Federal Rules of Criminal Procedure (Rule 1 to 22)

TITLE I. APPLICABILITY

Rule 1. Scope; Definitions 
(a) Scope. 
(1) In General. These rules govern the procedure in all criminal proceedings in the United States district courts, the 
United States courts of appeals, and the Supreme Court of the 
United States. 
(2)  State or Local Judicial Officer. When a rule so states, it 
applies to a proceeding before a state or local judicial officer. 
(3)  Territorial Courts. These rules also govern the procedure 
in all criminal proceedings in the following courts: 
(A) the district court of Guam; 
(B) the district court for the Northern Mariana Islands, 
except as otherwise provided by law; and 
(C) the district court of the Virgin Islands, except that 
the prosecution of offenses in that court must be by indictment or information as otherwise provided by law. 
(4)  Removed Proceedings.  Although these rules govern all 
proceedings after removal from a state court, state law governs a dismissal by the prosecution. 
(5) Excluded Proceedings. Proceedings not governed by these 
rules include: 
(A) the extradition and rendition of a fugitive; 
(B) a civil property forfeiture for violating a federal statute; 
(C) the collection of a fine or penalty; 
(D) a proceeding under a statute governing juvenile delinquency to the extent the procedure is inconsistent with 
the statute, unless Rule 20(d) provides otherwise; 
(E) a dispute between seamen under 22 U.S.C. §§ 256–258; 
and 
(F) a proceeding against a witness in a foreign country 
under 28 U.S.C. § 1784. 
(b) Definitions. The following definitions apply to these rules: 
(1) ‘‘Attorney for the government’’ means: 
(A) the Attorney General or an authorized assistant; 
(B) a United States attorney or an authorized assistant; 
(C) when applicable to cases arising under Guam law, the 
Guam Attorney General or other person whom Guam law 
authorizes to act in the matter; and 
(D) any other attorney authorized by law to conduct proceedings under these rules as a prosecutor. 
(2) ‘‘Court’’ means a federal judge performing functions authorized by law
(3) ‘‘Federal judge’’ means: 
(A) a justice or judge of the United States as these terms 
are defined in 28 U.S.C. § 451; 
(B) a magistrate judge; and 
(C) a judge confirmed by the United States Senate and 
empowered by statute in any commonwealth, territory, or 
possession to perform a function to which a particular rule 
relates. 
(4) ‘‘Judge’’ means a federal judge or a state or local judicial 
officer. 
(5) ‘‘Magistrate judge’’ means a United States magistrate 
judge as defined in 28 U.S.C. §§ 631–639. 
(6) ‘‘Oath’’ includes an affirmation. 
(7) ‘‘Organization’’ is defined in 18 U.S.C. § 18. 
(8) ‘‘Petty offense’’ is defined in 18 U.S.C. § 19. 
(9) ‘‘State’’ includes the District of Columbia, and any commonwealth, territory, or possession of the United States. 
(10) ‘‘State or local judicial officer’’ means: 
(A) a state or local officer authorized to act under 18 
U.S.C. § 3041; and 
(B) a judicial officer empowered by statute in the District of Columbia or in any commonwealth, territory, or 
possession to perform a function to which a particular rule 
relates. 
(11) ‘‘Victim’’ means a ‘‘crime victim’’ as defined in 18 U.S.C. 
§ 3771(e). 
(c) Authority of a Justice or Judge of the United States.  When 
these rules authorize a magistrate judge to act, any other federal 
judge may also act. 
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1982, eff. Aug. 
1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; 
Apr. 23, 2008, eff. Dec. 1, 2008.) 

Rule 2. Interpretation 
These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in 
procedure and fairness in administration, and to eliminate unjustifiable expense and delay. 
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)


TITLE II. PRELIMINARY PROCEEDINGS

RULE 3. THE COMPLAINT

The complaint is a written statement of the essential facts constituting the offense charged. Except as provided in Rule 4.1, it must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.

Notes

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of Advisory Committee on Rules—1944

The rule generally states existing law and practice, 18 U.S.C. 591 [now 3041] (Arrest and removal for trial); United States v. Simon (E.D.Pa.), 248 F. 980; United States v. Maresca(S.D.N.Y.), 266 F. 713, 719–721. It eliminates, however, the requirement of conformity to State law as to the form and sufficiency of the complaint. See, also, rule 57(b).

Notes of Advisory Committee on Rules—1972 Amendment

The amendment deletes the reference to “commissioner or other officer empowered to commit persons charged with offenses against the United States” and substitute therefor “magistrate.”

The change is editorial in nature to conform the language of the rule to the recently enacted Federal Magistrates Act. The term “magistrate” is defined in rule 54.

Notes of Advisory Committee on Rules—1993 Amendment

The Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge.

Committee Notes on Rules—2002 Amendment

The language of Rule 3 is amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic and no substantive change is intended, except as described below.

The amendment makes one change in practice. Currently, Rule 3 requires the complaint to be sworn before a “magistrate judge,” which under current Rule 54 could include a state or local judicial officer. Revised Rule 1 no longer includes state and local officers in the definition of magistrate judges for the purposes of these rules. Instead, the definition includes only United States magistrate judges. Rule 3 requires that the complaint be made before a United States magistrate judge or before a state or local officer. The revised rule does, however, make a change to reflect prevailing practice and the outcome desired by the Committee—that the procedure take place before a federal judicial officer if one is reasonably available. As noted in Rule 1(c), where the rules, such as Rule 3, authorize a magistrate judge to act, any other federal judge may act.

Committee Notes on Rules—2011 Amendment

Under the amended rule, the complaint and supporting material may be submitted by telephone or reliable electronic means; however, the rule requires that the judicial officer administer the oath or affirmation in person or by telephone. The Committee concluded that the benefits of making it easier to obtain judicial oversight of the arrest decision and the increasing reliability and accessibility to electronic communication warranted amendment of the rule. The amendment makes clear that the submission of a complaint to a judicial officer need not be done in person and may instead be made by telephone or other reliable electronic means. The successful experiences with electronic applications under Rule 41, which permits electronic applications for search warrants, support a comparable process for arrests. The provisions in Rule 41 have been transferred to new Rule 4.1, which governs applications by telephone or other electronic means under Rules 3, 4, 9, and 41.

RULE 4. ARREST WARRANT OR SUMMONS ON A COMPLAINT

(a) Issuance. If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of an attorney for the government, the judge must issue a summons, instead of a warrant, to a person authorized to serve it. A judge may issue more than one warrant or summons on the same complaint. If a defendant fails to appear in response to a summons, a judge may, and upon request of an attorney for the government must, issue a warrant.

(b) Form.

(1) Warrant. A warrant must:

(A) contain the defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty;

(B) describe the offense charged in the complaint;

(C) command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer; and

(D) be signed by a judge.

(2) Summons. A summons must be in the same form as a warrant except that it must require the defendant to appear before a magistrate judge at a stated time and place.

(c) Execution or Service, and Return.

(1) By Whom. Only a marshal or other authorized officer may execute a warrant. Any person authorized to serve a summons in a federal civil action may serve a summons.

(2) Location. A warrant may be executed, or a summons served, within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest.

(3) Manner.

(A) A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the original or a duplicate original warrant must show it to the defendant. If the officer does not possess the warrant, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request, must show the original or a duplicate original warrant to the defendant as soon as possible.

(B) A summons is served on an individual defendant:

(i) by delivering a copy to the defendant personally; or

(ii) by leaving a copy at the defendant's residence or usual place of abode with a person of suitable age and discretion residing at that location and by mailing a copy to the defendant's last known address.

