EC-997 A COMMUNICATION FROM THE CHIEF JUSTICE OF THE SUPREME COURT TRANSMITTING AMENDMENTS TO THE FEDERAL RULES OF CRIMINAL PROCEDURES WHICH HAVE BEEN ADOPTED BY THE SUPREME COURT; TO THE COMMITTEE ON THE JUDICIARY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP95B00895R000200040033-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 21, 2016
• Document Release Date: October 27, 2008
• Sequence Number: 33
• Publication Date: May 4, 1983
• Content Type: OPEN SOURCE

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S 5990
LEGISLATIVE SESSION
CONGRESSIONAL RECORD - SENATE
Mr. BAKER! Mr. President, I ask
unanimous consent that the Senate
return to legislative session.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
MESSAGES FROM THE HOUSE
At 10:28 a.m., a message from the
House of Representatives delivered by
Mr. Gregory, one of its reading clerks,
announced that the House has passed
the following bill. without amend-
ment:
? S. 1011. An act to amend the Federal De-
posit Insurance Act to provide for the issu-
ance of income capital certificates.
ENROLLED BILL SIGNED
At 12:14 p.m., a message from the
House of Representatives delivered by
Mr. Gregory announced that the
Speaker has signed the following bill:
S. 1011. An act to amend the Federal De-
posit Insurance Act to provide for the issu-
ance of income capital certificates.
The enrolled bill was subsequently
signed by the President pro tempore
(Mr. THuRmoND).
ENROLLED BILL PRESENTED
The Secretary of the Senate report-
ed that on today, Ma`y 4, 1983, he pre-
sented to the President of the United
States the following enrolled bill:
8. 1011. An act to amend the Federal De-
posit Insurance Act to provide for the issu-
ance of income capital certificates.
ESECUTIVE AND OTHER
COMMUNICATIONS
The following communications were
laid before the Senate, together with
accompanying papers, reports, and
documents, which were referred as in-
dicated:
EC-979. A communication from the Comp-
troller General of the United States trans-
mitting, pusuant to law, a list of General
Accounting Office reports for the month of
March 1983; to the Committee on Govern-
mental Affairs.
EC-980. A communication from the
Acting Director of the U.S. Information
Agency transmitting, pursuant to law. a
report on a new Privacy Act system of re-
cords; to the Committee on Governmental
Affairs.
EC-981. A communication from the Secre-
tary of housing and Urban Development
Indian and Alaska Native housing and com- Commission's compliance with the Govern-
munity development programs; to the Select went in the Sunshine Act; to the Committee
Committee on Indian Affairs. on Governmental Affairs.
EC-982. A communication from the Direc- . EC-996. A communication from the Direc-
tor of the National Institute of Corrections tor of Manpower Planning and Analysis of
transmitting, pursuant to law, the seventh the Department of Defense transmitting,
annual report of the institute; to the Com- pursuant to law, the fiscal year 1982 actuar-
mittee on the Judiciary. ial report on the military retirement system;
EC-983. A communication from the Gen- alb. rn,.,m tee on Governmental Affairs.
tive director of the Pennsylvania Develop 9S-X~comn-unication from the Chief
ment Corporation transmitting, pursuant to Justice of the Supreme Court transmitting
law, the 1982 report on activities under the amendments to the Federal Rules of Civil
Freedom of Information Act; to the Com-
mittee on the Judiciary.
? EC-985. A communication from the Chair.
man of the Board of Directors of the Feder-
al Reserve System transmitting, pursuant to
law, a report on activities of the Federal
Open Market Committee during 1982 under
the Freedom of Information Act; to the
Committee on the Judiciary.
EC-986. A communication from the Assist-
ant Secretary for Vocational and Adult Edu-
cation of the Department of Education
transmitting, pursuant to law, the Annual
Report of the Community Education Advi-
sory Council for 1982; to the Committee on
Labor and Human Resources.
EC-987. A communication from the Secre-
tary of Education transmitting, pursuant to
law, a report on the allocation of work years
for fiscal 1983; to the Committee on Labor
and Human Resources.
EC-988. A communication from the Chair-
man of the Railroad Retirement Board
transmitting, pursuant to law, the Board's
annual report for fiscal year 1981; to the
Committee on Labor and Human Resources.
EC-989. A communication from the chair-
man of the National Advisory Committee on
Oceans and Atmosphere transmitting, pur-
suant to law, a. report on the Nation's river
and flood forecasting and warning service;
to the Committee on Commerce, Science,
and Transportation.
EC-990. A communication from the Secre-
tary of Commerce transmitting, pursuant to
law, the annual report on the activities of
the national climate program for fiscal year
1981; to the Committee on Commerce, Sd-
ence, and Transportation.
EC-991. A communication from the Gen-
eral Counsel of the Department of Energy
transmitting, pursuant to law, notice of a
meeting related to the international energy
program; to the Committee on Energy and
Natural Resources.
EC-992. A communication from the Feder-
al Inspector of the Alaska Natural Gas
Transportation System transmitting, pursu-
ant to law, a Quarterly report summarizing
the significant project developments occur-
ring from January through March 1983 on
the Alaska Natural Gas Transportation
System; to the Committee on Energy and
Natural Resources.
EC-993. A communication from the Direc-
tor of the Office of Management and
Budget transmitting, pursuant to law, a Soll
Conservation Service plan for the Brundage
Watershed. Idaho; to the Committee on En-
vironment and Public Works.
EC-994. A communication from the Secre-
tary of Health and Human Services trans-
mitting, pursuant to law, the Department's
report on State medicaid program compli-
ance with section 1903(g) of the Solcal Secu-
rity Act; to the Committee on Finance.
EC-995. A communication from the
Acting Staff Director of the U.S. Commis-
sion on Civil Rights transmitting, pursuant
May 4, 198,E
Procedures which have been adopted by the
Supreme Court; to the Committee _on the
Judiciary.
