(a) ENTRY OF APPEARANCE.
An attorney appearing for a defendant in a criminal case, whether appointed or retained, shall file with the Clerk a notice of appearance on a Court-approved form. If a defendant appears without counsel at arraignment, the Court shall set a date and time by which counsel shall enter an appearance or the defendant, after being fully advised of his/her right to counsel, shall waive such right and elect to proceed pro se.
(b) CERTIFICATE OF FAMILIARITY WITH SENTENCING GUIDELINES.
Every attorney who appears as sole or lead counsel in a criminal case must have on file with the Clerk's Office a certificate, in a form prescribed by the Clerk, in which the attorney states that he or she is familiar with the federal Sentencing Guidelines. If the attorney has filed such a certificate during the previous three years (see Rule 701.1), a new certificate is not necessary.
(c) CONTINUING DUTY OF REPRESENTATION.
An attorney who enters an appearance shall continue to represent the defendant until the case is dismissed, the defendant is acquitted, or the time for filing post-trial motions and a notice of appeal has expired, unless the attorney is granted leave to withdraw by the Court.
(d) WITHDRAWAL OF COUNSEL.
An attorney who has appeared in a criminal case may thereafter withdraw only by written motion served upon the defendant personally or at the defendant's last-known address, and upon all other parties. The Court may deny a motion to withdraw if the attorney's withdrawal would unduly delay trial of the case, or be unfairly prejudicial to any party, or otherwise not be in the interests of justice.
(e) COUNSEL FOR THE GOVERNMENT.
Upon the return of an indictment or bill of information, the United States shall designate an Assistant United States Attorney or other attorney of the Department of Justice as its representative. The United States Attorney shall advise the Clerk and the judge to whom the case is assigned regarding any change in the attorney for the United States responsible for the prosecution.
COMMENT TO RULE 301: This Rule is based on former Rule 2-3, with some modifications and clarifications The significant changes are that the former requirement that counsel continue to represent the defendant on appeal, unless granted leave to withdraw by the Court of Appeals, is deleted as not reflecting current practice, and the provision for appointment of counsel is deleted as unnecessary in view of 18 U.S.C. § 3006A and paragraph 5(f)(1) of the Speedy Trial Plan.
A motion or application filed in connection with a grand jury subpoena or other matter occurring before a grand jury, all other papers filed in support of or in opposition to such a motion or application, and all orders entered by the Court in connection therewith, shall be filed under seal. Such a motion or application shall be assigned a Miscellaneous case number. All hearings on matters affecting a grand jury proceeding shall be closed, except for contempt proceedings in which the alleged contemnor requests a public hearing. Papers, orders and transcripts of hearings subject to this Rule, or portions thereof, may be made public by the Court on its own motion or on motion of any person upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury.
COMMENT TO RULE 302: This is a new rule, implementing Rule 6(e)(5) and (6), Federal Rules of Criminal Procedure, which were added in 1983. The proposed rule reflects current practice. While Rule 6(e)(5) of the Federal Rules does not take a position on whether an alleged contemnor is entitled to a public hearing, the Advisory Committee Notes recognize that such a right clearly exists in criminal contempt proceedings. This proposed rule would clearly establish a righit to an open hearing upon request in civil and criminal contempt proceedings.
(a) REPORT OF THE PRETRIAL SERVICES AGENCY.
The District of Columbia Pretrial Services Agency shall make personnel available in the courthouse to interview arrested defendants at all times during which magistrate judges are available for presentments. The Pretrial Services Agency shall interview each arrested defendant, verify the information obtained and prepare a report. A copy of the report shall be provided to the Court file, to the United States Attorney, and to the defendant's counsel. The Clerk shall notify the Pretrial Services Agency of the action taken by the magistrate judge or Court with regard to conditions of release.
(b) SETTING CONDITIONS OF RELEASE.
Conditions of release shall be set by a magistrate judge or by the judge to whom the case is assigned. An application to the Court for review of conditions of release fixed by a magistrate judge shall be heard upon the record certified by the magistrate judge, together with additional information that may be presented.
(c) ADVICE TO THE DEFENDANT.
When a defendant is initially released on conditions, the defendant shall be specifically informed of the consequences of a failure to appear at subsequent court dates pursuant to 18 U.S.C. 3146.
COMMENT TO RULE 303: Former Rule 2-4 has been revised for clarity and brevity. The term "conditions of release" has been substituted for the words "bail" and "bond," and references to the Clerk's duty to give the Pretrial Services Agency the names of defendants for whom reports are required, and to order up defendants from jail for interviews, have been deleted as unnecessary. Pursuant to the new Bail Act, 18 U.S.C. § 3145(9), the requirement that application's to modify be made to the magistrate judge before an appeal is taken has been deleted.
Defense counsel shall consult with the attorney for the United States prior to the first status conference in a criminal case and shall attempt to obtain voluntary discovery of all materials and information to which the defense may be entitled. No discovery motion shall be heard unless it states that defense counsel has previously requested the information sought from the attorney for the United States and that such attorney has not complied with the request.
COMMENT TO RULE 304: Former Rule 2-5 has been rewritten for clarity and brevity without change in substance.
