the application of such rule to further proceedings then

pending to the extent that, in the opinion of the court in which

such proceedings are pending, the application of such rule in such

proceedings would not be feasible or would work injustice, in

which event the former rule applies.

(b) Any such rule creating, abolishing, or modifying an evi-

dentiary privilege shall have no force or effect unless approved by

Act of Congress.

(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649,

eff. Dec. 1, 1988.)

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HISTORICAL NOTE

The Supreme Court prescribes rules of criminal procedure for

the district courts pursuant to section 2072 of Title 28, United

States Code, as enacted by Title IV ‘‘Rules Enabling Act’’ of Pub.

L. 100–702 (approved November 19, 1988, 102 Stat. 4648), effective De-

cember 1, 1988. Pursuant to section 2074 of Title 28, the Supreme

Court transmits to Congress (not later than May 1 of the year in

which a rule prescribed under section 2072 is to become effective)

a copy of the proposed rule. The rule takes effect no earlier than

December 1 of the year in which the rule is transmitted unless

otherwise provided by law.

Prior to enactment of Pub. L. 100–702, the Supreme Court pro-

mulgated rules of criminal procedure for the district courts pursu-

ant to two sections of Title 18, United States Code. Section 3771

authorized the Court to prescribe rules for all criminal proceed-

ings prior to and including verdict, or finding of guilty or not

guilty by the court, or plea of guilty. Section 3772 empowered the

Court to prescribe rules with respect to all proceedings after ver-

dict or finding of guilty by the court, or plea of guilty.

Proceedings Prior to and Including Verdict

By act of June 29, 1940, ch. 445, 54 Stat. 688 (subsequently 18

United States Code, § 3771), the Supreme Court was authorized to

prescribe general rules of criminal procedure prior to and includ-

ing verdict, finding of guilty or not guilty by the court, or plea of

guilty, in criminal proceedings. The rules, and subsequent amend-

ments, were not to take effect until (1) they had been first re-

ported to Congress by the Attorney General at the beginning of a

regular session and (2) after the close of that session.

Under a 1949 amendment to 18 U.S.C., § 3771, the Chief Justice of

the United States, instead of the Attorney General, reported the

rules to Congress. In 1950, section 3771 was further amended so

that amendments to the rules could be reported to Congress not

later than May 1 each year and become effective 90 days after

being reported. Effective December 1, 1988, section 3771 was re-

pealed and supplanted by new sections 2072 and 2074 of Title 28,

United States Code, see first paragraph of Historical Note above.

The original rules pursuant to act of June 30, 1940, were adopted

by order of the Court on December 26, 1944, transmitted to Con-

gress by the Attorney General on January 3, 1945, and became ef-

fective March 21, 1946 (327 U.S. 821; Cong. Rec., vol. 91, pt. 1, p. 17,

Exec. Comm. 4; H. Doc. 12, 79th Cong.).

Amendments were adopted by order of the Court dated Decem-

ber 27, 1948, transmitted to Congress by the Attorney General on

January 3, 1949, and became effective October 20, 1949 (335 U.S. 917,

949; Cong. Rec., vol. 95, pt. 1, p. 13, Exec. Comm. 16; H. Doc. 30, 81st

VIII

HISTORICAL NOTE

Cong.). The amendments affected Rules 17(e)(2), 41(b)(3), 41(g),

54(a)(1), 54(b), 54(c), 55, 56, and 57(a) and Forms 1–27, inclusive.

Further amendments were adopted by order of the Court dated

April 9, 1956, transmitted to Congress by the Chief Justice on the

same day, and became effective July 8, 1956 (350 U.S. 1017; Cong.

Rec., vol. 102, pt. 5, p. 5973, Exec. Comm. 16; H. Doc. 377, 84th

Cong.). The amendments affected Rules 41(a), 46(a)(2), 54(a)(1), and

54(c).

Further amendments were adopted by order of the Court dated

February 28, 1966, transmitted to Congress by the Chief Justice on

the same day, and became effective July 1, 1966 (383 U.S. 1087;

Cong. Rec., vol. 112, pt. 4, p. 4229, Exec. Comm. 2093; H. Doc. 390,

89th Cong.). The amendments affected Rules 4, 5, 6, 7, 11, 14, 16, 17,

18, 20, 21, 23, 24, 25, 28, 29, 30, 32, 33, 34, 35, 37, 38, 40, 44, 45, 46, 49,

54, 55, and 56, and Form 26, added new Rules 17.1 and 26.1, and re-

scinded Rules 19 and 45(c).

Further amendments were adopted by the Court by order dated

December 4, 1967, transmitted to Congress by the Chief Justice on

January 15, 1968, and became effective July 1, 1968, together with

the new Federal Rules of Appellate Procedure (389 U.S. 1125; Cong.

Rec., vol. 114, pt. 1, p. 113, Exec. Comm. 1361; H. Doc. 204, 90th

Cong.). The amendments affected Rules 45(b), 49(c), 56, and 57, and

abrogated the chapter heading ‘‘VIII. Appeal’’, Rules 37, 38(b), (c),

and 39, and Forms 26 and 27.

On March 1, 1971, the Court adopted additional amendments

which were transmitted to Congress by the Chief Justice on March

1, 1971. These amendments became effective July 1, 1971 (401 U.S.

1025; Cong. Rec., vol. 117, pt. 4, p. 4629, Exec. Comm. 341; H. Doc.

92–57). The amendments affected Rules 45(a) and 56.

Additional amendments were adopted by the Court by order

dated April 24, 1972, transmitted to Congress by the Chief Justice,

accompanied by his letter of transmittal dated April 24, 1972.

These amendments became effective October 1, 1972 (406 U.S. 979;

Cong. Rec., vol. 118, pt. 11, p. 14262, Exec. Comm. 1903; H. Doc.

92–285). The amendments affected Rules 1, 3, 4(b), (c), 5, 5.1, 6(b),

7(c), 9(b), (c), (d), 17(a), (g), 31(e), 32(b), 38(a), 40, 41, 44, 46, 50, 54,

and 55.

Additional amendments were adopted by the Court by order

dated March 18, 1974, transmitted to Congress by the Chief Justice

on the same date. These amendments became effective July 1, 1974

(415 U.S. 1056; Cong. Rec., vol. 120, pt. 5, p. 7012, Exec. Comm. 2062;

H. Doc. 93–241). The amendments affected Rules 41(a) and 50.

Further amendments were proposed by the Court in its order

dated November 20, 1972, transmitted to Congress by the Chief Jus-

tice on February 5, 1973 (409 U.S. 1132 and 419 U.S. 1133, 1136; Cong.

Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359; H. Doc. 93–46). Al-

though these amendments were to have become effective July 1,

1973, Public Law 93–12 (approved March 30, 1973, 87 Stat. 9) pro-

vided that the proposed amendments ‘‘shall have no force or effect

except to the extent, and with such amendments, as they may be

expressly approved by Act of Congress.’’ Section 3 of Public Law

93–595 (approved January 2, 1975, 88 Stat. 1949) approved the

amendments proposed by the Court, to be effective July 1, 1975.

The amendments affected Rules 26, 26.1, and 28.

HISTORICAL NOTE

In its order dated April 22, 1974, the Court proposed additional

amendments which were transmitted to Congress by the Chief

Justice on the same day. The amendments were to have become

effective August 1, 1974 (416 U.S. 1001; Cong. Rec., vol. 120, pt. 9, p.

11472, Exec. Comm. 2223; H. Doc. 93–292). The effective date of the

proposed amendments was postponed until August 1, 1975, by Pub-

lic Law 93–361 (approved July 30, 1974, 88 Stat. 397). Public Law

94–64 (approved July 31, 1975, 89 Stat. 370) approved the amend-

ments proposed by the Court and further amended the rules, to be

effective December 1, 1975, except Rule 11(e)(6), to be effective Au-

gust 1, 1975. The amendments affected Rules 4, 9(a), 11, 12, 15, 16,

17(f), 20, 32(a), (c), (e), and 43, and added Rules 12.1, 12.2, and 29.1.

Technical amendments to Rules 9(b), 9(c), 16(a), and 16(b) were

made by section 5 of Public Law 94–149 (approved Dec. 12, 1975, 89

Stat. 806).

Additional amendments were proposed by the Court by order

dated April 26, 1976, were transmitted to Congress by the Chief

Justice on the same day (425 U.S. 1157; Cong. Rec., vol. 122, pt. 9,

p. 11117, Exec. Comm. 3084; H. Doc. 94–464), and were to be effective

August 1, 1976. Public Law 94–349 (approved July 8, 1976, 90 Stat.

822) delayed the effective date of the amendments to Rules 6(e), 23,

24, and 41(c)(2), and the addition of Rule 40.1 until August 1, 1977,

or until and to the extent approved by Act of Congress, whichever

is earlier. Also, it approved the amendments to Rules 6(f), 41(a),

and 50(b), to be effective August 1, 1976. Public Law 95–78 (approved

July 30, 1977, 91 Stat. 319) disapproved the amendment to Rule 24

and the addition of Rule 40.1, approved amendments to Rule 23,

and modified and approved amendments to Rules 6(e) and 41(c), to

be effective October 1, 1977.

Additional amendments were proposed by the Court by order

dated April 30, 1979, were transmitted to Congress by the Chief

Justice on the same day (441 U.S. 970, 985; Cong. Rec., vol. 125, pt.

8, p. 9366, Exec. Comm. 1456; H. Doc. 96–112), and were to be effec-

tive August 1, 1979. Amendments to Rules 6(e), 7(c)(2), 9(a), 11(e)(2),

18, 32(c)(3)(E), 35, and 41(a), (b), and (c) became effective August 1,

1979. Public Law 96–42 (approved July 31, 1979, 93 Stat. 326) delayed

the effective date of the amendments to Rules 11(e)(6), 17(h), 32(f),

and 44(c), and the addition of new Rules 26.2 and 32.1, until Decem-

ber 1, 1980, or until and to the extent approved by Act of Congress,

whichever is earlier, and modified and approved the amendment to

Rule 40 to be effective August 1, 1979. In the absence of further ac-

tion by Congress, the amendments that were the subject of a de-

layed effective date pursuant to Public Law 96–42 became effective

December 1, 1980.

Additional amendments were adopted by the Court by order

dated April 28, 1982, transmitted to Congress by the Chief Justice

on the same day (456 U.S. 1021; Cong. Rec., vol. 128, pt. 6, p. 8191,

Exec. Comm. 3822; H. Doc. 97–173), and became effective August 1,

1982. The amendments affected Rules 1, 5(b), 9(a), (b)(1), (2), (c)(1),

(2), 11(c)(1), (4), (5), 20(b), 40(d)(1), (2), 45(a), 54(a), (b)(4), (c), and ab-

rogated Rule 9(d).

An amendment to Rule 32(c)(2) was made by section 3 of Public

Law 97–291 (approved October 12, 1982, 96 Stat. 1249.)

Additional amendments were adopted by the Court by order

dated April 28, 1983, transmitted to Congress by the Chief Justice

HISTORICAL NOTE

on the same day (461 U.S. 1117; Cong. Rec., vol. 129, pt. 8, p. 10479,

Exec. Comm. 1028; H. Doc. 98–55), and became effective August 1,

1983. The amendments affected Rules 6(e), (g), 11(a), (h), 12(i),

12.2(b), (c), (d), (e), 16(a), 23(b), 32(a), (c), (d), 35(b), and 55, and abro-

gated Rule 58 and the Appendix of Forms.

Section 209 of Public Law 98–473 (approved October 12, 1984, 98

Stat. 1986) amended Rules 5(c), 15(a), 40(f), 46(a), (c), (e)(2), and

54(b)(3), and added Rule 46(h).

Section 215 of Public Law 98–473 (98 Stat. 2014, as amended)

amended Rules 6(e)(3)(C), 32(a)(1), (2), (c)(1) to (3), (d), 35, 38,

40(d)(1), and 54(c), effective on the first day of the first calendar

month beginning 36 months after October 12, 1984 (November 1,

1987).

Section 404(a) of Public Law 98–473 (98 Stat. 2067) amended Rule

12.2(a). Section 404(b) to (d) of Public Law 98–473 would have

amended Rule 12.2(b) to (d), but the amendments by section 404(b)

and (d) were repealed by section 11(b) of Public Law 98–596 (ap-

proved October 30, 1984, 98 Stat. 3138) and the amendment by sec-

tion 404(c) of Public Law 98–473 could not be executed because it

directed the deletion of language not found in the text of the Rule

[that defect being cured by section 11(a) of Public Law 98–596,

which amended Rule 12.2(c) and (d)]. The amendments and repeals

by section 11 of Public Law 98–596 are effective on and after the

date of enactment of Public Law 98–473 (October 12, 1984).

Additional amendments were adopted by the Court by order

dated April 29, 1985, transmitted to Congress by the Chief Justice

on the same day (471 U.S. 1167; Cong. Rec., vol. 131, pt. 7, p. 9826,

Exec. Comm. 1154; H. Doc. 99–64), and became effective August 1,

1985. The amendments affected Rules 6(e)(3), 11(c)(1), 12.1(f), 12.2(e),

35(b), 45(a), 49(e), and 57. The amendment to Rule 35(b) was effec-

tive until November 1, 1986, when section 215(b) of Public Law

98–473 (approved October 12, 1984, 98 Stat. 2015) was to go into ef-

fect. Section 235(a)(1) of Public Law 98–473, which originally pro-

vided for an effective date of November 1, 1986, for the amend-

ments made by section 215(b) of Public Law 98–473, was later

amended by section 4 of Public Law 99–217 (approved December 26,

1985, 99 Stat. 1728) to provide for an effective date of November 1,

1987.

Section 1009 of Public Law 99–570 (approved October 27, 1986, 100

Stat. 3207–8) amended Rule 35(b), effective on the date (November

1, 1987) of the taking effect of Rule 35(b) as amended by section

215(b) of Public Law 98–473.

Sections 12(b), 24, 25(a), and 54(a) of Public Law 99–646 (approved

November 10, 1986, 100 Stat. 3594, 3597, 3607) affected Rules 12.2(c),

29(d), 32(c)(2)(B), and 32.1(b). The amendments to Rules 29(d) and

32.1(b) became effective 30 days after the date of enactment of

Public Law 99–646. The amendment to Rule 32(c)(2)(B) became ef-

fective November 1, 1987, when the amendment made by section

215(a)(5) of Public Law 98–473 went into effect.

Additional amendments were adopted by the Court by order

dated March 9, 1987, transmitted to Congress by the Chief Justice

on the same day (480 U.S. 1041; Cong. Rec., vol. 133, pt. 4, p. 5256,

Exec. Comm. 825; H. Doc. 100–47), and became effective August 1,

1987. The amendments affected Rules 4(c)(1), (d)(3), (4), 5(c), 5.1(a),

(c), 6(a), (c), (f), 7(b), (c)(1), (3), 10, 11(a)(2), (c)(2) to (5), (d), (e)(2),

HISTORICAL NOTE

(4), 12(h), 12.1(a), (b) to (d), 12.2(a), (b), (d), 15(a) to (e), 16(a)(1)(A)

to (C), (b)(1)(B), (2), (c), 17(a), (d), (g), 17.1, 20, 21(a), (b), 24(a), 25,

26.2(a), (c), (f)(1), 30, 32(a), (c)(3)(A) to (E), 32.1, 33, 38(a)(2), (3), 40(a),

(d)(3), (e), (f), 41(c)(1), (e), 42, 43(b), 44(a), (c), 45(e), 46(b), (d), (g),

49(b), and 51.

Additional amendments were adopted by the Court by order

dated April 25, 1988, transmitted to Congress by the Chief Justice

on the same day (485 U.S. 1057; Cong. Rec., vol. 134, pt. 7, p. 9154,

Exec. Comm. 3516; H. Doc. 100–186), and became effective August 1,

1988. The amendments affected Rules 30 and 56.

Sections 6483, 7076, and 7089(c) of Public Law 100–690 (approved

November 18, 1988, 102 Stat. 4382, 4406, 4409) amended Rules 11(c)(1)

and 54(c), and added Rule 12.3.

Additional amendments were adopted by the Court by order

dated April 25, 1989, transmitted to Congress by the Chief Justice

on the same day (490 U.S. 1135; Cong. Rec., vol. 135, pt. 6, p. 7542,

Exec. Comm. 1059; H. Doc. 101–55), and became effective December

1, 1989. The amendments affected Rules 11(c)(1), 32(a), (c), 32.1(a),

(b), 40(d), and 41(e).

Additional amendments were adopted by the Court by order

dated May 1, 1990, transmitted to Congress by the Chief Justice on

the same day (495 U.S. 967; Cong. Rec., vol. 136, pt. 6, p. 9091, Ex.

Comm. 3098; H. Doc. 101–185), and became effective December 1,

1990. The amendments affected Rules 5(b), 41(a), and 54(b)(4), (c),

and added new Rule 58.

Additional amendments were adopted by the Court by order

dated April 30, 1991, transmitted to Congress by the Chief Justice

on the same day (500 U.S. 991; Cong. Rec., vol. 137, pt. 7, p. 9721,

Ex. Comm. 1191; H. Doc. 102–78), and became effective December 1,

1991. The amendments affected Rules 16(a), 32(c), 32.1(a), 35(b), (c),

46(h), 54(a), and 58(b), (d).

Additional amendments were adopted by the Court by order

dated April 22, 1993, transmitted to Congress by the Chief Justice

on the same day (507 U.S. 1161; Cong. Rec., vol. 139, pt. 6, p. 8127,

Ex. Comm. 1103; H. Doc. 103–75), and became effective December 1,

1993. The amendments affected Rules 1, 3, 4(c)(1), (d), 5, 5.1, 6(e)(4),

(f), 9(a) to (c), 12(i), 16(a)(1)(E), (2), (b)(1)(C), 17(a), (g), 26.2(c), (d),

(g), 32(e), 32.1(c), 40(a), (b), (d), (e), (f), 41(a), (c), (d), (g), 44(a), 46(i),

49(e), 50(b), 54(b)(3), (4), (c), 55, 57, and 58(a)(1), (b)(2), (3), (c)(2),

(d)(2), (g)(2), and added new Rule 26.3.

Additional amendments were adopted by the Court by order

dated April 29, 1994, transmitted to Congress by the Chief Justice

on the same day (511 U.S. 1175; Cong. Rec., vol. 140, pt. 7, p. 8903,

Ex. Comm. 3084; H. Doc. 103–249), and became effective December

1, 1994. The amendments affected Rules 16(a)(1)(A), 29(b), 32, and

40(d).

Sections 230101(b), (c) and 330003(h) of Public Law 103–322 (ap-

proved September 13, 1994, 108 Stat. 2078, 2141) affected Rules 32

and 46(i)(1). The amendments to Rule 32 became effective Decem-

ber 1, 1994. The amendment to Rule 46 became effective September

13, 1994.

Additional amendments were adopted by the Court by order

dated April 27, 1995, transmitted to Congress by the Chief Justice

on the same day (514 U.S. 1159; Cong. Rec., vol. 141, pt. 8, p. 11745,

XII

HISTORICAL NOTE

Ex. Comm. 805; H. Doc. 104–65), and became effective December 1,

1995. The amendments affected Rules 5, 40, 43, 49, and 57.

An additional amendment was adopted by the Court by order

dated April 23, 1996, transmitted to Congress by the Chief Justice

on the same day (517 U.S. 1285; Cong. Rec., vol. 142, pt. 6, p. 8831,

Ex. Comm. 2488; H. Doc. 104–202), and became effective December

1, 1996. The amendment affected Rule 32(d)(2).

Sections 207(a) and 211 of Public Law 104–132 (approved April 24,

1996, 110 Stat. 1236, 1241) amended Rule 32(b), effective, to the ex-

tent constitutionally permissible, for sentencing proceedings in

cases in which the defendant is convicted on or after the date of

enactment of Public Law 104–132.

Additional amendments were adopted by the Court by order

dated April 11, 1997, transmitted to Congress by the Chief Justice

on the same day (520 U.S. 1313; Cong. Rec., vol. 143, pt. 4, p. 5550,

Ex. Comm. 2796; H. Doc. 105–68), and became effective December 1,

1997. The amendments affected Rules 16 and 58.

Additional amendments were adopted by the Court by order

dated April 24, 1998, transmitted to Congress by the Chief Justice

on the same day (523 U.S. 1227; H. Doc. 105–267), and became effec-

tive December 1, 1998. The amendments affected Rules 5.1, 26.2, 31,

33, 35, and 43.

Additional amendments were adopted by the Court by order

dated April 26, 1999, transmitted to Congress by the Chief Justice

on the same day (526 U.S. 1189; Cong. Rec., vol. 145, pt. 6, p. 7907,

Ex. Comm. 1788; H. Doc. 106–55), and became effective December 1,

1999. The amendments affected Rules 6, 11, 24, and 54.

Additional amendments were adopted by the Court by order

dated April 17, 2000, transmitted to Congress by the Chief Justice

on the same day (529 U.S. 1179; Cong. Rec., vol. 146, pt. 5, p. 6328,

Ex. Comm. 7335; H. Doc. 106–227), and became effective December

1, 2000. The amendments affected Rules 7, 31, 32, and 38, and added

new Rule 32.2.

Sections 203(a) and 219 of Public Law 107–56 (approved October

26, 2001, 115 Stat. 278, 291) amended Rules 6(e)(3)(C), (D) and 41(a).

Additional amendments were adopted by the Court by order

dated April 29, 2002, transmitted to Congress by the Chief Justice

on the same day (535 U.S. 1157; Cong. Rec., vol. 148, pt. 5, p. 6813,

Ex. Comm. 6621; H. Doc. 107–203), and became effective December

1, 2002. The amendments affected Rules 1 to 60.

Section 11019(b), (c) of Pub. L. 107–273 (approved November 2,

2002, 116 Stat. 1825, 1826) amended Rule 16(a)(1)(G), (b)(1)(C), effec-

tive December 1, 2002.

Sections 4 and 895 of Pub. L. 107–296 (approved November 25, 2002,

116 Stat. 2142, 2256) which directed the amendment of Rule 6(e)(2),

(3)(A)(ii), (C)(i), (iii), effective 60 days after the date of enactment

of Pub. L. 107–296, could not be executed after the amendments of

April 29, 2002, effective December 1, 2002.

Section 610(b) of Pub. L. 108–21 (approved April 30, 2003, 117 Stat.

692) amended Rule 7(c)(1).

An additional amendment was adopted by the Court by order

dated April 26, 2004, transmitted to Congress by the Chief Justice

on the same day (541 U.S. 1103; Cong. Rec., vol. 150, pt. 6, p. 7968,

Ex. Comm. 7865; H. Doc. 108–182), and became effective December

1, 2004. The amendment affected Rule 35.

XIII

HISTORICAL NOTE

Section 6501(a) of Pub. L. 108–458 (approved December 17, 2004, 118

Stat. 3760) amended Rule 6(e).

Additional amendments were adopted by the Court by order

dated April 25, 2005, transmitted to Congress by the Chief Justice

on the same day (544 U.S. 1181; Cong. Rec., vol. 151, pt. 7, p. 8784,

Ex. Comm. 1905; H. Doc. 109–22), and became effective December 1,

2005. The amendments affected Rules 12.2, 29, 32.1, 33, 34, and 45,

and added new Rule 59.

Additional amendments were adopted by the Court by order

dated April 12, 2006, transmitted to Congress by the Chief Justice

on the same day (547 U.S. 1269; Cong. Rec., vol. 152, pt. 6, p. 7213,

Ex. Comm. 7316; H. Doc. 109–104), and became effective December

1, 2006. The amendments affected Rules 5, 6, 32.1, 40, 41, and 58.

Additional amendments were adopted by the Court by order

dated April 30, 2007, transmitted to Congress by the Chief Justice

on the same day (550 U.S. 1165; Cong. Rec., vol. 153, pt. 8, pp.

10611–10612, Ex. Comm. 1376; H. Doc. 110–26), and became effective

December 1, 2007. The amendments affected Rules 11, 32, 35, 45,

added a new Rule 49.1, and abrogated the Model Form for Use in

28 U.S.C. § 2254 Cases Involving a Rule 9 Issue.

Additional amendments were adopted by the Court by order

dated April 23, 2008, transmitted to Congress by the Chief Justice

on the same day (553 U.S. 1155; Cong. Rec., vol. 154, pt. 8, p. 11078,

Ex. Comm. 6879; H. Doc. 110–118), and became effective December

1, 2008. The amendments affected Rules 1, 12.1, 17, 18, 32, 41, 45,

added new Rule 60, and renumbered former Rule 60 as 61.

