FEDERAL RULES OF CRIMINAL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS

INTRODUCTION

Section 102 of the reported bill contains a reenactment of the Federal Rules of Criminal Procedure. These rules, the bulk of which have been promulgated by the Supreme Court, set forth the basic procedures to be followed by the Federal courts in the trial of a criminal case. Their importance to the Federal court system and to its operation in an effective and efficient manner is self-evident.

Because of the numerous conforming amendments that were required to be made in the Rules, and in order to reflect the importance the Committee places upon the Rules, the Committee has decided to reenact them completely. Several new Rules have been added and several others have been amended substantively, although the majority of the existing Rules have been retained. The Committee retains confidence in the existing method for promulgation of these Rules through the Supreme Court and the Advisory Committee on Criminal Rules of the Committee on Rules of Practice and Procedure of the Judicial Conference. The work of these Committees is invaluable, and the Committee expects that they will continue to carefully scrutinize, modify, and modernize the Rules in the years to come.

The Committee has used as its working text the Federal Rules of Criminal Procedure as they would be amended by the Supreme Court's letter of transmittal to the Congress of April 22, 1974. Although these amendments have been delayed by the Congress,1 the Committee expects that an amended set of rules will be in effect prior to the effective date of this legislation. Only stylistic changes have been made in the Rules that are to be amended by the April 22, 1974, transmittal, and it is expected that any changes made by the Congress during the Ninety-fourth Congress will be incorporated into the final version of this bill.

The decision was made by the Committee to transfer certain provisions of existing law into the Federal Rules of Criminal Procedure rather than to retain them as sections of title 18. This choice was dictated by consideration of the close relationship between the subject matter of these existing provisions and the subject matter of particular rules. It was necessary, in addition, to change some of the terminology and some of the substance of the present rules to conform them with provisions of the revised Code. In a few places, changes in wording, punctuation, capitalization, and the like were made simply for purposes of clarification or of stylistic conformity. In only a few instances were substantial changes made in the content of the sections moved into the rules and in the content of the existing rules. Most of the rules

1 P.L. 93-361. 88 Stat. 397, delayed the effective date of the amendments to the rules until Aug. 1, 1975.

Rule 6.

(as now in effect or as changes are pending) have either not been changed at all or were changed only in minor matters of form.

Changed only in very insubstantial ways are Rules 1, 2, 4, 11, 12, 12.1, 15, 20, 31, 42, 43, 46, and 48. The changes in some of these are in punctuation, capitalization, and in conforming citations to the revised title 18. The phrase, "of this rule," was deleted in places in Rules 12, 12.1, 15, and 20 as being unnecessary. Substitutions of essentially synonymous words were made in Rule 1 ("in" for "to" and "at") in Rule 11 ("sentence" for "penalty"), in Rule 31 ("Lesser" for "Less”), in Rule 42 ("prosecuted" for "punished" and "sentence" for "punishment”), and in Rule 43 ("misdemeanor or infractions" for "offenses punishable by fine or by imprisonment for not more than one year or both") in order to avoid minor differences between the rules and otherwise parallel language employed elsewhere in the Code.

One other change of overall significance has been made. The general definitions for the Code as set forth in section 111 have been made applicable to the Federal Rules of Criminal Procedure. The Committee has made these definitions applicable to the rules purely to achieve greater unity and conformity. Rule 54 still retains specific definitions applicable to the rules only.

The additions of the provisions of existing law and the other substantial changes that have been made to the Federal Rules of Criminal Procedure will be discussed below in the numerical order of the rules.

RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE

The principal change made in Rule 5 is an addition at the end of the rule of a provision stating that if a defendant is entitled to but is not accorded a preliminary hearing within the time prescribed (including any authorized extensions of time), he is to be discharged from custody or from the requirement of bail or other condition of release, without prejudice to the institution of further criminal proceedings against him upon the charge for which he was arrested. This simply brings into Rule 5, as an addition to subdivision (c) thereof, the provisions now found in 18 U.S.C. 3060 (d).

Two other changes were made, both of a minor nature. Citation to 18 U.S.C. 3041 was deleted from subdivision (a) of the rule, and, while not replaced, the same matter is now treated essentially as before in section 3303 of the Code. Also, the citation to 18 U.S.C. 3401 was replaced in subdivision (b) of the rule by citation to section 3302 of the Code.

RULE 6. THE GRAND JURY

This Rule has been given a substantive addition that, while having no exact counterpart in existing law, is warranted upon a parity of the reasoning underlying relatively recent legislation.

It has long been established under subdivision (g) of Rule 6 that a grand jury may not serve more than eighteen months after its members

2 Unchanged are Rules 3, 5.1, 10, 13, 14, 17.1, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 29.1, 30, 33. 34, 36, 44, 47, 49, 50, 51, 52, 55, 56, 57, 58, and 60. What is now Rule 26.1 has been redesignated Rule 26.2. Rule 45 differs from the present rule only in the relettering of subdivisions due to the rescission of subdivision (c) in 1966. Rule 59, which set the effective date of the original rules, has been abrogated here.

