THE ADVISORY COMMITTEE
FEDERAL RULES OF CRIMINAL PROCEDURE
October 7-8, 1996
The Advisory Committee on the Federal Rules of Criminal Procedure met at the
Gleneden, Oregon on October 7th and 8th, 1996. These minutes reflect the actions taken at
I. CALL TO ORDER & ANNOUNCEMENTS
Judge Jensen, Chair of the Committee, called the meeting to order at 8:30 a.m. on
Monday, October 7, 1996. The following persons were present for all or a part of the
Hon. D. Lowell Jensen, Chair
Hon. W. Eugene Davis
Hon. Edward E. Carnes
Hon. Sam A. Crow
Hon. George M. Marovich
Hon. David D. Dowd, Jr.
Hon. D. Brooks Smith
Hon. B. Waugh Crigler
Prof. Kate Stith
Mr. Darryl W. Jackson, Esq.
Mr. Robert C. Josefsberg, Esq.
Mr. Henry A. Martin, Esq.
Mr. Roger Pauley, Jr., designate of the Asst. Attorney General for the Criminal Division
Professor David A. Schlueter, Reporter
Also present at the meeting were: Hon William R. Wilson, Jr., a member of the
Standing Committee on Rules of Practice and Procedure and a liaison to the Committee;
Professor Daniel R. Coquillette, Reporter to the Standing Committee; Mr. Peter McCabe and
Mr. John Rabiej from the Administrative Office of the United States Courts; Mr. Jim Eaglin
from the Federal Judicial Center, and Ms. Mary Harkenrider from the Department of Justice.
The attendees were welcomed by the chair, Judge Jensen, who recognized a new
member to the Committee, Judge Edward E. Carnes. Judge Jensen recognized the
contributions of Judge Crow, whose term on the Committee had expired.
II. APPROVAL OF MINUTES OF APRIL 1996 MEETING
Following minor changes to the minutes of the October 1995 meeting, Judge
Marovich moved that they be approved. Following a second by Judge Davis, the motion
carried by a unanimous vote.
III. RULES PUBLISHED FOR PUBLIC COMMENT AND PENDING FURTHER
ACTION BY THE COMMITTEE
The Reporter informed the Committee that the Standing Committee, at its June 1996
meeting in Washington, D.C., had approved a number of proposed amendments for
publication and public comment: Rule 5.1 (Preliminary Examination; Production of Witness
Statements); Rule 26.2 (Production of Witness Statements; Applicability to Rule 5.1
Proceedings); Rule 31 (Verdict; Individual Polling of Jurors); Rule 33 (New Trial; Time for
Filing Motion); Rule 35(b) (Correction or Reduction of Sentence; Changed Circumstances);
and Rule 43 (Presence of Defendant; Presence at Reduction or Correction of Sentence).
Written comments on the proposed amendments are due not later than February 15, 1997.
A hearing has been scheduled in Oakland, California for witnesses who wish to present oral
testimony on the proposed amendments.
IV. RULES APPROVED BY STANDING COMMITTEE AND
FORWARDED TO JUDICIAL CONFERENCE
Judge Jensen reported that the Standing Committee had approved and forwarded the Committee's proposed amendment to Rule 16 to the Judicial Conference. The amendment to Rule 16(a)(1)(E) and 16(b)(1)(C), which addresses reciprocal disclosure of information on expert witnesses, had originally been included in a package of proposed amendments to Rule 16 submitted to the Judicial Conference in March 1995. The Conference had generally rejected the amendments although the opposition had focused specifically on those amendments in Rule 16(a)(1)(F), addressing the pretrial disclosure of witness names. At its meeting in April 1996, the Advisory Committee considered the amendment anew and resubmitted the matter to the Standing Committee. That Committee made several minor changes to the language of the amendment and forwarded it, without further publication, to the Judicial Conference.
