THE ADVISORY COMMITTEE
FEDERAL RULES OF CRIMINAL PROCEDURE
April 7, 1997
The Advisory Committee on the Federal Rules of Criminal Procedure met at the
Thurgood Marshall Federal Judiciary Building in Washington, D.C. on April 7, 1997. 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 8:30 a.m. on
Monday, April 7, 1997. 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. 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. Alicemarie Stotler, Chair of the Standing
Committee on Rules of Practice and Procedure; Hon William R. Wilson, Jr., a member of
the Standing Committee and a liaison to the Criminal Rules 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, Mr. Joseph Spaniol, Consultant to the Standing Committee, and Ms. Mary
Harkenrider from the Department of Justice.
The attendees were welcomed by the chair, Judge Jensen, who indicated that the press
of court business had prevented Chief Justice Daniel Wathen from attending the Committee's
II. APPROVAL OF MINUTES OF APRIL 1996 MEETING
Judge Marovich moved that the Minutes of the Committee's October 1996 meeting
be approved. Following a second by Judge Smith, the motion carried by a unanimous vote.
III. RULES APPROVED BY THE STANDING COMMITTEE AND
FORWARDED TO THE JUDICIAL CONFERENCE
The Reporter informed the Committee that at its January 1997 meeting, the
Standing Committee had approved minor, technical amendments to Rule 58 which
conformed the rule to the Federal Courts Improvement Act. That legislation had amended
18 U.S.C. § 3401(b) and (g) and 28 U.S.C. § 636(a). Those amendments removed the
requirement that the defendant consent to trial before a magistrate judge in those cases
where the defendant is charged with a petty offense, a class C misdemeanor, or an
infraction. The amendments now also permit a defendant to consent to trial before a
magistrate judge in all other cases either orally on the record or in writing. Given the fact
that the amendments simply conformed Rule 58 to the new legislation, the Standing
Committee approved the changes without requiring a public comment period. Mr. Rabiej
indicated that the Judicial Conference had approved the changes to Rule 58 at its Spring
meeting, and that they were currently pending before the Supreme Court.
IV. RULES PUBLISHED FOR PUBLIC COMMENT AND PENDING FURTHER
REVIEW BY THE ADVISORY COMMITTEE
The Reporter informed the Committee that to date, 20 written comments had been
received on the Committee's proposed changes to the following rules: 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). In addition, he indicated that the Style Subcommittee
of the Standing Committee had reviewed the proposed changes and had submitted its
suggested style changes to the Committee for its consideration.
A. Rule 5.1. Preliminary Examination
The Reporter informed the Committee that 12 written comments had been
received on the proposed amendment to Rule 5.1, which would extend the Rule 26
requirement to produce statements at preliminary examinations. Only one of the
commentators opposed the adoption of the amendment. He also indicated that the Style
Subcommittee of the Standing Committee had proposed several changes to the rule but
that as it was published for comment, the Rule mirrored almost identical language in
Rules 32.1, 32, and 46. He noted that using different language in Rule 5.1 might cause
confusion in applying the other rules. Following discussion concerning the pending
restyling of all of the Criminal Rules, Judge Carnes moved that the proposed amendment
be forwarded to the Standing Committee as published for comment. Professor Stith
seconded the motion, which carried by a unanimous vote.
B. Rule 26.2. Production of Witness Statements
The Reporter informed the Committee that as of the date of the meeting, 12
written comments had been received on the proposed amendment to Rule 26.2(g) which
would extend the production-of-statements requirement to preliminary examinations
conducted under Rule 5.1, supra. The Style Subcommittee's suggested changes were
discussed by the Committee, which was inclined to save the proposed changes until all of
the Criminal Rules were restyled. Professor Stith moved that the proposed amendment
be forwarded to the Standing Committee as published. Judge Carnes seconded the motion
which carried by a unanimous vote.
C. Rule 31(d). Polling of Jury
Following a brief report from the Reporter on the written comments submitted on
the proposed amendment, which would require that whenever a polling of the jurors was
conducted, that each juror be polled individually. Following brief discussion of the
proposed style changes, Professor Stith proposed that the proposed amendment be
forwarded with those changes; Judge Davis seconded the motion. During the ensuing
discussion on the motion, Judge Carnes noted that the suggestion from one of the
commentators concerning the timing of the polling had merit and that perhaps the rule
should be amended to reflect that polling must take place before the verdict is recorded.
