§ 3672, Oct. 12, 1984, Pub. L. 98-473, title II, § 212(a)(1), 98 Stat. 1987; Oct. 27, 1986, Pub. L. 99-570, title I, § 1861(b)(1), 100 Stat. 3207-53; Nov. 10, 1986, Pub. L. 99–646, § 18(a), 100 Stat. 3595; Dec. 7, 1987, Pub. L. 100-182, § 20, 101 Stat. 1270.)

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 18, U.S.C., 1940 ed., § 728 (Mar. 4, 1925, ch. 521, § 4(a), as added June 6, 1930, ch. 406, § 2, 46 Stat. 503).

The only change made in this section was the substitution of the "Director of the Administrative Office of the United States Courts" for "Attorney General". (See reviser's note under section 3654 of this title.)

1949 ACT

This amendment [see section 57] conforms the language of section 3656 of title 18, U.S.C., to that of title 28, U.S.C., section 604(a).

REFERENCES IN TEXT

Section 2 of the Public Health Service Act, referred to in the seventh undesignated par., is classified to section 201 of Title 42, The Public Health and Welfare. Section 3709 of the Revised Statutes, referred to in the seventh undesignated par., is classified to section 5 of Title 41, Public Contracts.

AMENDMENTS

1987-Pub. L. 100-182, § 20(1), amended seventh undesignated par. generally. Prior to amendment, seventh undesignated par. read as follows: "He shall have the authority to contract with any appropriate public or private agency or person for the detection of and care in the community of an offender who is an alcohol-dependent person, or an addict or a drug-dependent person within the meaning of section 2 of the Public Health Service Act (42 U.S.C. 201). This authority shall include the authority to provide equipment and supplies; testing; medical, educational, social, psychological, and vocational services; corrective and preventive guidance and training; and other rehabilitative services designed to protect the public and benefit the alcohol-dependent person, addict, or drug-dependent person by eliminating his dependence on alcohol or addicting drugs, or by controlling his dependence and his susceptibility to addiction. He may negotiate and award such contracts without regard to section 3709 of the Revised Statutes (41 U.S.C. 5)."

Pub. L. 100-182, § 20(2), added ninth undesignated par.: "Whenever the court finds that funds are available for payment by or on behalf of a person furnished such services, training, or guidance, the court may direct that such funds be paid to the Director. Any moneys collected under this paragraph shall be used to reimburse the appropriations obligated and disbursed in payment for such services, training, or guidance."

1986-Pub. L. 99-570 and Pub. L. 99-646 added substantially identical seventh and eighth undesignated pars. containing provision relating to authority to contract with any appropriate public or private agency or person for the detection of and care in the community of an offender who is an alcohol-dependent person, an addict, or a drug-dependent person and provision relating to payment for presentence studies and reports by qualified consultants and presentence examinations and reports by psychiatric and psychological examiners ordered by the court under section 3552(b) or (c). 1949-Act May 24, 1949, inserted in fifth par. of section "and direction" after "supervision".

EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-182 applicable with respect to offenses committed after Dec. 7, 1987, see sec

tion 26 of Pub. L. 100-182, set out as a note under section 3006A of this title.

EFFECTIVE DATE OF 1986 AMENDMENTS

Section 18(b) of Pub. L. 99-646 provided that: "The amendment made by this section [amending this section] shall take effect on the date of the taking effect of such redesignation [section 3656 of this title renumbered section 3672 effective Nov. 1, 1987]."

Section 1861(b)(2) of Pub. L. 99-570 provided that: "The amendment made by this section [probably should be "subsection", amending this section] shall take effect on the date of the taking effect of such redesignation [section 3656 of this title renumbered section 3672 effective Nov. 1, 1987]."

INCREASE IN COMPENSATION RATES

Increase in compensation rates fixed under this section, see note under section 603 of Title 28, Judiciary and Judicial Procedure.

CROSS REFERENCES

Administrative Office of United States Courts, see section 601 et seq. of Title 28, Judiciary and Judicial Procedure.