Additional amendments were adopted by the Court by order

dated March 26, 2009, transmitted to Congress by the Chief Justice

on March 25, 2009 (556 U.S. 1363; Cong. Rec., vol. 155, pt. 8, p. 10210,

Ex. Comm. 1265; H. Doc. 111–30), and became effective December 1,

2009. The amendments affected Rules 5.1, 7, 12.1, 12.3, 29, 32, 32.2, 33,

34, 35, 41, 45, 47, 58, and 59.

Additional amendments were adopted by the Court by order

dated April 28, 2010, transmitted to Congress by the Chief Justice

on the same day (559 U.S. 1151; Cong. Rec., vol. 156, pt. 6, p. 8139,

Ex. Comm. 7472; H. Doc. 111–110), and became effective December

1, 2010. The amendments affected Rules 12.3, 21, and 32.1.

Additional amendments were adopted by the Court by order

dated April 26, 2011, transmitted to Congress by the Chief Justice

on the same day (563 U.S. 1063; Cong. Rec., vol. 157, pt. 6, p. 7770,

Ex. Comm. 1664; H. Doc. 112–31), and became effective December 1,

2011. The amendments affected Rules 1, 3, 4, 6, 9, 32, 40, 41, 43, and

49, and added new Rule 4.1.

Additional amendments were adopted by the Court by order

dated April 23, 2012, transmitted to Congress by the Chief Justice

on the same day (566 U.S. 1053; Cong. Rec., vol. 158, p. H2316, Daily

Issue, Ex. Comm. 5883; H. Doc. 112–104), and became effective De-

cember 1, 2012. The amendments affected Rules 5 and 15, and added

new Rule 37.

Additional amendments were adopted by the Court by order

dated April 16, 2013, transmitted to Congress by the Chief Justice

on the same day (569 U.S.——; Cong. Rec., vol. 159, p. H2652, Daily

Issue, Ex. Comm. 1491; H. Doc. 113–25), and became effective De-

cember 1, 2013. The amendments affected Rules 11 and 16.

XIV

HISTORICAL NOTE

Additional amendments were adopted by the Court by order

dated April 25, 2014, transmitted to Congress by the Chief Justice

on the same day (572 U.S.——; Cong. Rec., vol. 160, p. H7933, Daily

Issue, Ex. Comm. 7578; H. Doc. 113–162), and became effective De-

cember 1, 2014. The amendments affected Rules 5, 6, 12, 34, and 58.

Additional amendments were adopted by the Court by order

dated April 28, 2016, transmitted to Congress by the Chief Justice

on the same day (578 U.S.——; Cong. Rec., vol. 162, p. H2147, Daily

Issue, Ex. Comm. 5232; H. Doc. 114–127), and became effective De-

cember 1, 2016. The amendments affected Rules 4, 41, and 45.

Section 2(c) of Public Law 114–324 (approved December 16, 2016,

130 Stat. 1948) amended Rule 28.

Proceedings After Verdict

By act of February 24, 1933, ch. 119, 47 Stat. 904, as amended (sub-

sequently 18 United States Code, § 3772), the Supreme Court was

authorized to prescribe general rules of criminal procedure with

respect to proceedings after verdict or finding of guilty by the

court, or plea of guilty, which became effective on dates fixed by

the Court. These rules were not required to be submitted to Con-

gress.

Rules 32 to 39, inclusive, were adopted by order of the Court on

February 8, 1946, and became effective on March 21, 1946 (327 U.S.

825). Prior rules promulgated on May 7, 1934 (292 U.S. 659), were not

specifically rescinded by that order but were superseded by these

later rules.

Amendments to Rules 37(a)(1), 38(a)(3), (c), and 39(b)(2) were

adopted by order of the Court dated December 27, 1948, and became

effective on January 1, 1949 (335 U.S. 917).

Additional amendment to Rule 37 was adopted by order of the

Court dated April 12, 1954, and became effective on July 1, 1954 (346

U.S. 941).

The Court adopted separate Federal Rules of Appellate Proce-

dure by order dated December 4, 1967, transmitted to Congress on

January 15, 1968, effective July 1, 1968. As noted above, Rules 37,

38(b), (c), and 39, and Forms 26 and 27, were abrogated effective

July 1, 1968, by that same order.

Effective December 1, 1988, section 3772 of Title 18 was repealed

and supplanted by section 2072 of Title 28, United States Code, see

first paragraph of Historical Note above.

Committee Notes

Committee Notes prepared by the Committee on Rules of Prac-

tice and Procedure and the Advisory Committee on the Federal

Rules of Criminal Procedure, Judicial Conference of the United

States, explaining the purpose and intent of the amendments are

set out in the Appendix to Title 18, United States Code, following

the particular rule to which they relate. In addition, the rules and

amendments, together with Committee Notes, are set out in the

House documents listed above.

(

)

TABLE OF CONTENTS

Page

Foreword ..............................................................................................................

III

Authority for promulgation of rules ....................................................................

Historical note .....................................................................................................

VII

RULES

Title I. Applicability

Rule 1. Scope; Definitions .............................................................................. 1

Rule 2. Interpretation .................................................................................... 2

Title II. Preliminary Proceedings

Rule 3. The Complaint ................................................................................... 2

Rule 4. Arrest Warrant or Summons on a Complaint .................................... 3

Rule 4.1. Complaint, Warrant, or Summons by Telephone or Other Reliable

Electronic Means .............................................................................. 4

Rule 5. Initial Appearance ............................................................................. 6

Rule 5.1. Preliminary Hearing ....................................................................... 8

Title III. The Grand Jury, the Indictment, and the Information

Rule 6. The Grand Jury .................................................................................. 9

Rule 7. The Indictment and the Information ................................................. 13

Rule 8. Joinder of Offenses or Defendants ..................................................... 14

Rule 9. Arrest Warrant or Summons on an Indictment or Information ........ 15

Title IV. Arraignment and Preparation for Trial

Rule 10. Arraignment ..................................................................................... 15

Rule 11. Pleas ................................................................................................. 16

Rule 12. Pleadings and Pretrial Motions ....................................................... 19

Rule 12.1. Notice of an Alibi Defense ............................................................. 20

Rule 12.2. Notice of an Insanity Defense; Mental Examination ..................... 22

Rule 12.3. Notice of a Public-Authority Defense ............................................ 23

Rule 12.4. Disclosure Statement .................................................................... 25

Rule 13. Joint Trial of Separate Cases ........................................................... 25

Rule 14. Relief from Prejudicial Joinder ........................................................ 25

Rule 15. Depositions ....................................................................................... 25

Rule 16. Discovery and Inspection ................................................................. 27

Rule 17. Subpoena .......................................................................................... 30

Rule 17.1. Pretrial Conference ....................................................................... 32

Title V. Venue

Rule 18. Place of Prosecution and Trial ......................................................... 32

Rule 19. (Reserved)

Rule 20. Transfer for Plea and Sentence ........................................................ 32

Rule 21. Transfer for Trial ............................................................................. 33

Rule 22. (Transferred)

Title VI. Trial

Rule 23. Jury or Nonjury Trial ...................................................................... 34

Rule 24. Trial Jurors ...................................................................................... 34

Rule 25. Judge’s Disability ............................................................................ 35

Rule 26. Taking Testimony ............................................................................ 36

Rule 26.1. Foreign Law Determination .......................................................... 36

Rule 26.2. Producing a Witness’s Statement .................................................. 36

Rule 26.3. Mistrial .......................................................................................... 37

Rule 27. Proving an Official Record ............................................................... 37

Rule 28. Interpreters ...................................................................................... 37

Rule 29. Motion for a Judgment of Acquittal ................................................ 37

Rule 29.1. Closing Argument .......................................................................... 38

Rule 30. Jury Instructions ............................................................................. 39

Rule 31. Jury Verdict ..................................................................................... 39

Title VII. Post-Conviction Procedures

Rule 32. Sentencing and Judgment ................................................................ 40

Rule 32.1. Revoking or Modifying Probation or Supervised Release .............. 43

XVI

CONTENTS

Title VII. Post-Conviction Procedures—Continued

Page

Rule 32.2. Criminal Forfeiture ....................................................................... 45

Rule 33. New Trial .......................................................................................... 49

Rule 34. Arresting Judgment ......................................................................... 49

Rule 35. Correcting or Reducing a Sentence .................................................. 50

Rule 36. Clerical Error ................................................................................... 50

Rule 37. Indicative Ruling on a Motion for Relief That Is Barred by a

Pending Appeal ................................................................................. 50

Rule 38. Staying a Sentence or a Disability .................................................. 51

Rule 39. (Reserved)

Title VIII. Supplementary and Special Proceedings

Rule 40. Arrest for Failing to Appear in Another District or for Violating

Conditions of Release Set in Another District ................................. 52

Rule 41. Search and Seizure ........................................................................... 52

Rule 42. Criminal Contempt ........................................................................... 57

Title IX. General Provisions

Rule 43. Defendant’s Presence ....................................................................... 57

Rule 44. Right to and Appointment of Counsel .............................................. 58

Rule 45. Computing and Extending Time ....................................................... 59

Rule 46. Release from Custody; Supervising Detention ................................. 60

Rule 47. Motions and Supporting Affidavits .................................................. 62

Rule 48. Dismissal .......................................................................................... 62

Rule 49. Serving and Filing Papers ................................................................ 62

Rule 49.1. Privacy Protection For Filings Made with the Court ................... 63

Rule 50. Prompt Disposition .......................................................................... 64

Rule 51. Preserving Claimed Error ................................................................ 64

Rule 52. Harmless and Plain Error ................................................................. 64

Rule 53. Courtroom Photographing and Broadcasting Prohibited ................. 64

Rule 54. (Transferred)

Rule 55. Records ............................................................................................. 65

Rule 56. When Court Is Open .......................................................................... 65

Rule 57. District Court Rules ......................................................................... 65

Rule 58. Petty Offenses and Other Misdemeanors .......................................... 66

Rule 59. Matters Before a Magistrate Judge .................................................. 69

Rule 60. Victim’s Rights ................................................................................ 70

Rule 61. Title ................................................................................................. 71

(1)

FEDERAL RULES OF CRIMINAL PROCEDURE

Effective March 21, 1946, as amended to December 16, 2016

TITLE I. APPLICABILITY

Rule 1. Scope; Definitions

(a) Scope.

(1) In General. These rules govern the procedure in all crimi-

nal proceedings in the United States district courts, the

United States courts of appeals, and the Supreme Court of the

United States.

(2) State or Local Judicial Officer. When a rule so states, it

applies to a proceeding before a state or local judicial officer.

(3) Territorial Courts. These rules also govern the procedure

in all criminal proceedings in the following courts:

(A) the district court of Guam;

(B) the district court for the Northern Mariana Islands,

except as otherwise provided by law; and

the prosecution of offenses in that court must be by indict-

ment or information as otherwise provided by law.

(4) Removed Proceedings. Although these rules govern all

proceedings after removal from a state court, state law gov-

erns a dismissal by the prosecution.

(5) Excluded Proceedings. Proceedings not governed by these

rules include:

(A) the extradition and rendition of a fugitive;

(B) a civil property forfeiture for violating a federal stat-

ute;

(D) a proceeding under a statute governing juvenile de-

linquency to the extent the procedure is inconsistent with

the statute, unless Rule 20(d) provides otherwise;

(E) a dispute between seamen under 22 U.S.C. §§ 256–258;

and

(F) a proceeding against a witness in a foreign country

under 28 U.S.C. § 1784.

(b) Definitions. The following definitions apply to these rules:

(1) ‘‘Attorney for the government’’ means:

(A) the Attorney General or an authorized assistant;

(B) a United States attorney or an authorized assistant;

Guam Attorney General or other person whom Guam law

authorizes to act in the matter; and

(D) any other attorney authorized by law to conduct pro-

ceedings under these rules as a prosecutor.

(2) ‘‘Court’’ means a federal judge performing functions au-

thorized by law.

2 Rule 2 FEDERAL RULES OF CRIMINAL PROCEDURE

18 U.S.C. § 3771(e) was redesignated 18 U.S.C. § 3771(e)(2) by Pub. L. 114–22, title I, § 113(a)(3)(A),

May 29, 2015, 129 Stat. 240.

(3) ‘‘Federal judge’’ means:

(A) a justice or judge of the United States as these terms

are defined in 28 U.S.C. § 451;

(B) a magistrate judge; and

empowered by statute in any commonwealth, territory, or

possession to perform a function to which a particular rule

relates.

(4) ‘‘Judge’’ means a federal judge or a state or local judicial

officer.

(5) ‘‘Magistrate judge’’ means a United States magistrate

judge as defined in 28 U.S.C. §§ 631–639.

(6) ‘‘Oath’’ includes an affirmation.

(7) ‘‘Organization’’ is defined in 18 U.S.C. § 18.

(8) ‘‘Petty offense’’ is defined in 18 U.S.C. § 19.

(9) ‘‘State’’ includes the District of Columbia, and any com-

monwealth, territory, or possession of the United States.

(10) ‘‘State or local judicial officer’’ means:

(A) a state or local officer authorized to act under 18

U.S.C. § 3041; and

(B) a judicial officer empowered by statute in the Dis-

trict of Columbia or in any commonwealth, territory, or

possession to perform a function to which a particular rule

relates.

(11) ‘‘Telephone’’ means any technology for transmitting

live electronic voice communication.

(12) ‘‘Victim’’ means a ‘‘crime victim’’ as defined in 18 U.S.C.

§ 3771(e).

these rules authorize a magistrate judge to act, any other federal

judge may also act.

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1982, eff. Aug.

1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 23, 2008, eff. Dec. 1, 2008; Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 2. Interpretation

These rules are to be interpreted to provide for the just deter-

mination of every criminal proceeding, to secure simplicity in

procedure and fairness in administration, and to eliminate un-

justifiable expense and delay.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

TITLE II. PRELIMINARY PROCEEDINGS

Rule 3. The Complaint

The complaint is a written statement of the essential facts con-

stituting the offense charged. Except as provided in Rule 4.1, it

must be made under oath before a magistrate judge or, if none is

reasonably available, before a state or local judicial officer.

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1993, eff. Dec.

1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)

3 Rule 4 FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 4. Arrest Warrant or Summons on a Complaint

(a) Issuance. If the complaint or one or more affidavits filed

with the complaint establish probable cause to believe that an of-

fense has been committed and that the defendant committed it,

the judge must issue an arrest warrant to an officer authorized to

execute it. At the request of an attorney for the government, the

judge must issue a summons, instead of a warrant, to a person au-

thorized to serve it. A judge may issue more than one warrant or

summons on the same complaint. If an individual defendant fails

to appear in response to a summons, a judge may, and upon re-

quest of an attorney for the government must, issue a warrant. If

an organizational defendant fails to appear in response to a sum-

mons, a judge may take any action authorized by United States

law.

(b) Form.

(1) Warrant. A warrant must:

(A) contain the defendant’s name or, if it is unknown, a

name or description by which the defendant can be identi-

fied with reasonable certainty;

(B) describe the offense charged in the complaint;

without unnecessary delay before a magistrate judge or, if

none is reasonably available, before a state or local judi-

cial officer; and

(D) be signed by a judge.

(2) Summons. A summons must be in the same form as a war-

rant except that it must require the defendant to appear be-

fore a magistrate judge at a stated time and place.

(1) By Whom. Only a marshal or other authorized officer may

execute a warrant. Any person authorized to serve a summons

in a federal civil action may serve a summons.

(2) Location. A warrant may be executed, or a summons

served, within the jurisdiction of the United States or any-

where else a federal statute authorizes an arrest. A summons

to an organization under Rule 4(c)(3)(D) may also be served at

a place not within a judicial district of the United States.

(3) Manner.

(A) A warrant is executed by arresting the defendant.

Upon arrest, an officer possessing the original or a dupli-

cate original warrant must show it to the defendant. If the

officer does not possess the warrant, the officer must in-

form the defendant of the warrant’s existence and of the

offense charged and, at the defendant’s request, must show

the original or a duplicate original warrant to the defend-

ant as soon as possible.

(B) A summons is served on an individual defendant:

(i) by delivering a copy to the defendant personally;

(ii) by leaving a copy at the defendant’s residence or

usual place of abode with a person of suitable age and

discretion residing at that location and by mailing a

copy to the defendant’s last known address.

4 Rule 4.1 FEDERAL RULES OF CRIMINAL PROCEDURE

district of the United States by delivering a copy to an of-

ficer, to a managing or general agent, or to another agent

appointed or legally authorized to receive service of proc-

ess. If the agent is one authorized by statute and the stat-

ute so requires, a copy must also be mailed to the organi-

zation.

(D) A summons is served on an organization not within

a judicial district of the United States:

(i) by delivering a copy, in a manner authorized by

the foreign jurisdiction’s law, to an officer, to a man-

aging or general agent, or to an agent appointed or le-

gally authorized to receive service of process; or

(ii) by any other means that gives notice, including

one that is:

(a) stipulated by the parties;

(b) undertaken by a foreign authority in response

to a letter rogatory, a letter of request, or a re-

quest submitted under an applicable international

agreement; or

agreement.

(4) Return.

(A) After executing a warrant, the officer must return it

to the judge before whom the defendant is brought in ac-

cordance with Rule 5. The officer may do so by reliable

electronic means. At the request of an attorney for the

government, an unexecuted warrant must be brought back

to and canceled by a magistrate judge or, if none is reason-

ably available, by a state or local judicial officer.

(B) The person to whom a summons was delivered for

service must return it on or before the return day.

judge may deliver an unexecuted warrant, an unserved

summons, or a copy of the warrant or summons to the

marshal or other authorized person for execution or serv-

ice.

(d) Warrant by Telephone or Other Reliable Electronic Means. In

accordance with Rule 4.1, a magistrate judge may issue a warrant

or summons based on information communicated by telephone or

other reliable electronic means.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.

1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, § 3(1)–(3), July

31, 1975, 89 Stat. 370, eff. Dec. 1, 1975; Mar. 9, 1987, eff. Aug. 1, 1987;

Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr.

26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1, 2016.)

Rule 4.1. Complaint, Warrant, or Summons by Telephone or Other

Reliable Electronic Means

(a) In General. A magistrate judge may consider information

communicated by telephone or other reliable electronic means

when reviewing a complaint or deciding whether to issue a war-

rant or summons.

5 Rule 4.1 FEDERAL RULES OF CRIMINAL PROCEDURE

(b) Procedures. If a magistrate judge decides to proceed under

this rule, the following procedures apply:

(1) Taking Testimony Under Oath. The judge must place

under oath—and may examine—the applicant and any person

on whose testimony the application is based.

(2) Creating a Record of the Testimony and Exhibits.

(A) Testimony Limited to Attestation. If the applicant does

no more than attest to the contents of a written affidavit

submitted by reliable electronic means, the judge must ac-

knowledge the attestation in writing on the affidavit.

(B) Additional Testimony or Exhibits. If the judge considers

additional testimony or exhibits, the judge must:

(i) have the testimony recorded verbatim by an elec-

tronic recording device, by a court reporter, or in writ-

ing;

(ii) have any recording or reporter’s notes tran-

scribed, have the transcription certified as accurate,

and file it;

(iii) sign any other written record, certify its accu-

racy, and file it; and

(iv) make sure that the exhibits are filed.

(3) Preparing a Proposed Duplicate Original of a Complaint,

Warrant, or Summons. The applicant must prepare a proposed

duplicate original of a complaint, warrant, or summons, and

must read or otherwise transmit its contents verbatim to the

judge.

(4) Preparing an Original Complaint, Warrant, or Summons.

If the applicant reads the contents of the proposed duplicate

original, the judge must enter those contents into an original

complaint, warrant, or summons. If the applicant transmits

the contents by reliable electronic means, the transmission re-

ceived by the judge may serve as the original.

(5) Modification. The judge may modify the complaint, war-

rant, or summons. The judge must then:

(A) transmit the modified version to the applicant by re-

liable electronic means; or

(B) file the modified original and direct the applicant to

modify the proposed duplicate original accordingly.

(6) Issuance. To issue the warrant or summons, the judge

must:

(A) sign the original documents;

(B) enter the date and time of issuance on the warrant

or summons; and

tronic means to the applicant or direct the applicant to

sign the judge’s name and enter the date and time on the

duplicate original.

obtained from a warrant issued under this rule is not subject to

suppression on the ground that issuing the warrant in this manner

was unreasonable under the circumstances.

(As added Apr. 26, 2011, eff. Dec. 1, 2011.)

6 Rule 5 FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 5. Initial Appearance

(a) In General.

(1) Appearance Upon an Arrest.

(A) A person making an arrest within the United States

must take the defendant without unnecessary delay before

a magistrate judge, or before a state or local judicial offi-

cer as Rule 5(c) provides, unless a statute provides other-

wise.

(B) A person making an arrest outside the United States

must take the defendant without unnecessary delay before

a magistrate judge, unless a statute provides otherwise.

(2) Exceptions.

(A) An officer making an arrest under a warrant issued

upon a complaint charging solely a violation of 18 U.S.C.

§ 1073 need not comply with this rule if:

(i) the person arrested is transferred without unnec-

essary delay to the custody of appropriate state or

local authorities in the district of arrest; and

(ii) an attorney for the government moves promptly,

in the district where the warrant was issued, to dis-

miss the complaint.

(B) If a defendant is arrested for violating probation or

supervised release, Rule 32.1 applies.

other district, Rule 40 applies.

(3) Appearance Upon a Summons. When a defendant appears

in response to a summons under Rule 4, a magistrate judge

must proceed under Rule 5(d) or (e), as applicable.

(b) Arrest Without a Warrant. If a defendant is arrested without

a warrant, a complaint meeting Rule 4(a)’s requirement of prob-

able cause must be promptly filed in the district where the offense

was allegedly committed.

(1) Arrest in the District Where the Offense Was Allegedly

Committed. If the defendant is arrested in the district where

the offense was allegedly committed:

(A) the initial appearance must be in that district; and

(B) if a magistrate judge is not reasonably available, the

initial appearance may be before a state or local judicial

officer.

(2) Arrest in a District Other Than Where the Offense Was Al-

legedly Committed. If the defendant was arrested in a district

other than where the offense was allegedly committed, the ini-

tial appearance must be:

(A) in the district of arrest; or

(B) in an adjacent district if:

(i) the appearance can occur more promptly there; or

(ii) the offense was allegedly committed there and

the initial appearance will occur on the day of arrest.

(3) Procedures in a District Other Than Where the Offense

Was Allegedly Committed. If the initial appearance occurs in a

district other than where the offense was allegedly committed,

the following procedures apply:

(A) the magistrate judge must inform the defendant

about the provisions of Rule 20;

7 Rule 5 FEDERAL RULES OF CRIMINAL PROCEDURE

(B) if the defendant was arrested without a warrant, the

district court where the offense was allegedly committed

must first issue a warrant before the magistrate judge

transfers the defendant to that district;

hearing if required by Rule 5.1;

(D) the magistrate judge must transfer the defendant to

the district where the offense was allegedly committed if:

(i) the government produces the warrant, a certified

copy of the warrant, or a reliable electronic form of ei-

ther; and

(ii) the judge finds that the defendant is the same

person named in the indictment, information, or war-

rant; and

(E) when a defendant is transferred and discharged, the

clerk must promptly transmit the papers and any bail to

the clerk in the district where the offense was allegedly

committed.

(4) Procedure for Persons Extradited to the United States. If

the defendant is surrendered to the United States in accord-

ance with a request for the defendant’s extradition, the initial

appearance must be in the district (or one of the districts)

where the offense is charged.

(d) Procedure in a Felony Case.

(1) Advice. If the defendant is charged with a felony, the

judge must inform the defendant of the following:

(A) the complaint against the defendant, and any affida-

vit filed with it;

(B) the defendant’s right to retain counsel or to request

that counsel be appointed if the defendant cannot obtain

counsel;

may secure pretrial release;

(D) any right to a preliminary hearing;

(E) the defendant’s right not to make a statement, and

that any statement made may be used against the defend-

ant; and

(F) that a defendant who is not a United States citizen

may request that an attorney for the government or a fed-

eral law enforcement official notify a consular officer from

the defendant’s country of nationality that the defendant

has been arrested—but that even without the defendant’s

request, a treaty or other international agreement may re-

quire consular notification.

(2) Consulting with Counsel. The judge must allow the de-

fendant reasonable opportunity to consult with counsel.

(3) Detention or Release. The judge must detain or release

the defendant as provided by statute or these rules.

(4) Plea. A defendant may be asked to plead only under Rule

10.