(C) A summons is served on an organization by delivering a copy to an officer, to a managing or general agent, or to another agent appointed or legally authorized to receive service of process. A copy must also be mailed to the organization's last known address within the district or to its principal place of business elsewhere in the United States.

(4) Return

(A) After executing a warrant, the officer must return it to the judge before whom the defendant is brought in accordance with Rule 5. The officer may do so by reliable electronic means. At the request of an attorney for the government, an unexecuted warrant must be brought back to and canceled by a magistrate judge or, if none is reasonably available, by a state or local judicial officer.

(B) The person to whom a summons was delivered for service must return it on or before the return day.

(C) At the request of an attorney for the government, a judge may deliver an unexecuted warrant, an unserved summons, or a copy of the warrant or summons to the marshal or other authorized person for execution or service.

(d) Warrant by Telephone or Other Reliable Electronic Means. In accordance withRule 4.1, a magistrate judge may issue a warrant or summons based on information communicated by telephone or other reliable electronic means.

Notes

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, §3(1)–(3), July 31, 1975, 89 Stat. 370; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of Advisory Committee on Rules—1944

Note to Subdivision (a). 1. The rule states the existing law relating to warrants issued by commissioner or other magistrate. United States Constitution, Amendment IV; 18 U.S.C. 591 [now 3041] (Arrest and removal for trial).

2. The provision for summons is new, although a summons has been customarily used against corporate defendants, 28 U.S.C. 377 [now 1651] (Power to issue writs); United States v. John Kelso Co., 86 F. 304 (N.D.Cal., 1898). See also, Albrecht v. United States273 U.S. 1, 8 (1927). The use of the summons in criminal cases is sanctioned by many States, among them Indiana, Maryland, Massachusetts, New York, New Jersey, Ohio, and others. See A.L.I. Code of Criminal Procedure (1931), Commentaries to secs. 12, 13, and 14. The use of the summons is permitted in England by 11 & 12 Vict., c. 42, sec. 1 (1848). More general use of a summons in place of a warrant was recommended by the National Commission on Law Observance and Enforcement, Report on Criminal Procedure (1931) 47. The Uniform Arrest Act, proposed by the Interstate Commission on Crime, provides for a summons. Warner, 28 Va.L.R. 315. See also, Medalie, 4 Lawyers Guild, R. 1, 6.

3. The provision for the issuance of additional warrants on the same complaint embodies the practice heretofore followed in some districts. It is desirable from a practical standpoint, since when a complaint names several defendants, it may be preferable to issue a separate warrant as to each in order to facilitate service and return, especially if the defendants are apprehended at different times and places. Berge, 42 Mich.L.R. 353, 356.

4. Failure to respond to a summons is not a contempt of court, but is ground for issuing a warrant.

Note to Subdivision (b). Compare Rule 9(b) and forms of warrant and summons, Appendix of Forms.

Note to Subdivision (c)(2). This rule and Rule 9(c)(1) modify the existing practice under which a warrant may be served only within the district in which it is issued. Mitchell v. Dexter244 F. 926 (C.C.A. 1st, 1917); Palmer v. Thompson, 20 App. D.C. 273 (1902); but see In re Christian82 F. 885 (C.C.W.D.Ark., 1897); 2 Op.Atty.Gen. 564. When a defendant is apprehended in a district other than that in which the prosecution has been instituted, this change will eliminate some of the steps that are at present followed: the issuance of a warrant in the district where the prosecution is pending; the return of the warrant non est inventus; the filing of a complaint on the basis of the warrant and its return in the district in which the defendant is found; and the issuance of another warrant in the latter district. The warrant originally issued will have efficacy throughout the United States and will constitute authority for arresting the defendant wherever found. Waite, 27 Jour. of Am. Judicature Soc. 101, 103. The change will not modify or affect the rights of the defendant as to removal. See Rule 40. The authority of the marshal to serve process is not limited to the district for which he is appointed, 28 U.S.C. 503 [now 569].

Note to Subdivision (c)(3). 1. The provision that the arresting officer need not have the warrant in his possession at the time of the arrest is rendered necessary by the fact that a fugitive may be discovered and apprehended by any one of many officers. It is obviously impossible for a warrant to be in the possession of every officer who is searching for a fugitive or who unexpectedly might find himself in a position to apprehend the fugitive. The rule sets forth the customary practice in such matters, which has the sanction of the courts. “It would be a strong proposition in an ordinary felony case to say that a fugitive from justice for whom a capias or warrant was outstanding could not be apprehended until the apprehending officer had physical possession of the capias or the warrant. If such were the law, criminals could circulate freely from one end of the land to the other, because they could always keep ahead of an officer with the warrant.” In re Kosopud (N.D. Ohio), 272 F. 330, 336. Waite, 27 Jour. of Am. Judicature Soc. 101, 103. The rule, however, safeguards the defendant's rights in such case.

2. Service of summons under the rule is substantially the same as in civil actions underFederal Rules of Civil Procedure, Rule 4(d)(1) [28 U.S.C., Appendix].

Note to Subdivision (c)(4). Return of a warrant or summons to the commissioner or other officer is provided by 18 U.S.C. 603 [now 4084] (Writs; copy as jailer's authority). The return of all “copies of process” by the commissioner to the clerk of the court is provided by 18 U.S.C. 591 [now 3041]; and see Rule 5(c), infra.

Notes of Advisory Committee on Rules—1966 Amendment

In Giordenello v. United States357 U.S. 480 (1958) it was held that to support the issuance of a warrant the complaint must contain in addition to a statement “of the essential facts constituting the offense” (Rule 3) a statement of the facts relied upon by the complainant to establish probable cause. The amendment permits the complainant to state the facts constituting probable cause in a separate affidavit in lieu of spelling them out in the complaint. See also Jaben v. United States381 U.S. 214 (1965).

Notes of Advisory Committee on Rules—1972 Amendment

Throughout the rule the term “magistrate” is substituted for the term “commissioner.” Magistrate is defined in rule 54 to include a judge of the United States, a United States magistrate, and those state and local judicial officers specified in 18 U.S.C. §3041.

Notes of Advisory Committee on Rules—1974 Amendment

The amendments are designed to achieve several objectives: (1) to make explicit the fact that the determination of probable cause may be based upon hearsay evidence; (2) to make clear that probable cause is a prerequisite to the issuance of a summons; and (3) to give priority to the issuance of a summons rather than a warrant.

Subdivision (a) makes clear that the normal situation is to issue a summons.

Subdivision (b) provides for the issuance of an arrest warrant in lieu of or in addition to the issuance of a summons.

Subdivision (b)(1) restates the provision of the old rule mandating the issuance of a warrant when a defendant fails to appear in response to a summons.

Subdivision (b)(2) provides for the issuance of an arrest warrant rather than a summons whenever “a valid reason is shown” for the issuance of a warrant. The reason may be apparent from the face of the complaint or may be provided by the federal law enforcement officer or attorney for the government. See comparable provision in rule 9.

Subdivision (b)(3) deals with the situation in which conditions change after a summons has issued. It affords the government an opportunity to demonstrate the need for an arrest warrant. This may be done in the district in which the defendant is located if this is the convenient place to do so.

Subdivision (c) provides that a warrant or summons may issue on the basis of hearsay evidence. What constitutes probable cause is left to be dealt with on a case-to-case basis, taking account of the unlimited variations in source of information and in the opportunity of the informant to perceive accurately the factual data which he furnishes. See e.g., Giordenello v. United States357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Aguilar v. Texas378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Ventresca380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Jaben v. United States381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); McCray v. Illinois386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Spinelli v. United States393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Harris403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Note, The Informer's Tip as Probable Cause for Search or Arrest, 54 Cornell L.Rev. 958 (1969); C. Wright, Federal Practice and Procedure: Criminal §52 (1969, Supp. 1971); 8 S.J. Moore, Federal Practice . 4.03 (2d ed. Cipes 1970, Supp. 1971).