V. CRIMINAL RULES CURRENTLY UNDER CONSIDERATION
BY ADVISORY COMMITTEE
A. Rule 11. Pleas.
The Reporter indicated that several interrelated matters affecting guilty pleas and the
sentencing guidelines were on the agenda for the meeting. Several judicial decisions and
correspondence had generated interest in amending Rule 11.
1. Rule 11(e); Report of Subcommittee; Impact of Sentencing Guidelines on Plea Bargaining; Ability of Defendant to Withdraw Plea
In a continuation of discussions begun at the April 1996 meeting, a Subcommittee
consisting of Judge Marovich (chair), Professor Stith, Mr. Martin, and Mr. Pauley, presented
an oral report on possible amendments to Rule 11. Judge Marovich reported that the
subcommittee had considered the possible impact of United States v. Harris, 70 F.3d 1001
(8th Cir. 1995), which read Rule 11(e)(4) to also apply to (e)(1)(B) plea agreements
regarding sentencing facts or calculations. The subcommittee had concluded that Harris was
not consistent with the language or history of Rule 11 and recommended that some
amendments be made to Rule 11(e) which would clearly include references to guideline
sentencing factors vis a vis plea bargains.
Judge Marovich indicated that the subcommittee had focused initially on the question
of the amount of notice and information each side should have regarding applicable
sentencing guidelines; the subcommittee believed that the process would work more
smoothly and efficiently, if the government and the defendant had a clearer idea--going into
the plea bargaining process--of the possible reaction of the court to a proposed plea
agreement. Lawyers, he noted, should be able to accurately assess the probability that a plea
agreement will be accepted by the court.
Judge Jensen added that Judge Conaboy, the Chair of the Sentencing Commission,
had expressed interest in the Committee's action on any proposals to amend Rule 11. He had
informed Judge Jensen that the Commission would welcome any input on the impact or role
of sentencing guidelines in the plea bargaining process.
Mr. Pauley expressed concern about the slow process of amending Rule 11, should
the Committee decide to consider global changes to the rule. He believed that the
amendment addressing the Harris case should be moved forward now. Ms. Harkenrider
added that the subcommittee's proposed amendment would make it clear that the parties
might be able to agree on sentencing factors or guidelines, and not just on an agreed-to
sentence. Mr. Pauley added that the proposed language would not directly affect the right of
a defendant to appeal.
Professor Stith distributed a chart she had prepared from data provided by the
Sentencing Commission which demonstrated the reduction of cases going to trial. Judge
Jensen noted in particular that the national average of cases being disposed of in a plea
process was 92 %. He reiterated that the genesis of the discussion on the binding nature of
(e)(1)(B) agreements was the Harris decision and that the decision in United States v. Hyde,
82 F.3d 319 (9th Cir. 1996) had raised the question of the impact of deferring acceptance of
a guilty plea until after preparation of the Presentencing Report.
Judge Marovich observed that the Circuits may have different practices relating to
when a plea is accepted and he repeated the concern that the parties may not fully know what
they are facing when the plea is entered. Ms. Harkenrider noted that although the Solicitor
General's office had not yet decided whether to appeal the Hyde decision it appeared that an
appeal would be filed. Ms. Harkenrider also expressed the view that in light of such an
appeal, the Committee should defer any action which would amend Rule 11 in response to
the Hyde decision..
Professor Stith raised the question of whether it might be appropriate to amend Rule
11 to clarify when the plea could, or must, be accepted. Judge Crigler responded that any
amendment to Rule 11 be as clear and straightforward as possible. Following discussion on
how the sentencing guidelines had affected the plea bargaining process, Judge Dowd
observed that the process is now more complicated and that Rule 11, as written, does not
adequately accommodate the realities of plea bargaining and guilty pleas.
In discussing the possible process of amending Rule 11 at this point to address the
Harris problem, Judge Jensen commented that the proposed changes should be forwarded
to the Sentencing Commission. A consensus emerged that some amendment was appropriate
and the discussion turned to specific language used in the proposed language submitted by
the Standing Committee, which in turn had been suggested by the Department of Justice.