EC-999. A communication from the Secre.
tary of Health and Human Services trans-
mitting, pursuant to law, a report on the im-
plementation of the Age Discrimination Act
of 1975 during fiscal year 1982; to the Com-
mittee on Labor and Human Resources.
EC-1000. A communication from the Sea
retary of Education transmitting, pursuant
to law, a document concerning final funding
priorities for research and training centers
for the National Institute of Handicapped
Research and fiscal year 1983; to the Com-
mittee on Labor and Human Resources.
EC-1001. A communication from the
Chairman of the National Commission on
Libraries and Information Science transmit-
ting, pursuant to law, the Commission's
fiscal year 1982 report; to the Committee on
Labor and Human Resources.
REPORTS OF COMMITTEES
The following reports of committees
were submitted
By Mr. THURMOND, from the Commit.
tee on the Judiciary, with amendments:
8. 549. A bill to amend title 11, United
States Code, to improve the protections for
shopping centers and their tenants under
the Bankruptcy Code (Rcpt. No. 98-70).
By Mr. PACKWOOD, from the Commit-
tee on Commerce, Science, and Transporta-,
tion, without amendment'and with a pream-
ble:
S.J. Rea. 69. Joint resolution to provide
for the establishment of a cooperative effort
between the U.B. Government and the U.S.
Soccer Federation in bringing the World
Cup to the United States in 1986.
EXECUTIVE REPORTS OF
COMMITTEES
The following executive reports of
committees were submitted
By Mr. McCLURE, from the Committee
on Energy and Natural Resources:
Theodore J. Garrish. of Virginia, to be
General Counsel of the Department of
Energy.
(The above nomination was reported
from the Committee on Energy and
Natural Resources with the reeom-
mendation that it be confirmed, sub-
ject to the nominee's commitment to
respond to requests to appear and tes-
tify before any duly constituted com-
mittee of the Senate.)
By Mr. ROTH. from the Committee on
Governmental Affairs:
John Lathrop Ryan. of Indiana. to be a
Governor of the U.B. Postal Service for the
remainder of the term expiring December 8.
1989.
Maria Lucia Johnson, of Alaska, to be a
Member of the Merit Systems Protection
Board for the term of 7 years expiring
March 1, 1990.
INTRODUCTION OF BILLS AND
JOINT RESOLUTIONS
The following bills and joint resolu-
tions were introduced, read the first
and second time by unanimous con-
sent, and referred as indicated
- By Mr. PERCY (by request).
8. 1198. A bill to amend the Board for In-
ternational Broadcasting Act of 1973 to a*
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The United States
LAW WEEK
191~~
Supreme Court
Procedural Rules
RULES ANNOUNCED APRIL 28, 1983
The Supreme Court issued the following rules:
1. That the Federal Rules of Civil Procedure be,
and they hereby are, amended by including therein new
Rules 26(g), 53(f), 72 through 76 and new official
Forms 33 and 34, and amendments to Rules 6(b), 7(b),
11, 16, 26(a) and (b), 52(a), 53(a), (b) and (c) and
67, as hereinafter set forth:
[See infra., pp. _ - _.1
2. That the foregoing additions and amendments
to the Federal Rules of Civil Procedure shall take
effect on August 1, 1983 and shall govern all civil
proceedings thereafter commenced and, insofar as just
and practicable, in proceedings then pending.
3. That THE CHIEF JUSTICE be, and he hereby is,
authorized to transmit to the Congress the foregoing
additions to and changes in the Federal Rules of
Civil Procedure in accordance with the provisions of
Section 2072 of Title 28, United States Code.
AMENDMENTS
TO THE
FEDERAL RULES OF CIVIL PROCEDURE
(b) ENLARGEMENT. When by these rules or by a notice given
thereunder or by order of court an act is required or allowed to be
done at or within a specified time, the court for cause shown may at
any time in its discretion (1) with or without motion or notice order
the period enlarged if request therefor is made before the expiration
of the period originally prescribed or as extended by a previous
order, or (2) upon motion made after the expiration of the specified
period permit the act to be done where the failure to act was the
result of excusable neglect; but it may not extend the time for
taking any action, under Rules. 50(b) and (c)(2), 52(b), 59(b), (d) and
(e), 60(b), and 74(a), except to the extent and under the conditions
stated in them.
s s ?
Section 4
(2) The rules applicable to captions and other matters of
form of pleadings apply to all motions and other papers provided
for by these rules.
(3) All motions shall be signed in accordance with Rule 11.
Rule 11. Signing of Pleadings, Motions, and Other
Papers; Sanctions
Every pleading, motion, and other paper of a party represented
by an attorney shall be signed by at least one attorney of record in
his individual name, whose address shall be stated. A party who is
not represented by an attorney shall sign his pleading, motion, or
other paper and state his address. Except when otherwise
specifically provided by rule or statute, pleadings need not be
verified or accompanied by affidavit. The rule in equity that the
averments of an answer under oath must be overcome by the
testimony of two witnesses or of one witness sustained by
corroborating circumstances is abolished. The signature of an
attorney or party constitutes a certificate by him that he has read
the pleading, motion, or other paper; that to the best of his
knowledge, information, and belief formed after reasonable inquiry
it is well grounded in fact and is warranted by existing law or a good
faith argument for the extension, modification, or reversal of
existing law, and that it is not interposed for any improper purpose,
such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.. If a pleading, motion, or other paper is not
signed, it shall be stricken unless it is signed promptly after the
omission is called to the attention of the pleader or movant. If a
pleading, motion, or other paper is signed in violation of this rule,
the court, upon motion or upon its own initiative, shall impose upon
the person who signed it..a represented party, or both, an
appropriate sanction, which may include an order to pay to the other
party or parties the amount of the reasonable expenses incurred
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because of the filing of the pleading, motion, or other paper,
including a reasonable attorney's fee.
Rule 16. Pretrial Conferences; Scheduling; Management
(a) PRETRIAL CONFERENCES; OBJECTIVES. In any action,
the court may in its discretion direct the attorneys for the parties
and any unrepresented parties to appear before it for a conference
or conferences before trial for such purposes as
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the
case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more
thorough preparation, and;
(5) facilitating the settlement of the case.