§ 3673. Definitions for sentencing provisions

As used in chapters 227 and 229

(1) the term "found guilty" includes acceptance by a court of a plea of guilty or nolo contendere;

(2) the term "commission of an offense" includes the attempted commission of an offense, the consummation of an offense, and any immediate flight after the commission of an offense; and

(3) the term "law enforcement officer" means a public servant authorized by law or by a government agency to engage in or supervise the prevention, detection, investigation, or prosecution of an offense. (Added Pub. L. 98-473, title II, § 212(a)(4), Oct. 12, 1984, 98 Stat. 2010, and amended Pub. L. 99-646, § 2(a), Nov. 10, 1986, 100 Stat. 3592.)

forfeiture of collateral profits of crime) as chapter 232A, and renumbered items 3671 and 3672 as items 3681 and 3682, respectively.

§ 3681. Order of special forfeiture

(a) Upon the motion of the United States attorney made at any time after conviction of a defendant for an offense under section 794 of this title or for an offense against the United States resulting in physical harm to an individual, and after notice to any interested party, the court shall, if the court determines that the interest of justice or an order of restitution under this title so requires, order such defendant to forfeit all or any part of proceeds received or to be received by that defendant, or a transferee of that defendant, from a contract relating to a depiction of such crime in a movie, book, newspaper, magazine, radio or television production, or live entertainment of any kind, or an expression of that defendant's thoughts, opinions, or emotions regarding such crime.

(b) An order issued under subsection (a) of this section shall require that the person with whom the defendant contracts pay to the Attorney General any proceeds due the defendant under such contract.

(c)(1) Proceeds paid to the Attorney General under this section shall be retained in escrow in the Crime Victims Fund in the Treasury by the Attorney General for five years after the date of an order under this section, but during that five year period may—

(A) be levied upon to satisfy

(i) a money judgment rendered by a United States district court in favor of a victim of an offense for which such defendant has been convicted, or a legal representative of such victim; and

(ii) a fine imposed by a court of the United States; and

(B) if ordered by the court in the interest of justice, be used to

(i) satisfy a money judgment rendered in any court in favor of a victim of any offense for which such defendant has been convicted, or a legal representative of such victim; and

(ii) pay for legal representation of the defendant in matters arising from the offense for which such defendant has been convicted, but no more than 20 percent of the total proceeds may be so used.

(2) The court shall direct the disposition of all such proceeds in the possession of the Attorney General at the end of such five years and may require that all or any part of such proceeds be released from escrow and paid into the Crime Victims Fund in the Treasury.

(d) As used in this section, the term "interested party" includes the defendant and any transferee of proceeds due the defendant under the contract, the person with whom the defendant has contracted, and any person physically harmed as a result of the offense for which the defendant has been convicted.

(Added Pub. L. 98-473, title II, § 1406(a), Oct. 12, 1984, 98 Stat. 2175, § 3671, and amended Pub. L. 99-399, title XIII, § 1306(c), Aug. 27, 1986, 100 Stat. 899; renumbered § 3681 and

amended Pub. L. 99-646, §§ 40, 41(a), Nov. 10, 1986, 100 Stat. 3600.)

AMENDMENTS

1986-Subsec. (a). Pub. L. 99-646, § 40, struck out "chapter 227 or 231 of" after "restitution under". Pub. L. 99-399 inserted "an offense under section 794 of this title or for".

EFFECTIVE DATE

Chapter effective 30 days after Oct. 12, 1984, see section 1409(a) of Pub. L. 98-473, set out as a note under section 10601 of Title 42, The Public Health and Welfare.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 42 section 10601. § 3682. Notice to victims of order of special forfeiture

The United States attorney shall, within thirty days after the imposition of an order under this chapter and at such other times as the Attorney General may require, publish in a newspaper of general circulation in the district in which the offense for which a defendant was convicted occurred, a notice that states

(1) the name of, and other identifying information about, the defendant;

(2) the offense for which the defendant was convicted; and

(3) that the court has ordered a special forfeiture of certain proceeds that may be used to satisfy a judgment obtained against the defendant by a victim of an offense for which the defendant has been convicted.

