THE ADVISORY COMMITTEE
FEDERAL RULES OF CRIMINAL PROCEDURE
April 29, 1996
The Advisory Committee on the Federal Rules of Criminal Procedure met at the
Thurgood Marshall Federal Judiciary Building in Washington, D.C. on April 29, 1996.
These minutes reflect the actions taken at that meeting.
I. CALL TO ORDER & ANNOUNCEMENTS
Judge Jensen, Chair of the Committee, called the meeting to order at 8:40 a.m. on
Monday, April 29, 1996. The following persons were present for all or a part of the
Hon. D. Lowell Jensen, Chair
Hon. W. Eugene Davis
Hon. Sam A. Crow
Hon. George M. Marovich
Hon. David D. Dowd, Jr.
Hon. D. Brooks Smith
Hon. B. Waugh Crigler
Hon. Daniel E. Wathen
Prof. Kate Stith
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. Alicemarie H. Stotler; Chair of the Standing
Committee on Rules of Practice and Procedure; 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,
Mr. John Rabiej, and Mr. Paul Zing from the Administrative Office of the United States
Courts; Mr. Webb Hitt from the Federal Judicial Center, Ms. Mary Harkenrider from the
Department of Justice, and Mr. Joseph Spaniol, consultant to the Standing Committee.
The attendees were welcomed by the chair, Judge Jensen, who recognized a new
member to the Committee, Professor Kate Stith from Yale Law School. Later in the
meeting, Judge Jensen recognized the contributions of Professor Saltzburg, who made a brief
appearance, and whose term on the Committee had expired.
II. APPROVAL OF MINUTES OF OCTOBER 1995 MEETING
Following minor changes to the minutes of the October 1995 meeting, Judge
Marovich moved that they be approved. Following a second by Judge Smith, the motion
carried by a unanimous vote.
III. CRIMINAL RULES APPROVED BY THE SUPREME COURT
AND FORWARDED TO CONGRESS
The Reporter informed the Committee that by operation of the Rules Enabling Act,
amendments to four rules had become effective on December 1, 1995: Rule 5(a) (Initial
Appearance Before the Magistrate Rule 43 (Presence of Defendant); Rule 49(e) (Repeal of
Provision re Filing of Dangerous Offender Notice); and Rule 57 (Rules by District Courts).
IV. RULE 24(a): APPROVED BY STANDING COMMITTEE
FOR PUBLICATION AND COMMENT
The Reporter informed the Committee that the period for comment on proposed
amendments to Rule 24(a) had been completed and presented a brief overview of the
comments supporting and opposing the proposal. He also noted that a number of witnesses
had provided testimony at two scheduled hearings.
Judge Jensen informed the Committee that the Civil Rules Advisory Committee had
decided not to forward a similar amendment in Civil Rule 47 to the Standing Committee.
Instead, it hoped to encourage continued discussion and education about the issue of attorney
conducted voir dire.
Judge Marovich expressed regret and doubt about the prospects for the proposed
amendment and the process used to obtained comments on the amendment. He believed that
those judges who believe that attorney conducted voir dire takes too much time should
examine their procedures. And, he added, speed is not everything in conducting a criminal
Judge Jensen responded by noting that the Committee's agenda is public and that
anyone interested in commenting on a proposal may do so. He also noted that a short article
was being prepared for the publication, Third Branch, which would address the issue of
attorney conducted voir dire. Judge Davis questioned whether the proposed amendment had
any real chance of succeeding and Mr. Josefsberg stated that he had no strong desire to push
forward with an issue that seemed doomed. But, he added, he was also hesitant to
completely abandon the proposal. Judge Jensen noted that he too believed that some attempt
should be made to monitor attorney participation in voir dire in death penalty cases.
Judge Wilson stated that he believed the proposed amendment should be carried
forward to the Standing Committee for its consideration. Judge Marovich added that he was
willing to accept the rejection of the proposal on the merits. In response, Judge Jensen
observed that the rules enabling act process had worked. In this instance the bench and bar
had been sensitized to the debate regarding attorney conducted voir dire. Professor Stith
opposed the proposal on the merits and asked whether the Department of Justice had stated
a position on the proposal. In response, Ms. Harkenrider indicated that initially, the
Department had voted against the proposal because it believed that the judge should maintain
control of the courtroom. The Department, however, had voted in favor of seeking public
comment and that it was not opposed to a pilot program. Its current position was to oppose
the proposed amendment. In particular, she noted that the Department had concerns about
pro se defendants questioning the jurors.
