NOTES OF ADVISORY COMMITTEE ON RULES-1987

AMENDMENT

The amendments are technical. No substantive change is intended.

1984 AMENDMENT

Subd. (a). Pub. L. 98-473, § 209(d)(1), substituted "§§ 3142 and 3144" for "§ 3146, § 3148, or § 3149".

Subd. (c). Pub. L. 98-473, § 209(d)(2), substituted "3143" for "3148".

Subd. (e)(2). Pub. L. 98-473, § 209(d)(3), substituted "be set aside in whole or in part upon such conditions as the court may impose, if a person released upon execution of an appearance bond with a surety is subsequently surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture" for "set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture".

Subd. (h). Pub. L. 98-473, § 209(d)(4), added subd. (h).

Rule 49. Service and Filing of Papers

[See main edition for text of (a)]

(b) SERVICE: HOW MADE. Whenever under these rules or by an order of the court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party personally is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided in civil actions.

[See main edition for text of (c) and (d)]

(e) FILING of Dangerous OFFENDER NOTICE. A filing with the court pursuant to 18 U.S.C. § 3575(a) or 21 U.S.C. § 849(a) shall be made by filing the notice with the clerk of the court. The clerk shall transmit the notice to the chief judge or, if the chief judge is the presiding judge in the case, to another judge or United States magistrate in the district, except that in a district having a single judge and no United States magistrate, the clerk shall transmit the notice to the court only after the time for disclosure specified in the aforementioned statutes and shall seal the notice as permitted by local rule.

(As amended Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987.)

NOTES OF ADVISORY COMMITTEE ON RULES-1985
AMENDMENT

18 U.S.C. § 3575(a) and 21 U.S.C. § 849(a), dealing respectively with dangerous special offender sentencing and dangerous special drug offender sentencing, provide for the prosecutor to file notice of such status "with the court" and for the court to "order the notice sealed" under specified circumstances, but also declare that disclosure of this notice shall not be made "to the presiding judge without the consent of the parties" before verdict or plea of guilty or nolo contendere. It has been noted that these provisions are "regrettably unclear as to where, in fact, such notice is to be filed" and that possibly filing with the chief judge is conternplated. United States v. Tramunti, 377 F.Supp. 6 (S.D.N.Y. 1974). But such practice has been a matter of dispute when the chief judge would otherwise have been the presiding judge in the case, United States v. Gaylor, No. 80-5016 (4th Cir. 1981), and "it does not solve the problem in those districts where there is only one federal district judge appointed," United States v. Tramunti, supra.

The first sentence of subdivision (e) clarifies that the filing of such notice with the court is to be accomplished by filing with the clerk of the court, which is generally the procedure for filing with the court; see subdivision (d) of this rule. Except in a district having a single judge and no United States magistrate, the clerk will then, as provided in the second sentence, transmit the notice to the chief judge or to some other judge or a United States magistrate if the chief judge is scheduled to be the presiding judge in the case, so that the determination regarding sealing of the notice may be made without the disclosure prohibited by the aforementioned statutes. But in a district having a single judge and no United States magistrate this prohibition means the clerk may not disclose the notice to the court at all until the time specified by statute. The last sentence of subdivision (e) contemplates that in such instances the clerk will seal the notice if the case falls within the local rule describing when "a public record may prejudice fair consideration of a pending criminal matter," the determination called for by the aforementioned statutes. The local rule might provide, for example, that the notice is to be sealed upon motion by any party.

NOTES OF ADVISORY COMMittee on RULES-1987 AMENDMENT

The amendments are technical. No substantive change is intended.

Rule 51. Exceptions Unnecessary

Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which that party desires the court to take or that party's objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice that party.

(As amended Mar. 9, 1987, eff. Aug. 1, 1987.)

NOTES OF ADVISORY COMMITTEE on RULES-1987 AMENDMENT

The amendments are technical. No substantive change is intended.

Rule 54. Application and Exception

[See main edition for text of (a)]

(b) PROCEEDINGS.

[See main edition for text of (1) and (2)]

(3) Peace Bonds. These rules do not alter the power of judges of the United States or of United States magistrates to hold to security of the peace and for good behavior under Revised Statutes, § 4069, 50 U.S.C. § 23, but in such cases the procedure shall conform to these rules so far as they are applicable.

[See main edition for text of (4) and (5)]

(c) APPLICATION OF TERMS. As used in these rules the following terms have the designated meanings.

"Act of Congress" includes any act of Congress locally applicable to and in force in the District of Columbia, in Puerto Rico, in a territory or in an insular possession.

"Attorney for the government" means the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a United States Attorney, when applicable to cases arising under the laws of Guam the Attorney General of Guam or such other person or persons as may be authorized by the laws of Guam to act therein, and when applicable to cases arising under the laws of the Northern Mariana Islands the Attorney General of the Northern Mariana Islands or any other person or persons as may be authorized by the laws of the Northern Marianas to act therein.