(Added Pub. L. 98-473, title II, § 1406(a), Oct. 12, 1984, 98 Stat. 2176, § 3672; renumbered § 3682, Pub. L. 99-646, § 41(a), Nov. 10, 1986, 100 Stat. 3600.)

§ 3691. Jury trial of criminal contempts

Whenever a contempt charged shall consist in willful disobedience of any lawful writ, process, order, rule, decree, or command of any district court of the United States by doing or omitting any act or thing in violation thereof, and the act or thing done or omitted also constitutes a criminal offense under any Act of Congress, or under the laws of any state in which it was done or omitted, the accused, upon demand therefor, shall be entitled to trial by a jury, which shall conform as near as may be to the practice in other criminal cases.

This section shall not apply to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.

(June 25, 1948, ch. 645, 62 Stat. 844.)

Page 642

§ 3693. Summary disposition or jury trial; notice— (Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Summary punishment; certificate of judge; order; notice; jury trial; bail; disqualification of judge, Rule 42.

(June 25, 1948, ch. 645, 62 Stat. 844.)

Jury trial for criminal contempt where statutes so provide, see rule 42, Appendix to this title.

3735.

3736.

Bail on appeal or certiorari-Rule. Certiorari-Rule.

Statutory provisions defining criminal contempt, see Advisory Committee Notes under rule 42.

3737.

Record-Rule.

3738.

3739.

Docketing appeal and record-Rule. Supervision-Rule.

CROSS REFERENCES

3740.

3741.

Criminal contempts constituting offenses, see section 402 of this title.

3742.

Argument-Rule.

Harmless error and plain error-Rule. Review of a sentence.

Jury trial discretionary in cases of criminal contempt arising under civil rights laws, see section 1995 of Title 42, The Public Health and Welfare. Limitations, see section 3285 of this title. Power to punish for contempt generally, see section 401 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 402 of this title. § 3692. Jury trial for contempt in labor dispute cases In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed.

This section shall not apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the administration of justice nor to the misbehavior, misconduct, or disobedience of any officer of the court in respect to the writs, orders or process of the court.

(June 25, 1948, ch. 645, 62 Stat. 844.)

HISTORICAL AND REVISION NOTES

Based on section 111 of Title 29, U.S.C., 1940 ed., Labor (Mar. 23, 1932, ch. 90, § 11, 47 Stat. 72).

The phrase "or the District of Columbia arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute" was inserted and the reference to specific sections of the NorrisLaGuardia Act (sections 101-115 of Title 29, U.S.C., 1940 ed.) were eliminated.

§ 3731. Appeal by United States

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

An appeal by the United States shall lie to a court of appeals from a decision or order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release.

The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

The provisions of this section shall be liberally construed to effectuate its purposes. (June 25, 1948, ch. 645, 62 Stat. 844; May 24, 1949, ch. 139, § 58, 63 Stat. 97; June 19, 1968, Pub. L. 90-351, title VIII, § 1301, 82 Stat. 237; Jan. 2, 1971, Pub. L. 91-644, title III, § 14(a), 84 Stat. 1890; Oct. 12, 1984, Pub. L. 98-473, title II, §§ 205, 1206, 98 Stat. 1986, 2153; Pub. L. 99-646, § 32, Nov. 10, 1986, 100 Stat. 3598.)

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 18, U.S.C., 1940 ed., § 682 (Mar. 2, 1907, ch. 2564, 34 Stat. 1246; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54; May 9, 1942, ch. 295, § 1, 56 Stat. 271).

The word "dismissing" was substituted for "sustaining a motion to dismiss" in two places for conciseness and clarity, there being no difference in effect of a decision of dismissal whether made on motion or by the court sua sponte.

Minor changes were made to conform to Rule 12 of the Federal Rules of Criminal Procedure. The final sentence authorizing promulgation of rules is omitted as redundant.