(b) SCHEDULING AND PLANNING. Except in categories of
actions exempted by district court rule as inappropriate, the judge,
or a magistrate when authorized by district court rule, shall, after
consulting with the attorneys for the parties and any unrepresented
parties, by a scheduling conference, telephone, mail, or other
suitable means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file and hear motions; and
(3) to complete discovery.
The scheduling order also may include
(4) the date or dates for conferences before trial, a final
pretrial conference, and trial; and
(5) any other matters appropriate in the circumstances of
the case.
The order shall issue as soon as practicable but in no event more
than 120 days after filing of the complaint. A schedule shall not be
modified except by leave of the judge or a magistrate when
authorized by district court rule upon a showing of good cause.
(c) SUBJECTS TO BE DISCUSSED AT PRETRIAL
CONFERENCES. The participants at any conference under this rule
may consider and take action with respect to
(1) the formulation and simplification of the issues,
including the elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the
pleadings;
(3) the possibility of obtaining admissions of fact and of
documents which will avoid unnecessary proof, stipulations
regarding the authenticity of documents, and advance rulings
from the court on the admissibility of evidence;
(5) the identification of witnesses and documents, the need
and schedule for filing and exchanging pretrial briefs, and the
date or dates for further conferences and for trial;
(6) the advisability of referring matters to a magistrate or
evidence;
master;
(7) the possibility of settlement or the use of extrajudicial
procedures to resolve the dispute;
(8) the form and substance of the pretrial order;
(9) the disposition of pending motions;
(10) the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve
complex issues, multiple parties, difficult legal questions, or
unusual proof problems; and
(11) such other matters as may aid in the disposition of the
action.
At least one of the attorneys for each party participating in any
conference before trial shall have authority to enter into
stipulations and to make admissions regarding all matters that the
participants may reasonably anticipate may be discussed.
(d) FINAL PRETRIAL CONFERENCE. Any final pretrial
conference shall be held as close to the time of trial as reasonable
under the circumstances. The participants at any such conference
shall formulate a plan for trial, including a program for facilitating
the admission of evidence. The conference shall be attended by at
least one of the attorneys who will conduct the trial for each of the
parties and by any unrepresented parties.
(e) PRETRIAL ORDERS. After any conference held pursuant
to this rule, an order shall be entered reciting the action taken. This
order shall control the subsequent course of the action unless
modified by a subsequent order. The order following a final pretrial
conference shall be modified only to prevent manifest injustice.
(f) SANCTIONS. If a party or party's attorney fails to obey a
scheduling or pretrial order, or if no appearance is made on behalf of
a party at a scheduling or pretrial conference, or if a party or
party's attorney is substantially unprepared to participate in the
conference, or if a party or party's attorney falls to participate in
good faith, the judge, upon motion or his own initiative, may make
such orders with regard thereto as are just, and among others any of
the orders provided in Rule 37(b)(2XB), (C), (D). In lieu of or in
addition to any other sanction, the judge shall require the party or
the attorney representing him or both to pay the reasonable
expenses incurred because of any noncompliance with this rule,
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5-3-83 The United States LAW WEEK
including attorney's fees, unless the judge finds that the
noncompliance was substantially justified or that other
circumstances make an award of expenses unjust.
Rule 26. General Provisions Governing Discovery
(a) DISCOVERY METHODS. Parties may obtain discovery by
one or more of the following methods: depositions upon oral
examination or written questions; written interrogatories;
production of documents or things or permission to enter upon land
or other property, for inspection and other purposes; physical and
mental examinations; and requests for admission.
(b) DISCOVERY SCOPE AND LIMITS. Unless otherwise
limited by order of the court in accordance with these rules, the
scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding
any matter, not privileged, which is relevant to the subject
matter involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the claim
or defense of any other party, including the existence,
description, nature, custody, condition and location of any
books, documents, or other tangible things and the Identity and
location of persons having knowledge of any discoverable
matter. It is not ground for objection that the information
sought will be inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of
admissible evidence.
The frequency or extent of use of the discovery methods
set forth in subdivision (a) shall be limited by the court if it
determines that: (I) the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample
opportunity by discovery in the action to obtain the information
sought; or (iii) the discovery is unduly burdensome or expensive,
taking into account the needs of the case, the amount in
controversy, limitations on the parties' resources, and the
importance of the issues at stake in the litigation. The court
may act upon its own initiative after reasonable notice or
pursuant to a motion under subdivision (c).
? * t
(g) SIGNING OF DISCOVERY REQUESTS, RESPONSES, AND
OBJECTIONS. Every request for discovery or response or objection
thereto made by a party represented by an attorney shall be signed
by at least one attorney of record in his individual name, whose
address shall be stated. A oartv who is not represented by an
attorney shall sign the request, response, or objection and state his
address. The signature of the attorney or party constitutes a
certification that he has read the request, response, or objection,
and that to the best of his knowledge, information, and belief
formed after a reasonable inquiry It is: (1) consistent with these
rules and warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law; (2) not
interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation; and
(3) not unreasonable or unduly burdensome or expensive, given the
needs of the case, the discovery already had in the case, the amount
in controversy, and the Importance of the issues at stake in the
litigation. If a request, response, or objection is not signed, it shall
be stricken unless it is signed promptly after the omission is called
to the attention of the party making the request, response or
objection and a party shall not be obligated to take any action with
respect to it until it is signed.
If a certification is made in violation of the rule, the court,
upon motion or upon its own initiative, shall impose upon the person
who made the certification, the party on whose behalf the request,
response, or objection is made, or both, an appropriate sanction,
which may include an order to pay the amount of the reasonable
expenses incurred because of the violation, including a reasonable
attorney's fee.