Notes of Committee on the Judiciary, House Report No. 94–247; 1975 Amendment

A. Amendments Proposed by the Supreme Court. Rule 4 of the Federal Rules of Criminal Procedure deals with arrest procedures when a criminal complaint has been filed. It provides in pertinent part:

If it appears . . . that there is probable cause . . . a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the requestof the attorney for the government a summons instead of a warrant shall issue. [emphasis added]

The Supreme Court's amendments make a basic change in Rule 4. As proposed to be amended, Rule 4 gives priority to the issuance of a summons instead of an arrest warrant. In order for the magistrate to issue an arrest warrant, the attorney for the government must show a “valid reason.”

B. Committee Action. The Committee agrees with and approves the basic change in Rule 4. The decision to take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the prosecutor).

It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and the introduction of substantial delays in our system of criminal justice. [See testimony of Assistant Attorney General W. Vincent Rakestraw in Hearings on Proposed Amendments to Federal Rules of Criminal ProcedureBefore the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 2d Sess., Serial No. 61, at 41–43 (1974) [hereinafter cited as “Hearing I”].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Committee on Criminal Rules has thoroughly analyzed the arguments raised by Mr. Rakestraw and convincingly demonstrated that the undesirable consequences predicted will not necessarily result. See Hearings on Proposed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited “Hearings II”].] The present rule permits the use of a summons in lieu of a warrant. The major difference between the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trusted to act responsibly in deciding whether a summons or a warrant shall issue.

The Committee rejects the notion that the federal judiciary cannot be trusted to exercise discretion wisely and in the public interest.

The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase “valid reason” was changed to “good cause,” a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrantless arrests.]

The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and required the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the practice of making a record or summary of such an appearance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices.

The Committee added a new section that provides that the determination of good cause for the issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so-called “exclusionary rule.”

Notes of Conference Committee, House Report No. 94–414; 1975 Amendment

Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version provides two methods for serving a summons: (1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant's dwelling and by mailing it to the defendant's last known address. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant's dwelling, or (3) service by mailing it to defendant's last known address.

Notes of Advisory Committee on Rules—1987 Amendment

The amendments are technical. No substantive change is intended.

Notes of Advisory Committee on Rules—1993 Amendment

The Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge.

Committee Notes on Rules—2002 Amendment

The language of Rule 4 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below.

The first non-stylistic change is in Rule 4(a), which has been amended to provide an element of discretion in those situations when the defendant fails to respond to a summons. Under the current rule, the judge must in all cases issue an arrest warrant. The revised rule provides discretion to the judge to issue an arrest warrant if the attorney for the government does not request that an arrest warrant be issued for a failure to appear.

Current Rule 4(b), which refers to the fact that hearsay evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1974, apparently to reflect emerging federal case law. See Advisory Committee Note to 1974 Amendments to Rule 4 (citing cases). A similar amendment was made to Rule 41 in 1972. In the intervening years, however, the case law has become perfectly clear on that proposition. Thus, the Committee believed that the reference to hearsay was no longer necessary. Furthermore, the limited reference to hearsay evidence was misleading to the extent that it might have suggested that other forms of inadmissible evidence could not be considered. For example, the rule made no reference to considering a defendant's prior criminal record, which clearly may be considered in deciding whether probable cause exists. See, e.g., Brinegar v. United States338 U.S. 160 (1949) (officer's knowledge of defendant's prior criminal activity). Rather than address that issue, or any other similar issues, the Committee believed that the matter was best addressed in Rule 1101(d)(3),Federal Rules of Evidence. That rule explicitly provides that the Federal Rules of Evidencedo not apply to “preliminary examinations in criminal cases, . . . issuance of warrants for arrest, criminal summonses, and search warrants.” The Advisory Committee Note accompanying that rule recognizes that: “The nature of the proceedings makes application of the formal rules of evidence inappropriate and impracticable.” The Committee did not intend to make any substantive changes in practice by deleting the reference to hearsay evidence.

New Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a summons and includes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant require that the defendant be brought “without unnecessary delay” before a judge. The Committee believed that this was a more appropriate standard than the current requirement that the defendant be brought before the “nearest available” magistrate judge. This new language accurately reflects the thrust of the original rule, that time is of the essence and that the defendant should be brought with dispatch before a judicial officer in the district. Second, the revised rule states a preference that the defendant be brought before a federal judicial officer.

Rule 4(b)(2) has been amended to require that if a summons is issued, the defendant must appear before a magistrate judge. The current rule requires the appearance before a “magistrate,” which could include a state or local judicial officer. This change is consistent with the preference for requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1).

Rule 4(c) (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the traditional rule recognizing the territorial limits for executing warrants. Rule 4(c)(2) includes new language that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L. No. 106–523, 114 Stat. 2488) that permits arrests of certain military and Department of Defense personnel overseas. See also 14 U.S.C. §89 (Coast Guard authority to effect arrests outside territorial limits of United States). Second, current Rule 4(d)(3) provides that the arresting officer is only required to inform the defendant of the offense charged and that a warrant exists if the officer does not have a copy of the warrant. As revised, Rule 4(c)(3)(A) explicitly requires the arresting officer in all instances to inform the defendant of the offense charged and of the fact that an arrest warrant exists. The new rule continues the current provision that the arresting officer need not have a copy of the warrant, but if the defendant requests to see it, the officer must show the warrant to the defendant as soon as possible. The rule does not attempt to define any particular time limits for showing the warrant to the defendant.

Third, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the manner of serving a summons on an organization. The Committee believed that Rule 4was the more appropriate location for general provisions addressing the mechanics of arrest warrants and summonses. Revised Rule 9 liberally cross-references the basic provisions appearing in Rule 4. Under the amended rule, in all cases in which a summons is being served on an organization, a copy of the summons must be mailed to the organization.

Fourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an unexecuted warrant must be returned to the judicial officer or judge who issued it. As amended, Rule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge before whom the defendant will appear under Rule 5. At the government's request, however, an unexecuted warrant must be canceled by a magistrate judge. The change recognizes the possibility that at the time the warrant is returned, the issuing judicial officer may not be available.

Committee Notes on Rules—2011 Amendment

Rule 4 is amended in three respects to make the arrest warrant process more efficient through the use of technology.

Subdivision (c). First, Rule 4(c)(3)(A) authorizes a law enforcement officer to retain a duplicate original arrest warrant, consistent with the change to subdivision (d), which permits a court to issue an arrest warrant electronically rather than by physical delivery. The duplicate original warrant may be used in lieu of the original warrant signed by the magistrate judge to satisfy the requirement that the defendant be shown the warrant at or soon after an arrest. Cf. Rule 4.1(b)(5) (providing for a duplicate original search warrant).

Second, consistent with the amendment to Rule 41(f), Rule 
4(c)(4)(A) permits an officer to make a return of the arrest warrant electronically. Requiring an in-person return can be burdensome on law enforcement, particularly in large districts when the return can require a great deal of time and travel. In contrast, no interest of the accused is affected by allowing what is normally a ministerial act to be done electronically.

Subdivision (d). Rule 4(d) provides that a magistrate judge may issue an arrest warrant or summons based on information submitted electronically rather than in person. This change works in conjunction with the amendment to Rule 3, which permits a magistrate judge to consider a criminal complaint and accompanying documents that are submitted electronically. Subdivision (d) also incorporates the procedures for applying for and issuing electronic warrants set forth in Rule 4.1.

Changes Made to Proposed Amendment Released for Public Comment

No changes were made in the amendment as published.