Judge Marovich stated that the amendments were a step in the right direction.
Ultimately, Judge Davis moved to adopt the subcommittee's proposed amendments to Rule 11(e)(1)(B), (C), and (e)(4). Judge Marovich seconded the motion. Judge Carnes expressed concern about amending a criminal procedure rule specifically to address a court decision from one circuit. Several members added that it should be clear that the proposed amendment does not address the Hyde problem of when a plea could be accepted. The Committee approved the amendment unanimously. The reporter indicated that he would draft the appropriate language and committee note for the April 1997 meeting.
2. Rule 11(c); Advice to Defendant Regarding Waiver of Right to Appeal
The Reported stated that the Committee on Criminal Law had proposed an
amendment to Rule 11(c)(6) which would require the court to discuss with the defendant any
terms or provisions in a plea agreement which would waive the right to appeal or collateral
attack the sentence. Ms. Harkenrider moved that the proposed amendment be approved.
Judge Davis seconded the motion.
The Committee discussion focused on whether the amendment would affect the
defendant's constitutional rights and what is actually waived. Professor Stith expressed
concern about the breadth of such waivers and Judge Carnes commented that he had always
understood that the rules of procedure and any waivers are subject to the Constitution. Mr.
Martin added that there might be other waiver provisions in a plea agreement, for example,
provisions dealing with immigration or asset forfeiture. Ultimately, Professor Stith moved
that the proposed language be amended to reflect that (c)(6) applied to terms or provisions
in a plea agreement and delete the language requiring the court to discuss with the defendant
the "consequences" of any waiver provision. The motion to amend was seconded by Judge
Carnes and carried by a vote of 10 to 1. The Committee, by a vote of 8 to 3, approved the
proposed amendment to Rule 11(c).
3. Rule 11(e)(4). Rejection of Plea Agreement.
Judge Davis suggested that the Committee consider an amendment to Rule 11(e)(4),
in addition to the approved amendments to (e)(1)(B) and (C), supra, which would clearly
address the issue in United States v. Harris. Following brief discussion, the Reporter was
asked to draft proposed language for the April meeting which would address that decision
and also draft an alternate version which would address both Harris and United States v.
4. Rule 11. Summary of Pending Amendments and Action
Judge Jensen provided a summary of the Committee's actions regarding Rule 11: It
had approved amendments to Rule 11(e)(1)(B) and (C), Rule 11(c)(6)(new provision). The
Reporter was asked to finalize a draft of the amendments so that the Sentencing Commission
would have an opportunity to review it. Second, the Committee had requested the Reporter
to draft alternative versions of possible amendments to Rule 11(e)(4) which would deal with
the issues raised by the Harris and Hyde decisions. Finally, Judge Jensen asked the Rule 11
Subcommittee to continue its work with a view toward additional amendments to that Rule.
B. Rule 24(c). Alternate Jurors
The Reporter indicated that the Committee had received a letter from Judge Selya of
the Court of Appeals for the First Circuit in which the judge suggested that it would be
appropriate to consider an amendment to Rule 24(c). Although that rule currently provides
that alternate jurors (who are designated as replacements) are to be discharged after the jury
retires to deliberate. In United States v. Houlihan, not yet reported, the First Circuit
concluded that the trial judge committed harmless error in not discharging the alternate
Mr. Josefsberg believed that an amendment to Rule 24(c) was in order and Mr.
Pauley observed that there was a certain tension between the provisions in Rule 24(c) and
23(b), citing statistics which indicate that it is less desirable to make substitutions in jurors.
Following additional brief discussion, Judge Marovich moved that Rule 24(c) be amended
to eliminate the mandatory language in that rule. Judge Dowd seconded the motion which
carried by a vote of 8 to 2, with one abstention. The Reporter indicated that he would draft
language for the Committee's consideration at its next meeting.
