FEDERAL RULES

OF

CRIMINAL PROCEDURE

(extract)


DECEMBER 1, 2002

 

 

 

 

 

Printed for the use

of

THE COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

 

 

 

 


other Rules omitted

7                     FEDERAL RULES OF CRIMINAL PROCEDURE                     Rule 6

Has Changes

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 sequence 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 lawfully drawn, summoned, or selected, and may challenge an individual 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.

     (c) Foreperson and Deputy foreperson.  The court will appoint 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.


Rule 6                FEDERAL RULES OF CRIMINAL PROCEDURE                  8

     (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, interpeters when needed, and a court reporter or an operator of a recording device.

     (2) During Deliberations and Voting.  No person other than the jurors, and any interpreter needed to assist a hearing-impaired 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 validity of a prosecution is not affected by the unintentional failure to make a recording.  Unless the court orders otherwise, an attorney for the government will retain control of the recording, the reporter's notes, and any transcript prepared from those notes.

               (2) Secrecy.
                    (A) No obligation of secrecy may be imposed on any person 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 (Pat II)
     (vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii); or
     (viii) a witness or a person to whom a subpoena is directed, if there is  reason to believe that otherwise there may result a danger to the national security or to the life or physical safety of an individual, flight from prosecution, destruction of or tampering with evidence, intimidation of a potential witness, or other serious jeopardy to an investigation and if the witness or person is notified of the prohibition of disclosure.
     Such a witness or person may consult with counsel prior to testifying before the grand jury or responding to the subpoena and shall notify such counsel of the prohibition of disclosure, and such counsel shall be subject to the same prohibition of disclosure.

(Next Patriot II Changes-->>)

     (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 goverhment for use in performing that attorney's duty;

     (ii) any government personnel-- including those of a state or state subdivision or of an Indian tribe-- that an attorney for the government considers 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 attorney's duty to enforce federal criminal law.  An attorney for the government must promptly provide the court that impaneled 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.

(Patriot I calls for (e)(3)(C)(i) (e)(3)(C)(i)(I) in this part:)
     (C) An attorney for the government may disclose any grand-jury matter to another federal grand jury. Note: This change is NOT sunsetted on December 31, 2005-- Patriot I, Sec. 224:

(i) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made--

(I) when so directed by a court preliminarily to or in connection with a judicial proceeding;

(II) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury;

(III) when the disclosure is made by an attorney for the government to another Federal grand jury;

(IV) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law; or

(V) when the matters involve foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in clause (iv) of this subparagraph), to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties.

(ii) If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.

(iii) Any Federal official to whom information is disclosed pursuant to clause (i)(V) of this subparagraph may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. Within a reasonable time after such disclosure, an attorney for the government shall file under seal a notice with the court stating the fact that such information was disclosed and the departments, agencies, or entities to which the disclosure was made.

(iv) In clause (i)(V) of this subparagraph, the term `foreign intelligence information' means--

(I) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against--

(aa) actual or potential attack or other grave hostile acts of-a foreign power or an agent of a foreign power;

(bb) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(cc) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power; or

(II) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to--

(aa) the national defense or the security of the United States; or

(bb) the conduct of the foreign affairs of the United States.'.
(Next Changes->)


9                     FEDERAL RULES OF CRIMINAL PROCEDURE                     Rule 6

     (D) An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counter-intelligence (as defined in 50 U.S.C. 401a), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties.

     (i) Any federal 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.

     (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 intelligence 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 hostile acts of a foreign power or its agent;

  • sabotage or international terrorism by a foreign power or its agent; or

  • clandestine intelligence activities by an intelligence 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 ore the security of the United States; or

  • the conduct of the foreign affairs of the United States.

     (E) The court may authorize disclosure-- at a time, in a manner, and subject to any other conditions that it directs-- 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 tje request of the government if it shows that the matter may disclose a violation of state or Indian tribal criminal law, as long as the disclosure is to an appropriate state, state-subdivision, or Indian tribal official for the purpose of enforcing that law; or

     (iv) at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of enforcing that law.


Rule 6                FEDERAL RULES OF CRIMINAL PROCEDURE                  10

     (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 proceeding in another district, the petitioned court must transfer the petition to the other court unless the petitioned 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 indictment 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 indiictment's existence except as necessary 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 occurring before a grand jury.

     (6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.

     (7) Contempt.  A knowing violation of 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.  If a complaint or information is pending against the defendant and 12 jurors do not concur in the indictment, 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 permanently, 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.


11                     FEDERAL RULES OF CRIMINAL PROCEDURE                     Rule 6

(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; July 30, 1977, eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, 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; Oct. 26, 2001; Apr. 29, 2002, eff. Dec. 1, 2002; Nov. 25, 2002.)