Amendment by Public Law

1975 —Pub. L. 94–64 struck out subds. (a), (b), and (c) and inserted in lieu new subds. (a) and (b); redesignated subd. (d) as (c); and redesignated subd. (e) as (d) and amended par. (3) thereof generally.

Approval and Effective Date of Amendments Proposed April 22, 1974; Effective Date of 1975 Amendments

Section 2 of Pub. L. 94–64 provided that: “The amendments proposed by the United States Supreme Court to the Federal Rules of Criminal Procedure [adding rules 12.1, 12.2 and 29.1 and amending rules 4, 9, 11, 12, 15, 16, 17, 20, 32, and 43 of these rules] which are embraced in the order of that Court on April 22, 1974, are approved except as otherwise provided in this Act and shall take effect on December 1, 1975. Except with respect to the amendment to Rule 11, insofar as it adds Rule 11(e)(6), which shall take effect on August 1, 1975, the amendments made by section 3 of this Act [to rules 4, 9, 11, 12, 12.1, 12.2, 15, 16, 17, 20, 32, and 43 of these rules] shall also take effect on December 1, 1975.”


Rule 5. Initial Appearance 

(a) In General. 

(1) Appearance Upon an Arrest. 

(A) A person making an arrest within the United States must take the defendant without unnecessary delay before 

a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise. 

(B) A person making an arrest outside the United States must take the defendant without unnecessary delay before 

a magistrate judge, unless a statute provides otherwise. 

(2) Exceptions. 

(A) An officer making an arrest under a warrant issued upon a complaint charging solely a violation of 18 U.S.C. 

§ 1073 need not comply with this rule if: 

(i) the person arrested is transferred without unnecessary delay to the custody of appropriate state or 

local authorities in the district of arrest; and 

(ii) an attorney for the government moves promptly, 

in the district where the warrant was issued, to dismiss the complaint. 

(B) If a defendant is arrested for violating probation or supervised release, Rule 32.1 applies. 

(C) If a defendant is arrested for failing to appear in another district, Rule 40 applies. 

(3)  Appearance Upon a Summons. When a defendant appears in response to a summons under Rule 4, a magistrate judge 

must proceed under Rule 5(d) or (e), as applicable. 

(b) Arrest Without a Warrant.  If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)’s requirement of probable

 cause must be promptly filed in the district where the offense was allegedly committed. 

(c) Place of Initial Appearance; Transfer to Another District. 

(1)  Arrest in the District Where the Offense Was Allegedly Committed.  If the defendant is arrested in the district where 

the offense was allegedly committed: 

(A) the initial appearance must be in that district; and 

(B) if a magistrate judge is not reasonably available, the initial appearance may be before a state or local judicial 

officer. 

(2) Arrest in a District Other Than Where the Offense Was Allegedly Committed.  If the defendant was arrested in a district 

other than where the offense was allegedly committed, the initial appearance must be: 

(A) in the district of arrest; or 

(B) in an adjacent district if: 

(i) the appearance can occur more promptly there; or 

(ii) the offense was allegedly committed there and the initial appearance will occur on the day of arrest. 

(3)  Procedures in a District Other Than Where the Offense Was Allegedly Committed.  If the initial appearance occurs in a 

district other than where the offense was allegedly committed, the following procedures apply: 

(A) the magistrate judge must inform the defendant about the provisions of Rule 20; 

(B) if the defendant was arrested without a warrant, the district court where the offense was allegedly committed 

must first issue a warrant before the magistrate judge transfers the defendant to that district; 

(C) the magistrate judge must conduct a preliminary hearing if required by Rule 5.1; 

(D) the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if: 

(i) the government produces the warrant, a certified copy of the warrant, or a reliable electronic form of either; and 

(ii) the judge finds that the defendant is the same person named in the indictment, information, or warrant; and 

(E) when a defendant is transferred and discharged, the 

clerk must promptly transmit the papers and any bail to the clerk in the district where the offense was allegedly committed. 

(d) Procedure in a Felony Case. 

(1)  Advice.  If the defendant is charged with a felony, the judge must inform the defendant of the following: 

(A) the complaint against the defendant, and any affidavit filed with it; 

(B) the defendant’s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel; 

(C) the circumstances, if any, under which the defendant may secure pretrial release; 

(D) any right to a preliminary hearing; and 

(E) the defendant’s right not to make a statement, and that any statement made may be used against the defendant. 

(2)  Consulting with Counsel.  The judge must allow the defendant reasonable opportunity to consult with counsel. 

(3)  Detention or Release.  The judge must detain or release the defendant as provided by statute or these rules. 

(4) Plea. A defendant may be asked to plead only under Rule 10. 

(e) Procedure in a Misdemeanor Case.  If the defendant is charged with a misdemeanor only, the judge must inform the defendant in accordance with Rule 58(b)(2).

(f) Video Teleconferencing.  Video teleconferencing may be used to conduct an appearance under this rule if the defendant consents. 

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 

1, 1972; Apr. 28, 1982, eff. Aug. 1, 1982; Oct. 12, 1984; Mar. 9, 1987, eff. 

Aug. 1, 1987; May 1, 1990, eff. Dec. 1, 1990; Apr. 22, 1993, eff. Dec. 1, 

1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; 

Apr. 12, 2006, eff. Dec. 1, 2006.) 


Rule 5.1. Preliminary Hearing 

(a) In General.  If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless: 

(1) the defendant waives the hearing; 

(2) the defendant is indicted; 

(3) the government files an information under Rule 7(b) charging the defendant with a felony; 

(4) the government files an information charging the defendant with a misdemeanor; or 

(5) the defendant is charged with a misdemeanor and consents to trial before a magistrate judge. 

(b) Selecting a District.  A defendant arrested in a district other than where the offense was allegedly committed may elect to have 

the preliminary hearing conducted in the district where the prosecution is pending. 

(c) Scheduling. The magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 14 days after 

the initial appearance if the defendant is in custody and no later than 21 days if not in custody. 

(d) Extending the Time. With the defendant’s consent and upon a showing of good cause—taking into account the public interest 

in the prompt disposition of criminal cases—a magistrate judge may extend the time limits in Rule 5.1(c) one or more times. If the 

defendant does not consent, the magistrate judge may extend the time limits only on a showing that extraordinary circumstances 

exist and justice requires the delay. 

(e) Hearing and Finding. At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was 

unlawfully acquired. If the magistrate judge finds probable cause to believe an offense has been committed and the defendant committed it, the magistrate judge must 

 promptly require the defendant to appear for further proceedings. 

(f) Discharging the Defendant.  If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, 

the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude 

the government from later prosecuting the defendant for the same offense. 

(g) Recording the Proceedings. The preliminary hearing must be recorded by a court reporter or by a suitable recording device. A 

recording of the proceeding may be made available to any party 

upon request. A copy of the recording and a transcript may be provided to any party upon request and upon any payment required 

by applicable Judicial Conference regulations. 

(h) Producing a Statement. 

(1)  In General. Rule 26.2(a)–(d) and (f) applies at any hearing under this rule, unless the magistrate judge for good cause 

rules otherwise in a particular case. 

(2)  Sanctions for Not Producing a Statement.  If a party disobeys a Rule 26.2 order to deliver a statement to the moving 

party, the magistrate judge must not consider the testimony of a witness whose statement is withheld. 

(As added Apr. 24, 1972, eff. Oct. 1, 1972; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 

1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.) 



TITLE III. THE GRAND JURY, THE INDICTMENT, AND THE INFORMATION 

Rule 6. The Grand Jury 

(a) Summoning a Grand Jury. 

(1)  In General.  When the public interest so requires, the court must order that one or more grand juries be summoned. 

A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to 

meet this requirement. 