Rule 52. Findings by the Court
(a) EFFECT. In all actions tried upon the facts without a jury
or with an advisory jury, the court shall find the facts specially and
state separately its conclusions of law thereon, and judgment shall
be entered pursuant to Rule 58; and in granting or refusing
interlocutory injunctions the court shall similarly set forth the
findings of fact and conclusions of law which constitute the grounds
of its action. Requests for findings are not necessary for purposes
of review. Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the
trial court to judge of the credibility of the witnesses. The findings
of a master, to the extent that the court adopts them, shall be
considered as the findings of the court. It will be sufficient if the
findings of fact and conclusions of law are stated orally and
recorded in open court following the close of the evidence or appear
in an opinion or memorandum of decision filed by the court.
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Rule 53. Masters I !
(a) APPOINTMENT AND COMPENSATION. The court in which
any action is pending may appoint a special master therein. As used
In these rules the word "master". includes a referee, an auditor, an
examiner, and an assessor. The compensation to be allowed to a
master shall be fixed by the court, and shall be charged upon such of
the parties or paid out of any fund or subject matter of the action,
which Is in the custody and control of the court as the court may
direct; provided that this provision for compensation shall not apply
when a United States magistrate is designated to serve as a master
pursuant to Title 28, U.S.C. S 836(bX2). The master shall not retain
his report as security for his compensation; but when the party
ordered to pay the compensation allowed by the court does not pay
it after notice and within the time prescribed by the court, the
master -is entitled to a writ of execution against the delinquent
party.
(b) REFERENCE. A reference to a master shall be the
exception and not the rule. In actions to be tried by a jury, a
reference shall be made only when the issues are complicated; in
actions to be tried without a jury, save in matters of account and of
difficult computation of damages, a reference shall be made only
upon a showing that some exceptional condition requires it. Upon
the consent of the parties, a magistrate may be designated to serve
as a special master without regard to the provisions of this
subdivision.
(c) POWERS. The order of reference to the master may
specify or limit his powers and may direct him to report only upon
particular issues or to do or perform particular acts or to receive
and report evidence only and may fix the time and place for
beginning and closing the hearings and for the filing of the master's
report. Subject to the specifications and limitations stated in the
order, the master has and shall exercise the power to regulate all
proceedings in every hearing before him and to do all acts and take
all measures necessary or proper for the efficient performance of
his duties under the order. He may require the production before
him of evidence upon all matters embraced in the reference,
including the production of all books, papers, vouchers, documents,
and writings applicable thereto. He may rule upon the admissibility
of evidence unless otherwise directed by the order of reference and
has the authority to put witnesses on oath and may himself examine
them and may call the parties to the action and examine them upon
oath. When a party so requests, the master shall make a record of
the evidence offered and excluded in the same manner and subject
to the same limitations as provided in the Federal Rules of Evidence
for a court sitting without a jury.
. . .
(f) A magistrate is subject to this rule only when the order
referring a matter to the magistrate expressly provides that the
reference is made under this Rule.
Rule 67. Deposit in Court
In an action in which any part of the relief sought is a
judgment for a sum of money or the disposition of a sum of money or
the disposition of any other thing capable of delivery, a party, upon
notice to every other party, and by leave of court, may deposit with
the court all or any part of such sum or thing, whether or not that
party claims all or any part of the sum or thing. The party making
the deposit shall serve the order permitting deposit on the clerk of
the court. Money paid into court under this rule shall be deposited
and withdrawn in accordance with the provisions of Title 28, U.S.C.,
SS 2041, and 2042; the Act of June 26, 1934, c. 756, S 23, as
amended (48 Stat. 1236, 58 Stat. 845), U.S.C., Title 31, S 725x, or
any like statute. The fund shall be deposited in an interest-bearing
account or invested in an interest-bearing instrument approved by
the court.
Rule 72. Magistrates; Pretrial Matters
(a) NONDISPOSITIVE MATTERS. A magistrate to whom a
pretrial matter not dispositive of a claim or defense of a party is
referred to hear and determine shall promptly conduct such
proceedings as are required and when appropriate enter into the
record a written order setting forth the disposition of the matter.
The district judge to whom the case is assigned shall consider
objections made by the parties, provided they are served and filed
within 10 days after the entry of the order, and shall modify or set
aside any portion of the magistrate's order found to be clearly
erroneous or contrary to law.
(b) DISPOSITIVE MOTIONS AND PRISONER PETITIONS. A
magistrate assigned without consent of the parties to hear a pretrial
matter dispositive of a claim or defense of a party or a prisoner
petition challenging the conditions of confinement shall promptly
conduct such proceedings as are required. A record shall be made of
all evidentiary proceedings before the magistrate, and a record may
be made of such other proceedings as the magistrate deems
necessary. The magistrate shall enter into the record a
recommendation for disposition of the matter, including proposed
findings of fact when appropriate. The clerk shall forthwith mail
copies to all parties.
A party objecting to the
matter shall promptly arrange for the transcription of the record, or
portions of it as all parties may agree upon or the magistrate deems
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sufficient, unless the district judge otherwise directs. Within 10
days after being served with a copy of the recommended disposition,
a party may serve and file specific, written objections to the
proposed findings and recommendations. A party may respond to
another party's objections within 10 days after being served with a
copy thereof. The district judge to whom the case is assigned shall
make a de novo determination upon the record, or after additional
evidence, of any portion of the magistrate's disposition to which
specific written objection has been made in accordance with this
rule. The district judge may accept, reject, or modify the
recommended decision, receive further evidence, or recommit the
matter to the magistrate with instructions.
Rule 73. Magistrates; Trial by Consent and Appeal Options
(a) POWERS; PROCEDURE. When specially designated to
exercise such jurisdiction by local rule or order of the district court
and when all parties consent thereto, a magistrate may exercise the
authority provided by Title 28, U.S.C. S 636(c) and may conduct any
or all proceedings, including a jury or nonjury trial, in a civil case.
A record of the proceedings shall be made in accordance with the
requirements of Title 28, U.S.C. S 636(cX7).