Judge Smith expressed reluctance to forward the amendment to the Standing
Committee. While he had been initially opposed to the idea of more attorney participation
in voir dire, he now believed that the amendment would marginally improve the process and
give the appearance of fairness. He did not believe that judges would lose control of the
courtroom by permitting attorney conducted voir dire. He agreed with other members who
had expressed the view that the process of obtaining comments had been constructive.
Justice Wathen indicated that Maine follows the present federal practice and that
intellectually he could not support a proposed amendment which would increase attorney
participation. In his view the proposal would result in a significant interference with the
jurors. Judge Crow indicated that he too would oppose forwarding the amendment. He had
polled the judges in the Tenth Circuit and only one judge favored the proposed change. He
added, that in his view, the current voir dire procedures were not "broken."
Judge Dowd noted that he had supported the version of the amendment forwarded
to the Standing Committee because that version had included a timely request provision.
Now that that provision had been deleted--as a result of conforming both the civil and
criminal rule versions--he could no longer support the amendment.
Mr. Martin moved that the proposed amendment to Rule 24(a) be approved by the
Committee and forwarded to the Standing Committee. Judge Marovich seconded the
motion, which failed by a vote of 3 to 8.
Judge Stotler informed the Committee that an upcoming issue of the Third Branch
would contain a short article on the proposed amendments to both the civil and criminal
rules. She noted that the publication of the proposals had raised the level of consciousness
of the bench and bar and that the issue of attorney-conducted voir dire should be subject to
continued study and education.
V. CRIMINAL RULES CURRENTLY UNDER CONSIDERATION
BY ADVISORY COMMITTEE
A. Proposed Amendments to Rules; Report of Subcommittee on Local Rules Project.
Judge Davis provided an oral and written report of his subcommittee on the local
rules project. That subcommittee, consisting of Judge Davis (chair), Judge Crow, Judge
Crigler, and Mr. Pauley, had addressed the question of whether certain local rules, identified
by the Local Rules Project, might be worthy of including in the national rules. The
subcommittee examined local rules which addressed the following four rules:
Rule 4: In some districts, a local rule requires the arresting officer to notify other
members of the court family of the arrest. The subcommittee recommended against adoption
of that practice in the national rule.
Rule 16: The subcommittee noted that in some districts, the parties are required to
confer on discovery matters before filing a motion. The subcommittee also recommended
against adoption of that practice in the national rule.
Rule 30: In fifteen districts, the parties are required to submit proposed jury
instructions sometime before trial. The subcommittee also recommended that that practice
not be included in the national rule.
Rule 47. The subcommittee noted that it had been recommended that Rule 47 be
amended to require the parties to confer or attempt to confer before any motion is filed. That
recommendation was also rejected by the subcommittee.
The subcommittee noted in its report that the proposed amendments to the foregoing
four rules address "details of practice and procedure about which courts have differing
customs and traditions and that are properly the subject of local rules." The report also noted
that the members of the subcommittee did not believe that any significant problems existed
in any of the foregoing areas.
The proposed amendment to Rule 12, generated some discussion: Two districts
require the defense to give notice of an intent to raise the entrapment defense. Although a
majority of the subcommittee had opposed adoption of that practice in the national rule, they
believed that the matter should be raised for evaluation by the Committee.
Mr. Pauley indicated that the Department of Justice did not necessarily believe that
the proposed notice requirement had merit but thought that the issue should be raised. He
recounted a case where there were multiple defendants and after the jury was selected one
defendant wanted to raise the defense, which resulted in a severance.
Judge Crow noted that adoption of such an amendment might lead to additional
notifications of defenses that may not actually be raised at trial. Judge Crigler added that he
did not perceive that any problem existed in this area.
Judge Dowd commented that it would difficult to distinguish between required notice
of an entrapment defense and other defenses. He moved that the subcommittee's report be
accepted. Judge Smith seconded the motion, which carried by a unanimous vote.
Professor Coquillette thanked the Committee and the subcommittee for assisting in
carrying out the congressional mandate that the local rules be studied. In his view, the local
rules governing criminal cases had not presented any serious conflicts with the national rules.