(e) Procedure in a Misdemeanor Case. If the defendant is

charged with a misdemeanor only, the judge must inform the de-

fendant in accordance with Rule 58(b)(2).

(f) Video Teleconferencing. Video teleconferencing may be used

to conduct an appearance under this rule if the defendant con-

sents.

8 Rule 5.1 FEDERAL RULES OF CRIMINAL PROCEDURE

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.

1, 1972; Apr. 28, 1982, eff. Aug. 1, 1982; Pub. L. 98–473, title II, § 209(a),

Oct. 12, 1984, 98 Stat. 1986; Mar. 9, 1987, eff. Aug. 1, 1987; May 1, 1990,

eff. Dec. 1, 1990; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec.

1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006;

Apr. 23, 2012, eff. Dec. 1, 2012; Apr. 25, 2014, eff. Dec. 1, 2014.)

Rule 5.1. Preliminary Hearing

(a) In General. If a defendant is charged with an offense other

than a petty offense, a magistrate judge must conduct a prelimi-

nary hearing unless:

(1) the defendant waives the hearing;

(2) the defendant is indicted;

(3) the government files an information under Rule 7(b)

charging the defendant with a felony;

(4) the government files an information charging the defend-

ant with a misdemeanor; or

(5) the defendant is charged with a misdemeanor and con-

sents to trial before a magistrate judge.

(b) Selecting a District. A defendant arrested in a district other

than where the offense was allegedly committed may elect to have

the preliminary hearing conducted in the district where the pros-

ecution is pending.

hearing within a reasonable time, but no later than 14 days after

the initial appearance if the defendant is in custody and no later

than 21 days if not in custody.

(d) Extending the Time. With the defendant’s consent and upon

a showing of good cause—taking into account the public interest

in the prompt disposition of criminal cases—a magistrate judge

may extend the time limits in Rule 5.1(c) one or more times. If the

defendant does not consent, the magistrate judge may extend the

time limits only on a showing that extraordinary circumstances

exist and justice requires the delay.

(e) Hearing and Finding. At the preliminary hearing, the defend-

ant may cross-examine adverse witnesses and may introduce evi-

dence but may not object to evidence on the ground that it was

unlawfully acquired. If the magistrate judge finds probable cause

to believe an offense has been committed and the defendant com-

mitted it, the magistrate judge must promptly require the defend-

ant to appear for further proceedings.

(f) Discharging the Defendant. If the magistrate judge finds no

probable cause to believe an offense has been committed or the de-

fendant committed it, the magistrate judge must dismiss the com-

plaint and discharge the defendant. A discharge does not preclude

the government from later prosecuting the defendant for the same

offense.

(g) Recording the Proceedings. The preliminary hearing must be

recorded by a court reporter or by a suitable recording device. A

recording of the proceeding may be made available to any party

upon request. A copy of the recording and a transcript may be pro-

vided to any party upon request and upon any payment required

by applicable Judicial Conference regulations.

9 Rule 6 FEDERAL RULES OF CRIMINAL PROCEDURE

(h) Producing a Statement.

(1) In General. Rule 26.2(a)–(d) and (f) applies at any hearing

under this rule, unless the magistrate judge for good cause

rules otherwise in a particular case.

(2) Sanctions for Not Producing a Statement. If a party dis-

obeys a Rule 26.2 order to deliver a statement to the moving

party, the magistrate judge must not consider the testimony

of a witness whose statement is withheld.

(As added Apr. 24, 1972, eff. Oct. 1, 1972; amended Mar. 9, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.)

TITLE III. THE GRAND JURY, THE INDICTMENT, AND THE

INFORMATION

Rule 6. The Grand Jury

(a) Summoning a Grand Jury.

(1) In General. When the public interest so requires, the

court must order that one or more grand juries be summoned.

A grand jury must have 16 to 23 members, and the court must

order that enough legally qualified persons be summoned to

meet this requirement.

(2) Alternate Jurors. When a grand jury is selected, the court

may also select alternate jurors. Alternate jurors must have

the same qualifications and be selected in the same manner as

any other juror. Alternate jurors replace jurors in the same se-

quence in which the alternates were selected. An alternate

juror who replaces a juror is subject to the same challenges,

takes the same oath, and has the same authority as the other

jurors.

(b) Objection to the Grand Jury or to a Grand Juror.

(1) Challenges. Either the government or a defendant may

challenge the grand jury on the ground that it was not law-

fully drawn, summoned, or selected, and may challenge an in-

dividual juror on the ground that the juror is not legally

qualified.

(2) Motion to Dismiss an Indictment. A party may move to

dismiss the indictment based on an objection to the grand jury

or on an individual juror’s lack of legal qualification, unless

the court has previously ruled on the same objection under

Rule 6(b)(1). The motion to dismiss is governed by 28 U.S.C.

§ 1867(e). The court must not dismiss the indictment on the

ground that a grand juror was not legally qualified if the

record shows that at least 12 qualified jurors concurred in the

indictment.

one juror as the foreperson and another as the deputy foreperson.

In the foreperson’s absence, the deputy foreperson will act as the

foreperson. The foreperson may administer oaths and affirmations

and will sign all indictments. The foreperson—or another juror

designated by the foreperson—will record the number of jurors

concurring in every indictment and will file the record with the

clerk, but the record may not be made public unless the court so

orders.

10 Rule 6 FEDERAL RULES OF CRIMINAL PROCEDURE

(d) Who May Be Present.

(1) While the Grand Jury Is in Session. The following persons

may be present while the grand jury is in session: attorneys

for the government, the witness being questioned, interpreters

when needed, and a court reporter or an operator of a record-

ing device.

(2) During Deliberations and Voting. No person other than

the jurors, and any interpreter needed to assist a hearing-im-

paired or speech-impaired juror, may be present while the

grand jury is deliberating or voting.

(e) Recording and Disclosing the Proceedings.

(1) Recording the Proceedings. Except while the grand jury is

deliberating or voting, all proceedings must be recorded by a

court reporter or by a suitable recording device. But the valid-

ity of a prosecution is not affected by the unintentional fail-

ure to make a recording. Unless the court orders otherwise, an

attorney for the government will retain control of the record-

ing, the reporter’s notes, and any transcript prepared from

those notes.

(2) Secrecy.

(A) No obligation of secrecy may be imposed on any per-

son except in accordance with Rule 6(e)(2)(B).

(B) Unless these rules provide otherwise, the following

persons must not disclose a matter occurring before the

grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

(v) a person who transcribes recorded testimony;

(vi) an attorney for the government; or

(vii) a person to whom disclosure is made under Rule

6(e)(3)(A)(ii) or (iii).

(3) Exceptions.

(A) Disclosure of a grand-jury matter—other than the

grand jury’s deliberations or any grand juror’s vote—may

be made to:

(i) an attorney for the government for use in per-

forming that attorney’s duty;

(ii) any government personnel—including those of a

state, state subdivision, Indian tribe, or foreign gov-

ernment—that an attorney for the government consid-

ers necessary to assist in performing that attorney’s

duty to enforce federal criminal law; or

(iii) a person authorized by 18 U.S.C. § 3322.

(B) A person to whom information is disclosed under

Rule 6(e)(3)(A)(ii) may use that information only to assist

an attorney for the government in performing that attor-

ney’s duty to enforce federal criminal law. An attorney for

the government must promptly provide the court that im-

paneled the grand jury with the names of all persons to

whom a disclosure has been made, and must certify that

the attorney has advised those persons of their obligation

of secrecy under this rule.

grand-jury matter to another federal grand jury.

11 Rule 6 FEDERAL RULES OF CRIMINAL PROCEDURE

(D) An attorney for the government may disclose any

grand-jury matter involving foreign intelligence, counter-

intelligence (as defined in 50 U.S.C. § 3003), or foreign intel-

ligence information (as defined in Rule 6(e)(3)(D)(iii)) to

any federal law enforcement, intelligence, protective, im-

migration, national defense, or national security official

to assist the official receiving the information in the per-

formance of that official’s duties. An attorney for the gov-

ernment may also disclose any grand-jury matter involv-

ing, within the United States or elsewhere, a threat of at-

tack or other grave hostile acts of a foreign power or its

agent, a threat of domestic or international sabotage or

terrorism, or clandestine intelligence gathering activities

by an intelligence service or network of a foreign power or

by its agent, to any appropriate federal, state, state sub-

division, Indian tribal, or foreign government official, for

the purpose of preventing or responding to such threat or

activities.

(i) Any official who receives information under Rule

6(e)(3)(D) may use the information only as necessary in

the conduct of that person’s official duties subject to

any limitations on the unauthorized disclosure of such

information. Any state, state subdivision, Indian trib-

al, or foreign government official who receives infor-

mation under Rule 6(e)(3)(D) may use the information

only in a manner consistent with any guidelines issued

by the Attorney General and the Director of National

Intelligence.

(ii) Within a reasonable time after disclosure is made

under Rule 6(e)(3)(D), an attorney for the government

must file, under seal, a notice with the court in the

district where the grand jury convened stating that

such information was disclosed and the departments,

agencies, or entities to which the disclosure was made.

(iii) As used in Rule 6(e)(3)(D), the term ‘‘foreign in-

telligence information’’ means:

(a) information, whether or not it concerns a

United States person, that relates to the ability of

the United States to protect against—

• actual or potential attack or other grave hos-

tile acts of a foreign power or its agent;

• sabotage or international terrorism by a for-

eign power or its agent; or

• clandestine intelligence activities by an intel-

ligence service or network of a foreign power or by

its agent; or

(b) information, whether or not it concerns a

United States person, with respect to a foreign

power or foreign territory that relates to—

• the national defense or the security of the

United States; or

• the conduct of the foreign affairs of the

United States.

12 Rule 6 FEDERAL RULES OF CRIMINAL PROCEDURE

(E) The court may authorize disclosure—at a time, in a

manner, and subject to any other conditions that it di-

rects—of a grand-jury matter:

(i) preliminarily to or in connection with a judicial

proceeding;

(ii) at the request of a defendant who shows that a

ground may exist to dismiss the indictment because of

a matter that occurred before the grand jury;

(iii) at the request of the government, when sought

by a foreign court or prosecutor for use in an official

criminal investigation;

(iv) at the request of the government if it shows that

the matter may disclose a violation of State, Indian

tribal, or foreign criminal law, as long as the disclo-

sure is to an appropriate state, state-subdivision, In-

dian tribal, or foreign government official for the pur-

pose of enforcing that law; or

(v) at the request of the government if it shows that

the matter may disclose a violation of military crimi-

nal law under the Uniform Code of Military Justice, as

long as the disclosure is to an appropriate military of-

ficial for the purpose of enforcing that law.

(F) A petition to disclose a grand-jury matter under Rule

6(e)(3)(E)(i) must be filed in the district where the grand

jury convened. Unless the hearing is ex parte—as it may be

when the government is the petitioner—the petitioner

must serve the petition on, and the court must afford a

reasonable opportunity to appear and be heard to:

(i) an attorney for the government;

(ii) the parties to the judicial proceeding; and

(iii) any other person whom the court may designate.

(G) If the petition to disclose arises out of a judicial pro-

ceeding in another district, the petitioned court must

transfer the petition to the other court unless the peti-

tioned court can reasonably determine whether disclosure

is proper. If the petitioned court decides to transfer, it

must send to the transferee court the material sought to

be disclosed, if feasible, and a written evaluation of the

need for continued grand-jury secrecy. The transferee

court must afford those persons identified in Rule

6(e)(3)(F) a reasonable opportunity to appear and be heard.

(4) Sealed Indictment. The magistrate judge to whom an in-

dictment is returned may direct that the indictment be kept

secret until the defendant is in custody or has been released

pending trial. The clerk must then seal the indictment, and no

person may disclose the indictment’s existence except as nec-

essary to issue or execute a warrant or summons.

(5) Closed Hearing. Subject to any right to an open hearing

in a contempt proceeding, the court must close any hearing to

the extent necessary to prevent disclosure of a matter occur-

ring before a grand jury.

(6) Sealed Records. Records, orders, and subpoenas relating

to grand-jury proceedings must be kept under seal to the ex-

tent and as long as necessary to prevent the unauthorized dis-

closure of a matter occurring before a grand jury.

13 Rule 7 FEDERAL RULES OF CRIMINAL PROCEDURE

Now editorially reclassified 25 U.S.C. 5131.

(7) Contempt. A knowing violation of Rule 6, or of any guide-

lines jointly issued by the Attorney General and the Director

of National Intelligence under Rule 6, may be punished as a

contempt of court.

(f) Indictment and Return. A grand jury may indict only if at

least 12 jurors concur. The grand jury—or its foreperson or deputy

foreperson—must return the indictment to a magistrate judge in

open court. To avoid unnecessary cost or delay, the magistrate

judge may take the return by video teleconference from the court

where the grand jury sits. If a complaint or information is pending

against the defendant and 12 jurors do not concur in the indict-

ment, the foreperson must promptly and in writing report the

lack of concurrence to the magistrate judge.

(g) Discharging the Grand Jury. A grand jury must serve until

the court discharges it, but it may serve more than 18 months

only if the court, having determined that an extension is in the

public interest, extends the grand jury’s service. An extension

may be granted for no more than 6 months, except as otherwise

provided by statute.

(h) Excusing a Juror. At any time, for good cause, the court may

excuse a juror either temporarily or permanently, and if perma-

nently, the court may impanel an alternate juror in place of the

excused juror.

(i) ‘‘Indian Tribe’’ Defined. ‘‘Indian tribe’’ means an Indian tribe

recognized by the Secretary of the Interior on a list published in

the Federal Register under 25 U.S.C. § 479a–1.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.

1, 1972; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; Pub. L. 95–78, § 2(a),

July 30, 1977, 91 Stat. 319, eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug.

1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Pub. L. 98–473, title II, § 215(f),

Oct. 12, 1984, 98 Stat. 2016, eff. Nov. 1, 1987; Apr. 29, 1985, eff. Aug.

1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;

Apr. 26, 1999, eff. Dec. 1, 1999; Pub. L. 107–56, title II, § 203(a), Oct.

26, 2001, 115 Stat. 278; Apr. 29, 2002, eff. Dec. 1, 2002; Pub. L. 107–296,

title VIII, § 895, Nov. 25, 2002, 116 Stat. 2256; Pub. L. 108–458, title

VI, § 6501(a), Dec. 17, 2004, 118 Stat. 3760; Apr. 12, 2006, eff. Dec. 1,

2006; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 25, 2014, eff. Dec. 1, 2014.)

Rule 7. The Indictment and the Information

(a) When Used.

(1) Felony. An offense (other than criminal contempt) must

be prosecuted by an indictment if it is punishable:

(A) by death; or

(B) by imprisonment for more than one year.

(2) Misdemeanor. An offense punishable by imprisonment for

one year or less may be prosecuted in accordance with Rule

58(b)(1).

(b) Waiving Indictment. An offense punishable by imprisonment

for more than one year may be prosecuted by information if the

defendant—in open court and after being advised of the nature of

the charge and of the defendant’s rights—waives prosecution by

indictment.

14 Rule 8 FEDERAL RULES OF CRIMINAL PROCEDURE

(1) In General. The indictment or information must be a

plain, concise, and definite written statement of the essential

facts constituting the offense charged and must be signed by

an attorney for the government. It need not contain a formal

introduction or conclusion. A count may incorporate by ref-

erence an allegation made in another count. A count may al-

lege that the means by which the defendant committed the of-

fense are unknown or that the defendant committed it by one

or more specified means. For each count, the indictment or in-

formation must give the official or customary citation of the

statute, rule, regulation, or other provision of law that the de-

fendant is alleged to have violated. For purposes of an indict-

ment referred to in section 3282 of title 18, United States Code,

for which the identity of the defendant is unknown, it shall be

sufficient for the indictment to describe the defendant as an

individual whose name is unknown, but who has a particular

DNA profile, as that term is defined in section 3282.

(2) Citation Error. Unless the defendant was misled and

thereby prejudiced, neither an error in a citation nor a cita-

tion’s omission is a ground to dismiss the indictment or infor-

mation or to reverse a conviction.

(d) Surplusage. Upon the defendant’s motion, the court may

strike surplusage from the indictment or information.

(e) Amending an Information. Unless an additional or different

offense is charged or a substantial right of the defendant is preju-

diced, the court may permit an information to be amended at any

time before the verdict or finding.

(f) Bill of Particulars. The court may direct the government to

file a bill of particulars. The defendant may move for a bill of par-

ticulars before or within 14 days after arraignment or at a later

time if the court permits. The government may amend a bill of

particulars subject to such conditions as justice requires.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.

1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 9, 1987, eff. Aug. 1, 1987;

Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002; Pub.

L. 108–21, title VI, § 610(b), Apr. 30, 2003, 117 Stat. 692; Mar. 26, 2009,

eff. Dec. 1, 2009.)

Rule 8. Joinder of Offenses or Defendants

(a) Joinder of Offenses. The indictment or information may

charge a defendant in separate counts with 2 or more offenses if

the offenses charged—whether felonies or misdemeanors or both—

are of the same or similar character, or are based on the same act

or transaction, or are connected with or constitute parts of a com-

mon scheme or plan.

(b) Joinder of Defendants. The indictment or information may

charge 2 or more defendants if they are alleged to have partici-

pated in the same act or transaction, or in the same series of acts

or transactions, constituting an offense or offenses. The defend-

ants may be charged in one or more counts together or separately.

All defendants need not be charged in each count.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

15 Rule 10 FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 9. Arrest Warrant or Summons on an Indictment or Informa-

tion

(a) Issuance. The court must issue a warrant—or at the govern-

ment’s request, a summons—for each defendant named in an in-

dictment or named in an information if one or more affidavits ac-

companying the information establish probable cause to believe

that an offense has been committed and that the defendant com-

mitted it. The court may issue more than one warrant or sum-

mons for the same defendant. If a defendant fails to appear in re-

sponse to a summons, the court may, and upon request of an at-

torney for the government must, issue a warrant. The court must

issue the arrest warrant to an officer authorized to execute it or

the summons to a person authorized to serve it.

(b) Form.

(1) Warrant. The warrant must conform to Rule 4(b)(1) ex-

cept that it must be signed by the clerk and must describe the

offense charged in the indictment or information.

(2) Summons. The summons must be in the same form as a

warrant except that it must require the defendant to appear

before the court at a stated time and place.

(1) Execution or Service.

(A) The warrant must be executed or the summons

served as provided in Rule 4(c)(1), (2), and (3).

(B) The officer executing the warrant must proceed in

accordance with Rule 5(a)(1).

(2) Return. A warrant or summons must be returned in ac-

cordance with Rule 4(c)(4).

(3) Initial Appearance. When an arrested or summoned de-

fendant first appears before the court, the judge must proceed

under Rule 5.

(d) Warrant by Telephone or Other Means. In accordance with

Rule 4.1, a magistrate judge may issue an arrest warrant or sum-

mons based on information communicated by telephone or other

reliable electronic means.

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec.

1, 1975; Pub. L. 94–64, § 3(4), July 31, 1975, 89 Stat. 370, eff. Dec. 1,

1975; Pub. L. 94–149, § 5, Dec. 12, 1975, 89 Stat. 806; Apr. 30, 1979, eff.

Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff. Dec.

1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)

TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL

Rule 10. Arraignment

(a) In General. An arraignment must be conducted in open court

and must consist of:

(1) ensuring that the defendant has a copy of the indictment

or information;

(2) reading the indictment or information to the defendant

or stating to the defendant the substance of the charge; and

then

(3) asking the defendant to plead to the indictment or infor-

mation.

(b) Waiving Appearance. A defendant need not be present for the

arraignment if:

16 Rule 11 FEDERAL RULES OF CRIMINAL PROCEDURE

(1) the defendant has been charged by indictment or mis-

demeanor information;

(2) the defendant, in a written waiver signed by both the de-

fendant and defense counsel, has waived appearance and has

affirmed that the defendant received a copy of the indictment

or information and that the plea is not guilty; and

(3) the court accepts the waiver.

to arraign a defendant if the defendant consents.

(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec.

1, 2002.)

Rule 11. Pleas

(a) Entering a Plea.

(1) In General. A defendant may plead not guilty, guilty, or

(with the court’s consent) nolo contendere.

(2) Conditional Plea. With the consent of the court and the

government, a defendant may enter a conditional plea of

guilty or nolo contendere, reserving in writing the right to

have an appellate court review an adverse determination of a

specified pretrial motion. A defendant who prevails on appeal

may then withdraw the plea.

(3) Nolo Contendere Plea. Before accepting a plea of nolo

contendere, the court must consider the parties’ views and the

public interest in the effective administration of justice.

(4) Failure to Enter a Plea. If a defendant refuses to enter a

plea or if a defendant organization fails to appear, the court

must enter a plea of not guilty.

(b) Considering and Accepting a Guilty or Nolo Contendere Plea.

(1) Advising and Questioning the Defendant. Before the court

accepts a plea of guilty or nolo contendere, the defendant may

be placed under oath, and the court must address the defend-

ant personally in open court. During this address, the court

must inform the defendant of, and determine that the defend-

ant understands, the following:

(A) the government’s right, in a prosecution for perjury

or false statement, to use against the defendant any state-

ment that the defendant gives under oath;

(B) the right to plead not guilty, or having already so

pleaded, to persist in that plea;

(D) the right to be represented by counsel—and if nec-

essary have the court appoint counsel—at trial and at

every other stage of the proceeding;

(E) the right at trial to confront and cross-examine ad-

verse witnesses, to be protected from compelled self-in-

crimination, to testify and present evidence, and to com-

pel the attendance of witnesses;

(F) the defendant’s waiver of these trial rights if the

court accepts a plea of guilty or nolo contendere;

(G) the nature of each charge to which the defendant is

pleading;

(H) any maximum possible penalty, including imprison-

ment, fine, and term of supervised release;

17 Rule 11 FEDERAL RULES OF CRIMINAL PROCEDURE

(I) any mandatory minimum penalty;

(J) any applicable forfeiture;

(K) the court’s authority to order restitution;

(L) the court’s obligation to impose a special assess-

ment;

(M) in determining a sentence, the court’s obligation to

calculate the applicable sentencing-guideline range and to

consider that range, possible departures under the Sen-

tencing Guidelines, and other sentencing factors under 18

U.S.C. § 3553(a);

(N) the terms of any plea-agreement provision waiving

the right to appeal or to collaterally attack the sentence;

and

(O) that, if convicted, a defendant who is not a United

States citizen may be removed from the United States, de-

nied citizenship, and denied admission to the United

States in the future.

(2) Ensuring That a Plea Is Voluntary. Before accepting a

plea of guilty or nolo contendere, the court must address the

defendant personally in open court and determine that the

plea is voluntary and did not result from force, threats, or

promises (other than promises in a plea agreement).

(3) Determining the Factual Basis for a Plea. Before entering

judgment on a guilty plea, the court must determine that

there is a factual basis for the plea.

(1) In General. An attorney for the government and the de-

fendant’s attorney, or the defendant when proceeding pro se,

may discuss and reach a plea agreement. The court must not

participate in these discussions. If the defendant pleads guilty

or nolo contendere to either a charged offense or a lesser or re-

lated offense, the plea agreement may specify that an attor-

ney for the government will:

(A) not bring, or will move to dismiss, other charges;

(B) recommend, or agree not to oppose the defendant’s

request, that a particular sentence or sentencing range is

appropriate or that a particular provision of the Sentenc-

ing Guidelines, or policy statement, or sentencing factor

does or does not apply (such a recommendation or request

does not bind the court); or

the appropriate disposition of the case, or that a particu-

lar provision of the Sentencing Guidelines, or policy state-

ment, or sentencing factor does or does not apply (such a

recommendation or request binds the court once the court

accepts the plea agreement).

(2) Disclosing a Plea Agreement. The parties must disclose

the plea agreement in open court when the plea is offered, un-

less the court for good cause allows the parties to disclose the

plea agreement in camera.

(3) Judicial Consideration of a Plea Agreement.

(A) To the extent the plea agreement is of the type speci-

fied in Rule 11(c)(1)(A) or (C), the court may accept the

agreement, reject it, or defer a decision until the court has

reviewed the presentence report.

18 Rule 11 FEDERAL RULES OF CRIMINAL PROCEDURE

(B) To the extent the plea agreement is of the type speci-

fied in Rule 11(c)(1)(B), the court must advise the defend-

ant that the defendant has no right to withdraw the plea

if the court does not follow the recommendation or re-

quest.

(4) Accepting a Plea Agreement. If the court accepts the plea

agreement, it must inform the defendant that to the extent

the plea agreement is of the type specified in Rule 11(c)(1)(A)

or (C), the agreed disposition will be included in the judgment.