C. Rule 25(b). Judge Disability
Judge Jensen informed the Committee that Judge Kazen had proposed that the
Committee consider a clarifying amendment to Rule 25(b) concerning the ability of using
different judges to hear guilty pleas and handle pretrial motions. Mr. Jackson expressed the
concern that judges not be viewed as fungible in the eyes of the community. Mr. Josefsberg
gave several examples of state practice where judge may be rotated before completing a case.
Several members of the Committee expressed the view that Rule 25(b) is not violated by
substituting a judge to complete a case when another judge has found the defendant guilty
following a guilty plea. Judge Jensen noted that a consensus had seemed to emerge that no
change was needed at the present time; but he asked the Reporter to review the history of
Rule 24(b) and make sure that it is clear the rule does not cover guilty pleas procedures.
D. Rule 26. Taking of Testimony
The Reporter informed the Committee that Judge Stotler, Chair of the Standing
Committee, had requested the Criminal Rules Committee to consider an amendment to
Criminal Rule 26 which conform that rule to amendments to Civil Rule 43, which take effect
on December 1, 1996. Those amendments delete the requirement that the testimony be taken
orally in open court. The change is apparently designed to permit testimony to be given in
court by other means if the witness is not able to communicate orally, e.g., using sign
language. Additionally, Rule 43 is being amended to permit presentation of testimony by
transmission from another location in compelling circumstances.
Mr. Rabiej provided some additional background information on the civil rule
amendment and Mr. McCabe indicated that the Ninth Circuit's pilot program of electronic
transmission of proceedings was on hold--criminal defendants are apparently not consenting
to those procedures. Following additional brief discussion, Mr. Josefsberg moved that Rule
26 be amended by deleting the word "orally" and that the rule be restyled to conform to the
civil rule. That motion was seconded by Ms. Harkenrider. It carried unanimously.
E. Rule 32.2. Forfeiture Procedures
Mr. Pauley introduced the Justice Department's proposed new rule 32.2 which would
accomplish two key points: It would consolidate several existing rules into one rule, i.e.,
Rule 32 and 31. Second, the new rule would eliminate the role of the jury in criminal
forfeiture proceedings. He indicated that in framing the rule, the Department had polled
United States Attorneys and members of the Asset Forfeiture Division. Mr. Pauley provided
a detailed background of current forfeiture provisions and indicated that within the
Department there is some disagreement on whether the proposed rule will help or hinder the
In the ensuing discussion, Professor Coquillette questioned whether the provisions
for forfeiting property belonging to a third party, without a jury trial, might violate the
Constitution. Other members questioned whether the rule would be consistent with existing
statutory provisions governing forfeiture. Several other members suggested possible changes
to the draft of the rule which first, make it clear that the court must find a nexus between the
property and the defendant, second, address the issue of the right to appeal a ruling adverse
to the Government. Mr. Pauley indicated that the Department would continue to work on
the draft of the rule and welcomed suggested changes to address the issues raised by the
F. Rule 40(a). Appearance Before Federal Magistrate Judge
The Reporter provided a brief overview of proposed changes and discussion
regarding Rule 40(a). He noted that in October 1994, the Committee had considered a
proposed amendment from Magistrate Judge Robert Collings (Boston) to amend Rule 40(a)
to provide that a defendant arrested in a district other than where the offense occurred could
be taken to that latter district if the magistrate was located within 100 miles of the place of
arrest. The Committee deferred any further action pending input from the Department of
Justice. In recent correspondence between Magistrate Judge Crigler and the Department, the
issue had been revived. Following discussion of the matter, the Committee reached a
consensus that no action was required; as written, the rule does not explicitly require that an
arrested defendant be taken to a magistrate in the district of arrest. It only requires that the
defendant be taken before the nearest available magistrate.