B. Rules 5.1 and 26.2, Production of Witness Statements at Preliminary Examinations
The Reporter indicated that in response to the Committee's action at its Fall 1995
meeting, he had drafted proposed amendments to Rules 5.1 and 26.2, which would require
the production of a witness' statement at a preliminary examination. Following brief
discussion and several changes to the language of the amendments, Judge Crigler moved that
the proposed amendments to those two rules be forwarded to the Standing Committee for
publication and comment. Judge Davis seconded the motion, which carried by a unanimous
C. Rule 6(e)(3)(C)(iv). Disclosure of Grand Jury Information to State Officials
Judge Jensen provided a brief background on the implementation of Rule
6(e)(3)(C)(4), which permits disclosure of grand jury information to state officials. Although
the rule does not explicitly require such, any requests to disclose the information must first
be approved by the Assistant Attorney General, Criminal Division. That practice resulted
from an assurance in 1984 by the Department of Justice to the Committee when amendments
to Rule 6 were being considered. He noted that the Department had informed the Committee
that it favored placing the decision to disclose in the hands of the local United States
Mr. Pauley stated that the Department has dutifully followed the stated practice and
that it believed it appropriate to inform the Committee of an intent to consider changing the
practice. Professor Stith asked for information on how many requests are actually processed
through this method. Mr. Pauley responded that approximately 20 or thirty requests were
forwarded to the Department and could not think of a single case where it really made a
difference that the request was handled at the Department level.
Judge Crigler raised the issue of judicial review of such requests, as currently
required by the rule; several members noted that the requirement of review at the national
level may be restrictive and that they generally count on the presentations of the attorney for
Ms. Harkenrider indicated that the issue had arisen in the process of reviewing the
United States Attorney's Manual and that currently, the Department was interested in de-centralizing various decisions, which can be made just as effectively at the local level.
Mr. Josefsberg observed that in most cases there should be no problem with the local
United States attorney seeking permission to disclose the information. But, he added, there
may be politically sensitive cases where it would better to place the authority at the national
level. After brief discussion about the options available to the Committee in addressing the
issue, the consensus developed that the Department should be informed of the Committee's
view that the current practice should be reaffirmed. No further action was taken on the
matter, with the understanding that the Department would convey its response to the
Committee at a future meeting.
D. Rule 11(e). Provision Barring Court from Participation in Plea Agreement Discussions
Judge Marovich presented a written and oral report on his subcommittee's
consideration of the issue of whether a judge might be permitted to participate in any fashion
in plea bargaining. The issue had been discussed at the Committee's Fall 1995 meeting in
response to the practice used in the Southern District of California to expedite plea
agreements. Under that procedure, a judge, other than a sentencing judge, works with the
parties to reach a plea agreement and recommends a particular sentence, a procedure which
might be in violation of Rule 11(e) which indicates that the "court" may not participate in
plea discussions. The subcommittee, consisting of Judge Marovich (chair), Mr. Martin, and
Mr. Pauley recommended that no action be taken to amend the rules. It had learned that it
solicited the views of both government and defense attorneys and that the prevailing view
was that no change should be made to Rule 11. The subcommittee also learned that the
Southern District of California had discontinued the practice which originally gave rise to
the Committee's consideration of the issue.
In the ensuing discussion, the Committee focused on the question of whether some
change should be made to the rules to provide for some mechanism for determining the
appropriate Sentencing Guidelines before trial. Several members expressed support for such
a study; Judge Dowd noted that in Alabama, for example, a guilty plea and plea bargain are
presented in conjunction with a presentencing report. Judge Stotler raised the question of
whether the rules could be amended to provide for what might informally be called a
"criminal motion for summary judgment" which would permit the court to resolve
controlling issues of law at the pretrial stage.
Judge Jensen asked the subcommittee to continue its study of the issue and added
Professor Stith as a member.
Judge Dowd moved that the subcommittee's report be accepted and Judge Davis
seconded the motion, which carried by a unanimous vote.
The Committee also addressed the operation of Rule 11 on the two types of plea
agreements reflected in Rule 11(e)(A)(B) and (C). Following brief discussion on the
problem of predicting what effect the Sentencing Guidelines might have on a particular
agreement, the Reporter was instructed to study Rule 11 and how it actually operates in
conjunction with those Guidelines.
E. Rule 16(a)(1)(E), (b)(1)(C). Disclosure of Expert Witnesses
Judge Jensen indicated that when the Judicial Conference had considered the
Committee's proposed amendments to Rule 16 at its Fall meeting, it had apparently rejected
all of the proposed amendments, including the rather noncontroversial amendment requiring
disclosure of expert witness' expected testimony. At its January 1996, meeting the Standing
Committee had asked the Advisory Committee to consider whether it wished to resubmit
those particular amendments to Rule 16. Judge Jensen asked whether the Department of
Justice, which originally proposed the amendment, cared to seek further action.