That in turn led to additional discussion about whether under the proposed amendment
the judge had any discretion whether to conduct an individual polling. A consensus
emerged that the intent of the proposed amendment was to require individual polling
when a polling is requested or ordered by the court. Thereafter, Judge Smith moved to
amend the motion to read that the rule be amended to reflect that the jury must be polled
before it is discharged. That motion was seconded by Mr. Josefsberg and carried by a
unanimous vote. The main motion to forward the proposed amendment to the Standing
Committee, as amended and restyled, also carried by a unanimous vote.
D. Rule 33. New Trial
The Committee was informed that of the twelve comments received, ten were
opposed to the proposed change to Rule 33. The Reporter summarized the comments
received and indicated that those in opposition to the proposed amendment argued that
there is no real need for the amendment and that the amendment would in effect reduce
the amount of time for filing a motion for new trial. Following brief discussion
concerning the suggested style changes, Judge Dowd moved that the proposed
amendment to Rule 33 be changed to reflect that motions for a new trial on grounds of
newly discovered evidence must be filed within three years, rather than two years, as the
rule currently provides. Mr. Martin seconded the motion which carried by a unanimous
vote. Thereafter, Judge Dowd moved that the proposed rule, with the style changes, be
forwarded to the Standing Committee. Mr. Martin seconded the motion which also
carried by a unanimous vote.
E. Rule 35(b). Reduction of Sentence
The Reporter indicated that the Committee had received eight written comments
on the proposed amendment to Rule 35(b) which would permit the judge to consider both
pre-sentence and post sentence assistance in determining whether a defendant had
provided substantial assistance to the government. All eight comments favored the
proposed amendment. Following brief discussion about the proposed restyling changes to
the rule, Judge Davis moved that the amendment, as restyled, be forwarded to the
Standing Committee. Judge Dowd seconded the motion, which carried by a unanimous
F. Rule 43(c). Presence of Defendant Not Required
The Reporter informed the Committee that of the nine written comments received
on the proposed amendment to Rule 43, seven commentators were opposed to the
amendment, which would clarify the issue of when the defendant's presence is required at
various post-sentencing proceedings. Following brief comments by Mr. Pauley who
explained the rationale of the rule, Mr. Martin expressed deep concerns about the
amendment. He noted that Rule 35(b) is the only real hope of sentence reduction and that
the defendant should be present at that proceeding, especially where a different judge is
involved. He recognized the problem and costs of transporting prisoners to court and
noted that even where the judge has discretion as to do so, he or she may not require the
defendant's presence. Following brief discussions on the proposed style changes, during
which the Reporter indicated that the rule as it now appears had been restyled during a
Standing Committee just several years earlier, Judge Crigler moved that the proposed
amendment be forwarded as published. Judge Dowd seconded the motion, which carried
by a vote of 7 to 3.
V. CRIMINAL RULES CURRENTLY UNDER CONSIDERATION
BY ADVISORY COMMITTEE
A. Rule 5(c). Proposed Change Re Authority of Magistrate Judge to
Grant a Continuance
The Reporter indicated that the Committee had received a letter from Magistrate
Judge Ervin Swearingen who recommended, on behalf of the Federal Magistrate Judges
Association (FMJA), that Rule 5(c) be amended to permit a magistrate judge to grant a
continuance for a preliminary examination even in those cases where the defendant does
not consent. The current rule, which conforms to 18 U.S.C. § 3060(c), indicates that only
a district judge may grant such continuances when the defendant does not consent.
The Committee's discussion of the proposed change recognized that the unless
there was a change to the underlying statute the rule could not be changed. Judge Jensen
suggested, however, that the Committee could discuss the merits of the proposal and that
if it believed that the amendment had merit to forward it to the Standing Committee. Mr.
Josefsberg moved and Judge Crigler seconded, a motion to forward the proposed
amendment the Standing Committee with the recommendation to seek a legislative
change to § 3060(c). The motion carried by a unanimous vote.
B. Rule 6. The Grand Jury
The Reporter indicated that the Department of Justice had proposed two
amendments to Rule 6. The first related to Rule 6(d) concerning the ability of interpreters
to be present during deliberations to assist a deaf juror. And the second related to who
may return the indictment.