(5) Rejecting a Plea Agreement. If the court rejects a plea

agreement containing provisions of the type specified in Rule

11(c)(1)(A) or (C), the court must do the following on the

record and in open court (or, for good cause, in camera):

(A) inform the parties that the court rejects the plea

agreement;

(B) advise the defendant personally that the court is not

required to follow the plea agreement and give the defend-

ant an opportunity to withdraw the plea; and

withdrawn, the court may dispose of the case less favor-

ably toward the defendant than the plea agreement con-

templated.

(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant

may withdraw a plea of guilty or nolo contendere:

(1) before the court accepts the plea, for any reason or no

reason; or

(2) after the court accepts the plea, but before it imposes

sentence if:

(A) the court rejects a plea agreement under Rule

11(c)(5); or

(B) the defendant can show a fair and just reason for re-

questing the withdrawal.

(e) Finality of a Guilty or Nolo Contendere Plea. After the court

imposes sentence, the defendant may not withdraw a plea of

guilty or nolo contendere, and the plea may be set aside only on

direct appeal or collateral attack.

(f) Admissibility or Inadmissibility of a Plea, Plea Discussions,

and Related Statements. The admissibility or inadmissibility of a

plea, a plea discussion, and any related statement is governed by

Federal Rule of Evidence 410.

(g) Recording the Proceedings. The proceedings during which

the defendant enters a plea must be recorded by a court reporter

or by a suitable recording device. If there is a guilty plea or a nolo

contendere plea, the record must include the inquiries and advice

to the defendant required under Rule 11(b) and (c).

(h) Harmless Error. A variance from the requirements of this

rule is harmless error if it does not affect substantial rights.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec.

1, 1975; Pub. L. 94–64, § 3(5)–(10), July 31, 1975, 89 Stat. 371, 372, eff.

Aug. 1 and Dec. 1, 1975; Apr. 30, 1979, eff. Aug. 1, 1979, and Dec. 1,

1980; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 28, 1983, eff. Aug. 1, 1983;

Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Pub.

L. 100–690, title VII, § 7076, Nov. 18, 1988, 102 Stat. 4406; Apr. 25, 1989,

eff. Dec. 1, 1989; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec.

1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 16, 2013, eff. Dec. 1, 2013.)

19 Rule 12 FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 12. Pleadings and Pretrial Motions

(a) Pleadings. The pleadings in a criminal proceeding are the in-

dictment, the information, and the pleas of not guilty, guilty, and

nolo contendere.

(b) Pretrial Motions.

(1) In General. A party may raise by pretrial motion any de-

fense, objection, or request that the court can determine with-

out a trial on the merits. Rule 47 applies to a pretrial motion.

(2) Motions That May Be Made at Any Time. A motion that

the court lacks jurisdiction may be made at any time while

the case is pending.

(3) Motions That Must Be Made Before Trial. The following

defenses, objections, and requests must be raised by pretrial

motion if the basis for the motion is then reasonably available

and the motion can be determined without a trial on the mer-

its:

(A) a defect in instituting the prosecution, including:

(i) improper venue;

(ii) preindictment delay;

(iii) a violation of the constitutional right to a

speedy trial;

(iv) selective or vindictive prosecution; and

(v) an error in the grand-jury proceeding or prelimi-

nary hearing;

(B) a defect in the indictment or information, including:

(i) joining two or more offenses in the same count

(duplicity);

(ii) charging the same offense in more than one

count (multiplicity);

(iii) lack of specificity;

(iv) improper joinder; and

(v) failure to state an offense;

(D) severance of charges or defendants under Rule 14; and

(E) discovery under Rule 16.

(4) Notice of the Government’s Intent to Use Evidence.

(A) At the Government’s Discretion. At the arraignment or

as soon afterward as practicable, the government may no-

tify the defendant of its intent to use specified evidence at

trial in order to afford the defendant an opportunity to ob-

ject before trial under Rule 12(b)(3)(C).

(B) At the Defendant’s Request. At the arraignment or as

soon afterward as practicable, the defendant may, in order

to have an opportunity to move to suppress evidence under

Rule 12(b)(3)(C), request notice of the government’s intent

to use (in its evidence-in-chief at trial) any evidence that

the defendant may be entitled to discover under Rule 16.

a Timely Motion.

(1) Setting the Deadline. The court may, at the arraignment

or as soon afterward as practicable, set a deadline for the par-

ties to make pretrial motions and may also schedule a motion

hearing. If the court does not set one, the deadline is the start

of trial.

20 Rule 12.1 FEDERAL RULES OF CRIMINAL PROCEDURE

(2) Extending or Resetting the Deadline. At any time before

trial, the court may extend or reset the deadline for pretrial

motions.

(3) Consequences of Not Making a Timely Motion Under Rule

12(b)(3). If a party does not meet the deadline for making a

Rule 12(b)(3) motion, the motion is untimely. But a court may

consider the defense, objection, or request if the party shows

good cause.

(d) Ruling on a Motion. The court must decide every pretrial mo-

tion before trial unless it finds good cause to defer a ruling. The

court must not defer ruling on a pretrial motion if the deferral

will adversely affect a party’s right to appeal. When factual issues

are involved in deciding a motion, the court must state its essen-

tial findings on the record.

(e) [Reserved]

(f) Recording the Proceedings. All proceedings at a motion hear-

ing, including any findings of fact and conclusions of law made

orally by the court, must be recorded by a court reporter or a suit-

able recording device.

(g) Defendant’s Continued Custody or Release Status. If the

court grants a motion to dismiss based on a defect in instituting

the prosecution, in the indictment, or in the information, it may

order the defendant to be released or detained under 18 U.S.C.

§ 3142 for a specified time until a new indictment or information

is filed. This rule does not affect any federal statutory period of

limitations.

(h) Producing Statements at a Suppression Hearing. Rule 26.2 ap-

plies at a suppression hearing under Rule 12(b)(3)(C). At a suppres-

sion hearing, a law enforcement officer is considered a govern-

ment witness.

(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, § 3(11),

(12), July 31, 1975, 89 Stat. 372, eff. Dec. 1, 1975; Apr. 28, 1983, eff.

Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec.

1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2014, eff. Dec. 1, 2014.)

Rule 12.1. Notice of an Alibi Defense

(a) Government’s Request for Notice and Defendant’s Response.

(1) Government’s Request. An attorney for the government

may request in writing that the defendant notify an attorney

for the government of any intended alibi defense. The request

must state the time, date, and place of the alleged offense.

(2) Defendant’s Response. Within 14 days after the request, or

at some other time the court sets, the defendant must serve

written notice on an attorney for the government of any in-

tended alibi defense. The defendant’s notice must state:

(A) each specific place where the defendant claims to

have been at the time of the alleged offense; and

(B) the name, address, and telephone number of each

alibi witness on whom the defendant intends to rely.

(b) Disclosing Government Witnesses.

(1) Disclosure.

(A) In General. If the defendant serves a Rule 12.1(a)(2)

notice, an attorney for the government must disclose in

writing to the defendant or the defendant’s attorney:

21 Rule 12.1 FEDERAL RULES OF CRIMINAL PROCEDURE

(i) the name of each witness—and the address and

telephone number of each witness other than a vic-

tim—that the government intends to rely on to estab-

lish that the defendant was present at the scene of the

alleged offense; and

(ii) each government rebuttal witness to the defend-

ant’s alibi defense.

(B) Victim’s Address and Telephone Number. If the govern-

ment intends to rely on a victim’s testimony to establish

that the defendant was present at the scene of the alleged

offense and the defendant establishes a need for the vic-

tim’s address and telephone number, the court may:

(i) order the government to provide the information

in writing to the defendant or the defendant’s attor-

ney; or

(ii) fashion a reasonable procedure that allows prepa-

ration of the defense and also protects the victim’s in-

terests.

(2) Time to Disclose. Unless the court directs otherwise, an

attorney for the government must give its Rule 12.1(b)(1) dis-

closure within 14 days after the defendant serves notice of an

intended alibi defense under Rule 12.1(a)(2), but no later than

14 days before trial.

(1) In General. Both an attorney for the government and the

defendant must promptly disclose in writing to the other

party the name of each additional witness—and the address

and telephone number of each additional witness other than a

victim—if:

(A) the disclosing party learns of the witness before or

during trial; and

(B) the witness should have been disclosed under Rule

12.1(a) or (b) if the disclosing party had known of the wit-

ness earlier.

(2) Address and Telephone Number of an Additional Victim

Witness. The address and telephone number of an additional

victim witness must not be disclosed except as provided in

Rule 12.1 (b)(1)(B).

(d) Exceptions. For good cause, the court may grant an excep-

tion to any requirement of Rule 12.1(a)–(c).

(e) Failure to Comply. If a party fails to comply with this rule,

the court may exclude the testimony of any undisclosed witness

regarding the defendant’s alibi. This rule does not limit the de-

fendant’s right to testify.

(f) Inadmissibility of Withdrawn Intention. Evidence of an inten-

tion to rely on an alibi defense, later withdrawn, or of a statement

made in connection with that intention, is not, in any civil or

criminal proceeding, admissible against the person who gave no-

tice of the intention.

(As added Apr. 22, 1974, eff. Dec. 1, 1975; amended Pub. L. 94–64,

§ 3(13), July 31, 1975, 89 Stat. 372, eff. Dec. 1, 1975; Apr. 29, 1985, eff.

Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec.

1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)

22 Rule 12.2 FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 12.2. Notice of an Insanity Defense; Mental Examination

(a) Notice of an Insanity Defense. A defendant who intends to as-

sert a defense of insanity at the time of the alleged offense must

so notify an attorney for the government in writing within the

time provided for filing a pretrial motion, or at any later time the

court sets, and file a copy of the notice with the clerk. A defend-

ant who fails to do so cannot rely on an insanity defense. The

court may, for good cause, allow the defendant to file the notice

late, grant additional trial-preparation time, or make other ap-

propriate orders.

(b) Notice of Expert Evidence of a Mental Condition. If a defend-

ant intends to introduce expert evidence relating to a mental dis-

ease or defect or any other mental condition of the defendant

bearing on either (1) the issue of guilt or (2) the issue of punish-

ment in a capital case, the defendant must—within the time pro-

vided for filing a pretrial motion or at any later time the court

sets—notify an attorney for the government in writing of this in-

tention and file a copy of the notice with the clerk. The court

may, for good cause, allow the defendant to file the notice late,

grant the parties additional trial-preparation time, or make other

appropriate orders.

(1) Authority to Order an Examination; Procedures.

(A) The court may order the defendant to submit to a

competency examination under 18 U.S.C. § 4241.

(B) If the defendant provides notice under Rule 12.2(a),

the court must, upon the government’s motion, order the

defendant to be examined under 18 U.S.C. § 4242. If the de-

fendant provides notice under Rule 12.2(b) the court may,

upon the government’s motion, order the defendant to be

examined under procedures ordered by the court.

(2) Disclosing Results and Reports of Capital Sentencing Ex-

amination. The results and reports of any examination con-

ducted solely under Rule 12.2(c)(1) after notice under Rule

12.2(b)(2) must be sealed and must not be disclosed to any at-

torney for the government or the defendant unless the defend-

ant is found guilty of one or more capital crimes and the de-

fendant confirms an intent to offer during sentencing proceed-

ings expert evidence on mental condition.

(3) Disclosing Results and Reports of the Defendant’s Expert

Examination. After disclosure under Rule 12.2(c)(2) of the re-

sults and reports of the government’s examination, the defend-

ant must disclose to the government the results and reports of

any examination on mental condition conducted by the de-

fendant’s expert about which the defendant intends to intro-

duce expert evidence.

(4) Inadmissibility of a Defendant’s Statements. No statement

made by a defendant in the course of any examination con-

ducted under this rule (whether conducted with or without the

defendant’s consent), no testimony by the expert based on the

statement, and no other fruits of the statement may be admit-

ted into evidence against the defendant in any criminal pro-

ceeding except on an issue regarding mental condition on

which the defendant:

23 Rule 12.3 FEDERAL RULES OF CRIMINAL PROCEDURE

(A) has introduced evidence of incompetency or evidence

requiring notice under Rule 12.2(a) or (b)(1), or

(B) has introduced expert evidence in a capital sentenc-

ing proceeding requiring notice under Rule 12.2(b)(2).

(d) Failure to Comply.

(1) Failure to Give Notice or to Submit to Examination. The

court may exclude any expert evidence from the defendant on

the issue of the defendant’s mental disease, mental defect, or

any other mental condition bearing on the defendant’s guilt or

the issue of punishment in a capital case if the defendant fails

to:

(A) give notice under Rule 12.2(b); or

(B) submit to an examination when ordered under Rule

12.2(c).

(2) Failure to Disclose. The court may exclude any expert

evidence for which the defendant has failed to comply with the

disclosure requirement of Rule 12.2(c)(3).

(e) Inadmissibility of Withdrawn Intention. Evidence of an inten-

tion as to which notice was given under Rule 12.2(a) or (b), later

withdrawn, is not, in any civil or criminal proceeding, admissible

against the person who gave notice of the intention.

(As added Apr. 22, 1974, eff. Dec. 1, 1975; amended Pub. L. 94–64,

§ 3(14), July 31, 1975, 89 Stat. 373, eff. Dec. 1, 1975; Apr. 28, 1983, eff.

Aug. 1, 1983; Pub. L. 98–473, title II, § 404, Oct. 12, 1984, 98 Stat. 2067;

Pub. L. 98–596, § 11(a), (b), Oct. 30, 1984, 98 Stat. 3138, eff. Oct. 12,

1984; Apr. 29, 1985, eff. Aug. 1, 1985; Pub. L. 99–646, § 24, Nov. 10, 1986,

100 Stat. 3597; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec.

1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.)

Rule 12.3. Notice of a Public-Authority Defense

(a) Notice of the Defense and Disclosure of Witnesses.

(1) Notice in General. If a defendant intends to assert a de-

fense of actual or believed exercise of public authority on be-

half of a law enforcement agency or federal intelligence agen-

cy at the time of the alleged offense, the defendant must so

notify an attorney for the government in writing and must file

a copy of the notice with the clerk within the time provided

for filing a pretrial motion, or at any later time the court

sets. The notice filed with the clerk must be under seal if the

notice identifies a federal intelligence agency as the source of

public authority.

(2) Contents of Notice. The notice must contain the following

information:

(A) the law enforcement agency or federal intelligence

agency involved;

(B) the agency member on whose behalf the defendant

claims to have acted; and

acted with public authority.

(3) Response to the Notice. An attorney for the government

must serve a written response on the defendant or the defend-

ant’s attorney within 14 days after receiving the defendant’s

notice, but no later than 21 days before trial. The response

must admit or deny that the defendant exercised the public

authority identified in the defendant’s notice.

24 Rule 12.3 FEDERAL RULES OF CRIMINAL PROCEDURE

(4) Disclosing Witnesses.

(A) Government’s Request. An attorney for the govern-

ment may request in writing that the defendant disclose

the name, address, and telephone number of each witness

the defendant intends to rely on to establish a public-au-

thority defense. An attorney for the government may

serve the request when the government serves its response

to the defendant’s notice under Rule 12.3(a)(3), or later, but

must serve the request no later than 21 days before trial.

(B) Defendant’s Response. Within 14 days after receiving

the government’s request, the defendant must serve on an

attorney for the government a written statement of the

name, address, and telephone number of each witness.

defendant’s statement, an attorney for the government

must serve on the defendant or the defendant’s attorney a

written statement of the name of each witness—and the

address and telephone number of each witness other than

a victim—that the government intends to rely on to op-

pose the defendant’s public-authority defense.

(D) Victim’s Address and Telephone Number. If the govern-

ment intends to rely on a victim’s testimony to oppose the

defendant’s public-authority defense and the defendant es-

tablishes a need for the victim’s address and telephone

number, the court may:

(i) order the government to provide the information

in writing to the defendant or the defendant’s attor-

ney; or

(ii) fashion a reasonable procedure that allows for

preparing the defense and also protects the victim’s in-

terests.

(5) Additional Time. The court may, for good cause, allow a

party additional time to comply with this rule.

(b) Continuing Duty to Disclose.

(1) In General. Both an attorney for the government and the

defendant must promptly disclose in writing to the other

party the name of any additional witness—and the address,

and telephone number of any additional witness other than a

victim—if:

(A) the disclosing party learns of the witness before or

during trial; and

(B) the witness should have been disclosed under Rule

12.3(a)(4) if the disclosing party had known of the witness

earlier.

(2) Address and Telephone Number of an Additional Victim-

Witness. The address and telephone number of an additional

victim-witness must not be disclosed except as provided in

Rule 12.3(a)(4)(D).

the court may exclude the testimony of any undisclosed witness

regarding the public-authority defense. This rule does not limit

the defendant’s right to testify.

(d) Protective Procedures Unaffected. This rule does not limit

the court’s authority to issue appropriate protective orders or to

order that any filings be under seal.

25 Rule 15 FEDERAL RULES OF CRIMINAL PROCEDURE

(e) Inadmissibility of Withdrawn Intention. Evidence of an inten-

tion as to which notice was given under Rule 12.3(a), later with-

drawn, is not, in any civil or criminal proceeding, admissible

against the person who gave notice of the intention.

(As added Pub. L. 100–690, title VI, § 6483, Nov. 18, 1988, 102 Stat.

4382; amended Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec.

1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010.)

Rule 12.4. Disclosure Statement

(a) Who Must File.

(1) Nongovernmental Corporate Party. Any nongovernmental

corporate party to a proceeding in a district court must file a

statement that identifies any parent corporation and any pub-

licly held corporation that owns 10% or more of its stock or

states that there is no such corporation.

(2) Organizational Victim. If an organization is a victim of

the alleged criminal activity, the government must file a

statement identifying the victim. If the organizational victim

is a corporation, the statement must also disclose the infor-

mation required by Rule 12.4(a)(1) to the extent it can be ob-

tained through due diligence.

(b) Time for Filing; Supplemental Filing. A party must:

(1) file the Rule 12.4(a) statement upon the defendant’s ini-

tial appearance; and

(2) promptly file a supplemental statement upon any change

in the information that the statement requires.

(As added Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 13. Joint Trial of Separate Cases

The court may order that separate cases be tried together as

though brought in a single indictment or information if all of-

fenses and all defendants could have been joined in a single indict-

ment or information.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 14. Relief from Prejudicial Joinder

(a) Relief. If the joinder of offenses or defendants in an indict-

ment, an information, or a consolidation for trial appears to prej-

udice a defendant or the government, the court may order sepa-

rate trials of counts, sever the defendants’ trials, or provide any

other relief that justice requires.

(b) Defendant’s Statements. Before ruling on a defendant’s mo-

tion to sever, the court may order an attorney for the government

to deliver to the court for in camera inspection any defendant’s

statement that the government intends to use as evidence.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 2002, eff. Dec.

1, 2002.)

Rule 15. Depositions

(a) When Taken.

(1) In General. A party may move that a prospective witness

be deposed in order to preserve testimony for trial. The court

may grant the motion because of exceptional circumstances

26 Rule 15 FEDERAL RULES OF CRIMINAL PROCEDURE

and in the interest of justice. If the court orders the deposi-

tion to be taken, it may also require the deponent to produce

at the deposition any designated material that is not privi-

leged, including any book, paper, document, record, recording,

or data.

(2) Detained Material Witness. A witness who is detained

under 18 U.S.C. § 3144 may request to be deposed by filing a

written motion and giving notice to the parties. The court

may then order that the deposition be taken and may dis-

charge the witness after the witness has signed under oath the

deposition transcript.

(b) Notice.

(1) In General. A party seeking to take a deposition must

give every other party reasonable written notice of the deposi-

tion’s date and location. The notice must state the name and

address of each deponent. If requested by a party receiving the

notice, the court may, for good cause, change the deposition’s

date or location.

(2) To the Custodial Officer. A party seeking to take the dep-

osition must also notify the officer who has custody of the de-

fendant of the scheduled date and location.

(1) Defendant in Custody. Except as authorized by Rule

15(c)(3), the officer who has custody of the defendant must

produce the defendant at the deposition and keep the defend-

ant in the witness’s presence during the examination, unless

the defendant:

(A) waives in writing the right to be present; or

(B) persists in disruptive conduct justifying exclusion

after being warned by the court that disruptive conduct

will result in the defendant’s exclusion.

(2) Defendant Not in Custody. Except as authorized by Rule

15(c)(3), a defendant who is not in custody has the right upon

request to be present at the deposition, subject to any condi-

tions imposed by the court. If the government tenders the de-

fendant’s expenses as provided in Rule 15(d) but the defendant

still fails to appear, the defendant—absent good cause—waives

both the right to appear and any objection to the taking and

use of the deposition based on that right.

(3) Taking Depositions Outside the United States Without the

Defendant’s Presence. The deposition of a witness who is out-

side the United States may be taken without the defendant’s

presence if the court makes case-specific findings of all the

following:

(A) the witness’s testimony could provide substantial

proof of a material fact in a felony prosecution;

(B) there is a substantial likelihood that the witness’s

attendance at trial cannot be obtained;

States cannot be obtained;

(D) the defendant cannot be present because:

(i) the country where the witness is located will not

permit the defendant to attend the deposition;

(ii) for an in-custody defendant, secure transpor-

tation and continuing custody cannot be assured at the

witness’s location; or

27 Rule 16 FEDERAL RULES OF CRIMINAL PROCEDURE

(iii) for an out-of-custody defendant, no reasonable

conditions will assure an appearance at the deposition

or at trial or sentencing; and

(E) the defendant can meaningfully participate in the

deposition through reasonable means.

(d) Expenses. If the deposition was requested by the government,

the court may—or if the defendant is unable to bear the deposi-

tion expenses, the court must—order the government to pay:

(1) any reasonable travel and subsistence expenses of the de-

fendant and the defendant’s attorney to attend the deposition;

and

(2) the costs of the deposition transcript.

(e) Manner of Taking. Unless these rules or a court order pro-

vides otherwise, a deposition must be taken and filed in the same

manner as a deposition in a civil action, except that:

(1) A defendant may not be deposed without that defendant’s

consent.

(2) The scope and manner of the deposition examination and

cross-examination must be the same as would be allowed dur-

ing trial.

(3) The government must provide to the defendant or the de-

fendant’s attorney, for use at the deposition, any statement of

the deponent in the government’s possession to which the de-

fendant would be entitled at trial.

(f) Admissibility and Use as Evidence. An order authorizing a

deposition to be taken under this rule does not determine its ad-

missibility. A party may use all or part of a deposition as provided

by the Federal Rules of Evidence.

(g) Objections. A party objecting to deposition testimony or evi-

dence must state the grounds for the objection during the deposi-

tion.

(h) Depositions by Agreement Permitted. The parties may by

agreement take and use a deposition with the court’s consent.

(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, § 3(15)–(19),

July 31, 1975, 89 Stat. 373, 374, eff. Dec. 1, 1975; Pub. L. 98–473, title

II, § 209(b), Oct. 12, 1984, 98 Stat. 1986; Mar. 9, 1987, eff. Aug. 1, 1987;

Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2012, eff. Dec. 1, 2012.)

Rule 16. Discovery and Inspection

(a) Government’s Disclosure.

(1) Information Subject to Disclosure.

(A) Defendant’s Oral Statement. Upon a defendant’s re-

quest, the government must disclose to the defendant the

substance of any relevant oral statement made by the de-

fendant, before or after arrest, in response to interrogation

by a person the defendant knew was a government agent

if the government intends to use the statement at trial.

(B) Defendant’s Written or Recorded Statement. Upon a de-

fendant’s request, the government must disclose to the de-

fendant, and make available for inspection, copying, or

photographing, all of the following:

(i) any relevant written or recorded statement by the

defendant if:

• the statement is within the government’s pos-

session, custody, or control; and

28 Rule 16 FEDERAL RULES OF CRIMINAL PROCEDURE

• the attorney for the government knows—or

through due diligence could know—that the state-

ment exists;

(ii) the portion of any written record containing the

substance of any relevant oral statement made before

or after arrest if the defendant made the statement in

response to interrogation by a person the defendant

knew was a government agent; and

(iii) the defendant’s recorded testimony before a

grand jury relating to the charged offense.

if the defendant is an organization, the government must

disclose to the defendant any statement described in Rule

16(a)(1)(A) and (B) if the government contends that the

person making the statement:

(i) was legally able to bind the defendant regarding

the subject of the statement because of that person’s

position as the defendant’s director, officer, employee,

or agent; or

(ii) was personally involved in the alleged conduct

constituting the offense and was legally able to bind

the defendant regarding that conduct because of that

person’s position as the defendant’s director, officer,

employee, or agent.