(intervening pages omitted)


45                    FEDERAL RULES OF CRIMINAL PROCEDURE                     Rule 41

Has Changes

(Items omitted)

TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

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:

 


Rule 41                FEDERAL RULES OF CRIMINAL PROCEDURE                  46

     (A) "Property" includes documents, books, papers. any other tangible objects, and information.

     (B) "Daytime" means hours between 6:00 a.m. and 10:00 p.m. according to local time.

     (C) "Federal law enforcement officer" means a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant.

     (b) Authority to Issue a Warrant.  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 authority 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 outside the district before the warrant is executed; and

(<-- Previous Changes)
(<-- Previous Patriot II Changes)
     (3) a magistrate judge-- in an investigation of domestic terrorism or international terrorism (as defined in 18 U.S.C. 2331*) or of an offense listed in 18 U.S.C.
2332b(g)(5)(B)*)
-- having authority in any district in which activities related to the terrorism or offense may have occurred, may issue a warrant for a person or property within or outside that district.

Notes: These changes are called out for Rule 41(a) by Patriot I Sec 219 and Patriot II Sec. 125, but appear to belong here.

This (Patriot I) change is NOT sunsetted on December 31, 2005-- Patriot I, Sec. 224
(Next Changes->)
(Next Patriot II Changes->)

     (c) Persons or Property Subject to Search or Seizure.  A warrant may be issued for any of the following:

     (1) evidence of a crime;
     (2) contraband, fruits of crime, or other items illegally possessed;
     (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 restrained.

     (d) Obtaining a Warrant.

     (1) Probable Cause.  After receiving an affidavit or other information, a magistrate judge or 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 under Rule 41(c).

     (2) Requesting a Warrant in the Presence of a Judge.

     (A) Warrant on an Affidavit.  When a federal law enforcement 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.

     (C) Recording Testimony.  Testimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.


47                    FEDERAL RULES OF CRIMINAL PROCEDURE                     Rule 41

     (3) Requesting a warrant by Telephonic or Other Means.

     (A) In General.  A magistrate judge may issue a warrant based on information communicated by telephone or other appropriate means, including facsimile transmission.

     (B) Recording Testimony.  Upon learning that an applicant is requesting a warrant, a magistrate judge must:

     (i) place under oath the applicant and any person on whose testimony the application is based; and
     (ii) make a verbatim record of the conversation with a suitable recording device, if available, or by a court reporter, or in writing.

     (C) Certifying Testimony.  The magistrate judge must have any recording or court reporter's notes transcribed, certify the transcription's accuracy, and file a copy of the record and the transcription with the clerk.  Any written verbatim record must be signed by the magistrate judge and filed with the clerk.

     (D) Suppression Limited.  Absent a finding of bad faith, evidence obtained from a warrant issued under Rule 41(d)(3)(A) is not subject to suppression on the ground that issuing the warrant in that manner was unreasonable under the circumstances.

     (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.  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 warrant must command the officer to:

     (A) execute the warrant within a specified time no longer than 10 days;

     (B) execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and

     (C) return the warrant to the magistrate judge designated in the warrant.

     (3) Warrant by Telephonic or Other Means.  If a magistrate judge decides to proceed under Rule 41(d)(3)(A), the following additional procedures apply:

     (A) Preparing a Proposed Duplicate Original Warrant.  The applicant must prepare a "proposed duplicate original warrant" and must read or otherwise transmit the contents of that document verbatim to the magistrate judge.

     (B) Preparing an Original Warrant.  The magistrate judge must enter the contents of the proposed duplicate original warrant into an original warrant.

     (C) Modifications.  The magistrate judge may direct the applicant to modify the proposed duplicate original warrant.  In that case, the judge must also modify the original warrant.

     (D) Signing the Original Warrant and the Duplicate Original Warrant.  Upon determining to issue the warrant, the magistrate judge must immediately sign the original warrant,


Rule 41                FEDERAL RULES OF CRIMINAL PROCEDURE                  48

enter on its face the exact time it is issued, and direct the applicant to sign the judge's name on the duplicate original warrant.

     (f) Executing and Returning the Warrant.

     (1) Noting the Time.  The officer executing the warrant must enter on its face the exact date and time it is executed.

     (2) 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.

     (3) Receipt.  The officer executing the warrant must:

     (A) give 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

     (B) leave a copy of the warrant and receipt at the place where the officer took the property.

     (4) Return.  The officer executing the warrant must promptly return it-- together with a copy of the inventory-- to the magistrate judge designated on the warrant.  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.

     (g) Motion to Return Property.  A person aggrieved by an unlawful search and seizure of property or by the deprivation of property 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 motion.  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 evidence 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; July 30, 1977, 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; Oct. 26, 2001; Apr. 29, 2002, eff. Dec. 1, 2002.)


(remaining pages omitted)
(Next: Patriot I extract->)