1949 ACT

This section [section 58] corrects a typographical error in the second paragraph of section 3731 of title 18, U.S.C., and conforms the language of the fifth, tenth, and eleventh paragraphs of such section 3731 with the changed nomenclature of title 28, U.S.C., Judiciary and Judicial Procedure. See sections 41, 43, and 451 of the latter title.

AMENDMENTS

1986-Fifth par. Pub. L. 99-646 struck out fifth par. which read as follows: "Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be released in accordance with chapter 207 of this title."

1984-First par. Pub. L. 98-473, § 1206, inserted "or granting a new trial after verdict or judgment," after "indictment or information".

Third par. Pub. L. 98-473, § 205, inserted third par. relating to appeals from a decision or order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release.

1971-First par. Pub. L. 91-644, § 14(a)(1), enacted provision for appeal to a court of appeals from decision, judgment, or order of district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where double jeopardy prohibits further prosecution.

Second par. Pub. L. 91-644, § 14(a)(1), enacted provision for appeal to a court of appeals from decision or order of district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

Such first and second pars. superseded former first eight pars. Pars. one through four had provided for appeal from district courts to Supreme Court from decision or judgment setting aside, or dismissing any indictment or information, or any count thereof and from decision arresting judgment of conviction for insufficiency of indictment or information, where such decision or judgment was based upon invalidity or construction of the statute upon which the indictment or information was founded and for an appeal from decision or judgment sustaining a motion in bar, where defendant had not been put in jeopardy. Pars. five through eight provided for appeal from district courts to a court of appeals where there were no provisions for direct appeal to Supreme Court from decision or judgment setting aside, or dismissing any indictment or information, or any count thereof and from decision arresting a judgment of conviction, and from an order, granting a motion for return of seized property or a motion to suppress evidence, made before trial of a person charged with violation of a Federal law, if the

United States attorney certified to the judge who granted the motion that the appeal was not taken for purpose of delay and that the evidence was a substantial proof of the charge pending against the defendant.

Third par. Pub. L. 91-644, § 14(a)(2), authorized within third par., formerly ninth, an appeal within thirty days after order has been rendered.

Fourth par. Pub. L. 91-644, § 14(a), in revising the provisions, had the effect of designating former tenth par. as fourth par.

Fifth par. Pub. L. 91-644, § 14(a)(3), substituted as a fifth par. provision for liberal construction of this section for prior eleventh par. provision respecting remand of case by Supreme Court to court of appeals that should have been taken to such court and treatment of the court's jurisdiction to hear and determine the case as if the appeal were so taken in the first instance and for prior twelfth par. provision respecting certification of case to Supreme Court that should have been taken directly to such Court and treatment of the Court's jurisdiction to hear and determine the case as if the appeal were taken directly to such Court. 1968-Pub. L. 90-351 inserted eighth par. providing for an appeal by the United States from decisions sustaining motions to suppress evidence and substituted in tenth par. "defendant shall be released in accordance with chapter 207 of this title" for "defendant shall be admitted to bail on his own recognizance", respectively.

1949-Act May 24, 1949, substituted "invalidity" for "validity" after "upon the" in second par., and conformed language of fifth, tenth, and eleventh pars. to the changed nomenclature of the courts.

SAVINGS PROVISION

Section 14(b) of Pub. L. 91-644 provided that: "The amendments made by this section [to this section] shall not apply with respect to any criminal case begun in any district court before the effective date of this section [Jan. 2, 1971]."

CROSS REFERENCES

Appellate jurisdiction of courts of appeals, see section 1291 of Title 28, Judiciary and Judicial Procedure. Prosecution in territory or Commonwealth authorized to seek review in appropriate local or Federal appellate courts, see section 1493 of Title 48, Territories and Insular Possessions.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3143, 3145 of this title.

§ 3732. Taking of appeal; notice; time—(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Taking appeal; notice, contents, signing; time, Rule 37(a).

(June 25, 1948, ch. 645, 62 Stat. 845.)

REFERENCES IN TEXT

Rule 37 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1967, eff. July 1, 1968, and is covered by Rule 3, Federal Rules of Appellate Procedure, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

§ 3733. Assignment of errors—(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Assignments of error on appeal abolished, Rule

37(a)(1).