(D) Defendant’s Prior Record. Upon a defendant’s request,

the government must furnish the defendant with a copy of

the defendant’s prior criminal record that is within the

government’s possession, custody, or control if the attor-

ney for the government knows—or through due diligence

could know—that the record exists.

(E) Documents and Objects. Upon a defendant’s request,

the government must permit the defendant to inspect and

to copy or photograph books, papers, documents, data,

photographs, tangible objects, buildings or places, or cop-

ies or portions of any of these items, if the item is within

the government’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its

case-in-chief at trial; or

(iii) the item was obtained from or belongs to the de-

fendant.

(F) Reports of Examinations and Tests. Upon a defendant’s

request, the government must permit a defendant to in-

spect and to copy or photograph the results or reports of

any physical or mental examination and of any scientific

test or experiment if:

(i) the item is within the government’s possession,

custody, or control;

(ii) the attorney for the government knows—or

through due diligence could know—that the item ex-

ists; and

(iii) the item is material to preparing the defense or

the government intends to use the item in its case-in-

chief at trial.

(G) Expert Witnesses. At the defendant’s request, the gov-

ernment must give to the defendant a written summary of

29 Rule 16 FEDERAL RULES OF CRIMINAL PROCEDURE

any testimony that the government intends to use under

Rules 702, 703, or 705 of the Federal Rules of Evidence dur-

ing its case-in-chief at trial. If the government requests

discovery under subdivision (b)(1)(C)(ii) and the defendant

complies, the government must, at the defendant’s re-

quest, give to the defendant a written summary of testi-

mony that the government intends to use under Rules 702,

703, or 705 of the Federal Rules of Evidence as evidence at

trial on the issue of the defendant’s mental condition. The

summary provided under this subparagraph must describe

the witness’s opinions, the bases and reasons for those

opinions, and the witness’s qualifications.

(2) Information Not Subject to Disclosure. Except as per-

mitted by Rule 16(a)(1)(A)–(D), (F), and (G), this rule does not

authorize the discovery or inspection of reports, memoranda,

or other internal government documents made by an attorney

for the government or other government agent in connection

with investigating or prosecuting the case. Nor does this rule

authorize the discovery or inspection of statements made by

prospective government witnesses except as provided in 18

U.S.C. § 3500.

(3) Grand Jury Transcripts. This rule does not apply to the

discovery or inspection of a grand jury’s recorded proceedings,

except as provided in Rules 6, 12(h), 16(a)(1), and 26.2.

(b) Defendant’s Disclosure.

(1) Information Subject to Disclosure.

(A) Documents and Objects. If a defendant requests disclo-

sure under Rule 16(a)(1)(E) and the government complies,

then the defendant must permit the government, upon re-

quest, to inspect and to copy or photograph books, papers,

documents, data, photographs, tangible objects, buildings

or places, or copies or portions of any of these items if:

(i) the item is within the defendant’s possession, cus-

tody, or control; and

(ii) the defendant intends to use the item in the de-

fendant’s case-in-chief at trial.

(B) Reports of Examinations and Tests. If a defendant re-

quests disclosure under Rule 16(a)(1)(F) and the govern-

ment complies, the defendant must permit the govern-

ment, upon request, to inspect and to copy or photograph

the results or reports of any physical or mental examina-

tion and of any scientific test or experiment if:

(i) the item is within the defendant’s possession, cus-

tody, or control; and

(ii) the defendant intends to use the item in the de-

fendant’s case-in-chief at trial, or intends to call the

witness who prepared the report and the report relates

to the witness’s testimony.

ment’s request, give to the government a written summary

of any testimony that the defendant intends to use under

Rules 702, 703, or 705 of the Federal Rules of Evidence as

evidence at trial, if—

(i) the defendant requests disclosure under subdivi-

sion (a)(1)(G) and the government complies; or

30 Rule 17 FEDERAL RULES OF CRIMINAL PROCEDURE

(ii) the defendant has given notice under Rule 12.2(b)

of an intent to present expert testimony on the defend-

ant’s mental condition.

This summary must describe the witness’s opinions, the

bases and reasons for those opinions, and the witness’s

qualifications[.]

(2) Information Not Subject to Disclosure. Except for sci-

entific or medical reports, Rule 16(b)(1) does not authorize dis-

covery or inspection of:

(A) reports, memoranda, or other documents made by

the defendant, or the defendant’s attorney or agent, during

the case’s investigation or defense; or

(B) a statement made to the defendant, or the defend-

ant’s attorney or agent, by:

(i) the defendant;

(ii) a government or defense witness; or

(iii) a prospective government or defense witness.

tional evidence or material before or during trial must promptly

disclose its existence to the other party or the court if:

(1) the evidence or material is subject to discovery or inspec-

tion under this rule; and

(2) the other party previously requested, or the court or-

dered, its production.

(d) Regulating Discovery.

(1) Protective and Modifying Orders. At any time the court

may, for good cause, deny, restrict, or defer discovery or in-

spection, or grant other appropriate relief. The court may per-

mit a party to show good cause by a written statement that

the court will inspect ex parte. If relief is granted, the court

must preserve the entire text of the party’s statement under

seal.

(2) Failure to Comply. If a party fails to comply with this

rule, the court may:

(A) order that party to permit the discovery or inspec-

tion; specify its time, place, and manner; and prescribe

other just terms and conditions;

(B) grant a continuance;

evidence; or

(D) enter any other order that is just under the circum-

stances.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec.

1, 1975; Pub. L. 94–64, § 3(20)–(28), July 31, 1975, 89 Stat. 374, 375, eff.

Dec. 1, 1975; Pub. L. 94–149, § 5, Dec. 12, 1975, 89 Stat. 806; Apr. 28,

1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 30, 1991,

eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec.

1, 1994; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 29, 2002, eff. Dec. 1, 2002;

Pub. L. 107–273, div. C, title I, § 11019(b), Nov. 2, 2002, 117 Stat. 1825,

eff. Dec. 1, 2002; Apr. 16, 2013, eff. Dec. 1, 2013.)

Rule 17. Subpoena

(a) Content. A subpoena must state the court’s name and the

title of the proceeding, include the seal of the court, and command

31 Rule 17 FEDERAL RULES OF CRIMINAL PROCEDURE

the witness to attend and testify at the time and place the sub-

poena specifies. The clerk must issue a blank subpoena—signed

and sealed—to the party requesting it, and that party must fill in

the blanks before the subpoena is served.

(b) Defendant Unable to Pay. Upon a defendant’s ex parte appli-

cation, the court must order that a subpoena be issued for a

named witness if the defendant shows an inability to pay the

witness’s fees and the necessity of the witness’s presence for an

adequate defense. If the court orders a subpoena to be issued, the

process costs and witness fees will be paid in the same manner as

those paid for witnesses the government subpoenas.

(1) In General. A subpoena may order the witness to produce

any books, papers, documents, data, or other objects the sub-

poena designates. The court may direct the witness to produce

the designated items in court before trial or before they are to

be offered in evidence. When the items arrive, the court may

permit the parties and their attorneys to inspect all or part of

them.

(2) Quashing or Modifying the Subpoena. On motion made

promptly, the court may quash or modify the subpoena if com-

pliance would be unreasonable or oppressive.

(3) Subpoena for Personal or Confidential Information About

a Victim. After a complaint, indictment, or information is

filed, a subpoena requiring the production of personal or con-

fidential information about a victim may be served on a third

party only by court order. Before entering the order and un-

less there are exceptional circumstances, the court must re-

quire giving notice to the victim so that the victim can move

to quash or modify the subpoena or otherwise object.

(d) Service. A marshal, a deputy marshal, or any nonparty who

is at least 18 years old may serve a subpoena. The server must de-

liver a copy of the subpoena to the witness and must tender to the

witness one day’s witness-attendance fee and the legal mileage al-

lowance. The server need not tender the attendance fee or mileage

allowance when the United States, a federal officer, or a federal

agency has requested the subpoena.

(e) Place of Service.

(1) In the United States. A subpoena requiring a witness to

attend a hearing or trial may be served at any place within

the United States.

(2) In a Foreign Country. If the witness is in a foreign coun-

try, 28 U.S.C. § 1783 governs the subpoena’s service.

(f) Issuing a Deposition Subpoena.

(1) Issuance. A court order to take a deposition authorizes

the clerk in the district where the deposition is to be taken to

issue a subpoena for any witness named or described in the

order.

(2) Place. After considering the convenience of the witness

and the parties, the court may order—and the subpoena may

require—the witness to appear anywhere the court designates.

32 Rule 17.1 FEDERAL RULES OF CRIMINAL PROCEDURE

(g) Contempt. The court (other than a magistrate judge) may

hold in contempt a witness who, without adequate excuse, dis-

obeys a subpoena issued by a federal court in that district. A mag-

istrate judge may hold in contempt a witness who, without ade-

quate excuse, disobeys a subpoena issued by that magistrate judge

as provided in 28 U.S.C. § 636(e).

(h) Information Not Subject to a Subpoena. No party may sub-

poena a statement of a witness or of a prospective witness under

this rule. Rule 26.2 governs the production of the statement.

(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July

1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975;

Pub. L. 94–64, § 3(29), July 31, 1975, 89 Stat. 375, eff. Dec. 1, 1975; Apr.

30, 1979, eff. Dec. 1, 1980; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993,

eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec.

1, 2008.)

Rule 17.1. Pretrial Conference

On its own, or on a party’s motion, the court may hold one or

more pretrial conferences to promote a fair and expeditious trial.

When a conference ends, the court must prepare and file a memo-

randum of any matters agreed to during the conference. The gov-

ernment may not use any statement made during the conference

by the defendant or the defendant’s attorney unless it is in writ-

ing and is signed by the defendant and the defendant’s attorney.

(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 9, 1987, eff.

Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)

TITLE V. VENUE

Rule 18. Place of Prosecution and Trial

Unless a statute or these rules permit otherwise, the govern-

ment must prosecute an offense in a district where the offense was

committed. The court must set the place of trial within the dis-

trict with due regard for the convenience of the defendant, any

victim, and the witnesses, and the prompt administration of jus-

tice.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug.

1, 1979; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008.)

Rule 19. [Reserved]

Rule 20. Transfer for Plea and Sentence

(a) Consent to Transfer. A prosecution may be transferred from

the district where the indictment or information is pending, or

from which a warrant on a complaint has been issued, to the dis-

trict where the defendant is arrested, held, or present if:

(1) the defendant states in writing a wish to plead guilty or

nolo contendere and to waive trial in the district where the in-

dictment, information, or complaint is pending, consents in

writing to the court’s disposing of the case in the transferee

district, and files the statement in the transferee district; and

(2) the United States attorneys in both districts approve the

transfer in writing.

33 Rule 21 FEDERAL RULES OF CRIMINAL PROCEDURE

(b) Clerk’s Duties. After receiving the defendant’s statement and

the required approvals, the clerk where the indictment, informa-

tion, or complaint is pending must send the file, or a certified

copy, to the clerk in the transferee district.

after the case has been transferred under Rule 20(a), the clerk

must return the papers to the court where the prosecution began,

and that court must restore the proceeding to its docket. The de-

fendant’s statement that the defendant wished to plead guilty or

nolo contendere is not, in any civil or criminal proceeding, admis-

sible against the defendant.

(d) Juveniles.

(1) Consent to Transfer. A juvenile, as defined in 18 U.S.C.

§ 5031, may be proceeded against as a juvenile delinquent in the

district where the juvenile is arrested, held, or present if:

(A) the alleged offense that occurred in the other district

is not punishable by death or life imprisonment;

(B) an attorney has advised the juvenile;

rights—including the right to be returned to the district

where the offense allegedly occurred—and the conse-

quences of waiving those rights;

(D) the juvenile, after receiving the court’s information

about rights, consents in writing to be proceeded against

in the transferee district, and files the consent in the

transferee district;

(E) the United States attorneys for both districts ap-

prove the transfer in writing; and

(F) the transferee court approves the transfer.

(2) Clerk’s Duties. After receiving the juvenile’s written con-

sent and the required approvals, the clerk where the indict-

ment, information, or complaint is pending or where the al-

leged offense occurred must send the file, or a certified copy,

to the clerk in the transferee district.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec.

1, 1975; Pub. L. 94–64, § 3(30), July 31, 1975, 89 Stat. 375, eff. Dec. 1,

1975; Apr. 28, 1982, eff. Aug. 1, 1982; Mar. 9, 1987, eff. Aug. 1, 1987;

Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 21. Transfer for Trial

(a) For Prejudice. Upon the defendant’s motion, the court must

transfer the proceeding against that defendant to another district

if the court is satisfied that so great a prejudice against the de-

fendant exists in the transferring district that the defendant can-

not obtain a fair and impartial trial there.

(b) For Convenience. Upon the defendant’s motion, the court

may transfer the proceeding, or one or more counts, against that

defendant to another district for the convenience of the parties,

any victim, and the witnesses, and in the interest of justice.

the clerk must send to the transferee district the file, or a cer-

tified copy, and any bail taken. The prosecution will then con-

tinue in the transferee district.

34 Rule 22 FEDERAL RULES OF CRIMINAL PROCEDURE

(d) Time to File a Motion to Transfer. A motion to transfer may

be made at or before arraignment or at any other time the court

or these rules prescribe.

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug.

1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 28, 2010, eff. Dec. 1, 2010.)

Rule 22. [Transferred]

TITLE VI. TRIAL

Rule 23. Jury or Nonjury Trial

(a) Jury Trial. If the defendant is entitled to a jury trial, the

trial must be by jury unless:

(1) the defendant waives a jury trial in writing;

(2) the government consents; and

(3) the court approves.

(b) Jury Size.

(1) In General. A jury consists of 12 persons unless this rule

provides otherwise.

(2) Stipulation for a Smaller Jury. At any time before the

verdict, the parties may, with the court’s approval, stipulate

in writing that:

(A) the jury may consist of fewer than 12 persons; or

(B) a jury of fewer than 12 persons may return a verdict

if the court finds it necessary to excuse a juror for good

cause after the trial begins.

(3) Court Order for a Jury of 11. After the jury has retired

to deliberate, the court may permit a jury of 11 persons to re-

turn a verdict, even without a stipulation by the parties, if the

court finds good cause to excuse a juror.

find the defendant guilty or not guilty. If a party requests before

the finding of guilty or not guilty, the court must state its spe-

cific findings of fact in open court or in a written decision or opin-

ion.

(As amended Feb. 28, 1966, eff. July 1, 1966; Pub. L. 95–78, § 2(b),

July 30, 1977, 91 Stat. 320, eff. Oct. 1, 1977; Apr. 28, 1983, eff. Aug.

1, 1983; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 24. Trial Jurors

(a) Examination.

(1) In General. The court may examine prospective jurors or

may permit the attorneys for the parties to do so.

(2) Court Examination. If the court examines the jurors, it

must permit the attorneys for the parties to:

(A) ask further questions that the court considers prop-

er; or

(B) submit further questions that the court may ask if it

considers them proper.

(b) Peremptory Challenges. Each side is entitled to the number

of peremptory challenges to prospective jurors specified below.

The court may allow additional peremptory challenges to mul-

tiple defendants, and may allow the defendants to exercise those

challenges separately or jointly.

35 Rule 25 FEDERAL RULES OF CRIMINAL PROCEDURE

(1) Capital Case. Each side has 20 peremptory challenges

when the government seeks the death penalty.

(2) Other Felony Case. The government has 6 peremptory

challenges and the defendant or defendants jointly have 10 pe-

remptory challenges when the defendant is charged with a

crime punishable by imprisonment of more than one year.

(3) Misdemeanor Case. Each side has 3 peremptory challenges

when the defendant is charged with a crime punishable by

fine, imprisonment of one year or less, or both.

(1) In General. The court may impanel up to 6 alternate ju-

rors to replace any jurors who are unable to perform or who

are disqualified from performing their duties.

(2) Procedure.

(A) Alternate jurors must have the same qualifications

and be selected and sworn in the same manner as any

other juror.

(B) Alternate jurors replace jurors in the same sequence

in which the alternates were selected. An alternate juror

who replaces a juror has the same authority as the other

jurors.

(3) Retaining Alternate Jurors. The court may retain alter-

nate jurors after the jury retires to deliberate. The court must

ensure that a retained alternate does not discuss the case with

anyone until that alternate replaces a juror or is discharged.

If an alternate replaces a juror after deliberations have begun,

the court must instruct the jury to begin its deliberations

anew.

(4) Peremptory Challenges. Each side is entitled to the num-

ber of additional peremptory challenges to prospective alter-

nate jurors specified below. These additional challenges may

be used only to remove alternate jurors.

(A) One or Two Alternates. One additional peremptory

challenge is permitted when one or two alternates are im-

paneled.

(B) Three or Four Alternates. Two additional peremptory

challenges are permitted when three or four alternates are

impaneled.

challenges are permitted when five or six alternates are

impaneled.

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug.

1, 1987; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 25. Judge’s Disability

(a) During Trial. Any judge regularly sitting in or assigned to

the court may complete a jury trial if:

(1) the judge before whom the trial began cannot proceed be-

cause of death, sickness, or other disability; and

(2) the judge completing the trial certifies familiarity with

the trial record.

(b) After a Verdict or Finding of Guilty.

(1) In General. After a verdict or finding of guilty, any judge

regularly sitting in or assigned to a court may complete the

36 Rule 26 FEDERAL RULES OF CRIMINAL PROCEDURE

court’s duties if the judge who presided at trial cannot per-

form those duties because of absence, death, sickness, or other

disability.

(2) Granting a New Trial. The successor judge may grant a

new trial if satisfied that:

(A) a judge other than the one who presided at the trial

cannot perform the post-trial duties; or

(B) a new trial is necessary for some other reason.

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug.

1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 26. Taking Testimony

In every trial the testimony of witnesses must be taken in open

court, unless otherwise provided by a statute or by rules adopted

under 28 U.S.C. §§ 2072–2077.

(As amended Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 2002, eff. Dec.

1, 2002.)

Rule 26.1. Foreign Law Determination

A party intending to raise an issue of foreign law must provide

the court and all parties with reasonable written notice. Issues of

foreign law are questions of law, but in deciding such issues a

court may consider any relevant material or source—including

testimony—without regard to the Federal Rules of Evidence.

(As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff.

July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 26.2. Producing a Witness’s Statement

(a) Motion to Produce. After a witness other than the defendant

has testified on direct examination, the court, on motion of a

party who did not call the witness, must order an attorney for the

government or the defendant and the defendant’s attorney to

produce, for the examination and use of the moving party, any

statement of the witness that is in their possession and that re-

lates to the subject matter of the witness’s testimony.

(b) Producing the Entire Statement. If the entire statement re-

lates to the subject matter of the witness’s testimony, the court

must order that the statement be delivered to the moving party.

witness claims that the statement contains information that is

privileged or does not relate to the subject matter of the witness’s

testimony, the court must inspect the statement in camera. After

excising any privileged or unrelated portions, the court must

order delivery of the redacted statement to the moving party. If

the defendant objects to an excision, the court must preserve the

entire statement with the excised portion indicated, under seal, as

part of the record.

(d) Recess to Examine a Statement. The court may recess the

proceedings to allow time for a party to examine the statement

and prepare for its use.

(e) Sanction for Failure to Produce or Deliver a Statement. If the

party who called the witness disobeys an order to produce or de-

liver a statement, the court must strike the witness’s testimony

37 Rule 29 FEDERAL RULES OF CRIMINAL PROCEDURE

from the record. If an attorney for the government disobeys the

order, the court must declare a mistrial if justice so requires.

(f) ‘‘Statement’’ Defined. As used in this rule, a witness’s ‘‘state-

ment’’ means:

(1) a written statement that the witness makes and signs, or

otherwise adopts or approves;

(2) a substantially verbatim, contemporaneously recorded

recital of the witness’s oral statement that is contained in any

recording or any transcription of a recording; or

(3) the witness’s statement to a grand jury, however taken

or recorded, or a transcription of such a statement.

(g) Scope. This rule applies at trial, at a suppression hearing

under Rule 12, and to the extent specified in the following rules:

(1) Rule 5.1(h) (preliminary hearing);

(2) Rule 32(i)(2) (sentencing);

(3) Rule 32.1(e) (hearing to revoke or modify probation or su-

pervised release);

(4) Rule 46(j) (detention hearing); and

(5) Rule 8 of the Rules Governing Proceedings under 28

U.S.C. § 2255.

(As added Apr. 30, 1979, eff. Dec. 1, 1980; amended Mar. 9, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 26.3. Mistrial

Before ordering a mistrial, the court must give each defendant

and the government an opportunity to comment on the propriety

of the order, to state whether that party consents or objects, and

to suggest alternatives.

(As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 29, 2002, eff.

Dec. 1, 2002.)

Rule 27. Proving an Official Record

A party may prove an official record, an entry in such a record,

or the lack of a record or entry in the same manner as in a civil

action.

(As amended Apr. 29, 2002, eff. Dec, 1, 2002.)

Rule 28. Interpreters

The court may select, appoint, and set the reasonable compensa-

tion for an interpreter, including an interpreter for the victim.

The compensation must be paid from funds provided by law or by

the government, as the court may direct.

(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, eff. July

1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002; Pub. L. 114–324, § 2(c), Dec. 16,

2016, 130 Stat. 1948.)

Rule 29. Motion for a Judgment of Acquittal

(a) Before Submission to the Jury. After the government closes

its evidence or after the close of all the evidence, the court on the

defendant’s motion must enter a judgment of acquittal of any of-

fense for which the evidence is insufficient to sustain a convic-

tion. The court may on its own consider whether the evidence is

38 Rule 29.1 FEDERAL RULES OF CRIMINAL PROCEDURE

insufficient to sustain a conviction. If the court denies a motion

for a judgment of acquittal at the close of the government’s evi-

dence, the defendant may offer evidence without having reserved

the right to do so.

(b) Reserving Decision. The court may reserve decision on the

motion, proceed with the trial (where the motion is made before

the close of all the evidence), submit the case to the jury, and de-

cide the motion either before the jury returns a verdict or after

it returns a verdict of guilty or is discharged without having re-

turned a verdict. If the court reserves decision, it must decide the

motion on the basis of the evidence at the time the ruling was re-

served.

(1) Time for a Motion. A defendant may move for a judgment

of acquittal, or renew such a motion, within 14 days after a

guilty verdict or after the court discharges the jury, which-

ever is later.

(2) Ruling on the Motion. If the jury has returned a guilty

verdict, the court may set aside the verdict and enter an ac-

quittal. If the jury has failed to return a verdict, the court

may enter a judgment of acquittal.

(3) No Prior Motion Required. A defendant is not required to

move for a judgment of acquittal before the court submits the

case to the jury as a prerequisite for making such a motion

after jury discharge.

(d) Conditional Ruling on a Motion for a New Trial.

(1) Motion for a New Trial. If the court enters a judgment of

acquittal after a guilty verdict, the court must also condi-

tionally determine whether any motion for a new trial should

be granted if the judgment of acquittal is later vacated or re-

versed. The court must specify the reasons for that determina-

tion.

(2) Finality. The court’s order conditionally granting a mo-

tion for a new trial does not affect the finality of the judg-

ment of acquittal.

(3) Appeal.

(A) Grant of a Motion for a New Trial. If the court condi-

tionally grants a motion for a new trial and an appellate

court later reverses the judgment of acquittal, the trial

court must proceed with the new trial unless the appellate

court orders otherwise.

(B) Denial of a Motion for a New Trial. If the court condi-

tionally denies a motion for a new trial, an appellee may

assert that the denial was erroneous. If the appellate court

later reverses the judgment of acquittal, the trial court

must proceed as the appellate court directs.

(As amended Feb. 28, 1966, eff. July 1, 1966; Pub. L. 99–646, § 54(a),

Nov. 10, 1986, 100 Stat. 3607, eff. Dec. 10, 1986; Apr. 29, 1994, eff. Dec.

1, 1994; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005;

Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 29.1. Closing Argument

Closing arguments proceed in the following order:

(a) the government argues;

39 Rule 31 FEDERAL RULES OF CRIMINAL PROCEDURE

(b) the defense argues; and

(As added Apr. 22, 1974, eff. Dec. 1, 1975; amended Apr. 29, 2002, eff.

Dec. 1, 2002.)