(b) CONSENT. When a magistrate has been designated to
exercise civil trial jurisdiction, the clerk shall give written notice to
the parties of their opportunity to consent to the exercise by a
magistrate of civil jurisdiction over the case, as authorized by Title
28, U.S.C. S 636(c). If, within the period specified by local rule, the
parties agree to a magistrate's exercise of such authority, they shall
execute and file a joint form of consent or separate forms of
consent setting forth such election.
No district judge, magistrate, or other court official shall
attempt to persuade or induce a party to consent to a reference of a
civil matter to a magistrate under this rule, nor shall a district judge
or magistrate be informed of a party's response to the clerk's
notification, unless all parties have consented to the referral of the
matter to a magistrate.
The district judge, for good cause shown on his own motion or
under extraordinary circumstances shown by a party, may vacate a
reference of a civil matter to a magistrate under this subdivision.
(c) NORMAL APPEAL ROUTE. In accordance with Title 28,
U.S.C. S 636(cX3), unless the parties otherwise agree to the optional
appeal route provided for in subdivision (d) of this rule, appeal from
a judgment entered upon direction of a magistrate in proceedings
under this rule will lie to the court of appeals as it would from a
judgment of the district court.
(d) OPTIONAL APPEAL ROUTE. In accordance with Title 28,
U.S.C. S 636(c)(4), at the time of reference to a magistrate, the
parties may consent to appeal on the record to a judge of the
district court and thereafter, by petition only, to the court of
appeals.
Rule 74. Method of Appeal from Magistrate to District Judge
under Title 28, U.S.C. S 636(cX4) and Rule 73(d)
(a) WHEN TAKEN. When the parties have elected under Rule
73(d) to proceed by appeal to a district judge from an appealable
decision made by a magistrate under the consent provisions of Title
28, U.S.C. S 636(cX4), an appeal may be taken from the decision of a
magistrate by filing with the clerk of the district court a notice of
appeal within 30 days of the date of entry of the judgment appealed
from; but if the United States or an officer or agency thereof is a
party, the notice of appeal may be filed by any party within 60 days
of such entry. If a timely notice of appeal is filed by a party, any
other party may file a notice of appeal within 14 days thereafter, or
within the time otherwise prescribed by this subdivision. whichever
period last expires.
The running of the time for filing a notice of appeal is
terminated as to all parties by the timely filing of any of the
following motions with the magistrate by any party, and the full
time for appeal from the judgment entered by the magistrate
commences to run anew from entry of any of the following orders:
(1) granting or denying a motion for judgment under Rule 50(b); (2)
granting or denying a motion under Rule 52(b) to amend or make
additional findings of fact, whether or not an alteration of the
judgment would be required if the motion is granted; (3) granting or
denying a motion under Rule 59 to alter or amend the judgment; (4)
denying a motion for a new trial under Rule 59.
An interlocutory decision or order by a magistrate which, if
made by a judge of the district court, could be appealed under any
provision of law, may be appealed to a judge of the district court by
filing a notice of appeal within 1 S days after entry of the decision or
order, provided the parties have elected to appeal to a judge of the
district court under Rule 73(d). An appeal of such interlocutory
decision or order shall not stay the proceedings before the
magistrate unless the magistrate or judge shall so order.
Upon a showing of excusable neglect, the magistrate may
extend the time for filing a notice of appeal upon motion filed not
later than 20 days after the expiration of the time otherwise
prescribed by this rule.
(b) NOTICE OF APPEAL; SERVICE. The notice of appeal shall
specify the party or parties taking the appeal, designate the
judgment, order or part thereof appealed from, and state that the
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appeal is to a judge of the district court. The clerk shall mail-copies
of the notice to all other parties and note the date of mailing in the
civil docket.
(c) STAY PENDING APPEAL. Upon a showing that the
magistrate has refused or otherwise failed to stay the judgment
pending appeal to the district judge under Rule 73(d), the appellant
may make application for a stay to the district judge with
reasonable notice to all parties. The stay may be conditioned upon
the filing in the district court of a bond or other appropriate
security.
(d) DISMISSAL. For failure to comply with these rules or any
local rule or order, the district judge may take such action as is
deemed appropriate, including dismissal of the appeal. The district
judge also may dismiss the appeal upon the filing of a stipulation
signed by all parties, or upon motion and notice by the appellant.
Rule 75. Proceedings on Appeal from Magistrate
to District Judge under Rule 73(d)
(a) APPLICABILITY. In proceedings under Title 28, U.S.C. S
636(c), when the parties have previously elected under Rule 73(d) to
appeal to a district judge rather than to the court of appeals, this
rule shall govern the proceedings on appeal.
(b) RECORD ON APPEAL.
(1) Composition. The original papers and exhibits filed
with the clerk of the district court, the transcript of the
proceedings, if any, and the docket entries shall constitute the
record on appeal. In lieu of this record the parties, within 10
days after the filing of the notice of appeal, may file a joint
statement of the case showing how the issues presented by the
appeal arose and were decided by the magistrate, and setting
forth only so many of the facts averred and proved or sought to
be proved as are essential to a decision of the issues presented.
(2) Transcript. Within 10 days after filing the notice of
appeal the appellant shall make arrangements for the production
of a transcript of such parts of the proceedings as he deems
necessary. Unless the entire transcript is to be included, the
appellant, within the time provided above, shall serve on the
appellee and file with the court a description of the parts of the
transcript which he intends to present on the appeal. If the
appellee.deems a transcript of other parts of the proceedings to
be necessary, within 10 days after the service of the statement
of the appellant, he shall serve on the appellant and file with the
court a designation of additional parts to be included. The
appellant shall promptly make arrangements for the inclusion of
all such parts unless the magistrate, upon motion, exempts the
appellant from providing certain parts, in which case the
appellee may provide for their transcription.
(3) Statement in Lieu of Transcript. If no record of the
proceedings is available for transcription, the parties shall,
within 10 days after the filing of the notice of appeal, file a
statement of the evidence from the best available means to be
submitted in lieu of the transcript. If the parties cannot agree
they shall submit a statement of their differences to the
magistrate for settlement.
(c) TIME FOR FILING BRIEFS. Unless a local rule or court
order otherwise provides, the following time limits for filing briefs
shall apply.