(2) Alternate Jurors. When a grand jury is selected, the court may also select alternate jurors. Alternate jurors must have 

the same qualifications and be selected in the same manner as any other juror. Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate 

juror who replaces a juror is subject to the same challenges, takes the same oath, and has the same authority as the other 

jurors. 

(b) Objection to the Grand Jury or to a Grand Juror. 

(1)  Challenges.  Either the government or a defendant may 

challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and may challenge an individual juror on the ground that the juror is not legally 

qualified. 

(2)  Motion to Dismiss an Indictment.  A party may move to dismiss the indictment based on an objection to the grand jury 

or on an individual juror’s lack of legal qualification, unless the court has previously ruled on the same objection under Rule 6(b)(1). The motion to dismiss is governed by 28 U.S.C. 

§ 1867(e). The court must not dismiss the indictment on the ground that a grand juror was not legally qualified if the 

record shows that at least 12 qualified jurors concurred in the indictment. 

(c) Foreperson and Deputy Foreperson.  The court will appoint one juror as the foreperson and another as the deputy foreperson. 

In the foreperson’s absence, the deputy foreperson will act as the foreperson. The foreperson may administer oaths and affirmations 

and will sign all indictments. The foreperson—or another juror designated by the foreperson—will record the number of jurors 

concurring in every indictment and will file the record with the clerk, but the record may not be made public unless the court so 

orders.

(d) Who May Be Present. 

(1) While the Grand Jury Is in Session. The following persons may be present while the grand jury is in session: attorneys 

for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device. 

(2)  During Deliberations and Voting.  No person other than 

the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the 

grand jury is deliberating or voting. 

(e) Recording and Disclosing the Proceedings. 

(1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a 

court reporter or by a suitable recording device. But the validity of a prosecution is not affected by the unintentional failure to make a recording. Unless the court orders otherwise, an 

attorney for the government will retain control of the recording, the reporter’s notes, and any transcript prepared from those notes. 

(2) Secrecy. 

(A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B). 

(B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the 

grand jury: 

(i) a grand juror; 

(ii) an interpreter; 

(iii) a court reporter; 

(iv) an operator of a recording device; 

(v) a person who transcribes recorded testimony; 

(vi) an attorney for the government; or 

(vii) a person to whom disclosure is made under Rule 

6(e)(3)(A)(ii) or (iii). 

(3) Exceptions. 

(A) Disclosure of a grand-jury matter—other than the grand jury’s deliberations or any grand juror’s vote—may be made to: 

(i) an attorney for the government for use in performing that attorney’s duty; 

(ii) any government personnel—including those of a 

state, state subdivision, Indian tribe, or foreign government—that an attorney for the government considers necessary to assist in performing that attorney’s 

duty to enforce federal criminal law; or 

(iii) a person authorized by 18 U.S.C. § 3322. 

(B) A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information only to assist 

an attorney for the government in performing that attorney’s duty to enforce federal criminal law. An attorney for 

the government must promptly provide the court that impaneled the grand jury with the names of all persons to 

whom a disclosure has been made, and must certify that the attorney has advised those persons of their obligation 

of secrecy under this rule. 

(C) An attorney for the government may disclose any grand-jury matter to another federal grand jury.

(D) An attorney for the government may disclose any 

grand-jury matter involving foreign intelligence, counterintelligence (as defined in 50 U.S.C. § 401a), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to 

any federal law enforcement, intelligence, protective, immigration, national defense, or national security official 

to assist the official receiving the information in the performance of that official’s duties. An attorney for the government may also disclose any grand-jury matter involving,

 within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its

agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or 

by its agent, to any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or 

activities. 

(i) Any official who receives information under Rule 

6(e)(3)(D) may use the information only as necessary in 

the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such 

information. Any state, state subdivision, Indian tribal, or foreign government official who receives information under Rule 6(e)(3)(D) may use the information 

only in a manner consistent with any guidelines issued by the Attorney General and the Director of National 

Intelligence. 

(ii) Within a reasonable time after disclosure is made under Rule 6(e)(3)(D), an attorney for the government 

must file, under seal, a notice with the court in the district where the grand jury convened stating that 

such information was disclosed and the departments, agencies, or entities to which the disclosure was made. 

(iii) As used in Rule 6(e)(3)(D), the term ‘‘foreign intelligence information’’ means: 

(a) information, whether or not it concerns a United States person, that relates to the ability of 

the United States to protect against— 

• actual or potential attack or other grave hostile acts of a foreign power or its agent; 

•  sabotage or international terrorism by a foreign power or its agent; or 

• clandestine intelligence activities by an intelligence service or network of a foreign power or by 

its agent; or 

(b) information, whether or not it concerns a United States person, with respect to a foreign 

power or foreign territory that relates to— 

•  the national defense or the security of the 

United States; or 

•  the conduct of the foreign affairs of the 

United States.

(E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter: 

(i) preliminarily to or in connection with a judicial proceeding; 

(ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of 

a matter that occurred before the grand jury; 

(iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official 

criminal investigation; 

(iv) at the request of the government if it shows that the matter may disclose a violation of State, Indian 

tribal, or foreign criminal law, as long as the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law; or 

(v) at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as 

long as the disclosure is to an appropriate military official for the purpose of enforcing that law. 

(F) A petition to disclose a grand-jury matter under Rule 

6(e)(3)(E)(i) must be filed in the district where the grand jury convened. Unless the hearing is ex parte—as it may be 

when the government is the petitioner—the petitioner must serve the petition on, and the court must afford a 

reasonable opportunity to appear and be heard to: 

(i) an attorney for the government; 

(ii) the parties to the judicial proceeding; and 

(iii) any other person whom the court may designate. 

(G) If the petition to disclose arises out of a judicial proceeding in another district, the petitioned court must 

transfer the petition to the other court unless the petitioned court can reasonably determine whether disclosure 

is proper. If the petitioned court decides to transfer, it must send to the transferee court the material sought to 

be disclosed, if feasible, and a written evaluation of the need for continued grand-jury secrecy. The transferee 

court must afford those persons identified in Rule 6(e)(3)(F) a reasonable opportunity to appear and be heard.

(4)  Sealed Indictment.  The magistrate judge to whom an indictment is returned may direct that the indictment be kept 

secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no 

person may disclose the indictment’s existence except as necessary to issue or execute a warrant or summons. 

(5)  Closed Hearing.  Subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to 

the extent necessary to prevent disclosure of a matter occurring before a grand jury. 

(6)  Sealed Records.  Records, orders, and subpoenas relating 

to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury. 


(7) Contempt. A knowing violation of Rule 6, or of any guidelines jointly issued by the Attorney General and the Director 

of National Intelligence under Rule 6, may be punished as a contempt of court. 

(f) Indictment and Return.  A grand jury may indict only if at least 12 jurors concur. The grand jury—or its foreperson or deputy 

foreperson—must return the indictment to a magistrate judge in open court. If a complaint or information is pending against the 

defendant and 12 jurors do not concur in the indictment, the foreperson must promptly and in writing report the lack of concurrence to the magistrate judge. 

(g) Discharging the Grand Jury.  A grand jury must serve until the court discharges it, but it may serve more than 18 months 

only if the court, having determined that an extension is in the public interest, extends the grand jury’s service. An extension 

may be granted for no more than 6 months, except as otherwise provided by statute. 

(h) Excusing a Juror. At any time, for good cause, the court may 

excuse a juror either temporarily or permanently, and if permanently, the court may impanel an alternate juror in place of the excused juror. 

(i) ‘‘Indian Tribe’’ Defined.  ‘‘Indian tribe’’ means an Indian tribe recognized by the Secretary of the Interior on a list published in 

the Federal Register under 25 U.S.C. § 479a–1. 