Rule 30. Jury Instructions

(a) In General. Any party may request in writing that the court

instruct the jury on the law as specified in the request. The re-

quest must be made at the close of the evidence or at any earlier

time that the court reasonably sets. When the request is made,

the requesting party must furnish a copy to every other party.

(b) Ruling on a Request. The court must inform the parties be-

fore closing arguments how it intends to rule on the requested in-

structions.

before or after the arguments are completed, or at both times.

(d) Objections to Instructions. A party who objects to any por-

tion of the instructions or to a failure to give a requested instruc-

tion must inform the court of the specific objection and the

grounds for the objection before the jury retires to deliberate. An

opportunity must be given to object out of the jury’s hearing and,

on request, out of the jury’s presence. Failure to object in accord-

ance with this rule precludes appellate review, except as per-

mitted under Rule 52(b).

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug.

1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 31. Jury Verdict

(a) Return. The jury must return its verdict to a judge in open

court. The verdict must be unanimous.

(b) Partial Verdicts, Mistrial, and Retrial.

(1) Multiple Defendants. If there are multiple defendants, the

jury may return a verdict at any time during its deliberations

as to any defendant about whom it has agreed.

(2) Multiple Counts. If the jury cannot agree on all counts as

to any defendant, the jury may return a verdict on those

counts on which it has agreed.

(3) Mistrial and Retrial. If the jury cannot agree on a verdict

on one or more counts, the court may declare a mistrial on

those counts. The government may retry any defendant on

any count on which the jury could not agree.

of any of the following:

(1) an offense necessarily included in the offense charged;

(2) an attempt to commit the offense charged; or

(3) an attempt to commit an offense necessarily included in

the offense charged, if the attempt is an offense in its own

right.

(d) Jury Poll. After a verdict is returned but before the jury is

discharged, the court must on a party’s request, or may on its

own, poll the jurors individually. If the poll reveals a lack of una-

nimity, the court may direct the jury to deliberate further or may

declare a mistrial and discharge the jury.

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002.)

40 Rule 32 FEDERAL RULES OF CRIMINAL PROCEDURE

TITLE VII. POST–CONVICTION PROCEDURES

Rule 32. Sentencing and Judgment

(a) [Reserved.]

(b) Time of Sentencing.

(1) In General. The court must impose sentence without un-

necessary delay.

(2) Changing Time Limits. The court may, for good cause,

change any time limits prescribed in this rule.

(1) Required Investigation.

(A) In General. The probation officer must conduct a pre-

sentence investigation and submit a report to the court

before it imposes sentence unless:

(i) 18 U.S.C. § 3593(c) or another statute requires

otherwise; or

(ii) the court finds that the information in the record

enables it to meaningfully exercise its sentencing au-

thority under 18 U.S.C. § 3553, and the court explains its

finding on the record.

(B) Restitution. If the law permits restitution, the proba-

tion officer must conduct an investigation and submit a

report that contains sufficient information for the court

to order restitution.

(2) Interviewing the Defendant. The probation officer who

interviews a defendant as part of a presentence investigation

must, on request, give the defendant’s attorney notice and a

reasonable opportunity to attend the interview.

(d) Presentence Report.

(1) Applying the Advisory Sentencing Guidelines. The pre-

sentence report must:

(A) identify all applicable guidelines and policy state-

ments of the Sentencing Commission;

(B) calculate the defendant’s offense level and criminal

history category;

tences available;

(D) identify any factor relevant to:

(i) the appropriate kind of sentence, or

(ii) the appropriate sentence within the applicable

sentencing range; and

(E) identify any basis for departing from the applicable

sentencing range.

(2) Additional Information. The presentence report must also

contain the following:

(A) the defendant’s history and characteristics, includ-

ing:

(i) any prior criminal record;

(ii) the defendant’s financial condition; and

(iii) any circumstances affecting the defendant’s be-

havior that may be helpful in imposing sentence or in

correctional treatment;

(B) information that assesses any financial, social, psy-

chological, and medical impact on any victim;

programs and resources available to the defendant;

41 Rule 32 FEDERAL RULES OF CRIMINAL PROCEDURE

(D) when the law provides for restitution, information

sufficient for a restitution order;

(E) if the court orders a study under 18 U.S.C. § 3552(b),

any resulting report and recommendation;

(F) a statement of whether the government seeks forfeit-

ure under Rule 32.2 and any other law; and

(G) any other information that the court requires, in-

cluding information relevant to the factors under 18 U.S.C.

§ 3553(a).

(3) Exclusions. The presentence report must exclude the fol-

lowing:

(A) any diagnoses that, if disclosed, might seriously dis-

rupt a rehabilitation program;

(B) any sources of information obtained upon a promise

of confidentiality; and

in physical or other harm to the defendant or others.

(e) Disclosing the Report and Recommendation.

(1) Time to Disclose. Unless the defendant has consented in

writing, the probation officer must not submit a presentence

report to the court or disclose its contents to anyone until the

defendant has pleaded guilty or nolo contendere, or has been

found guilty.

(2) Minimum Required Notice. The probation officer must

give the presentence report to the defendant, the defendant’s

attorney, and an attorney for the government at least 35 days

before sentencing unless the defendant waives this minimum

period.

(3) Sentence Recommendation. By local rule or by order in a

case, the court may direct the probation officer not to disclose

to anyone other than the court the officer’s recommendation

on the sentence.

(f) Objecting to the Report.

(1) Time to Object. Within 14 days after receiving the pre-

sentence report, the parties must state in writing any objec-

tions, including objections to material information, sentenc-

ing guideline ranges, and policy statements contained in or

omitted from the report.

(2) Serving Objections. An objecting party must provide a

copy of its objections to the opposing party and to the proba-

tion officer.

(3) Action on Objections. After receiving objections, the pro-

bation officer may meet with the parties to discuss the objec-

tions. The probation officer may then investigate further and

revise the presentence report as appropriate.

(g) Submitting the Report. At least 7 days before sentencing, the

probation officer must submit to the court and to the parties the

presentence report and an addendum containing any unresolved

objections, the grounds for those objections, and the probation of-

ficer’s comments on them.

(h) Notice of Possible Departure from Sentencing Guidelines. Be-

fore the court may depart from the applicable sentencing range on

a ground not identified for departure either in the presentence re-

port or in a party’s prehearing submission, the court must give

42 Rule 32 FEDERAL RULES OF CRIMINAL PROCEDURE

the parties reasonable notice that it is contemplating such a de-

parture. The notice must specify any ground on which the court

is contemplating a departure.

(i) Sentencing.

(1) In General. At sentencing, the court:

(A) must verify that the defendant and the defendant’s

attorney have read and discussed the presentence report

and any addendum to the report;

(B) must give to the defendant and an attorney for the

government a written summary of—or summarize in cam-

era—any information excluded from the presentence re-

port under Rule 32(d)(3) on which the court will rely in sen-

tencing, and give them a reasonable opportunity to com-

ment on that information;

probation officer’s determinations and other matters re-

lating to an appropriate sentence; and

(D) may, for good cause, allow a party to make a new ob-

jection at any time before sentence is imposed.

(2) Introducing Evidence; Producing a Statement. The court

may permit the parties to introduce evidence on the objec-

tions. If a witness testifies at sentencing, Rule 26.2(a)–(d) and

(f) applies. If a party fails to comply with a Rule 26.2 order to

produce a witness’s statement, the court must not consider

that witness’s testimony.

(3) Court Determinations. At sentencing, the court:

(A) may accept any undisputed portion of the pre-

sentence report as a finding of fact;

(B) must—for any disputed portion of the presentence re-

port or other controverted matter—rule on the dispute or

determine that a ruling is unnecessary either because the

matter will not affect sentencing, or because the court will

not consider the matter in sentencing; and

under this rule to any copy of the presentence report made

available to the Bureau of Prisons.

(4) Opportunity to Speak.

(A) By a Party. Before imposing sentence, the court

must:

(i) provide the defendant’s attorney an opportunity

to speak on the defendant’s behalf;

(ii) address the defendant personally in order to per-

mit the defendant to speak or present any information

to mitigate the sentence; and

(iii) provide an attorney for the government an op-

portunity to speak equivalent to that of the defend-

ant’s attorney.

(B) By a Victim. Before imposing sentence, the court

must address any victim of the crime who is present at

sentencing and must permit the victim to be reasonably

heard.

good cause, the court may hear in camera any statement

made under Rule 32(i)(4).

43 Rule 32.1 FEDERAL RULES OF CRIMINAL PROCEDURE

(j) Defendant’s Right to Appeal.

(1) Advice of a Right to Appeal.

(A) Appealing a Conviction. If the defendant pleaded not

guilty and was convicted, after sentencing the court must

advise the defendant of the right to appeal the conviction.

(B) Appealing a Sentence. After sentencing—regardless of

the defendant’s plea—the court must advise the defendant

of any right to appeal the sentence.

is unable to pay appeal costs of the right to ask for permis-

sion to appeal in forma pauperis.

(2) Clerk’s Filing of Notice. If the defendant so requests, the

clerk must immediately prepare and file a notice of appeal on

the defendant’s behalf.

(k) Judgment.

(1) In General. In the judgment of conviction, the court must

set forth the plea, the jury verdict or the court’s findings, the

adjudication, and the sentence. If the defendant is found not

guilty or is otherwise entitled to be discharged, the court

must so order. The judge must sign the judgment, and the

clerk must enter it.

(2) Criminal Forfeiture. Forfeiture procedures are governed

by Rule 32.2.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.

1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, § 3(31)–(34), July

31, 1975, 89 Stat. 376, eff. Dec. 1, 1975; Apr. 30, 1979, eff. Aug. 1, 1979,

and Dec. 1, 1980; Pub. L. 97–291, § 3, Oct. 12, 1982, 96 Stat. 1249; Apr.

28, 1983, eff. Aug. 1, 1983; Pub. L. 98–473, title II, § 215(a), Oct. 12,

1984, 98 Stat. 2014, eff. Nov. 1, 1987; Pub. L. 99–646, § 25(a), Nov. 10,

1986, 100 Stat. 3597, eff. Nov. 1, 1987; Mar. 9, 1987, eff. Aug. 1, 1987;

Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr.

22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Pub. L.

103–322, title XXIII, § 230101(b), Sept. 13, 1994, 108 Stat. 2078, eff.

Dec. 1, 1994; Apr. 23, 1996, eff. Dec. 1, 1996; Pub. L. 104–132, title II,

§ 207(a), Apr. 24, 1996, 110 Stat. 1236; Apr. 17, 2000, eff. Dec. 1, 2000;

Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007; Apr.

23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 26, 2011,

eff. Dec. 1, 2011.)

Rule 32.1. Revoking or Modifying Probation or Supervised Release

(a) Initial Appearance.

(1) Person In Custody. A person held in custody for violating

probation or supervised release must be taken without unnec-

essary delay before a magistrate judge.

(A) If the person is held in custody in the district where

an alleged violation occurred, the initial appearance must

be in that district.

(B) If the person is held in custody in a district other

than where an alleged violation occurred, the initial ap-

pearance must be in that district, or in an adjacent dis-

trict if the appearance can occur more promptly there.

(2) Upon a Summons. When a person appears in response to

a summons for violating probation or supervised release, a

magistrate judge must proceed under this rule.

44 Rule 32.1 FEDERAL RULES OF CRIMINAL PROCEDURE

(3) Advice. The judge must inform the person of the follow-

ing:

(A) the alleged violation of probation or supervised re-

lease;

(B) the person’s right to retain counsel or to request that

counsel be appointed if the person cannot obtain counsel;

and

nary hearing under Rule 32.1(b)(1).

(4) Appearance in the District With Jurisdiction. If the person

is arrested or appears in the district that has jurisdiction to

conduct a revocation hearing—either originally or by transfer

of jurisdiction—the court must proceed under Rule 32.1(b)–(e).

(5) Appearance in a District Lacking Jurisdiction. If the per-

son is arrested or appears in a district that does not have ju-

risdiction to conduct a revocation hearing, the magistrate

judge must:

(A) if the alleged violation occurred in the district of ar-

rest, conduct a preliminary hearing under Rule 32.1(b) and

either:

(i) transfer the person to the district that has juris-

diction, if the judge finds probable cause to believe

that a violation occurred; or

(ii) dismiss the proceedings and so notify the court

that has jurisdiction, if the judge finds no probable

cause to believe that a violation occurred; or

(B) if the alleged violation did not occur in the district

of arrest, transfer the person to the district that has juris-

diction if:

(i) the government produces certified copies of the

judgment, warrant, and warrant application, or pro-

duces copies of those certified documents by reliable

electronic means; and

(ii) the judge finds that the person is the same person

named in the warrant.

(6) Release or Detention. The magistrate judge may release

or detain the person under 18 U.S.C. § 3143(a)(1) pending further

proceedings. The burden of establishing by clear and convinc-

ing evidence that the person will not flee or pose a danger to

any other person or to the community rests with the person.

(b) Revocation.

(1) Preliminary Hearing.

(A) In General. If a person is in custody for violating a

condition of probation or supervised release, a magistrate

judge must promptly conduct a hearing to determine

whether there is probable cause to believe that a violation

occurred. The person may waive the hearing.

(B) Requirements. The hearing must be recorded by a

court reporter or by a suitable recording device. The judge

must give the person:

(i) notice of the hearing and its purpose, the alleged

violation, and the person’s right to retain counsel or to

request that counsel be appointed if the person cannot

obtain counsel;

(ii) an opportunity to appear at the hearing and

present evidence; and

45 Rule 32.2 FEDERAL RULES OF CRIMINAL PROCEDURE

(iii) upon request, an opportunity to question any ad-

verse witness, unless the judge determines that the in-

terest of justice does not require the witness to appear.

must conduct a revocation hearing. If the judge does not

find probable cause, the judge must dismiss the proceed-

ing.

(2) Revocation Hearing. Unless waived by the person, the

court must hold the revocation hearing within a reasonable

time in the district having jurisdiction. The person is entitled

to:

(A) written notice of the alleged violation;

(B) disclosure of the evidence against the person;

tion any adverse witness unless the court determines that

the interest of justice does not require the witness to ap-

pear;

(D) notice of the person’s right to retain counsel or to re-

quest that counsel be appointed if the person cannot ob-

tain counsel; and

(E) an opportunity to make a statement and present any

information in mitigation.

(1) In General. Before modifying the conditions of probation

or supervised release, the court must hold a hearing, at which

the person has the right to counsel and an opportunity to

make a statement and present any information in mitigation.

(2) Exceptions. A hearing is not required if:

(A) the person waives the hearing; or

(B) the relief sought is favorable to the person and does

not extend the term of probation or of supervised release;

and

of the relief sought, has had a reasonable opportunity to

object, and has not done so.

(d) Disposition of the Case. The court’s disposition of the case is

governed by 18 U.S.C. § 3563 and § 3565 (probation) and § 3583 (super-

vised release).

(e) Producing a Statement. Rule 26.2(a)–(d) and (f) applies at a

hearing under this rule. If a party fails to comply with a Rule 26.2

order to produce a witness’s statement, the court must not con-

sider that witness’s testimony.

(As added Apr. 30, 1979, eff. Dec. 1, 1980; amended Pub. L. 99–646,

§ 12(b), Nov. 10, 1986, 100 Stat. 3594, eff. Dec. 10, 1986; Mar. 9, 1987,

eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec.

1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.

28, 2010, eff. Dec. 1, 2010.)

Rule 32.2. Criminal Forfeiture

(a) Notice to the Defendant. A court must not enter a judgment

of forfeiture in a criminal proceeding unless the indictment or in-

formation contains notice to the defendant that the government

will seek the forfeiture of property as part of any sentence in ac-

cordance with the applicable statute. The notice should not be

46 Rule 32.2 FEDERAL RULES OF CRIMINAL PROCEDURE

designated as a count of the indictment or information. The in-

dictment or information need not identify the property subject to

forfeiture or specify the amount of any forfeiture money judgment

that the government seeks.

(b) Entering a Preliminary Order of Forfeiture.

(1) Forfeiture Phase of the Trial.

(A) Forfeiture Determinations. As soon as practical after a

verdict or finding of guilty, or after a plea of guilty or nolo

contendere is accepted, on any count in an indictment or

information regarding which criminal forfeiture is sought,

the court must determine what property is subject to for-

feiture under the applicable statute. If the government

seeks forfeiture of specific property, the court must deter-

mine whether the government has established the req-

uisite nexus between the property and the offense. If the

government seeks a personal money judgment, the court

must determine the amount of money that the defendant

will be ordered to pay.

(B) Evidence and Hearing. The court’s determination may

be based on evidence already in the record, including any

written plea agreement, and on any additional evidence or

information submitted by the parties and accepted by the

court as relevant and reliable. If the forfeiture is con-

tested, on either party’s request the court must conduct a

hearing after the verdict or finding of guilty.

(2) Preliminary Order.

(A) Contents of a Specific Order. If the court finds that

property is subject to forfeiture, it must promptly enter a

preliminary order of forfeiture setting forth the amount of

any money judgment, directing the forfeiture of specific

property, and directing the forfeiture of any substitute

property if the government has met the statutory criteria.

The court must enter the order without regard to any

third party’s interest in the property. Determining wheth-

er a third party has such an interest must be deferred until

any third party files a claim in an ancillary proceeding

under Rule 32.2(c).

(B) Timing. Unless doing so is impractical, the court

must enter the preliminary order sufficiently in advance

of sentencing to allow the parties to suggest revisions or

modifications before the order becomes final as to the de-

fendant under Rule 32.2(b)(4).

identify all the specific property subject to forfeiture or

calculate the total amount of the money judgment, the

court may enter a forfeiture order that:

(i) lists any identified property;

(ii) describes other property in general terms; and

(iii) states that the order will be amended under Rule

32.2(e)(1) when additional specific property is identified

or the amount of the money judgment has been cal-

culated.

(3) Seizing Property. The entry of a preliminary order of for-

feiture authorizes the Attorney General (or a designee) to

seize the specific property subject to forfeiture; to conduct

47 Rule 32.2 FEDERAL RULES OF CRIMINAL PROCEDURE

any discovery the court considers proper in identifying, locat-

ing, or disposing of the property; and to commence proceed-

ings that comply with any statutes governing third-party

rights. The court may include in the order of forfeiture condi-

tions reasonably necessary to preserve the property’s value

pending any appeal.

(4) Sentence and Judgment.

(A) When Final. At sentencing—or at any time before

sentencing if the defendant consents—the preliminary for-

feiture order becomes final as to the defendant. If the

order directs the defendant to forfeit specific property, it

remains preliminary as to third parties until the ancillary

proceeding is concluded under Rule 32.2(c).

(B) Notice and Inclusion in the Judgment. The court must

include the forfeiture when orally announcing the sen-

tence or must otherwise ensure that the defendant knows

of the forfeiture at sentencing. The court must also in-

clude the forfeiture order, directly or by reference, in the

judgment, but the court’s failure to do so may be corrected

at any time under Rule 36.

ernment to file an appeal from the forfeiture order, or

from the court’s failure to enter an order, begins to run

when judgment is entered. If the court later amends or de-

clines to amend a forfeiture order to include additional

property under Rule 32.2(e), the defendant or the govern-

ment may file an appeal regarding that property under

Federal Rule of Appellate Procedure 4(b). The time for

that appeal runs from the date when the order granting or

denying the amendment becomes final.

(5) Jury Determination.

(A) Retaining the Jury. In any case tried before a jury, if

the indictment or information states that the government

is seeking forfeiture, the court must determine before the

jury begins deliberating whether either party requests

that the jury be retained to determine the forfeitability of

specific property if it returns a guilty verdict.

(B) Special Verdict Form. If a party timely requests to

have the jury determine forfeiture, the government must

submit a proposed Special Verdict Form listing each prop-

erty subject to forfeiture and asking the jury to determine

whether the government has established the requisite

nexus between the property and the offense committed by

the defendant.

(6) Notice of the Forfeiture Order.

(A) Publishing and Sending Notice. If the court orders the

forfeiture of specific property, the government must pub-

lish notice of the order and send notice to any person who

reasonably appears to be a potential claimant with stand-

ing to contest the forfeiture in the ancillary proceeding.

(B) Content of the Notice. The notice must describe the

forfeited property, state the times under the applicable

statute when a petition contesting the forfeiture must be

filed, and state the name and contact information for the

government attorney to be served with the petition.

48 Rule 32.2 FEDERAL RULES OF CRIMINAL PROCEDURE

ment. Publication must take place as described in Supple-

mental Rule G(4)(a)(iii) of the Federal Rules of Civil Pro-

cedure, and may be by any means described in Supple-

mental Rule G(4)(a)(iv). Publication is unnecessary if any

exception in Supplemental Rule G(4)(a)(i) applies.

(D) Means of Sending the Notice. The notice may be sent

in accordance with Supplemental Rules G(4)(b)(iii)–(v) of

the Federal Rules of Civil Procedure.

(7) Interlocutory Sale. At any time before entry of a final for-

feiture order, the court, in accordance with Supplemental

Rule G(7) of the Federal Rules of Civil Procedure, may order

the interlocutory sale of property alleged to be forfeitable.

(1) In General. If, as prescribed by statute, a third party files

a petition asserting an interest in the property to be forfeited,

the court must conduct an ancillary proceeding, but no ancil-

lary proceeding is required to the extent that the forfeiture

consists of a money judgment.

(A) In the ancillary proceeding, the court may, on mo-

tion, dismiss the petition for lack of standing, for failure

to state a claim, or for any other lawful reason. For pur-

poses of the motion, the facts set forth in the petition are

assumed to be true.

(B) After disposing of any motion filed under Rule

32.2(c)(1)(A) and before conducting a hearing on the peti-

tion, the court may permit the parties to conduct discov-

ery in accordance with the Federal Rules of Civil Proce-

dure if the court determines that discovery is necessary or

desirable to resolve factual issues. When discovery ends, a

party may move for summary judgment under Federal

Rule of Civil Procedure 56.

(2) Entering a Final Order. When the ancillary proceeding

ends, the court must enter a final order of forfeiture by

amending the preliminary order as necessary to account for

any third-party rights. If no third party files a timely peti-

tion, the preliminary order becomes the final order of forfeit-

ure if the court finds that the defendant (or any combination

of defendants convicted in the case) had an interest in the

property that is forfeitable under the applicable statute. The

defendant may not object to the entry of the final order on the

ground that the property belongs, in whole or in part, to a co-

defendant or third party; nor may a third party object to the

final order on the ground that the third party had an interest

in the property.

(3) Multiple Petitions. If multiple third-party petitions are

filed in the same case, an order dismissing or granting one pe-

tition is not appealable until rulings are made on all the peti-

tions, unless the court determines that there is no just reason

for delay.

(4) Ancillary Proceeding Not Part of Sentencing. An ancillary

proceeding is not part of sentencing.

(d) Stay Pending Appeal. If a defendant appeals from a convic-

tion or an order of forfeiture, the court may stay the order of for-

feiture on terms appropriate to ensure that the property remains

49 Rule 34 FEDERAL RULES OF CRIMINAL PROCEDURE

available pending appellate review. A stay does not delay the an-

cillary proceeding or the determination of a third party’s rights

or interests. If the court rules in favor of any third party while an

appeal is pending, the court may amend the order of forfeiture but

must not transfer any property interest to a third party until the

decision on appeal becomes final, unless the defendant consents in

writing or on the record.

(e) Subsequently Located Property; Substitute Property.

(1) In General. On the government’s motion, the court may

at any time enter an order of forfeiture or amend an existing

order of forfeiture to include property that:

(A) is subject to forfeiture under an existing order of for-

feiture but was located and identified after that order was

entered; or

(B) is substitute property that qualifies for forfeiture

under an applicable statute.

(2) Procedure. If the government shows that the property is

subject to forfeiture under Rule 32.2(e)(1), the court must:

(A) enter an order forfeiting that property, or amend an

existing preliminary or final order to include it; and

(B) if a third party files a petition claiming an interest

in the property, conduct an ancillary proceeding under

Rule 32.2(c).

(3) Jury Trial Limited. There is no right to a jury trial under

Rule 32.2(e).

(As added Apr. 17, 2000, eff. Dec. 1, 2000; amended Apr. 29, 2002, eff.

Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 33. New Trial

(a) Defendant’s Motion. Upon the defendant’s motion, the court

may vacate any judgment and grant a new trial if the interest of

justice so requires. If the case was tried without a jury, the court

may take additional testimony and enter a new judgment.

(b) Time to File.

(1) Newly Discovered Evidence. Any motion for a new trial

grounded on newly discovered evidence must be filed within 3

years after the verdict or finding of guilty. If an appeal is

pending, the court may not grant a motion for a new trial

until the appellate court remands the case.