(1) The appellant shall serve and file his brief within 20
days after the filing of the transcript, statement of the case, or
statement of the evidence.
(2) The appellee shall serve and file his brief within 20 days
after service of the brief of the appellant.
(3) The appellant may serve and file a reply brief within 10
days after service of the brief of the appellee.
(4) If the appellee has filed a cross-appeal, he may file a
reply brief limited to the issues on the cross-appeal within 10
days after service of the reply brief of the appellant.
(d) LENGTH AND FORM OF BRIEFS. Briefs may be
typewritten. The length and form of briefs shall be governed by
local rule.
(e) ORAL ARGUMENT. The opportunity for the parties to be
heard on oral argument shall be governed by local rule.
Rule 76. Judgment of the District Judge on the Appeal
under Rule 73(d) and Costs
(a) ENTRY OF JUDGMENT. When the parties have elected
under Rule 73(d) to appeal from a judgment of the magistrate to a
district judge, the clerk shall prepare, sign, and enter judgment in
accordance with the order or decision of the district judge following
an appeal from a judgment of the magistrate, unless the district
judge directs otherwise. The clerk shall mail to all parties a copy of
the order or decision of the district judge.
(b) STAY OF JUDGMENTS. The decision of the district judge
shall be stayed for 10 days during which time a party may petition
the district judge for rehearing, and a timely petition shall stay the
decision of the district judge pending disposition of a petition for
rehearing. Upon the motion of a party, the decision of the district
judge may be stayed in order to allow a party to petition the court
of appeals for leave to appeal.
(c) COSTS. Except as otherwise provided by law or ordered by
the district judge, costs shall be taxed against the losing party; if a
judgment of the magistrate is affirmed in part or reversed in part,
or is vacated, costs shall be allowed only as ordered by the district
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judge. The cost of the transcript, if necessary for the determination
of the appeal, and the premiums paid for bonds to preserve rights
pending appeal shall be taxed as costs by the clerk.
APPENDIX OF FORMS
NOTICE OF RIGHT TO CONSENT TO THE EXERCISE OF
CIVIL JURISDICTION BY A MAGISTRATE AND APPEAL OPTION
In accordance with the provisions of Title 28, U.S.C. S 636(c),
you are hereby notified that the United States magistrates of this
district court, in addition to their other duties, upon the consent of
all parties in a civil case, may conduct any or all proceedings in a
civil case including a jury or nonjury trial, and order the entry of a
final judgment.
You should be aware that your decision to consent, or not to
consent, to the referral of your case to a United States magistrate
must be entirely voluntary. Only if all the parties to the case
consent to the reference to a magistrate will either the judge or
magistrate to whom the case has been assigned be informed of your
decision.
An appeal from a judgment entered by a magistrate may be
taken directly to the United States court of appeals for this judicial
circuit in the same manner as an appeal from any other judgment of
a district court. Alternatively, upon consent of all parties, an
appeal from, a judgment entered by a magistrate may be taken
directly to a district judge. Cases in which an appeal is taken to a
district judge may be reviewed by the United States court of appeals
for this judicial circuit only by way of petition for leave to appeal.
Copies of the Form for the "Consent to Proceed Before a
United States Magistrate" and "Election of Appeal to a District
Judge" are available from the clerk of the court.
CONSENT TO PROCEED BEFORE
A UNITED STATES MAGISTRATE,
ELECTION OF APPEAL DISTRICT JUDGE
AND ORDER OF REFERENCE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF
-------------------------- x
-------------------------- x
CONSENT TO PROCEED BEFORE A UNITED STATES
MAGISTRATE
In accordance with the provisions of Title 28, U.S.C. S 636(c),
the parties to the above-captioned civil matter hereby voluntarily
waive their rights to proceed before a judge of the United States
district court and consent to have a United States magistrate
conduct any and all further proceedings in the case, including trial,
and order the entry of a final judgment.
ELECTION OF APPEAL TO DISTRICT JUDGE
1136- not execute t is portion o the Consent Form if the parties
desire that the appeal lie directly to the court of appeals.]
In accordance with the provisions of Title 28, U.S.C. S
636(c)(4), the parties elect to take any appeal in this case to a
ORDER OF REFERENCE
IT IS HEREBY ORDERED that the above-captioned matter be
referred to United States Magistrate for all
further proceedings and the entry of judgment in accordance with
Title 28, U.S.C. S 636(c) and the foregoing consent of the parties.
Note: Return this form to the Clerk of the Court only if all
parties have consented to proceed before a magistrate.
1. That the Federal Rules of Criminal Procedure
for the United States District Courts be, and they
hereby are, amended by including therein new Rules
11(h), 12(i) and 12.2(e), and amendments to Rules 6(e)
and (g), 11 (a) , 12.2(b), (c) and (d), 16 (a) , 23 (b) ,
32(a), (c) and (d), 35(b) and 55, as hereinafter set
forth:
2. That Rule 58 of the Federal Rules of Criminal
Procedure and the Appendix of Forms are hereby abrogated.
3. That the foregoing additions and amendments to
the Federal Rules of Criminal Procedure, together with
the abrogation of Rule 58 and the official Forms, shall
take effect on August 1, 1983 and shall govern all
criminal proceedings thereafter commenced and, insofar
as just and practicable, in proceedings then pending.
4. That THE CHIEF JUSTICE be, and he hereby is,
authorized to transmit to the Congress the foregoing
additions to and changes in the Federal Rules of
Criminal Procedure in accordance with the provisions of
Sections 3771 and 3772 of Title 18, United States Code.
AMENDMENTS TO THE
FEDERAL RULES OF CRIMINAL PROCEDURE
a ? ?
(C) Disclosure otherwise prohibited by this rule of
matters occurring before the grand jury may also be
made -
(i) when so directed by a court preliminarily to
or in connection with a judicial proceeding;
(ii) when permitted by a court at the request of
the defendant, upon a showing that grounds may exist
for a motion to dismiss the indictment because of
matters occurring before the grand jury; or
(iii) when the disclosure is made by an attorney
for the government to another federal grand jury.