1. Rule 6(d). Who May be Present
The Reporter informed the Committee that Mr. John C. Keeney, Acting Assistant
Attorney General had written to Judge Jensen suggesting a change to Rule 6(c) which
would permit interpreters to accompany a deaf grand jury member into the deliberations.
Judge Dowd raised the question whether the proposed amendment was necessary; he
questioned whether there is now a problem with deaf persons serving on grand juries. Mr.
Pauley responded that there is some concern in the Department that clerks may be
eliminating deaf persons from those eligible to serve on grand juries. Judge Crigler
observed that the same rationale might extend to any other jury members needing
assistance during deliberations; Professor Stith noted the amendment might be a first step
onto the slippery slope. Judge Jensen observed that the amendment would potentially
open the door to grand jury deliberations. Judge Carnes indicated support for the
amendment, noting that deaf persons are generally excluded from the judicial process.
He then moved that the words "when necessary" be changed to read "when needed," and
that the amendment be forwarded to the Standing Committee for publication and public
comment. Mr. Martin seconded the motion, which carried by a unanimous vote. It was
suggested that the Advisory Committee Note should reflect the importance of insuring
that any interpreters accompanying a deaf person into the deliberation room be reminded
of the paramount need for maintaining the secrecy of the jury's discussions.
2. Rule 6(f). Finding and Return of Indictment
The Reporter indicated that Mr. Keeny's letter to Judge Jensen also included a
recommendation that Rule 6(f) be amended to avoid the problem of bringing the entire
grand jury to court to return an indictment. Following a brief discussion about proposed
style changes to the amendment, which in the view of some members of the committee
would have made substantive changes, Judge Dowd moved that proposed amendment be
forwarded to the Standing Committee. Professor Stith seconded the motion which carried
by a unanimous vote.
C. Rule 11. Pleas.
The Reporter indicated that several interrelated matters affecting guilty pleas and the
sentencing guidelines were on the agenda for the meeting as continuation of discussions at
the Committee's October 1996 meeting in Oregon.
1. Rule 11(c)(6); Advice to Defendant Regarding Waiver of Right to Appeal
The Reporter stated that at its October 1996 meeting the Committee had approved
an amendment to Rule 11(c) 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. Judge Dowd moved that the proposed amendment be forwarded to the
Standing Committee for publication and comment; Judge Davis seconded the motion which
carried by a vote of 11 to 1.
3. Rule 11(e)(1)(B), (C). Rejection of Plea Agreement.
The Committee engaged in a lengthy discussion concerning several issues arising
from the interplay of the sentencing guidelines, plea bargaining and the court's role in
accepting or rejecting any resulting plea and plea agreement. Speaking for the
Subcommittee which had been charged with addressing those issues, Judge Marovich
provided a general background discussion of the issues and indicated that the
subcommittee had addressed three primary areas. First, with regard to the ability of the
court to accept a plea agreement which is outside the sentencing guidelines; although at
least one court has held that the parties are free to reach a sentence agreement which is
outside the guidelines, Judge Marovich indicated that for now the subcommittee believed
it better not to amend the rule to address that issue. Second, he addressed the issues raised
by the decisions in United States v. Harris, 70 F.3d 1001 (8th Cir. 1995) and United
States v. Hyde, 82 F.3d 319 (;9th Cir. 1996). The Committee, he noted had already
addressed the Harris decision by considering changes to Rule 11(e)(1)(B) and (C) to
make it clear that an plea agreement under Rule 11(e)(1)(B) is not binding while a
(e)(1)(C) agreement is binding. With regard to the Hyde, he indicated that regardless of
what the Supreme Court decides in Hyde, the Court will probably not address the issue of
what a defendant is to do if he or she discovers that they have not received the sentence
they thought they had agreed to. Finally, Judge Marovich indicated that the
Subcommittee had considered the question of providing notice to the defendant and that
Professor Stith had provided some suggestions.