Mr. Pauley noted that the proposed amendments were minor and had passed through
the proposal and comment period without opposition; but he expressed reluctance to trigger
further discussion of the rejected amendments which would have required the government
to disclose the names and statements of its witnesses before trial.
Judge Jensen noted that the proposed amendment might raise a conflict with the
Jencks Act which seemed to concern some members of the Standing Committee. Professor
Stith noted that the Jencks problem already exists in other provisions of Rule 16.
Following consultation between the representatives of the Department of Justice, Mr.
Pauley moved that the Committee approve and resubmit the amendments to Rule 16(a)(1)(E)
and (b)(1)(C) to the Standing Committee for transmittal to the Judicial Conference, without
additional public comment. Judge Dowd seconded the motion, which carried by a vote of
10 to 1.
F. Rule 31(d). Polling of Jurors
The Reporter indicated that as a result of the Committee's action at its Fall 1995
meeting, he had drafted a proposed amendment to Rule 31(d) which would require individual
polling of jurors when a polling was requested by a party, or directed by the court on its own
Judge Dowd indicated that although he had no problem with the rule as drafted, he
questioned whether the specifics of carrying out the individual polling might be addressed.
Mr. Josefsberg observed that the proposed change would be good for both the defense and
the prosecution. Following some minor drafting changes, Judge Marovich moved that the
amendment be approved and forwarded to the Standing Committee for publication and
comment. Judge Smith seconded the motion, which carried by a unanimous vote.
G. Rule 31(e). Forfeiture Proceedings
Mr. Pauley explained a proposal submitted by the Department of Justice which would
address the procedures for criminal forfeiture. In the Department's view, there are a number
of inadequacies in Rule 31 for determining whether, and to what extent, the defendant had
an interest in the property; the Circuits seem split on what the role of the jury should be in
making those decisions. The proposed amendment would attempt to resolve the question of
the jury's role and defer determination of the extent of the defendant's interest to an ancillary
proceeding. Finally, he noted that in Libretti v. United States, ---- U.S. ---- (Nov. 7, 1995),
the Court held that criminal forfeiture constitutes a part of sentencing in a criminal trial.
Following some additional discussion on whether the jury should have any role in
making forfeiture decisions, Judge Jensen, with the concurrence of Mr. Pauley, indicated that
the proposal to amend Rule 31(e) would be deferred to the Committee's Fall 1996 meeting
to consider whether the amendment should be made to Rule 31 or Rule 32 or some other
H. Rule 33. Motion for New Trial
The Reporter submitted a draft amendment to Rule 33 in accordance with the
Committee's action at its Fall 1995 meeting. The proposed amendment would change the
triggering event for a motion for new trial on grounds of newly discovered evidence from
"final judgment" to an event at the trial level, i.e., the verdict or finding of guilty.
Mr. Pauley indicated that although the amendment would have the practical effect
of shortening the period of time for filing a motion for new trial, it would promote
consistency. He added that the Department might be willing to consider extending the period
of time from two years, as it now reads, to three years, to come closer the approximate time
now spent on a typical appeal.
Justice Wathen noted that it seemed odd to require the defendant to file a motion for
new trial before the "final judgment," before he or she would know what the final disposition
was. Professor Stith questioned why the time could not run from sentencing, to which Mr.
Pauley responded that depending on the circumstances, the time expended for sentencing
could run considerably longer in some cases. Following brief discussion on whether the time
should be extended to three years, Judge Dowd moved that the proposal be changed to reflect
three years. That motion was seconded by Mr. Martin. The motion failed by a vote of 5 to
6. Judge Davis moved that the proposed amendment, as drafted, be forwarded to the
Standing Committee for publication and comment. Following a second by Judge Crigler,
the motion carried by a vote of 9 to 2.
I. Rule 35(b). Reduction of Sentence for Substantial Assistance
The Reporter submitted two drafts of an amendment to Rule 35(b) to reflect the
Committee's discussion of the issue at its Fall 1995 meeting. Both versions addressed the
issue of whether the term "substantial assistance" should include a situation where the
aggregate of both pre-trial and post-trial assistance was substantial. The first version included
language adopted at that meeting plus bracketed language which would address the issue of
possible double dipping by a defendant: "In evaluating whether substantial assistance has
been rendered, the court may consider the defendant's presentence assistance, [unless the
sentencing court considered such presentence assistance in imposing the original sentence.]."