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; July 30, 1977, eff. 

Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, eff. Nov. 1, 1987; Apr. 29, 1985, eff. Aug. 1, 1985; 

Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 1999, eff. Dec. 1, 1999; Oct. 26, 2001; Apr. 29, 2002, eff. Dec. 1, 2002; 

Nov. 25, 2002; Dec. 17, 2004; Apr. 12, 2006, eff. Dec. 1, 2006.) 



Rule 7. The Indictment and the Information 

(a) When Used. 

(1)  Felony.  An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable: 

(A) by death; or 

(B) by imprisonment for more than one year. 

(2) Misdemeanor. An offense punishable by imprisonment for one year or less may be prosecuted in accordance with Rule 

58(b)(1). 

(b) Waiving Indictment. An offense punishable by imprisonment for more than one year may be prosecuted by information if the 

defendant—in open court and after being advised of the nature of the charge and of the defendant’s rights—waives prosecution by 

indictment. 

(c) Nature and Contents. 

(1)  In General.  The indictment or information must be a plain, concise, and definite written statement of the essential 

facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal 

introduction or conclusion. A count may incorporate by reference an allegation made in another count. A count may allege that the means by

 which the defendant committed the offense are unknown or that the defendant committed it by one 

or more specified means. For each count, the indictment or information must give the official or customary citation of the 

statute, rule, regulation, or other provision of law that the defendant is alleged to have violated. For purposes of an indictment referred to in section 3282 of title 18, United States Code, 

for which the identity of the defendant is unknown, it shall be sufficient for the indictment to describe the defendant as an 

individual whose name is unknown, but who has a particular DNA profile, as that term is defined in section 3282. 

(2)  Citation Error.  Unless the defendant was misled and 

thereby prejudiced, neither an error in a citation nor a citation’s omission is a ground to dismiss the indictment or information or to reverse a conviction. 

(d) Surplusage.  Upon the defendant’s motion, the court may strike surplusage from the indictment or information. 

(e) Amending an Information.  Unless an additional or different 

offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any 

time before the verdict or finding. 

(f) Bill of Particulars.  The court may direct the government to 

file a bill of particulars. The defendant may move for a bill of particulars before or within 14 days after arraignment or at a later 

time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires. 

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 9, 1987, eff. Aug. 1, 1987; 

Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2003; Mar. 26, 2009, eff. Dec. 1, 2009.)



Rule 8. Joinder of Offenses or Defendants 

(a) Joinder of Offenses.  The indictment or information may 

charge a defendant in separate counts with 2 or more offenses if 

the offenses charged—whether felonies or misdemeanors or both— 

are of the same or similar character, or are based on the same act 

or transaction, or are connected with or constitute parts of a common scheme or plan. 

(b) Joinder of Defendants.  The indictment or information may 

charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts 

or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. 

All defendants need not be charged in each count. 

(As amended Apr. 29, 2002, eff. Dec. 1, 2002.) 


Rule 9. Arrest Warrant or Summons on an Indictment or Information 

(a) Issuance.  The court must issue a warrant—or at the government’s 

request, a summons—for each defendant named in an indictment or named

 in an information

 if one or more affidavits accompanying the information establish probable 

cause to believe 

that an offense has been committed and that the defendant committed it. The

 court may issue more than one warrant or summons for the same defendant.

 If a defendant fails to appear in response to a summons, the court may, and 

upon request of an attorney for the government must, issue a warrant. The 

court must

issue the arrest warrant to an officer authorized to execute it or the 

summons to a person authorized to serve it. 

(b) Form. 

(1)  Warrant.  The warrant must conform to Rule 4(b)(1) except that it must be signed by the clerk and must describe the 

offense charged in the indictment or information. 

(2)  Summons.  The summons must be in the same form as a 

warrant except that it must require the defendant to appear 

before the court at a stated time and place. 

(c) Execution or Service; Return; Initial Appearance. 

(1) Execution or Service. 

(A) The warrant must be executed or the summons served as provided in Rule 

4(c)(1), (2), and (3). 

(B) The officer executing the warrant must proceed in 

accordance with Rule 5(a)(1). 

(2)  Return.  A warrant or summons must be returned 

in accordance with Rule 4(c)(4). 

(3)  Initial Appearance.  When an arrested or summoned defendant

 first appears before the court, the judge must proceed 

under Rule 5. 

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975;

Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff. Dec. 1, 

1993; Apr. 29, 2002, eff. Dec. 1, 2002.)



TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL 

Rule 10. Arraignment 

(a) In General. An arraignment must be conducted in open court and must consist of: 

(1) ensuring that the defendant has a copy of the indictment or information; 

(2) reading the indictment or information to the defendant or stating to the defendant the substance of the charge; and 

then 

(3) asking the defendant to plead to the indictment or information. 

(b) Waiving Appearance. A defendant need not be present for the arraignment if: 

(1) the defendant has been charged by indictment or misdemeanor information; 

(2) the defendant, in a written waiver signed by both the defendant and defense counsel, has waived appearance and has 

affirmed that the defendant received a copy of the indictment or information and that the plea is not guilty; and 

(3) the court accepts the waiver. 

(c) Video Teleconferencing.  Video teleconferencing may be used to arraign a defendant if the defendant consents. 

(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)

 

Rule 11. Pleas 

(a) Entering a Plea. 

(1)  In General.  A defendant may plead not guilty, guilty, or

 (with the court’s consent) nolo contendere. 

(2)  Conditional Plea.  With the consent of the court and the government, a 

defendant may enter a conditional plea of 

guilty or nolo contendere, reserving in writing the right to have an appellate 

court review an adverse determination of a 

specified pretrial motion. A defendant who prevails on appeal may then 

withdraw the plea. 

(3)  Nolo Contendere Plea.  Before accepting a plea of nolo contendere, the 

court must consider the parties’ views and the 

public interest in the effective administration of justice. 

(4)  Failure to Enter a Plea.  If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court 

must enter a plea of not guilty. 

(b) Considering and Accepting a Guilty or Nolo Contendere Plea. 

(1) Advising and Questioning the Defendant. Before the court 

accepts a plea of guilty or nolo contendere, the defendant may 

be placed under oath, and the court must address

 the defendant personally in open court. During this address, the court 

must inform the defendant of, and determine that the defendant 

understands, the following: 

(A) the government’s right, in a prosecution for perjury 

or false statement, to use against the defendant any statement that the

 defendant gives under oath; 

(B) the right to plead not guilty, or having already so pleaded, to persist in 

that plea; 

(C) the right to a jury trial; 

(D) the right to be represented by counsel—and if necessary have the court 

appoint counsel—at trial and at 

every other stage of the proceeding; 

(E) the right at trial to confront and cross-examine adverse witnesses, to be 

protected from compelled self-incrimination, to testify and present 

evidence,and to compel the attendance of 

witnesses;  

(F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere; 

(G) the nature of each charge to which the defendant is pleading; 

(H) any maximum possible penalty, including imprisonment, fine, and term of 

supervised release; 

(I) any mandatory minimum penalty; 

(J) any applicable forfeiture; 

(K) the court’s authority to order restitution; 

(L) the court’s obligation to impose a special assessment; 

(M) in determining a sentence, the court’s obligation to 

calculate the applicable sentencing-guideline range and to 

and other sentencing factors under 18 

U.S.C. § 3553(a); and 

(N) the terms of any plea-agreement provision waiving 

the right to appeal or to collaterally attack the sentence. 

(2)  Ensuring That a Plea Is Voluntary.  Before accepting a 

plea of guilty or nolo contendere, the court must address the 

defendant personally in open court and determine 

that the plea is voluntary and did not result from force, threats, or 

promises (other than promises in a plea agreement).