Professor Stith noted that she generally agreed with Judge Marovich's assessment
of the current problems involving the sentencing guidelines and plea bargaining. She
noted that a real problem exists with regard to providing sufficient notice to the defendant
of what sentencing factors might be considered by the court. She noted that after talking
with a number of prosecutors that there were two possible avenues. First, a rule could be
devised which would permit a defendant to withdraw a plea of guilty if non-noticed
sentencing factors were considered by the court in sentencing. Or, she said, a rule could
be drafted to indicate that a judge could not make any use of non-noticed sentencing
Mr. Martin noted that he generally agreed with Judge Marovich's description of
the problems but added that it would be beneficial if the Committee could devise
solutions to the problems of providing fair notice regarding the role of various sentencing
Mr. Pauley indicated that the Department of Justice was also concerned about
fairness and that under § 3553(b) the courts are required to impose sentences which
comply with the Sentencing Guidelines. Regarding the issue of notice to the defendant of
what sentencing factors might come into play, he noted that under the old laws, the
defendant generally had no idea what sentence might be imposed. Under the Sentencing
Guidelines, the defendant now at least has some idea of what will happen at sentencing.
In his view, it is not the responsibility of the prosecutor to inform the defendant of what
sentencing factors might be binding on the court.
Judge Jensen provided a brief overview of the possible amendments to Rule 11
and stated that the Sentencing Commission had sent a letter which suggested some minor
changes in the Committee's proposed language in Rule 11(e)(1)(B) and (C). The
Committee agreed with the suggested changes; Judge Dowd moved that the proposed
changes to Rule 11(e) be approved and forwarded to the Standing Committee. Judge
Marovich seconded the motion which carried by a unanimous vote.
During a brief discussion of the Hyde case pending before the Supreme Court--in
which the Ninth Circuit had held that a plea of guilty was not finally accepted until the
plea agreement was also accepted--a consensus emerged that any possible amendments to
Rule 11 to address that problem should wait until the Supreme Court had decided the
The Reporter indicated that Mr. Pauley had suggested a change in Rule 11(a)(1)
which would change the term "defendant corporation" to "defendant organization as
defined in 18 U.S.C. § 18." Judge Carnes moved proposed amendment to Rule 11(a) be
approved and forwarded to the Standing Committee. Judge Dowd seconded the motion,
which carried by a unanimous vote.
Judge Jensen thanked the Subcommittee's for its work, which he believed had
been very helpful to the Committee, and asked them to continue their study of Rule 11
D. Rule 24(c). Retention of Alternate Jurors During Deliberations
The Reporter indicated that as a result of the Committee's action at its October
1996 meeting, he had drafted proposed changes to Rule 24(c) which would permit the
court to retain alternate jurors--who do not replace jurors--during the deliberations. The
suggested changes, he noted, had resulted from United States v. Houlihan, 92 F.3d 1271
(1st Cir. 1996) where the First Circuit concluded that the trial judge committed harmless
error in not discharging the alternate jurors. Mr. Pauley suggested that the Committee
Note recognize more clearly the potential tension that may exist between Rule 23(b),
which permits a verdict of less than 12 jurors, and the proposed change, which would
permit the judge to substitute a juror who could not continue to serve during the
deliberations. He suggested that in that case the preferred method would be to continue
with only 11 jurors. It was also suggested that the Committee Note reflect that it is
assumed that courts will instruct the alternates not to discuss the case amongst themselves
and that it might be helpful to explain in the Note what the term "retain" means in the
Rule. Finally, the Committee discussed the proposed style changes from the Style
Subcommittee of the Standing Committee.
Judge Carnes moved that the proposed amendment to Rule 24(c), as restyled, be
approved and forwarded to the Standing Committee. Judge Smith seconded the motion
which carried by a unanimous vote.
D. Rule 26. Taking of Testimony
The Reporter informed the Committee that he had drafted a proposed amendment to
Rule 26 to reflect the Committee's action at the October 1996 meeting, which would
conform that rule to Civil Rule 43. The latter rule permits the taking of testimony through
means other than simply oral testimony in court, e.g., through the use of sign language and
transmission of testimony from outside the courtroom. Judge Dowd moved that the proposed
amendment to Rule 26 be forwarded to the Standing Committee, Mr. Josefsberg seconded
the motion, which carried by a unanimous vote. Several Committee members, however,
noted that as drafted, the proposed amendment to Rule 23 only covered the issue of "oral"
testimony in the courtroom and the important issue of transmission of testimony into the
courtroom. The proposed amendment was thereafter withdrawn from the list of those being
forwarded to the Standing Committee with the understanding that the issue would be on the
Committee's agenda for the Fall 1997 meeting. Judge Jensen indicated that he would
appoint a subcommittee to study the question in preparation for that meeting.