3 See the definitions of "subdivision", "paragraph", and "subparagraph" in section 111 of the Code.

Rule 6.1.

have been sworn. No exceptions are made. This rule, however, bars the extension of regular grand juries only; different provisions were made for special grand juries. Under Title I of the Organized Crime Control Act of 1970, special grand juries may be extended beyond their basic terms of eighteen months if their business has not been completed. To allow for special grand juries to be extended to complete the public business, while barring any extension of regular grand juries, whatever the circumstances, is an anomaly. An inflexible rule for regular grand juries could mean either the wastage of a signifi cant amount of work or the prompting of precipitious action by the jurors to bring their work to fruition before the expiration date." Neither situation is tolerable. Some difference of approach is justified, however, by differences between special and regular grand juries, and the Committee also intends that the extension of regular grand juries beyond eighteen months is to be the exception and not the norm.

For the foregoing reasons, Rule 6(g) has been changed so that the court may extend the service of a regular grand jury for a period of six months or less, beyond the initial eighteen month period, upon a finding that such an extension is in the public interest. The Committee intends thereby to allow a regular grand jury sufficient extra time to wind up an investigation when such extension becomes necessary for such reasons as the unusual nature of the case, unforeseen developments, or even a lack of foresight about the time required for an investigation. An extension may be ordered, however, only if the district court finds that an extension of time would be in the public interest.

RULE 6.1. THE SPECIAL GRAND JURY

This is a new rule, the content of which is derived from title I of the Organized Crime Control of 1970. A few changes of substance have been made in existing law, but, in the main, existing provisions have simply been rewritten in the style employed by the Code and the rules.

Subdivision (a) of the rule concerns the summoning of special grand juries, which may occur automatically or at the instance of the executive branch of government. The subdivision provides that in a judicial district (1) having more than four million inhabitants, or (2) concerning which the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, certifies in writing to the chief judge that in his judgment a special grand jury is necessary because of criminal activity in the district, the court is to order a special grand jury summoned at least once every eighteen months unless another special grand jury is then serving. If the court at any time determines that the volume of business of the special grand jury exceeds its capacity to discharge its obligations, the court may order an additional special grand jury to be impaneled in that district.

18 U.S.C. 3331-3334.

The provisions of 18 U.S.C. 3331-3334 have been moved to Rule 6.1.

In a recent case upholding the dismissal of an indictment returned nine days after the expiration of the 18 month period but during an attempted extension, the Second Circuit noted that under the current inflexible rule. "it may well be that criminal proceedings which would be in the public interest will be frustrated and that those who might be found guilty will escape trial and conviction." United States v. Fein, 504 F.2d 1170 (2d Cir. 1974). 718 U.S.C. 3331-3334. See S. Rept. No. 91-617, 91st Cong., 1st Sess. (1969); H. Rept. No. 91-1549, 91st Cong., 2d Sess. (1970).

These provisions are taken from 18 U.S.C. 3331(a) and 3332(b), without substantive change.

Subdivision (b) of the rule concerns the term of special grand juries. It provides that a special grand jury is to serve for a term of eighteen months unless, upon a determination of the special grand jury by majority vote that its business has been completed, an order for its discharge is entered earlier by the court. If, at the end of the term, or any extension thereof, the court determines that the business of the special grand jury has not been completed, the court is permitted to enter an order extending the term for an additional period of six months. If a court fails to extend the term of a special grand jury, or enters an order for its discharge before the special grand jury determines that it has completed its business, the special grand jury may, upon the affirmative vote of a majority of its members, apply to the chief judge of the judicial circuit within which the court is located for an order continuing the term. Upon making of such an application, the term is to continue until entry of an appropriate order by the chief judge of the circuit. No term of a special grand jury, however extended, is allowed to exceed a total of thirty-six months, except as provided in subdivision (f) (1) which permits certain extensions for the purpose of making a report.

Subdivision (c) of the rule concerns the jury's investigation and provides that a special grand jury is to inquire into offenses against the criminal laws of the United States alleged to have been committed within the district. Such alleged offenses may be brought to the attention of the special grand jury by the court or by an attorney for the government. An attorney for the government, upon receipt of information concerning an alleged offense from a person requesting that the information be transmitted to the special grand jury, is to inform the grand jury of the alleged offense and of the identity of such person, and is to make a recommendation on the matter to the special grand jury. This subdivision is simply a rewriting of 18 U.S.C. 3332(a).

Subdivision (d) of this rule governs the distinctive matter of special grand jury reports. It provides that a special grand jury may, upon the completion of its term or any extension thereof, and with the concurrence of a majority of its members, submit to the court a report which: (1) concerns noncriminal misconduct, malfeasance, or misfeasance in office by a Federal, State, or local public servant, and recommending removal of, or disciplinary action against, such public servant; (2) states that after investigation of a Federal, State, or local public servant it finds no misconduct, malfeasance, or misfeasance in office by him, and that such public servant has requested the submission of the report; (3) concerns organized crime conditions in the judicial district; or (4) proposes, upon the basis of stated findings, recommendations for legislative, executive, or administrative action in the public interest. These provisions are derived from 18 U.S.C. 3333 (a); however, two substantive additions have been made and one provision has been expanded significantly.

Present law authorizes a special grand jury, under certain circumstances, to submit a report recommending the removal or disciplining of an appointed public official in respect to the conduct of his office. However, no matter how strongly a jury may feel that its in

$ 18 U.S.C. 3333.