Necessity of specific objection in order to assign error in instructions, Rule 30.

(June 25, 1948, ch. 645, 62 Stat. 845.)

Rule 37 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1947, eff. July 1, 1968, and is covered by Rule 3, Federal Rules of Appellate Procedure, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

8 3734. Bill of exceptions abolished—(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE

Exceptions abolished, Rule 51.

Bill of exceptions not required, Rule 37(a)(1). (June 25, 1948, ch. 645, 62 Stat. 845.)

REFERENCES IN TEXT

Rule 37 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1967, eff. July 1, 1968, and is covered by Rule 3, Federal Rules of Appellate Procedure, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

§ 3735. Bail on appeal or certiorari-(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Bail on appeal or certiorari; application, Rules 38(c) and 46(a)(2).

(June 25, 1948, ch. 645, 62 Stat. 845.)

REFERENCES IN TEXT

Rule 38(c) of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1967, eff. July 1, 1968, and is covered by rule 9, Federal Rules of Appellate Procedure, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

Rule 46 was amended as part of the Bail Reform Act in 1966 and in 1972, and some provisions originally contained in Rule 46 are covered by this chapter, see Notes of Advisory Committee on Rules and Amendment notes under Rule 46, this Appendix.

§ 3736. Certiorari-(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Petition to Supreme Court, time, Rule 37(b). (June 25, 1948, ch. 645, 62 Stat. 845.)

REFERENCES IN TEXT

Rule 37 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1967, eff. July 1, 1968. Provisions of such former rule for certiorari are covered by rule 19 et seq. of the Rules of the United States Supreme Court, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

§ 3737. Record-(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Preparation, form; typewritten record, Rule 39(b). Exceptions abolished, Rule 51.

Bill of exceptions unnecessary, Rule 37(a)(1). (June 25, 1948, ch. 645, 62 Stat. 846.)

REFERENCES IN TEXT

Rules 37 and 39 of the Federal Rules of Criminal Procedure were abrogated Dec. 4, 1967, eff. July 1, 1968, and are covered by Rule 10, Federal Rules of Appellate Procedure, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

CROSS REFERENCES

Poor persons, costs of printing transcript and record on appeal in criminal cases to be paid by United States, see sections 753 and 1915 of Title 28, Judiciary and Judicial Procedure.

§ 3738. Docketing appeal and record-(Rule)

Page 644

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Filing record on appeal and docketing proceeding; time, Rule 39(c).

(June 25, 1948, ch. 645, 62 Stat. 846.)

REFERENCES IN TEXT

Rule 39 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1967, eff. July 1, 1968, and is covered by Rules 10 to 12, Federal Rules of Appellate Procedure, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

§ 3739. Supervision—(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Control and supervision in appellate court, Rule 39(a).

(June 25, 1948, ch. 645, 62 Stat. 846.)

REFERENCES IN TEXT

Rule 39 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1967, eff. July 1, 1968, and is covered by Rule 27, Federal Rules of Appellate Procedure, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

§ 3740. Argument—(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Setting appeal for argument; preference to criminal appeals, Rule 39(d).

(June 25, 1948, ch. 645, 62 Stat. 846.)

REFERENCES IN TEXT

Rule 39 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1967, eff. July 1, 1968, and is covered by Rule 34, Federal Rules of Appellate Procedure, set out in Title 28, Appendix, Judiciary and Judicial Procedure.

§ 3741. Harmless error and plain error-(Rule)

SEE FEDERAL RULES OF CRIMINAL PROCEDURE Error or defect as affecting substantial rights, Rule 52.

Defects in indictment, Rule 7.

Waiver of error, Rules 12(b)(2) and 30.

(June 25, 1948, ch. 645, 62 Stat. 846.)

CROSS REFERENCES

Harmless error, see section 2111 of Title 28, Judiciary and Judicial Procedure.

§ 3742. Review of a sentence

(a) APPEAL BY A DEFENDANT.-A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence

(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than