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If the court orders disclosure of matters occurring before
the grand jury, the disclosure shall be made in such
manner, at such time, and under such conditions as the
court may direct.
(D) A petition for disclosure pursuant to subdivision
(e)(3)(CHi) shall be filed in the district where the grand
jury convened. Unless the hearing is ex parte, which it
may be when the petitioner is the government, the
petitioner shall serve written notice of the petition upon (i)
the attorney for the government, (Ii) the parties to the
judicial proceeding if disclosure is sought in connection
with such a proceeding, and (iii) such other persons as the
court may direct. The court shall afford those persons a
reasonable opportunity to appear and be heard.
(E) If the judicial proceeding giving rise to the
petition is in a federal district court in another district,
the court shall transfer the matter to that court unless it
can reasonably obtain sufficient knowledge of the
proceeding to determine whether disclosure is proper. The
court shall order transmitted to the court to which the
matter is transferred the material sought to be disclosed,
if feasible, and a written evaluation of the need for
continued grand jury secrecy. The court to which the
matter is transferred shall afford the aforementioned
persons a reasonable opportunity to appear and be heard.
(5) Closed hearing. Subject to any right to an open hearing
in contempt proceedings, the court shall order a hearing on
matters affecting a grand jury proceeding to be closed to the
extent necessary to prevent disclosure of matters occurring
before a grand jury.
(6) Sealed records. Records, orders and subpoenas relating
to grand jury proceedings shall be kept under seal to the extent
and for such time as is necessary to prevent disclosure of
matters occurring before a grand jury.
(g) DISCHARGE AND EXCUSE. A grand jury shall serve until
discharged by the court, but no grand jury may serve more than 18
months unless the court extends the service of the grand jury for a
period of six months or less upon a determination that such
extension is in the public interest. At any time for cause shown the
court may excuse a juror either temporarily or permanently, and in
the latter event the court may impanel another person in place of
the juror excused.
Rule 11. Pleas
(a) ALTERNATIVES.
(1) In General. A defendant may plead not guilty, guilty,
or nolo contendere. If a defendant refuses to plead or if a
defendant corporation fails to appear, the court shall enter a
plea of not guilty.
(2) Conditional pleas. With the approval of the court and
the consent of the government, a defendant may enter a
conditional plea of guilty or nolo contendere, reserving in
writing the right, on appeal from the judgment, to review of the
adverse determination of any specified pretrial motion. If the
defendant prevails on appeal, he shall be allowed to withdraw his
plea.
(h) HARMLESS ERROR. Any variance from the procedures
required by this rule which does not affect substantial rights shall be
disregarded.
Rule 12. Pleadings and Motions Before Trial;
Defenses and Objections
(i) PRODUCTION OF STATEMENTS AT SUPPRESSION
HEARING. Except as herein provided, rule 26.2 shall apply at a
hearing on a motion to suppress evidence under subdivision (b)(3) of
this rule. For purposes of this subdivision, a law enforcement
officer shall be deemed a witness called by the government, and
upon a claim of privilege the court shall excise the portions of the
statement containing privileged matter.
Rule 12.2 Notice of Insanity Defense or Expert Testimony
of Defendant's Mental Condition
...
(b) EXPERT TESTIMONY OF DEFENDANT'S MENTAL
CONDITION. If a defendant intends to introduce expert testimony
relating to a mental disease or defect or any other mental condition
of the defendant bearing upon the issue of his guilt, he shall, within
the time provided for the filing of pretrial motions or at such later
time as the court may direct, notify the attorney for the
government in writing of such intention and file a copy of such
notice with the clerk. The court may for cause shown allow late
filing of the notice or grant additional time to the parties to prepare
for trial or make such other order as may be appropriate.
(c) MENTAL EXAMINATION OF DEFENDANT. In an
appropriate case the court may, upon motion of the attorney for the
government, order the defendant to submit to a mental examination
by a psychiatrist or other expert designated for this purpose In the
order of the court. No statement made by the defendant in the
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course of any examination provided for by this rule, whether the
examination be with or without the consent of the defendant, no
testimony by the expert based upon such statement, and no other
fruits of the statement shall be admitted in evidence against the
defendant in any criminal proceeding except on an issue respecting
mental condition on which the defendant has introduced testimony.
(d) FAILURE TO COMPLY. If there is a failure to give notice
when required by subdivision (b) of this rule or to submit to an
examination when ordered under subdivision (c) of this rule, the
court may exclude the testimony of any expert witness offered by
the defendant on the issue of his mental condition.
(e) INADMISSIBILITY OF WITHDRAWN INTENTION. Evidence
of an intention as to which notice was given under subdivision (a) or
(b), later withdrawn, is not admissible in any civil or criminal
proceeding against the person who gave notice of the intention.
.. .
(3) Grand Jury Transcripts. Except as provided in Rules 6,
12(i) and 26.2, and subdivision (a)(1)(A) of this rule, these rules
do not relate to discovery or inspection of recorded proceedings
of a grand jury.
Rule 23. Trial by Jury or by the Court
. ? .
(b) JURY OF LESS THAN TWELVE. Juries shall be of 12 but
at any time before verdict the parties may stipulate in writing with
the approval of the court that the jury shall consist of any number
less than 12 or that a valid verdict may be returned by a jury of less
than 12 should the court find it necessary to excuse one or more
jurors for any just cause after trial commences. Even absept such
stipulation, if the court finds it necessary to excuse a juror for just
cause after the jury has retired to consider its verdict, in the
discretion of the court a valid verdict may be returned by the
remaining 11 jurors.
Rule 32. Sentence and Judgment
(a) SENTENCE.
(1) Imposition of Sentence. Sentence shall be imposed
without unreasonable delay. Before imposing sentence the court
(A) determine that the defendant and his counsel
have had the opportunity to read and discuss the
presentence investigation report made available pursuant
to subdivision (c)(3XA) or summary thereof made available
pursuant to subdivision (cX3)(B);
(B) afford counsel an opportunity to speak on behalf
of the defendant; and
(C) address the defendant personally and ask him if
he wishes to make a statement in his own behalf and to
present any information in mitigation of punishment.