VI. RULES PENDING BEFORE OTHER COMMITTEES HAVING
IMPACT ON RULES OF CRIMINAL PROCEDURE
1. Bankruptcy Committee Proposal to Provide for Electronic Service of Motions.
The Reporter informed Committee that the Bankruptcy Rules Committee was
considering an amendment to Rules 9013 and 9014 which would permit electronic filing of
motions on the other party, under technical standards established by the Judicial Conference.
He added that the parallel criminal rule, Rule 49, specifically cross-references the Civil
Rules, and that in the past that committee had taken the lead in considering any changes in
the method of service. Judge Jensen indicated that he was not interested in changing that
approach. Judge Dowd observed that the bankruptcy bar might be more attuned to using
electronic filing methods than members of the criminal justice bar. No action was taken on
2. Rules of Evidence Committee Proposal to Amend Fed. R. Evid. 103
Re Preservation of Error
The Reporter and Mr. Rabiej indicated that the Evidence Rules Committee had
considered an amendment to Federal Rule of Evidence 103 which would clearly indicate
whether counsel must renew an evidentiary objection at trial to preserve the issue for appeal.
The Evidence Committee had been unable to reach a clear consensus on the issue and had
requested the Civil and Criminal Rules Committees to review the issue and provide any
additional input. Following a discussion of the issue, to the effect that the members did not
perceive any need to amend the current rule, a consensus emerged to inform the Evidence
Committee that the issue should be left to caselaw development.
VII. ORAL REPORTS; MISCELLANEOUS
A. Status Report on Legislation Affecting the Federal Rules of Criminal
Mr. Rabiej informed the Committee that there was some momentum building in
Congress for a Victims Rights Amendment to the Constitution and presented copies of
Joint Resolution 52 to the Committee along with a letter from the Criminal Law
Committee which generally opposed the resolution. Judge Jensen raised the question of
whether, and to what, extent, the Committee might make its views known, Judge Wilson
recommended that the chair send a letter stating the Committee's reservations about the
resolution. Judge Carnes responded that in his view, this matter was outside the purview
of the federal courts. Professor Stith believed that there was good arguments for being a
part of the debate on the resolution in pointing out potential problems with any
Professor Coquillette stated that the Committee had a role under the Rules
Enabling Act and that the Criminal Law Committee was perhaps the best body for
expressing any views on the appropriateness of the amendment. Judges Wilson and
Smith expressed the view that the Committee could provide invaluable expertise on the
practical implications of any amendment affecting criminal procedure. Judge Davis
indicated that any input from the Committee should focus on the criminal rules and the
rule-making process and Judge Dowd observed that the judiciary should speak with one
voice on this matter. Mr. Rabiej added that the Committee could legitimately comment
on any legislation potentially affecting the rules of criminal procedure--given its mandate
to perform a continuous study and evaluation of criminal procedure matters.
Following additional discussion concerning the process of preparing the
Committee's views, Judge Jensen indicated that he would draft a letter to the Standing
B. Oral Report on Restyling of Appellate Rules of Procedure.
Mr. Rabiej reported that the publication and comment period on the re-styled
Appellate Rules was proceeding and that the Committee had received some favorable
comments on the new format for the rules.
C. Oral Report on Legislatively Proposed Language to Rules
The Committee was informed by Mr. Rabiej that a part of the Child Pornography
Bill would have amended Rule 32 to require judges to apprise defendants of the possible
consequences of sentencing for certain offenses. He indicated that the Administrative
Office had been successful in deterring that amendment.
D. Oral Report on Change in Effective Date of Amendments to Federal
Rules of Evidence 413-415.
Finally, Mr. Rabiej informed the Committee that the Justice Department had
succeeded in asking Congress to amend the effective date of Rules 413-415. Those rules,
in effect, now apply to conduct committed before the effective date of those rules.
VIII. DESIGNATION OF TIME AND PLACE OF NEXT MEETING
The Committee decided to hold its next meeting in Washington, D.C., at the Thurgood Marshall Federal Judiciary Building, on April 7th and 8th, 1997.
David A. Schlueter
Professor of Law