(3) Determining the Factual Basis for a Plea. Before entering 

judgment on a guilty plea, the court must determine that 

there is a factual basis for the plea. 

(c) Plea Agreement Procedure. 

(1)  In General.  An attorney for the government and the

 defendant’s attorney, or the defendant when proceeding pro se, 

may discuss and reach a plea agreement. The court must not 

participate in these discussions. If the defendant pleads guilty 

or nolo contendere to either a charged offense or a 

lesser or related offense, the plea agreement may specify that

 an attorney for the government will: 

(A) not bring, or will move to dismiss, other charges; 

(B) recommend, or agree not to oppose the defendant’s 

request, that a particular sentence or sentencing range is 

appropriate or that a particular provision of the

 Sentencing Guidelines, or policy statement, or sentencing factor 

does or does not apply (such a recommendation or request 

does not bind the court); or 

(C) agree that a specific sentence or sentencing range is 

the appropriate disposition of the case, or that a particular

 provision of the Sentencing Guidelines, or policy statement, 

or sentencing factor does or does not apply (such a 

recommendation or request binds the court once the court 

accepts the plea agreement). 

(2)  Disclosing a Plea Agreement.  The parties must disclose 

the plea agreement in open court when the plea is offered, 

unless the court for good cause allows the parties to disclose the 

plea agreement in camera. 

(3) Judicial Consideration of a Plea Agreement. 

(A) To the extent the plea agreement is of the type specified

 in Rule 11(c)(1)(A) or (C), the court may accept the 

agreement, reject it, or defer a decision until the court has 

reviewed the presentence report. 

(B) To the extent the plea agreement is of the type specified in 

Rule 11(c)(1)(B), the court must advise the defendant that the

 defendant has no right to withdraw the plea 

if the court does not follow the recommendation or request. 

(4) Accepting a Plea Agreement. If the court accepts the plea 

agreement, it must inform the defendant that to the extent 

the plea agreement is of the type specified in Rule 11(c)(1)(A) 

or (C), the agreed disposition will be included in the judgment. 

(5)  Rejecting a Plea Agreement.  If the court rejects a plea

agreement containing provisions of the type specified in Rule 

11(c)(1)(A) or (C), the court must do the following on the record 

and in open court (or, for good cause, in camera): 

(A) inform the parties that the court rejects the plea agreement; 

(B) advise the defendant personally that the court is not 

required to follow the plea agreement and give the defendant an opportunity 

to withdraw the plea; and 

(C) advise the defendant personally that if the plea is not 

withdrawn, the court may dispose of the case less favorably toward the 

defendant than the plea agreement contemplated

(d) Withdrawing a Guilty or Nolo Contendere Plea.  A defendant may withdraw 

a plea of guilty or nolo contendere: 

(1) before the court accepts the plea, for any reason or no reason; or 

(2) after the court accepts the plea, but before it imposes sentence if: 

(A) the court rejects a plea agreement under Rule 11(c)(5); or 

(B) the defendant can show a fair and just reason for requesting the 

withdrawal. 

(e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes 

sentence, the defendant may not withdraw a plea of 

guilty or nolo contendere, and the plea may be set aside only on direct 

appeal or collateral attack. 

(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related 

Statements.  The admissibility or inadmissibility of a 

plea, a plea discussion, and any related statement is governed by Federal 

Rule of Evidence 410. 

(g) Recording the Proceedings.  The proceedings during which the defendant 

enters a plea must be recorded by a court reporter 

or by a suitable recording device. If there is a guilty plea or a nolo 

contendere plea, the record must include the inquiries and advice 

to the defendant required under Rule 11(b) and (c). 

(h) Harmless Error.  A variance from the requirements of this rule is harmless 

error if it does not affect substantial rights. 

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 

1, 1975; July 31, 1975, eff. Aug. 1 and Dec. 1, 1975; Apr. 30, 1979, eff. 

Aug. 1, 1979, and Dec. 1, 1980; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 28, 

1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, 

eff. Aug. 1, 1987; Nov. 18, 1988; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 

26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, 

eff. Dec. 1, 2007.) 


Rule 12. Pleadings and Pretrial Motions 

(a) Pleadings. The pleadings in a criminal proceeding are the indictment, the 

information, and the pleas of not guilty, guilty, and 

nolo contendere. 

(b) Pretrial Motions. 

(1) In General. Rule 47 applies to a pretrial motion. 

(2)  Motions That May Be Made Before Trial.  A party may raise by pretrial 

motion any defense, objection, or request 

that the court can determine without a trial of the general issue. 

(3)  Motions That Must Be Made Before Trial.  The following 

must be raised before trial: 

(A) a motion alleging a defect in instituting the prosecution; 

(B) a motion alleging a defect in the indictment or information—but at any 

time while the case is pending, the 

court may hear a claim that the indictment or information fails to invoke the 

court’s jurisdiction or to state an 

offense; 

(C) a motion to suppress evidence; 

(D) a Rule 14 motion to sever charges or defendants; and

(E) a Rule 16 motion for discovery. 

(4) Notice of the Government’s Intent to Use Evidence. 

(A) At the Government’s Discretion. At the arraignment or 

as soon afterward as practicable, the government may notify the defendant of 

its intent to use specified evidence at 

trial in order to afford the defendant an opportunity to object before trial 

under Rule 12(b)(3)(C). 

(B) At the Defendant’s Request. At the arraignment or as soon afterward as 

practicable, the defendant may, in order 

to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), 

request notice of the government’s intent 

to use (in its evidence-in-chief at trial) any evidence that the defendant may 

be entitled to discover under Rule 16. 

(c) Motion Deadline.  The court may, at the arraignment or as soon afterward 

as practicable, set a deadline for the parties to 

make pretrial motions and may also schedule a motion hearing. 

(d) Ruling on a Motion. The court must decide every pretrial motion before 

trial unless it finds good cause to defer a ruling. The 

court must not defer ruling on a pretrial motion if the deferral will adversely 

affect a party’s right to appeal. When factual issues 

are involved in deciding a motion, the court must state its essential findings 

on the record. 

(e) Waiver of a Defense, Objection, or Request.  A party waives any Rule 12(b)

(3) defense, objection, or request not raised by the 

deadline the court sets under Rule 12(c) or by any extension the court 

provides. For good cause, the court may grant relief from 

the waiver. 

(f) Recording the Proceedings. All proceedings at a motion hearing, including 

any findings of fact and conclusions of law made 

orally by the court, must be recorded by a court reporter or a suitable 

recording device. 

(g) Defendant’s Continued Custody or Release Status.  If the court grants a 

motion to dismiss based on a defect in instituting 

the prosecution, in the indictment, or in the information, it may order the 

defendant to be released or detained under 18 U.S.C. 

§ 3142 for a specified time until a new indictment or information is filed. This

 rule does not affect any federal statutory period of 

limitations. 

(h) Producing Statements at a Suppression Hearing. Rule 26.2 applies at a

suppression hearing under Rule 12(b)(3)(C). At a suppression hearing, a law 

enforcement officer is considered a government witness.

(As amended Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 

1, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; 

Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) 


Rule 12.1. Notice of an Alibi Defense 

(a) Government’s Request for Notice and Defendant’s Response. 

(1)  Government’s Request.  An attorney for the government 

 for the government of any intended alibi defense. The request must state 

 the time, date, and place of the alleged offense. 

(2) Defendant’s Response. Within 14 days after the request, or 

at some other time the court sets, the defendant must serve

written notice on an attorney for the government of any intended alibi. 