(2) Other Grounds. Any motion for a new trial grounded on

any reason other than newly discovered evidence must be filed

within 14 days after the verdict or finding of guilty.

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug.

1, 1987; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 34. Arresting Judgment

(a) In General. Upon the defendant’s motion or on its own, the

court must arrest judgment if the court does not have jurisdiction

of the charged offense.

(b) Time to File. The defendant must move to arrest judgment

within 14 days after the court accepts a verdict or finding of

guilty, or after a plea of guilty or nolo contendere.

50 Rule 35 FEDERAL RULES OF CRIMINAL PROCEDURE

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 2002, eff. Dec.

1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009;

Apr. 25, 2014, eff. Dec. 1, 2014.)

Rule 35. Correcting or Reducing a Sentence

(a) Correcting Clear Error. Within 14 days after sentencing, the

court may correct a sentence that resulted from arithmetical,

technical, or other clear error.

(b) Reducing a Sentence for Substantial Assistance.

(1) In General. Upon the government’s motion made within

one year of sentencing, the court may reduce a sentence if the

defendant, after sentencing, provided substantial assistance in

investigating or prosecuting another person.

(2) Later Motion. Upon the government’s motion made more

than one year after sentencing, the court may reduce a sen-

tence if the defendant’s substantial assistance involved:

(A) information not known to the defendant until one

year or more after sentencing;

(B) information provided by the defendant to the govern-

ment within one year of sentencing, but which did not be-

come useful to the government until more than one year

after sentencing; or

ably have been anticipated by the defendant until more

than one year after sentencing and which was promptly

provided to the government after its usefulness was rea-

sonably apparent to the defendant.

(3) Evaluating Substantial Assistance. In evaluating whether

the defendant has provided substantial assistance, the court

may consider the defendant’s presentence assistance.

(4) Below Statutory Minimum. When acting under Rule 35(b),

the court may reduce the sentence to a level below the mini-

mum sentence established by statute.

means the oral announcement of the sentence.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug.

1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Pub. L. 98–473, title II, § 215(b),

Oct. 12, 1984, 98 Stat. 2015, eff. Nov. 1, 1987; Apr. 29, 1985, eff. Aug.

1, 1985; Pub. L. 99–570, title I, § 1009(a), Oct. 27, 1986, 100 Stat. 3207–8,

eff. Nov. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2004, eff. Dec. 1, 2004;

Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 36. Clerical Error

After giving any notice it considers appropriate, the court may

at any time correct a clerical error in a judgment, order, or other

part of the record, or correct an error in the record arising from

oversight or omission.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 37. Indicative Ruling on a Motion for Relief That Is Barred

by a Pending Appeal

(a) Relief Pending Appeal. If a timely motion is made for relief

that the court lacks authority to grant because of an appeal that

has been docketed and is pending, the court may:

51 Rule 38 FEDERAL RULES OF CRIMINAL PROCEDURE

(1) defer considering the motion;

(2) deny the motion; or

(3) state either that it would grant the motion if the court

of appeals remands for that purpose or that the motion raises

a substantial issue.

(b) Notice to the Court of Appeals. The movant must promptly

notify the circuit clerk under Federal Rule of Appellate Procedure

12.1 if the district court states that it would grant the motion or

that the motion raises a substantial issue.

court of appeals remands for that purpose.

(As added Apr. 23, 2012, eff. Dec. 1, 2012.)

Rule 38. Staying a Sentence or a Disability

(a) Death Sentence. The court must stay a death sentence if the

defendant appeals the conviction or sentence.

(b) Imprisonment.

(1) Stay Granted. If the defendant is released pending appeal,

the court must stay a sentence of imprisonment.

(2) Stay Denied; Place of Confinement. If the defendant is not

released pending appeal, the court may recommend to the At-

torney General that the defendant be confined near the place

of the trial or appeal for a period reasonably necessary to per-

mit the defendant to assist in preparing the appeal.

of appeals under Federal Rule of Appellate Procedure 8, may stay

a sentence to pay a fine or a fine and costs. The court may stay

the sentence on any terms considered appropriate and may require

the defendant to:

(1) deposit all or part of the fine and costs into the district

court’s registry pending appeal;

(2) post a bond to pay the fine and costs; or

(3) submit to an examination concerning the defendant’s as-

sets and, if appropriate, order the defendant to refrain from

dissipating assets.

(d) Probation. If the defendant appeals, the court may stay a

sentence of probation. The court must set the terms of any stay.

(e) Restitution and Notice to Victims.

(1) In General. If the defendant appeals, the district court, or

the court of appeals under Federal Rule of Appellate Proce-

dure 8, may stay—on any terms considered appropriate—any

sentence providing for restitution under 18 U.S.C. § 3556 or no-

tice under 18 U.S.C. § 3555.

(2) Ensuring Compliance. The court may issue any order rea-

sonably necessary to ensure compliance with a restitution

order or a notice order after disposition of an appeal, includ-

ing:

(A) a restraining order;

(B) an injunction;

part of any monetary restitution into the district court’s

registry; or

(D) an order requiring the defendant to post a bond.

(f) Forfeiture. A stay of a forfeiture order is governed by Rule

32.2(d).

52 Rule 39 FEDERAL RULES OF CRIMINAL PROCEDURE

(g) Disability. If the defendant’s conviction or sentence creates

a civil or employment disability under federal law, the district

court, or the court of appeals under Federal Rule of Appellate Pro-

cedure 8, may stay the disability pending appeal on any terms

considered appropriate. The court may issue any order reasonably

necessary to protect the interest represented by the disability

pending appeal, including a restraining order or an injunction.

(As amended Dec. 27, 1948, eff. Jan. 1, 1949; Feb. 28, 1966, eff. July

1, 1966; Dec. 4, 1967, eff. July 1, 1968; Apr. 24, 1972, eff. Oct. 1, 1972;

Pub. L. 98–473, title II, § 215(c), Oct. 12, 1984, 98 Stat. 2016, eff. Nov.

1, 1987; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000;

Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 39. [Reserved]

TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

Rule 40. Arrest for Failing to Appear in Another District or for Vio-

lating Conditions of Release Set in Another District

(a) In General. A person must be taken without unnecessary

delay before a magistrate judge in the district of arrest if the per-

son has been arrested under a warrant issued in another district

for:

(i) failing to appear as required by the terms of that person’s

release under 18 U.S.C. §§ 3141–3156 or by a subpoena; or

(ii) violating conditions of release set in another district.

(b) Proceedings. The judge must proceed under Rule 5(c)(3) as

applicable.

vious release or detention order issued in another district, but

must state in writing the reasons for doing so.

(d) Video Teleconferencing. Video teleconferencing may be used

to conduct an appearance under this rule if the defendant con-

sents.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.

1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Pub. L. 96–42, § 1(2), July 31,

1979, 93 Stat. 326; Apr. 28, 1982, eff. Aug. 1, 1982; Pub. L. 98–473, title

II, §§ 209(c), 215(d), Oct. 12, 1984, 98 Stat. 1986, 2016, eff. Oct. 12, 1984,

and Nov. 1, 1987; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec.

1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994;

Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; Apr.

12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 41. Search and Seizure

(a) Scope and Definitions.

(1) Scope. This rule does not modify any statute regulating

search or seizure, or the issuance and execution of a search

warrant in special circumstances.

(2) Definitions. The following definitions apply under this

rule:

(A) ‘‘Property’’ includes documents, books, papers, any

other tangible objects, and information.

(B) ‘‘Daytime’’ means the hours between 6:00 a.m. and

10:00 p.m. according to local time.

53 Rule 41 FEDERAL RULES OF CRIMINAL PROCEDURE

ment agent (other than an attorney for the government)

who is engaged in enforcing the criminal laws and is with-

in any category of officers authorized by the Attorney

General to request a search warrant.

(D) ‘‘Domestic terrorism’’ and ‘‘international terrorism’’

have the meanings set out in 18 U.S.C. § 2331.

(E) ‘‘Tracking device’’ has the meaning set out in 18

U.S.C. § 3117(b).

(b) Venue for a Warrant Application. At the request of a federal

law enforcement officer or an attorney for the government:

(1) a magistrate judge with authority in the district—or if

none is reasonably available, a judge of a state court of record

in the district—has authority to issue a warrant to search for

and seize a person or property located within the district;

(2) a magistrate judge with authority in the district has au-

thority to issue a warrant for a person or property outside the

district if the person or property is located within the district

when the warrant is issued but might move or be moved out-

side the district before the warrant is executed;

(3) a magistrate judge—in an investigation of domestic ter-

rorism or international terrorism—with authority in any dis-

trict in which activities related to the terrorism may have oc-

curred has authority to issue a warrant for a person or prop-

erty within or outside that district;

(4) a magistrate judge with authority in the district has au-

thority to issue a warrant to install within the district a

tracking device; the warrant may authorize use of the device

to track the movement of a person or property located within

the district, outside the district, or both; and

(5) a magistrate judge having authority in any district

where activities related to the crime may have occurred, or in

the District of Columbia, may issue a warrant for property

that is located outside the jurisdiction of any state or district,

but within any of the following:

(A) a United States territory, possession, or common-

wealth;

(B) the premises—no matter who owns them—of a United

States diplomatic or consular mission in a foreign state,

including any appurtenant building, part of a building, or

land used for the mission’s purposes; or

leased by the United States and used by United States per-

sonnel assigned to a United States diplomatic or consular

mission in a foreign state.

(6) a magistrate judge with authority in any district where

activities related to a crime may have occurred has authority

to issue a warrant to use remote access to search electronic

storage media and to seize or copy electronically stored infor-

mation located within or outside that district if:

(A) the district where the media or information is lo-

cated has been concealed through technological means; or

(B) in an investigation of a violation of 18 U.S.C.

§ 1030(a)(5), the media are protected computers that have

been damaged without authorization and are located in

five or more districts.

54 Rule 41 FEDERAL RULES OF CRIMINAL PROCEDURE

may be issued for any of the following:

(1) evidence of a crime;

(2) contraband, fruits of crime, or other items illegally pos-

sessed;

(3) property designed for use, intended for use, or used in

committing a crime; or

(4) a person to be arrested or a person who is unlawfully re-

strained.

(d) Obtaining a Warrant.

(1) In General. After receiving an affidavit or other informa-

tion, a magistrate judge—or if authorized by Rule 41(b), a

judge of a state court of record—must issue the warrant if

there is probable cause to search for and seize a person or

property or to install and use a tracking device.

(2) Requesting a Warrant in the Presence of a Judge.

(A) Warrant on an Affidavit. When a federal law enforce-

ment officer or an attorney for the government presents

an affidavit in support of a warrant, the judge may require

the affiant to appear personally and may examine under

oath the affiant and any witness the affiant produces.

(B) Warrant on Sworn Testimony. The judge may wholly

or partially dispense with a written affidavit and base a

warrant on sworn testimony if doing so is reasonable

under the circumstances.

warrant must be recorded by a court reporter or by a suit-

able recording device, and the judge must file the tran-

script or recording with the clerk, along with any affida-

vit.

(3) Requesting a Warrant by Telephonic or Other Reliable

Electronic Means. In accordance with Rule 4.1, a magistrate

judge may issue a warrant based on information commu-

nicated by telephone or other reliable electronic means.

(e) Issuing the Warrant.

(1) In General. The magistrate judge or a judge of a state

court of record must issue the warrant to an officer authorized

to execute it.

(2) Contents of the Warrant.

(A) Warrant to Search for and Seize a Person or Property.

Except for a tracking-device warrant, the warrant must

identify the person or property to be searched, identify

any person or property to be seized, and designate the

magistrate judge to whom it must be returned. The war-

rant must command the officer to:

(i) execute the warrant within a specified time no

longer than 14 days;

(ii) execute the warrant during the daytime, unless

the judge for good cause expressly authorizes execu-

tion at another time; and

(iii) return the warrant to the magistrate judge des-

ignated in the warrant.

(B) Warrant Seeking Electronically Stored Information. A

warrant under Rule 41(e)(2)(A) may authorize the seizure

of electronic storage media or the seizure or copying of

55 Rule 41 FEDERAL RULES OF CRIMINAL PROCEDURE

electronically stored information. Unless otherwise speci-

fied, the warrant authorizes a later review of the media or

information consistent with the warrant. The time for exe-

cuting the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to

the seizure or on-site copying of the media or information,

and not to any later off-site copying or review.

rant must identify the person or property to be tracked,

designate the magistrate judge to whom it must be re-

turned, and specify a reasonable length of time that the

device may be used. The time must not exceed 45 days

from the date the warrant was issued. The court may, for

good cause, grant one or more extensions for a reasonable

period not to exceed 45 days each. The warrant must com-

mand the officer to:

(i) complete any installation authorized by the war-

rant within a specified time no longer than 10 days;

(ii) perform any installation authorized by the war-

rant during the daytime, unless the judge for good

cause expressly authorizes installation at another

time; and

(iii) return the warrant to the judge designated in

the warrant.

(f) Executing and Returning the Warrant.

(1) Warrant to Search for and Seize a Person or Property.

(A) Noting the Time. The officer executing the warrant

must enter on it the exact date and time it was executed.

(B) Inventory. An officer present during the execution of

the warrant must prepare and verify an inventory of any

property seized. The officer must do so in the presence of

another officer and the person from whom, or from whose

premises, the property was taken. If either one is not

present, the officer must prepare and verify the inventory

in the presence of at least one other credible person. In a

case involving the seizure of electronic storage media or

the seizure or copying of electronically stored informa-

tion, the inventory may be limited to describing the phys-

ical storage media that were seized or copied. The officer

may retain a copy of the electronically stored information

that was seized or copied.

a copy of the warrant and a receipt for the property taken

to the person from whom, or from whose premises, the

property was taken or leave a copy of the warrant and re-

ceipt at the place where the officer took the property. For

a warrant to use remote access to search electronic stor-

age media and seize or copy electronically stored informa-

tion, the officer must make reasonable efforts to serve a

copy of the warrant and receipt on the person whose prop-

erty was searched or who possessed the information that

was seized or copied. Service may be accomplished by any

means, including electronic means, reasonably calculated

to reach that person.

56 Rule 41 FEDERAL RULES OF CRIMINAL PROCEDURE

(D) Return. The officer executing the warrant must

promptly return it—together with a copy of the inven-

tory—to the magistrate judge designated on the warrant.

The officer may do so by reliable electronic means. The

judge must, on request, give a copy of the inventory to the

person from whom, or from whose premises, the property

was taken and to the applicant for the warrant.

(2) Warrant for a Tracking Device.

(A) Noting the Time. The officer executing a tracking-de-

vice warrant must enter on it the exact date and time the

device was installed and the period during which it was

used.

(B) Return. Within 10 days after the use of the tracking

device has ended, the officer executing the warrant must

return it to the judge designated in the warrant. The offi-

cer may do so by reliable electronic means.

device has ended, the officer executing a tracking-device

warrant must serve a copy of the warrant on the person

who was tracked or whose property was tracked. Service

may be accomplished by delivering a copy to the person

who, or whose property, was tracked; or by leaving a copy

at the person’s residence or usual place of abode with an

individual of suitable age and discretion who resides at

that location and by mailing a copy to the person’s last

known address. Upon request of the government, the judge

may delay notice as provided in Rule 41(f)(3).

(3) Delayed Notice. Upon the government’s request, a mag-

istrate judge—or if authorized by Rule 41(b), a judge of a state

court of record—may delay any notice required by this rule if

the delay is authorized by statute.

(g) Motion to Return Property. A person aggrieved by an unlaw-

ful search and seizure of property or by the deprivation of prop-

erty may move for the property’s return. The motion must be

filed in the district where the property was seized. The court must

receive evidence on any factual issue necessary to decide the mo-

tion. If it grants the motion, the court must return the property

to the movant, but may impose reasonable conditions to protect

access to the property and its use in later proceedings.

(h) Motion to Suppress. A defendant may move to suppress evi-

dence in the court where the trial will occur, as Rule 12 provides.

(i) Forwarding Papers to the Clerk. The magistrate judge to

whom the warrant is returned must attach to the warrant a copy

of the return, of the inventory, and of all other related papers and

must deliver them to the clerk in the district where the property

was seized.

(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Apr. 9, 1956, eff. July

8, 1956; Apr. 24, 1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July 1, 1974;

Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; Pub. L. 95–78, § 2(e), July

30, 1977, 91 Stat. 320, eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979;

Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; May 1,

1990, eff. Dec. 1, 1990; Apr. 22, 1993, eff. Dec. 1, 1993; Pub. L. 107–56,

title II, § 219, Oct. 26, 2001, 115 Stat. 291; Apr. 29, 2002, eff. Dec. 1,

2002; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 23, 2008, eff. Dec. 1, 2008;

57 Rule 43 FEDERAL RULES OF CRIMINAL PROCEDURE

Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 26, 2011, eff. Dec. 1, 2011; Apr.

28, 2016, eff. Dec. 1, 2016.)

Rule 42. Criminal Contempt

(a) Disposition After Notice. Any person who commits criminal

contempt may be punished for that contempt after prosecution on

notice.

(1) Notice. The court must give the person notice in open

court, in an order to show cause, or in an arrest order. The no-

tice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a

defense; and

criminal contempt and describe it as such.

(2) Appointing a Prosecutor. The court must request that the

contempt be prosecuted by an attorney for the government,

unless the interest of justice requires the appointment of an-

other attorney. If the government declines the request, the

court must appoint another attorney to prosecute the con-

tempt.

(3) Trial and Disposition. A person being prosecuted for

criminal contempt is entitled to a jury trial in any case in

which federal law so provides and must be released or detained

as Rule 46 provides. If the criminal contempt involves dis-

respect toward or criticism of a judge, that judge is disquali-

fied from presiding at the contempt trial or hearing unless the

defendant consents. Upon a finding or verdict of guilty, the

court must impose the punishment.

(b) Summary Disposition. Notwithstanding any other provision

of these rules, the court (other than a magistrate judge) may sum-

marily punish a person who commits criminal contempt in its

presence if the judge saw or heard the contemptuous conduct and

so certifies; a magistrate judge may summarily punish a person as

provided in 28 U.S.C. § 636(e). The contempt order must recite the

facts, be signed by the judge, and be filed with the clerk.

(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec.

1, 2002.)

TITLE IX. GENERAL PROVISIONS

Rule 43. Defendant’s Presence

(a) When Required. Unless this rule, Rule 5, or Rule 10 provides

otherwise, the defendant must be present at:

(1) the initial appearance, the initial arraignment, and the

plea;

(2) every trial stage, including jury impanelment and the re-

turn of the verdict; and

(3) sentencing.

(b) When Not Required. A defendant need not be present under

any of the following circumstances:

(1) Organizational Defendant. The defendant is an organiza-

tion represented by counsel who is present.

(2) Misdemeanor Offense. The offense is punishable by fine or

by imprisonment for not more than one year, or both, and

58 Rule 44 FEDERAL RULES OF CRIMINAL PROCEDURE

with the defendant’s written consent, the court permits ar-

raignment, plea, trial, and sentencing to occur by video tele-

conferencing or in the defendant’s absence.

(3) Conference or Hearing on a Legal Question. The proceed-

ing involves only a conference or hearing on a question of law.

(4) Sentence Correction. The proceeding involves the correc-

tion or reduction of sentence under Rule 35 or 18 U.S.C.

§ 3582(c).

(1) In General. A defendant who was initially present at

trial, or who had pleaded guilty or nolo contendere, waives the

right to be present under the following circumstances:

(A) when the defendant is voluntarily absent after the

trial has begun, regardless of whether the court informed

the defendant of an obligation to remain during trial;

(B) in a noncapital case, when the defendant is volun-

tarily absent during sentencing; or

move the defendant from the courtroom for disruptive be-

havior, but the defendant persists in conduct that justifies

removal from the courtroom.

(2) Waiver’s Effect. If the defendant waives the right to be

present, the trial may proceed to completion, including the

verdict’s return and sentencing, during the defendant’s ab-

sence.

(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, § 3(35),

July 31, 1975, 89 Stat. 376, eff. Dec. 1, 1975; Mar. 9, 1987, eff. Aug.

1, 1987; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998;

Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 44. Right to and Appointment of Counsel

(a) Right to Appointed Counsel. A defendant who is unable to ob-

tain counsel is entitled to have counsel appointed to represent the

defendant at every stage of the proceeding from initial appearance

through appeal, unless the defendant waives this right.

(b) Appointment Procedure. Federal law and local court rules

govern the procedure for implementing the right to counsel.

(1) Joint Representation. Joint representation occurs when:

(A) two or more defendants have been charged jointly

under Rule 8(b) or have been joined for trial under Rule 13;

and

(B) the defendants are represented by the same counsel,

or counsel who are associated in law practice.

(2) Court’s Responsibilities in Cases of Joint Representation.

The court must promptly inquire about the propriety of joint

representation and must personally advise each defendant of

the right to the effective assistance of counsel, including sepa-

rate representation. Unless there is good cause to believe that

no conflict of interest is likely to arise, the court must take

appropriate measures to protect each defendant’s right to

counsel.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct.

1, 1972; Apr. 30, 1979, eff. Dec. 1, 1980; Mar. 9, 1987, eff. Aug. 1, 1987;

Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)

59 Rule 45 FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 45. Computing and Extending Time

(a) Computing Time. The following rules apply in computing any

time period specified in these rules, in any local rule or court

order, or in any statute that does not specify a method of comput-

ing time.

(1) Period Stated in Days or a Longer Unit. When the period

is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays,

Sundays, and legal holidays; and

is a Saturday, Sunday, or legal holiday, the period con-

tinues to run until the end of the next day that is not a

Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in

hours:

(A) begin counting immediately on the occurrence of the

event that triggers the period;

(B) count every hour, including hours during intermedi-

ate Saturdays, Sundays, and legal holidays; and

legal holiday, the period continues to run until the same

time on the next day that is not a Saturday, Sunday, or

legal holiday.

(3) Inaccessibility of the Clerk’s Office. Unless the court or-

ders otherwise, if the clerk’s office is inaccessible:

(A) on the last day for filing under Rule 45(a)(1), then the

time for filing is extended to the first accessible day that

is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 45(a)(2),

then the time for filing is extended to the same time on

the first accessible day that is not a Saturday, Sunday, or

legal holiday.

(4) ‘‘Last Day’’ Defined. Unless a different time is set by a

statute, local rule, or court order, the last day ends:

(A) for electronic filing, at midnight in the court’s time

zone; and

(B) for filing by other means, when the clerk’s office is

scheduled to close.

(5) ‘‘Next Day’’ Defined. The ‘‘next day’’ is determined by con-

tinuing to count forward when the period is measured after an

event and backward when measured before an event.

(6) ‘‘Legal Holiday’’ Defined. ‘‘Legal holiday’’ means:

(A) the day set aside by statute for observing New Year’s

Day, Martin Luther King Jr.’s Birthday, Washington’s

Birthday, Memorial Day, Independence Day, Labor Day,

Columbus Day, Veterans’ Day, Thanksgiving Day, or

Christmas Day;

(B) any day declared a holiday by the President or Con-

gress; and

other day declared a holiday by the state where the dis-

trict court is located.

60 Rule 46 FEDERAL RULES OF CRIMINAL PROCEDURE

(b) Extending Time.

(1) In General. When an act must or may be done within a

specified period, the court on its own may extend the time, or

for good cause may do so on a party’s motion made:

(A) before the originally prescribed or previously ex-

tended time expires; or

(B) after the time expires if the party failed to act be-

cause of excusable neglect.

(2) Exception. The court may not extend the time to take

any action under Rule 35, except as stated in that rule.

party must or may act within a specified time after being served

and service is made under Federal Rule of Civil Procedure

5(b)(2)(C) (mailing), (D) (leaving with the clerk), or (F) (other

means consented to), 3 days are added after the period would

otherwise expire under subdivision (a).

(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July

1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1982, eff. Aug. 1, 1982;

Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr.

29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007,

eff. Dec. 1, 2007; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec.

1, 2009; Apr. 28, 2016, eff. Dec. 1, 2016.)

Rule 46. Release from Custody; Supervising Detention

(a) Before Trial. The provisions of 18 U.S.C. §§ 3142 and 3144 gov-

ern pretrial release.

(b) During Trial. A person released before trial continues on re-

lease during trial under the same terms and conditions. But the

court may order different terms and conditions or terminate the

release if necessary to ensure that the person will be present dur-

ing trial or that the person’s conduct will not obstruct the orderly

and expeditious progress of the trial.