The attorney for the government shall have an equivalent
opportunity to speak to the court.
.. .
.. .
(3) Disclosure.
(A) At a reasonable time before imposing sentence
the court shall permit the defendant and his counsel to
read the report of the presentence investigation exclusive
of any recommendation as to sentence, but not to the
extent that in the opinion of the court the report contains
diagnostic opinions which, if disclosed, might seriously
disrupt a program of rehabilitation; or sources of
information obtained upon a promise of confidentiality; or
any other information which, if disclosed, might result in
harm, physical or otherwise, to the defendant or other
persons. The court shall afford the defendant and his
counsel an opportunity to comment on the report and, in
the discretion of the court, to introduce testimony or other
information relating to any alleged factual inaccuracy
contained in it.
(B) If the court is of the view that there is
information in the presentence report which should not be
disclosed under subdivision (cX3)(A) of this rule, the court
in lieu of making the report or part thereof available shall
state orally or in writing a summary of the factual
information contained therein to be relied on in
determining sentence, and shall give the defendant and his
counsel an opportunity to comment thereon. The
statement may be made to the parties in camera.
(C) Any material which may be disclosed to the
defendant and his counsel shall be disclosed to the attorney
for the government.
(D) If the comments of the defendant and his counsel
or testimony or other information introduced by them
allege any factual inaccuracy in the presentence
investigation report or the summary of the report or part
thereof, the court shall, as to each matter controverted,
make (i) a finding as to the allegation, or (ii) a
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determination that no such finding is necessary because
the matter controverted will not be taken into account in
sentencing. A written record of such findings and
determinations shall be appended to and accompany any
copy of the presentence investigation report thereafter
made available to the Bureau of Prisons or the Parole
Commission.
(E) Any copies of the presentence investigation
report made available to the defendant and his counsel and
the attorney for the government shall be returned to the
probation officer immediately following the imposition of
sentence or the granting of probation, unless the court, in
its discretion, otherwise directs.
(F) The reports of studies and recommendations
contained therein made by the Director of the Bureau of
Prisons or the Parole Commission pursuant to 18 U.S.C. SS
4205(c), 4252, 5010(e), or 5037(c) shall be considered a
presentence investigation within the meaning of
subdivision (cX3) of this rule.
(d) PLEA WITHDRAWAL. If a motion for withdrawal of a plea
of guilty or nolo contendere is made before sentence is imposed,
imposition of sentence is suspended, or disposition is had under 18
U.S.C. 5 4205(c), the court may permit withdrawal of the plea upon
a showing by the defendant of any fair and just reason. At any later
time, a plea may be set aside only on direct appeal or by motion
under 28 U.S.C. S 2255.
.. ?
(b) REDUCTION OF SENTENCE. The court may reduce a
sentence within 120 days after the sentence is imposed or probation
is revoked, or within 120 days after receipt by the court of a
mandate issued upon affirmance of the judgment or dismissal of the
appeal, or within 120 days after entry of any order or judgment of
the Supreme Court denying review of, or having the effect of
upholding, a judgment of conviction or probation revocation.
Changing a sentence from a sentence of incarceration to a grant of
probation shall constitute a permissible reduction of sentence under
this subdivision.
Rule 55. Records
The clerk of the district court and each United States
magistrate shall keep records in criminal proceedings in such form
as the Director of the Administrative Office of the United States
Courts may prescribe. The clerk shall enter in the records each
order or judgment of the court and the date such entry is made.
[APPENDIX OF FORMS]
(Abrogated)
RE: PROPOSED AMENDMENTS TO FEDERAL RULES
OF CRIMINAL PROCEDURE
(April 28, 1983]
JUSTICE O'CoNNOR filed a dissenting statement.
With one minor reservation, I join the Court in its adoption
of the proposed amendments. They represent the product of
considerable effort by the Advisory Committee, and they will
institute desirable reforms- My sole disagreement with the
Court's action today lies in its failure to recommend correc-
tion of an apparent error in the drafting of Proposed Rule
12.2(e).
As proposed, Rule 12.2(e) reads:
"Evidence of an intention as to which notice was given
under subdivision (a) or (b), later withdrawn, is not ad-
missible in any civil or criminal proceeding against the
person who gave notice of the intention."
Identical language formerly appeared in Fed. Rules Crim.
Proc. 11(e)(6) and Fed. Rules Evid. 410, each of which stated
that
"[Certain material] is not admissible in any civil or crimi-
nal proceeding against the defendant."
Those rules were amended, Supreme Court Order April 30,
1979, 441 U. S. 970, 987, 1007, Pub. Law 96-42, approved
July 31, 1979, 93 Stat. 326. After the amendments, the rele-
vant language read,
"[Certain material] is not, in any civil or criminal pro-
ceeding, admissible against the defendant."
As the Advisory Committee explained, this minor change
was necessary to eliminate an ambiguity. Before the
amendment, the word "against" could be read as referring
either to the kind of proceeding in which the evidence was
offered or to the purpose for which it was offered. Thus, for
instance, if a person was a witness in a suit but not a party, it
was unclear whether the evidence could be used to impeach
him. In such a case, the use would be against the person,
but the proceeding would not be against him. Similarly, if
the person wished to introduce the evidence in a proceeding
in which he was the defendant, the use, but not the proceed-
ing, would be against him. To eliminate the ambiguity, the
Advisory Committee proposed the amendment clarifying
that the evidence was inadmissible against the person, re-
gardless of whether the particular proceeding was against
the person. See Adv. Comm. Note to Fed. Rules Crim.
Proc. 11(e)(6): Adv. Comm. Note to Fed. Rules Evid. 410.
The same ambiguity inheres in the proposed version of
Rule 12.2(e). We should recommend that it be eliminated
now. To that extent, I respectfully dissent.
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