The second version of the amendment, provided by Mr. Pauley, provided a more detailed
version of essentially the same approach.
Several members of the Committee expressed concern about whether the amendment
needed to address specifically the potential problem of double dipping, noting that if the
government believes that the defendant has already benefitted from non-substantial
assistance during sentencing, it need not file a Rule 35(b) motion.
Judge Dowd moved that the proposed amendment in version one (without the
bracketed information) be approved and forwarded to the Standing Committee for
publication and comment. Following a second by Mr. Martin, the motion carried by a vote
of 9 to 1.
J. Rule 43(c)(4). Presence of the Defendant.
The Reporter informed the Committee that the Justice Department had requested the
Committee to consider amendments to Rule 43(c)(4) to clarify whether a defendant must be
present at a proceeding to reduce a sentence under Rule 35 or to change a sentence under 18
U.S.C. § 3582(c). He indicated that in the process of amending Rule 43(b), some changes
had been made as well to Rule 43(c) cross-referencing Rule 35 which apparently
inadvertently changed the existing practice. Mr. Pauley provided additional background
information, as reflected in the Department's memo to the Committee, to explain that the
various positions taken by the courts on the issue of whether the defendant must be present
at a proceeding to correct, reduce, or otherwise change the sentence.
Following brief discussion by several members of the Committee about the practical
problems of having the defendant appear for a proceeding, and then returned to prison for
release, Judge Crigler moved that Rule 43 be amended and forwarded to the Standing
Committee for publication and comment. Following a second by Judge Davis, the motion
carried by a unanimous vote.
VI.RULES OF APPELLATE PROCEDURE HAVING
IMPACT ON CRIMINAL PRACTICE
A. Federal Rule of Appellate Procedure 4. Time for Filing Appeal in Criminal Case
The Reporter informed the Committee that Judge Stotler had inquired whether the
Committee desired to support any changes to Federal Rule of Appellate Procedure 4 as a
result of United States v. Marbley, ---- F.3d ---- (7th Cir. 1996). In a letter to the Committee,
Judge Posner noted that in Marbley the defense failed to show excusable neglect for failure
to file a timely appeal and that as a result, the defendant would probably argue ineffective
assistance of counsel in seeking relief under 28 U.S.C. § 2255. That, he suggests, will only
result in more delay when the appellate court might have otherwise waived the untimely
Following brief discussion, the Committee decided to defer to the Appellate Rules
Committee on the issue.
B. Federal Rule of Appellate Procedure 9. Release of Defendant in Criminal Case
The Reporter also informed the Committee that Judge Stotler had raised the question
of whether the Rules of Criminal Procedure should be amended to reflect the requirements
in Appellate Rule 9(a), which requires the court to state reasons for releasing or detaining a
criminal defendant. After a brief discussion of the issue, no action was taken. The
Committee was generally of the view that Rule 46 currently cross-references 18 U.S.C. §§
3142, 3143, and 3144, which govern detention and already include very specific
requirements for the judicial officer to state reasons and/or findings for detention and
conditions for release.
VII. ORAL REPORTS; MISCELLANEOUS
A. Report on Legislation Affecting Rules of Criminal Procedure
Mr. Rabiej informed the Committee that Senator Thurmond had introduced a bill to
amend Criminal Rule 31 which would provide for a 5/6 vote on a verdict. Following brief
discussion, Judge Jensen indicated that it appeared that the Committee was of the view that
Congress should be informed that the proposal should be processed through the Rules
Enabling Act procedures which would provide for public comment and input from the
appropriate committees in the Judicial Conference.
B. Report on Restyling the Rules of Criminal Procedure
Judge Jensen reported that the effort to restyle the Rules of Criminal Procedure was
on hold pending consideration of the restyled Appellate Rules which had been published for
comment. The deadline for comments on those rules is December 31, 1996.
C. Report on Activities of Evidence Advisory Committee
Judge Dowd, who serves as the Committee's liaison to the Evidence Rules
Committee, reported on proposed amendments to the Rules of Evidence which might have
an impact on criminal trials. No action was taken on the proposed changes.
D. Impact of Anti-Terrorism Legislation on Criminal Rules
Judge Jensen indicated that the Committee should be prepared at the Fall 1996
meeting to discuss possible rules amendments resulting from recent legislation, especially
in the area of habeas corpus review.
VIII. DESIGNATION OF TIME AND
PLACE OF NEXT MEETING
The Committee was reminded that its next meeting would be held at Portland Oregon
on October 7-8, 1996.
David A. Schlueter
Professor of Law