§ 3143 govern release pending sentencing or appeal. The burden of

establishing that the defendant will not flee or pose a danger to

any other person or to the community rests with the defendant.

(d) Pending Hearing on a Violation of Probation or Supervised

Release. Rule 32.1(a)(6) governs release pending a hearing on a vio-

lation of probation or supervised release.

(e) Surety. The court must not approve a bond unless any surety

appears to be qualified. Every surety, except a legally approved

corporate surety, must demonstrate by affidavit that its assets

are adequate. The court may require the affidavit to describe the

following:

(1) the property that the surety proposes to use as security;

(2) any encumbrance on that property;

(3) the number and amount of any other undischarged bonds

and bail undertakings the surety has issued; and

(4) any other liability of the surety.

(f) Bail Forfeiture.

(1) Declaration. The court must declare the bail forfeited if

a condition of the bond is breached.

(2) Setting Aside. The court may set aside in whole or in part

a bail forfeiture upon any condition the court may impose if:

61 Rule 46 FEDERAL RULES OF CRIMINAL PROCEDURE

(A) the surety later surrenders into custody the person

released on the surety’s appearance bond; or

(B) it appears that justice does not require bail forfeit-

ure.

(3) Enforcement.

(A) Default Judgment and Execution. If it does not set

aside a bail forfeiture, the court must, upon the govern-

ment’s motion, enter a default judgment.

(B) Jurisdiction and Service. By entering into a bond, each

surety submits to the district court’s jurisdiction and ir-

revocably appoints the district clerk as its agent to re-

ceive service of any filings affecting its liability.

ment’s motion, enforce the surety’s liability without an

independent action. The government must serve any mo-

tion, and notice as the court prescribes, on the district

clerk. If so served, the clerk must promptly mail a copy to

the surety at its last known address.

(4) Remission. After entering a judgment under Rule 46(f)(3),

the court may remit in whole or in part the judgment under

the same conditions specified in Rule 46(f)(2).

(g) Exoneration. The court must exonerate the surety and re-

lease any bail when a bond condition has been satisfied or when

the court has set aside or remitted the forfeiture. The court must

exonerate a surety who deposits cash in the amount of the bond

or timely surrenders the defendant into custody.

(h) Supervising Detention Pending Trial.

(1) In General. To eliminate unnecessary detention, the

court must supervise the detention within the district of any

defendants awaiting trial and of any persons held as material

witnesses.

(2) Reports. An attorney for the government must report bi-

weekly to the court, listing each material witness held in cus-

tody for more than 10 days pending indictment, arraignment,

or trial. For each material witness listed in the report, an at-

torney for the government must state why the witness should

not be released with or without a deposition being taken under

Rule 15(a).

(i) Forfeiture of Property. The court may dispose of a charged of-

fense by ordering the forfeiture of 18 U.S.C. § 3142(c)(1)(B)(xi) prop-

erty under 18 U.S.C. § 3146(d), if a fine in the amount of the prop-

erty’s value would be an appropriate sentence for the charged of-

fense.

(j) Producing a Statement.

(1) In General. Rule 26.2(a)–(d) and (f) applies at a detention

hearing under 18 U.S.C. § 3142, unless the court for good cause

rules otherwise.

(2) Sanctions for Not Producing a Statement. If a party dis-

obeys a Rule 26.2 order to produce a witness’s statement, the

court must not consider that witness’s testimony at the deten-

tion hearing.

(As amended Apr. 9, 1956, eff. July 8, 1956; Feb. 28, 1966, eff. July

1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98–473, title II, § 209(d),

Oct. 12, 1984, 98 Stat. 1987; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 30,

62 Rule 47 FEDERAL RULES OF CRIMINAL PROCEDURE

1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Pub. L. 103–322,

title XXXIII, § 330003(h), Sept. 13, 1994, 108 Stat. 2141; Apr. 29, 2002,

eff. Dec. 1, 2002.)

Rule 47. Motions and Supporting Affidavits

(a) In General. A party applying to the court for an order must

do so by motion.

(b) Form and Content of a Motion. A motion—except when made

during a trial or hearing—must be in writing, unless the court per-

mits the party to make the motion by other means. A motion

must state the grounds on which it is based and the relief or order

sought. A motion may be supported by affidavit.

other than one that the court may hear ex parte—and any hearing

notice at least 7 days before the hearing date, unless a rule or

court order sets a different period. For good cause, the court may

set a different period upon ex parte application.

(d) Affidavit Supporting a Motion. The moving party must serve

any supporting affidavit with the motion. A responding party

must serve any opposing affidavit at least one day before the hear-

ing, unless the court permits later service.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec.

1, 2009.)

Rule 48. Dismissal

(a) By the Government. The government may, with leave of

court, dismiss an indictment, information, or complaint. The gov-

ernment may not dismiss the prosecution during trial without the

defendant’s consent.

(b) By the Court. The court may dismiss an indictment, informa-

tion, or complaint if unnecessary delay occurs in:

(1) presenting a charge to a grand jury;

(2) filing an information against a defendant; or

(3) bringing a defendant to trial.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 49. Serving and Filing Papers

(a) When Required. A party must serve on every other party any

written motion (other than one to be heard ex parte), written no-

tice, designation of the record on appeal, or similar paper.

(b) How Made. Service must be made in the manner provided for

a civil action. When these rules or a court order requires or per-

mits service on a party represented by an attorney, service must

be made on the attorney instead of the party, unless the court or-

ders otherwise.

any post-arraignment motion, the clerk must provide notice in a

manner provided for in a civil action. Except as Federal Rule of

Appellate Procedure 4(b) provides otherwise, the clerk’s failure to

give notice does not affect the time to appeal, or relieve—or au-

thorize the court to relieve—a party’s failure to appeal within the

allowed time.

(d) Filing. A party must file with the court a copy of any paper

the party is required to serve. A paper must be filed in a manner

provided for in a civil action.

63 Rule 49.1 FEDERAL RULES OF CRIMINAL PROCEDURE

(e) Electronic Service and Filing. A court may, by local rule,

allow papers to be filed, signed, or verified by electronic means

that are consistent with any technical standards established by

the Judicial Conference of the United States. A local rule may re-

quire electronic filing only if reasonable exceptions are allowed. A

paper filed electronically in compliance with a local rule is writ-

ten or in writing under these rules.

(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July

1, 1968; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987;

Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr.

29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 49.1. Privacy Protection For Filings Made with the Court

(a) Redacted Filings. Unless the court orders otherwise, in an

electronic or paper filing with the court that contains an individ-

ual’s social-security number, taxpayer-identification number, or

birth date, the name of an individual known to be a minor, a fi-

nancial-account number, or the home address of an individual, a

party or nonparty making the filing may include only;

(1) the last four digits of the social-security number and tax-

payer-identification number;

(2) the year of the individual’s birth;

(3) the minor’s initials;

(4) the last four digits of the financial-account number; and

(5) the city and state of the home address.

(b) Exemptions from the Redaction Requirement. The redaction

requirement does not apply to the following:

(1) a financial-account number or real property address that

identifies the property allegedly subject to forfeiture in a for-

feiture proceeding;

(2) the record of an administrative or agency proceeding;

(3) the official record of a state-court proceeding;

(4) the record of a court or tribunal, if that record was not

subject to the redaction requirement when originally filed;

(5) a filing covered by Rule 49.1(d);

(6) a pro se filing in an action brought under 28 U.S.C. §§ 2241,

2254, or 2255;

(7) a court filing that is related to a criminal matter or in-

vestigation and that is prepared before the filing of a criminal

charge or is not filed as part of any docketed criminal case;

(8) an arrest or search warrant; and

(9) a charging document and an affidavit filed in support of

any charging document.

U.S.C. § 2241 that relates to the petitioner’s immigration rights is

governed by Federal Rule of Civil Procedure 5.2.

(d) Filings Made Under Seal. The court may order that a filing

be made under seal without redaction. The court may later unseal

the filing or order the person who made the filing to file a re-

dacted version for the public record.

(e) Protective Orders. For good cause, the court may by order in

a case:

(1) require redaction of additional information; or

(2) limit or prohibit a nonparty’s remote electronic access to

a document filed with the court.

64 Rule 50 FEDERAL RULES OF CRIMINAL PROCEDURE

(f) Option for Additional Unredacted Filing Under Seal. A person

making a redacted filing may also file an unredacted copy under

seal. The court must retain the unredacted copy as part of the

record.

(g) Option for Filing a Reference List. A filing that contains re-

dacted information may be filed together with a reference list

that identifies each item of redacted information and specifies an

appropriate identifier that uniquely corresponds to each item list-

ed. The list must be filed under seal and may be amended as of

right. Any reference in the case to a listed identifier will be con-

strued to refer to the corresponding item of information.

(h) Waiver of Protection of Identifiers. A person waives the pro-

tection of Rule 49.1(a) as to the person’s own information by filing

it without redaction and not under seal.

(As added Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 50. Prompt Disposition

Scheduling preference must be given to criminal proceedings as

far as practicable.

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July

1, 1974; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; Apr. 22, 1993, eff.

Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 51. Preserving Claimed Error

(a) Exceptions Unnecessary. Exceptions to rulings or orders of

the court are unnecessary.

(b) Preserving a Claim of Error. A party may preserve a claim

of error by informing the court—when the court ruling or order is

made or sought—of the action the party wishes the court to take,

or the party’s objection to the court’s action and the grounds for

that objection. If a party does not have an opportunity to object

to a ruling or order, the absence of an objection does not later

prejudice that party. A ruling or order that admits or excludes

evidence is governed by Federal Rule of Evidence 103.

(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec.

1, 2002.)

Rule 52. Harmless and Plain Error

(a) Harmless Error. Any error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.

(b) Plain Error. A plain error that affects substantial rights may

be considered even though it was not brought to the court’s atten-

tion.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 53. Courtroom Photographing and Broadcasting Prohibited

Except as otherwise provided by a statute or these rules, the

court must not permit the taking of photographs in the courtroom

during judicial proceedings or the broadcasting of judicial pro-

ceedings from the courtroom.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

65 Rule 57 FEDERAL RULES OF CRIMINAL PROCEDURE

All of Rule 54 was moved to Rule 1.

Rule 54. [Transferred]

Rule 55. Records

The clerk of the district court must keep records of criminal

proceedings in the form prescribed by the Director of the Adminis-

trative Office of the United States Courts. The clerk must enter

in the records every court order or judgment and the date of

entry.

(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July

1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1983, eff. Aug. 1, 1983;

Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 56. When Court Is Open

(a) In General. A district court is considered always open for any

filing, and for issuing and returning process, making a motion, or

entering an order.

(b) Office Hours. The clerk’s office—with the clerk or a deputy

in attendance—must be open during business hours on all days ex-

cept Saturdays, Sundays, and legal holidays.

that its clerk’s office will be open for specified hours on Saturdays

or legal holidays other than those set aside by statute for observ-

ing New Year’s Day, Martin Luther King, Jr.’s Birthday, Washing-

ton’s Birthday, Memorial Day, Independence Day, Labor Day, Co-

lumbus Day, Veterans’ Day, Thanksgiving Day, and Christmas

Day.

(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July

1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971;

Apr. 25, 1988, eff. Aug. 1, 1988; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 57. District Court Rules

(a) In General.

(1) Adopting Local Rules. Each district court acting by a ma-

jority of its district judges may, after giving appropriate pub-

lic notice and an opportunity to comment, make and amend

rules governing its practice. A local rule must be consistent

with—but not duplicative of—federal statutes and rules adopt-

ed under 28 U.S.C. § 2072 and must conform to any uniform

numbering system prescribed by the Judicial Conference of

the United States.

(2) Limiting Enforcement. A local rule imposing a require-

ment of form must not be enforced in a manner that causes a

party to lose rights because of an unintentional failure to

comply with the requirement.

(b) Procedure When There Is No Controlling Law. A judge may

regulate practice in any manner consistent with federal law, these

rules, and the local rules of the district. No sanction or other dis-

advantage may be imposed for noncompliance with any require-

ment not in federal law, federal rules, or the local district rules

unless the alleged violator was furnished with actual notice of the

requirement before the noncompliance.

66 Rule 58 FEDERAL RULES OF CRIMINAL PROCEDURE

rule takes effect on the date specified by the district court and re-

mains in effect unless amended by the district court or abrogated

by the judicial council of the circuit in which the district is lo-

cated. Copies of local rules and their amendments, when promul-

gated, must be furnished to the judicial council and the Adminis-

trative Office of the United States Courts and must be made avail-

able to the public.

(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Dec. 4, 1967, eff. July

1, 1968; Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 22, 1993, eff. Dec. 1, 1993;

Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rule 58. Petty Offenses and Other Misdemeanors

(a) Scope.

(1) In General. These rules apply in petty offense and other

misdemeanor cases and on appeal to a district judge in a case

tried by a magistrate judge, unless this rule provides other-

wise.

(2) Petty Offense Case Without Imprisonment. In a case in-

volving a petty offense for which no sentence of imprisonment

will be imposed, the court may follow any provision of these

rules that is not inconsistent with this rule and that the court

considers appropriate.

(3) Definition. As used in this rule, the term ‘‘petty offense

for which no sentence of imprisonment will be imposed’’

means a petty offense for which the court determines that, in

the event of conviction, no sentence of imprisonment will be

imposed.

(b) Pretrial Procedure.

(1) Charging Document. The trial of a misdemeanor may pro-

ceed on an indictment, information, or complaint. The trial of

a petty offense may also proceed on a citation or violation no-

tice.

(2) Initial Appearance. At the defendant’s initial appearance

on a petty offense or other misdemeanor charge, the mag-

istrate judge must inform the defendant of the following:

(A) the charge, and the minimum and maximum pen-

alties, including imprisonment, fines, any special assess-

ment under 18 U.S.C. § 3013, and restitution under 18 U.S.C.

§ 3556;

(B) the right to retain counsel;

defendant is unable to retain counsel—unless the charge is

a petty offense for which the appointment of counsel is not

required;

(D) the defendant’s right not to make a statement, and

that any statement made may be used against the defend-

ant;

(E) the right to trial, judgment, and sentencing before a

district judge—unless:

(i) the charge is a petty offense; or

(ii) the defendant consents to trial, judgment, and

sentencing before a magistrate judge;

67 Rule 58 FEDERAL RULES OF CRIMINAL PROCEDURE

(F) the right to a jury trial before either a magistrate

judge or a district judge—unless the charge is a petty of-

fense;

(G) any right to a preliminary hearing under Rule 5.1,

and the general circumstances, if any, under which the de-

fendant may secure pretrial release; and

(H) that a defendant who is not a United States citizen

may request that an attorney for the government or a fed-

eral law enforcement official notify a consular officer from

the defendant’s country of nationality that the defendant

has been arrested—but that even without the defendant’s

request, a treaty or other international agreement may re-

quire consular notification.

(3) Arraignment.

(A) Plea Before a Magistrate Judge. A magistrate judge

may take the defendant’s plea in a petty offense case. In

every other misdemeanor case, a magistrate judge may

take the plea only if the defendant consents either in writ-

ing or on the record to be tried before a magistrate judge

and specifically waives trial before a district judge. The

defendant may plead not guilty, guilty, or (with the con-

sent of the magistrate judge) nolo contendere.

(B) Failure to Consent. Except in a petty offense case, the

magistrate judge must order a defendant who does not con-

sent to trial before a magistrate judge to appear before a

district judge for further proceedings.

following procedures also apply in a case involving a petty offense

for which no sentence of imprisonment will be imposed:

(1) Guilty or Nolo Contendere Plea. The court must not ac-

cept a guilty or nolo contendere plea unless satisfied that the

defendant understands the nature of the charge and the maxi-

mum possible penalty.

(2) Waiving Venue.

(A) Conditions of Waiving Venue. If a defendant is ar-

rested, held, or present in a district different from the one

where the indictment, information, complaint, citation, or

violation notice is pending, the defendant may state in

writing a desire to plead guilty or nolo contendere; to

waive venue and trial in the district where the proceeding

is pending; and to consent to the court’s disposing of the

case in the district where the defendant was arrested, is

held, or is present.

(B) Effect of Waiving Venue. Unless the defendant later

pleads not guilty, the prosecution will proceed in the dis-

trict where the defendant was arrested, is held, or is

present. The district clerk must notify the clerk in the

original district of the defendant’s waiver of venue. The

defendant’s statement of a desire to plead guilty or nolo

contendere is not admissible against the defendant.

(3) Sentencing. The court must give the defendant an oppor-

tunity to be heard in mitigation and then proceed imme-

diately to sentencing. The court may, however, postpone sen-

tencing to allow the probation service to investigate or to per-

mit either party to submit additional information.

68 Rule 58 FEDERAL RULES OF CRIMINAL PROCEDURE

(4) Notice of a Right to Appeal. After imposing sentence in a

case tried on a not-guilty plea, the court must advise the de-

fendant of a right to appeal the conviction and of any right to

appeal the sentence. If the defendant was convicted on a plea

of guilty or nolo contendere, the court must advise the defend-

ant of any right to appeal the sentence.

(d) Paying a Fixed Sum in Lieu of Appearance.

(1) In General. If the court has a local rule governing forfeit-

ure of collateral, the court may accept a fixed-sum payment

in lieu of the defendant’s appearance and end the case, but the

fixed sum may not exceed the maximum fine allowed by law.

(2) Notice to Appear. If the defendant fails to pay a fixed

sum, request a hearing, or appear in response to a citation or

violation notice, the district clerk or a magistrate judge may

issue a notice for the defendant to appear before the court on

a date certain. The notice may give the defendant an addi-

tional opportunity to pay a fixed sum in lieu of appearance.

The district clerk must serve the notice on the defendant by

mailing a copy to the defendant’s last known address.

(3) Summons or Warrant. Upon an indictment, or upon a

showing by one of the other charging documents specified in

Rule 58(b)(1) of probable cause to believe that an offense has

been committed and that the defendant has committed it, the

court may issue an arrest warrant or, if no warrant is re-

quested by an attorney for the government, a summons. The

showing of probable cause must be made under oath or under

penalty of perjury, but the affiant need not appear before the

court. If the defendant fails to appear before the court in re-

sponse to a summons, the court may summarily issue a war-

rant for the defendant’s arrest.

(e) Recording the Proceedings. The court must record any pro-

ceedings under this rule by using a court reporter or a suitable re-

cording device.

(f) New Trial. Rule 33 applies to a motion for a new trial.

(g) Appeal.

(1) From a District Judge’s Order or Judgment. The Federal

Rules of Appellate Procedure govern an appeal from a district

judge’s order or a judgment of conviction or sentence.

(2) From a Magistrate Judge’s Order or Judgment.

(A) Interlocutory Appeal. Either party may appeal an

order of a magistrate judge to a district judge within 14

days of its entry if a district judge’s order could similarly

be appealed. The party appealing must file a notice with

the clerk specifying the order being appealed and must

serve a copy on the adverse party.

(B) Appeal from a Conviction or Sentence. A defendant may

appeal a magistrate judge’s judgment of conviction or sen-

tence to a district judge within 14 days of its entry. To ap-

peal, the defendant must file a notice with the clerk speci-

fying the judgment being appealed and must serve a copy

on an attorney for the government.

exhibits in the case; any transcript, tape, or other record-

ing of the proceedings; and a certified copy of the docket

entries. For purposes of the appeal, a copy of the record of

69 Rule 59 FEDERAL RULES OF CRIMINAL PROCEDURE

the proceedings must be made available to a defendant

who establishes by affidavit an inability to pay or give se-

curity for the record. The Director of the Administrative

Office of the United States Courts must pay for those cop-

ies.

(D) Scope of Appeal. The defendant is not entitled to a

trial de novo by a district judge. The scope of the appeal

is the same as in an appeal to the court of appeals from a

judgment entered by a district judge.

(3) Stay of Execution and Release Pending Appeal. Rule 38 ap-

plies to a stay of a judgment of conviction or sentence. The

court may release the defendant pending appeal under the law

relating to release pending appeal from a district court to a

court of appeals.

(As added May 1, 1990, eff. Dec. 1, 1990; amended Apr. 30, 1991, eff.

Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec.

1, 1997; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006;

Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 25, 2014, eff. Dec. 1, 2014.)

Rule 59. Matters Before a Magistrate Judge

(a) Nondispositive Matters. A district judge may refer to a mag-

istrate judge for determination any matter that does not dispose

of a charge or defense. The magistrate judge must promptly con-

duct the required proceedings and, when appropriate, enter on the

record an oral or written order stating the determination. A party

may serve and file objections to the order within 14 days after

being served with a copy of a written order or after the oral order

is stated on the record, or at some other time the court sets. The

district judge must consider timely objections and modify or set

aside any part of the order that is contrary to law or clearly erro-

neous. Failure to object in accordance with this rule waives a par-

ty’s right to review.

(b) Dispositive Matters.

(1) Referral to Magistrate Judge. A district judge may refer

to a magistrate judge for recommendation a defendant’s mo-

tion to dismiss or quash an indictment or information, a mo-

tion to suppress evidence, or any matter that may dispose of

a charge or defense. The magistrate judge must promptly con-

duct the required proceedings. A record must be made of any

evidentiary proceeding and of any other proceeding if the mag-

istrate judge considers it necessary. The magistrate judge

must enter on the record a recommendation for disposing of

the matter, including any proposed findings of fact. The clerk

must immediately serve copies on all parties.

(2) Objections to Findings and Recommendations. Within 14

days after being served with a copy of the recommended dis-

position, or at some other time the court sets, a party may

serve and file specific written objections to the proposed find-

ings and recommendations. Unless the district judge directs

otherwise, the objecting party must promptly arrange for

transcribing the record, or whatever portions of it the parties

agree to or the magistrate judge considers sufficient. Failure

to object in accordance with this rule waives a party’s right

to review.

70 Rule 60 FEDERAL RULES OF CRIMINAL PROCEDURE

18 U.S.C. § 3771(e) was redesignated 18 U.S.C. § 3771(e)(2) by Pub. L. 114–22, title I, § 113(a)(3)(A),

May 29, 2015, 129 Stat. 240.

(3) De Novo Review of Recommendations. The district judge

must consider de novo any objection to the magistrate judge’s

recommendation. The district judge may accept, reject, or

modify the recommendation, receive further evidence, or re-

submit the matter to the magistrate judge with instructions.

(As added Apr. 25, 2005, eff. Dec. 1, 2005; amended Mar. 26, 2009, eff.

Dec. 1, 2009.)

Rule 60. Victim’s Rights

(a) In General.

(1) Notice of a Proceeding. The government must use its best

efforts to give the victim reasonable, accurate, and timely no-

tice of any public court proceeding involving the crime.

(2) Attending the Proceeding. The court must not exclude a

victim from a public court proceeding involving the crime, un-

less the court determines by clear and convincing evidence

that the victim’s testimony would be materially altered if the

victim heard other testimony at that proceeding. In determin-

ing whether to exclude a victim, the court must make every

effort to permit the fullest attendance possible by the victim

and must consider reasonable alternatives to exclusion. The

reasons for any exclusion must be clearly stated on the record.

(3) Right to Be Heard on Release, a Plea, or Sentencing. The

court must permit a victim to be reasonably heard at any pub-

lic proceeding in the district court concerning release, plea, or

sentencing involving the crime.

(b) Enforcement and Limitations.

(1) Time for Deciding a Motion. The court must promptly de-

cide any motion asserting a victim’s rights described in these

rules.

(2) Who May Assert the Rights. A victim’s rights described in

these rules may be asserted by the victim, the victim’s lawful

representative, the attorney for the government, or any other

person as authorized by 18 U.S.C. § 3771(d) and (e).

(3) Multiple Victims. If the court finds that the number of

victims makes it impracticable to accord all of them their

rights described in these rules, the court must fashion a rea-

sonable procedure that gives effect to these rights without un-

duly complicating or prolonging the proceedings.

(4) Where Rights May Be Asserted. A victim’s rights described

in these rules must be asserted in the district where a defend-

ant is being prosecuted for the crime.

(5) Limitations on Relief. A victim may move to reopen a

plea or sentence only if:

(A) the victim asked to be heard before or during the

proceeding at issue, and the request was denied;

(B) the victim petitions the court of appeals for a writ of

mandamus within 10 days after the denial, and the writ is

granted; and

highest offense charged.

71 Rule 61 FEDERAL RULES OF CRIMINAL PROCEDURE

(6) No New Trial. A failure to afford a victim any right de-

scribed in these rules is not grounds for a new trial.

(As added Apr. 23, 2008, eff. Dec. 1, 2008.)

Rule 61. Title

These rules may be known and cited as the Federal Rules of

Criminal Procedure.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec.

1. 2008.)