The defendant’s notice must state: 

(A) each specific place where the defendant claims to 

have been at the time of the alleged offense; and 

(B) the name, address, and telephone number of each 

alibi witness on whom the defendant intends to rely. 

(b) Disclosing Government Witnesses. 

(1) Disclosure. 

(A)  In General. If the defendant serves a Rule 12.1(a)(2) 

notice, an attorney for the government must disclose in 

writing to the defendant or the defendant’s attorney: 

(i) the name of each witness—and the address and 

telephone number of each witness other than a victim—that the government 

intends to rely on to establish that the defendant was present

 at the scene of the 

alleged offense; and 

(ii) each government rebuttal witness to the defendant’s alibi defense. 

(B) Victim’s Address and Telephone 

Number. If the government intends to rely on a victim’s testimony to  

establish that the defendant was present at the scene of the alleged 

offense and the defendant establishes a need for the victim’s address and 

telephone number, the court may: 

(i) order the government to provide the information 

in writing to the defendant or the defendant’s attorney; or 

(ii) fashion a reasonable procedure that allows preparation of the defense 

and also protects the victim’s interests. 

(2)  Time to Disclose.  Unless the court directs otherwise, an 

attorney for the government must give its Rule 12.1(b)(1) disclosure within 14  

days after the defendant serves notice of an 

intended alibi defense under Rule 12.1(a)(2), but no later than 14 days before 

trial. 

(c) Continuing Duty to Disclose. 

(1) In General. Both an attorney for the government and the 

defendant must promptly disclose in writing to the other 

party the name of each additional witness—and the address 

and telephone number of each additional witness other than a 

victim—if: 

(A) the disclosing party learns of the witness before or during trial; and 

(B) the witness should have been disclosed under Rule 

12.1(a) or (b) if the disclosing party had known of the witness earlier. 

(2)  Address and Telephone Number of an Additional Victim Witness.  The 

address and telephone number of an additional 

victim witness must not be disclosed except as provided in Rule 12.1 (b)(1)(B). 

(d) Exceptions.  For good cause, the court may grant an exception to any 

requirement of Rule 12.1(a)–(c). 

(e) Failure to Comply.  If a party fails to comply with this rule, 

the court may exclude the testimony of any undisclosed witness 

regarding the defendant’s alibi. This rule does not limit the defendant’s right 

to testify.

(f) Inadmissibility of Withdrawn Intention. Evidence of an intention to rely on 

an alibi defense, later withdrawn, or of a statement 

made in connection with that intention, is not, in any civil or 

criminal proceeding, admissible against the person who gave notice of the 

intention. 

(As added Apr. 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975, eff. Dec. 

1, 1975; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 

1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008; 

Mar. 26, 2009, eff. Dec. 1, 2009.


Rule 12.2. Notice of an Insanity Defense; Mental Examination 

(a) Notice of an Insanity Defense. A defendant who intends to assert a defense of insanity at the time of the alleged offense must 

so notify an attorney for the government in writing within the 

time provided for filing a pretrial motion, or at any later time the 

court sets, and file a copy of the notice with the clerk. A defendant who fails to do so cannot rely on an insanity defense. The 

court may, for good cause, allow the defendant to file the notice 

late, grant additional trial-preparation time, or make other appropriate orders. 

(b) Notice of Expert Evidence of a Mental Condition. If a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant 

bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case, the defendant must—within the time provided for filing a pretrial motion or at any later time the court 

sets—notify an attorney for the government in writing of this intention and file a copy of the notice with the clerk. The court 

may, for good cause, allow the defendant to file the notice late, 

grant the parties additional trial-preparation time, or make other 

appropriate orders. 

(c) Mental Examination. 

(1) Authority to Order an Examination; Procedures. 

(A) The court may order the defendant to submit to a 

competency examination under 18 U.S.C. § 4241. 

(B) If the defendant provides notice under Rule 12.2(a), 

the court must, upon the government’s motion, order the 

defendant to be examined under 18 U.S.C. § 4242. If the defendant provides notice under Rule 12.2(b) the court may, 

upon the government’s motion, order the defendant to be 

examined under procedures ordered by the court. 

(2)  Disclosing Results and Reports of Capital Sentencing Examination.  The results and reports of any examination conducted solely under Rule 12.2(c)(1) after notice under Rule 

12.2(b)(2) must be sealed and must not be disclosed to any attorney for the government or the defendant unless the defendant is found guilty of one or more capital crimes and the defendant confirms an intent to offer during sentencing proceedings expert evidence on mental condition. 

(3)  Disclosing Results and Reports of the Defendant’s Expert 

Examination.  After disclosure under Rule 12.2(c)(2) of the results and reports of the government’s examination, the defendant must disclose to the government the results and reports of

any examination on mental condition conducted by the defendant’s expert about which the defendant intends to introduce expert evidence. 

(4) Inadmissibility of a Defendant’s Statements. No statement 

made by a defendant in the course of any examination conducted under this rule (whether conducted with or without the 

defendant’s consent), no testimony by the expert based on the 

statement, and no other fruits of the statement may be admitted into evidence against the defendant in any criminal proceeding except on an issue regarding mental condition on 

which the defendant: 

(A) has introduced evidence of incompetency or evidence 

requiring notice under Rule 12.2(a) or (b)(1), or 

(B) has introduced expert evidence in a capital sentencing proceeding requiring notice under Rule 12.2(b)(2). 

(d) Failure to Comply. 

(1)  Failure to Give Notice or to Submit to Examination.  The 

court may exclude any expert evidence from the defendant on 

the issue of the defendant’s mental disease, mental defect, or 

any other mental condition bearing on the defendant’s guilt or 

the issue of punishment in a capital case if the defendant fails 

to: 

(A) give notice under Rule 12.2(b); or 

(B) submit to an examination when ordered under Rule 

12.2(c). 

(2)  Failure to Disclose.  The court may exclude any expert 

evidence for which the defendant has failed to comply with the 

disclosure requirement of Rule 12.2(c)(3). 

(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under Rule 12.2(a) or (b), later 

withdrawn, is not, in any civil or criminal proceeding, admissible 

against the person who gave notice of the intention. 

(As added Apr. 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975, eff. 

Dec. 1, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984; Oct. 30, 1984, 

eff. Oct. 12, 1984; Apr. 29, 1985, eff. Aug. 1, 1985; Nov. 10, 1986; Mar. 

9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, 

eff. Dec. 1, 2005.) 


Rule 12.3. Notice of a Public-Authority Defense 

(a) Notice of the Defense and Disclosure of Witnesses. 

(1)  Notice in General.  If a defendant intends to assert a defense of actual or believed exercise of public authority on behalf of a law enforcement agency or federal intelligence agency at the time of the alleged offense, the defendant must so 

notify an attorney for the government in writing and must file 

a copy of the notice with the clerk within the time provided 

for filing a pretrial motion, or at any later time the court 

sets. The notice filed with the clerk must be under seal if the 

notice identifies a federal intelligence agency as the source of 

public authority. 

(2) Contents of Notice. The notice must contain the following 

information: 

(A) the law enforcement agency or federal intelligence 

agency involved;

(B) the agency member on whose behalf the defendant 

claims to have acted; and 

(C) the time during which the defendant claims to have 

acted with public authority. 

(3)  Response to the Notice. An attorney for the government 

must serve a written response on the defendant or the defendant’s attorney within 14 days after receiving the defendant’s 

notice, but no later than 21 days before trial. The response 

must admit or deny that the defendant exercised the public 

authority identified in the defendant’s notice. 

(4) Disclosing Witnesses. 

(A)  Government’s Request. An attorney for the government may request in writing that the defendant disclose 

the name, address, and telephone number of each witness 

the defendant intends to rely on to establish a public-authority defense. An attorney for the government may