"Civil action" refers to a civil action in a district court.

The words "demurrer," "motion to quash," “plea in abatement,” “plea in bar” and “special plea in bar," or words to the same effect, in any act of Congress shall be construed to mean the motion raising a defense or objection provided in Rule 12.

"District court" includes all district courts named in subdivision (a) of this rule.

"Federal magistrate” means a United States magistrate as defined in 28 U.S.C. §§ 631-639, a judge of the United States or another judge or judicial officer specifically empowered by statute in force in any territory or possession, the Commonwealth of Puerto Rico, or the District of Columbia, to perform a function to which a particular rule relates.

"Judge of the United States" includes a judge of a district court, court of appeals, or the Supreme Court.

"Law" includes statutes and judicial decisions. "Magistrate" includes a United States magistrate as defined in 28 U.S.C. §§ 631-639, a judge of the United States, another judge or judicial officer specifically empowered by statute in force in any territory or possession, the Commonwealth of Puerto Rico, or the District of Columbia, to perform a function to which a particular rule relates, and a state or local judicial officer, authorized by 18 U.S.C. § 3041 to perform the functions prescribed in Rules 3, 4, and 5.

"Oath" includes affirmations.

"Petty offense" means a class B or C misdemeanor or an infraction.

"State" includes District of Columbia, Puerto Rico, territory and insular possession. "United States magistrate" means the officer authorized by 28 U.S.C. §§ 631-639.

(As amended Oct. 12, 1984, Pub. L. 98-473, title II, §§ 209(e), 215(e), 98 Stat. 1987, 2016.)

EFFECTIVE DATE OF 1984 Amendment; OFFENSES COMMITTED PRIOR TO Nov. 1, 1987

Section 235(a)(1) of Pub. L. 98-473, set out as an Effective Date note under section 3551 of this title, provided that the amendment of subdivision (c) of this rule is effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such amendment. Prior to amendment, the definition of "Petty offense" in subdivision (c) read as follows:

"Petty offense" is defined in 18 U.S.C. § 1(3).

1984 AMENDMENT

Subd. (b)(3). Pub. L. 98-473 struck out "under 18 U.S.C. § 3043, and" after “for good behavior".

Subd. (c). Pub. L. 98-473 in definition of "Petty offense" substituted "means a class B or C misdemeanor or an infraction" for "is defined in 18 U.S.C. § 1(3). TERMINATION OF UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE

For termination of the United States District Court for the District of the Canal Zone at end of the "transition period", being the 30 month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977 and sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse.

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. (As amended Apr. 28, 1983, eff. Aug. 1, 1983.)

NOTES OF ADVISORY Committee oN RULES-1983
AMENDMENT

The Advisory Committee Note to original Rule 55 observes that, in light of the authority which the Director and Judicial Conference have over the activities of clerks, "it seems best not to prescribe the records to be kept by clerks." Because of current experimentation with automated record-keeping, this approach is more appropriate than ever before. The amendment will make it possible for the Director to permit use of more sophisticated record-keeping techniques, including those which may obviate the need for a "criminal docket" book. The reference to the Judicial Conference has been stricken as unnecessary. See 28 U.S.C. § 604.

Rule 57. Rules by District Courts

Each district court by action of a majority of the judges thereof may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules. A local rule so adopted shall take effect upon the date specified by the district court and shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of the rules and amendments so made by any district court shall upon their promulgation be furnished to the judicial council and the Administrative Office of the United States Courts and be made available to the public. In all cases not provided for by rule, the district judges and magistrates may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act.

(As amended Apr. 29, 1985, eff. Aug. 1, 1985.)

NOTES OF ADVISORY COMMITTEE ON RULES-1985
AMENDMENT

Rule 57 has been reformulated to correspond to Fed.R.Civ.P. 83, including the proposed amendments thereto. The purpose of the reformulation is to emphasize that the procedures for adoption of local rules

by a district court are the same under both the civil and the criminal rules. In particular, the major purpose of the reformulation is to enhance the local rulemaking process by requiring appropriate public notice of proposed rules and an opportunity to comment on them. See Committee Note to Fed.R.Civ.P. 83.

[Rule 58. Forms] (Abrogated Apr. 28, 1983, eff. Aug. 1, 1983)

NOTES OF ADVISORY COMMITTEE ON RULES Rule 58 and the Appendix of Forms are unnecessary and have been abrogated. Forms of indictment and information are made available to United States Attorneys' offices by the Department of Justice. Forms

used by the courts are made available by the Director of the Administrative Office of the United States Courts.

[APPENDIX OF FORMS] (Abrogated Apr. 28, 1983, eff. Aug. 1, 1983)

NOTES OF ADVISORY COMMITTEE ON RULES Rule 58 and the Appendix of Forms are unnecessary and have been abrogated. Forms of indictment and information are made available to United States Attorneys' offices by the Department of Justice. Forms used by the courts are made available by the Director of the Administrative Office of the United States Courts.