E. Rule 30. Instructions
The Reporter informed the Committee that Judge Stotler had suggested a possible
change to Rule 30 concerning the timing of submitting requested instructions. She had
noted that a number of courts are inclined to require, or permit, counsel to file their
requests pretrial and although the Committee had earlier rejected a proposed change
which would have provided a uniform rule requiring early filing, she recommended that
the rule be changed to permit courts to require early filing of requests. The Committee
briefly discussed the Reporter's draft changes and the Style Subcommittee's suggested
changes. Ultimately, Judge Dowd moved that the amendment be forwarded, as restyled,
to the Standing Committee for publication and comment. Judge Smith seconded the
motion which carried by a unanimous vote.
F. Rule 32.2. Forfeiture Procedures
The Reporter provided a brief review of the Committee's previous consideration of
the Department of Justice's proposed new rule on forfeiture procedures--Rule 32.2--which
would replace several existing rule provisions and provide a more detailed guide on
forfeitures. He noted that as a result of the Committee's discussion at its October 1996
meeting the Department had redrafted the rule and that the Style Subcommittee had
recommended a number of changes to the draft.
Mr. Pauley briefly explained the redrafted rule and noted that the Department was
satisfied that the new rule would not violate the Seventh Amendment rights of any third
persons whose property might be forfeited. He also noted that under the proposed rule the
jury would not have a role in decisions regarding forfeiture, just as the jury is currently not
involved in other sentencing issues. Drawing the Committee's attention to subdivision (b)
of the new rule, he noted that the Department had presented alternative provisions dealing
with the situation if no third party filed a petition claiming an interest in the property to be
forfeited. The first alternative, he explained, would provide that if no third party petition was
filed that it would be presumed to be the property of the defendant(s) and would be forfeited
in its entirety. The second alternative would provide that if no third party files a petition, the
property may be forfeited in it entirety only if the court finds that the defendant had
possessory or legal interest in the property. Following brief discussion, Judge Carnes moved
that the Committee adopt the second alternative. Judge Crigler seconded the motion, which
carried by a majority vote.
Mr. Pauley and Mr. Stefan Cassella, also of the Department of Justice, addressed
the proposed style changes section by section, noting that some of the proposed changes
would make substantive changes in the rule. During that discussion, a number of minor
changes were made to the draft rule.
A number of the Committee's members observed that the proposed new rule
would dramatically change the procedures for dealing with forfeitures in criminal trials
but believed that the rule should be forwarded for publication. Ultimately, Judge
Marovich moved that the rule as modified and restyled be forwarded to the Standing
Committee. Judge Davis seconded the motion which carried by a unanimous vote.
G. Rule 54(a). Application of Criminal Rules
The Reporter informed the Committee that Mr. Pauley had recommended that
Rule 54(a) be amended to delete the reference in the rule to the District Court in the
Canal Zone, which no longer exists. Following brief discussion about whether the
references to the Courts of Appeals and the Supreme Court should be deleted (which was
ultimately rejected), Judge Davis moved that the amendment be forwarded to the
Standing Committee. Judge Crigler seconded the motion which carried by a unanimous
VI. ORAL REPORTS; MISCELLANEOUS
A. Status Report on Crime Control Act
Mr. Rabiej informed the Committee that a proposal in the Crime Control Act
would provide for six-person juries in criminal trials. A number of members were of the
view that any changes to the size of juries should be first addressed under the provisions
of the Rules Enabling Act and that the matter should be added to the Committee's Fall
1997 meeting. There was also discussion concerning changing the number of peremptory
challenges available to the prosecution and the defense. Ultimately, Judge Dowd moved
that those two issues be added to the Fall 1996 agenda. Mr. Josefsberg seconded the
motion which carried by a unanimous vote.
There was also some brief discussion about legislative proposals which would
reduce the size of grand juries. That item will also be added to the October 1997 agenda.
B. Status Report of Proposed Changes to the Rules of Evidence
Judge Dowd, as the Committee's liaison to the Evidence Committee, reported that
the Committee was considering a number of possible changes to the Rules of Evidence
and that he would keep the Committee apprised of further developments.
VIII. DESIGNATION OF TIME AND PLACE OF NEXT MEETING
The Committee decided to hold its next meeting in Monterey, California on
October 13 and 14, 1997.
David A. Schlueter
Professor of Law