Defense counsel appointed under the Criminal Justice Act and staff attorneys of the Public Defender Service may apply to the Clerk for witness subpoenas where the witness will be served within a 25 mile radius of the boundaries of this district. The Clerk shall issue such subpoenas signed and sealed and designated in forma pauperis, but otherwise in blank. By filling in such a subpoena, defense counsel certifies that in counsel's opinion, the presence of the witness is necessary to an adequate defense. No subpoena so issued in blank may be served at a place more than 25 miles from the district. Where a witness to be subpoenaed will be served at a place more than 25 miles from the district, an application for the issuance of a subpoena in forma pauperis shall be made to the Court. The application may be made ex parte.
COMMENT TO RULE 305: Former Rule 2-6 has been rewritten for clarity and to eliminate surplusage, without change in substance.
Pursuant to the requirements of Rule 50(b) of the Federal Rules of Criminal Procedure, the Speedy Trial Act of 1974 (18 U.S.C. Chapter 208), the Speedy Trial Amendments Act of 1979 (Pub. L. No 96-43, 93 Stat. 327), and the Federal Juvenile Delinquency Act, as amended (18 U.S.C. § § 5036, 5037), the judges of the United States District Court for the District of Columbia have adopted a Speedy Trial Plan to minimize undue delay and to further the prompt disposition of criminal cases and certain juvenile proceedings. A copy of the Speedy Trial Plan is available from the Clerk's Office.
COMMENT TO RULE 306: This Rule incorporates the Speedy Trial Plan but removes the full text from the Rule. Copies of the Plan are available upon request from the Clerk's Office. Many federal courts utilize this procedure and do not restate the full Plan in the Rules.
(a) GENERAL RULE.
Unless otherwise provided by law or by this Rule, all criminal proceedings, including preliminary examinations and hearings on pretrial motions, shall be held in open court and shall be available for attendance and observation by the public. This Rule does not apply to bench conferences, conferences in chambers, and other matters normally handled in camera.
(b) MOTION FOR CLOSURE.
Upon motion made or agreed to by the defendant, the Court may in the exercise of its discretion order a pretrial proceeding to be closed to the public in whole or in part, on the grounds:
If the Court enters such an order, it shall state the specific findings which require closure.
(c) OPPOSITION BY NON-PARTIES.
Any news organization or other interested person may be heard orally or in writing in opposition to a closure motion by a party. When any papers are filed by a non-party opposing closure, the matter shall be assigned a Miscellaneous docket number and shall be governed by Rule 307.1 of these Rules. A non-party seeking to appeal from an order of closure shall be responsible for filing in the Miscellaneous proceeding the order from which the appeal is taken, and such other parts of the record of the criminal case as may be necessary to determination of the appeal.
COMMENT TO RULE 307: This Rule incorporates former Rule 1-27(e), with changes in form but not in substance.
COMMENT TO RULE 307(b)(1) AND (b)(2) AS AMENDED 10/10/90: In Press Enterprise v. Superior Court, 478 U.S. 1 (1986), the Supreme Court held that closure of a part of a criminal proceeding requires a finding of a "substantial probability"' of harm to an "overriding interest." The "reasonable likelihood" standard, incorporated in Local Rule 307, was expressly disapproved by the Court in that case. The foregoing amendment brings the rule into accord with the Supreme Court's holding, and also makes clear that the interests sought to be protected by closure are not limited to the defendant's right to a fair trial.
Any news organization or other interested person, other than a party or a subpoenaed witness, who seeks relief relating to any aspect of the proceedings in a criminal case shall file an application for such relief in the Miscellaneous docket of the Court. The application shall include a statement of the applicant's interest in the matter as to which relief is sought, a statement of facts and a specific prayer for relief. The application shall be served on the parties to the criminal case and shall be referred by the Clerk to the trial judge assigned to the criminal case for determination.
(a) CONDUCT OF COURT PERSONNEL.
Courthouse supporting personnel, including, among others, marshals, Court clerks, law clerks, messengers, Court reporters and employees or subcontractors retained by the Court-appointed official reporters, shall not disclose to any person without specific authorization by the Court, information relating to any pending criminal proceeding, including a grand jury proceeding, that is not part of the public records of the Court, nor shall any such personnel discuss the merits involved in any such proceeding with any members of the public.
(b) CONDUCT OF ATTORNEYS IN CRIMINAL CASES.
(i) The prior criminal record (including arrests, indictments, or other charges of crime), or the character or reputation of the accused, except that the lawyer or law firm may make a factual statement of the accused's name, age, residence, occupation, and family status, and if the accused has not been apprehended, a lawyer associated with the prosecution may release any information necessary to aid in apprehension of the accused or to warn the public of any dangers he or she may present;
(ii) The existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make any statement;
(iii) The performance of any examinations or tests or the accused's refusal or failure to submit to an examination or test;
(iv) The identity, testimony, or credibility of prospective witnesses, except that the lawyer or law firm may announce the identity of the victim if the announcement is not otherwise prohibited by law;
(v) The possibility of a plea of guilty to the offense charged or a lesser offense;
(vi) Any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case.
The foregoing shall not be construed to preclude the lawyer or law firm during this period, in the proper discharge of official or professional obligations, from announcing the fact and circumstances of arrest (including time and place of arrest, resistance, pursuit, and use of weapons), the identity of the investigating and arresting officer or agency, and the length of the investigation; from making an announcement, at the time of seizure of any physical evidence other than a confession, admission or statement, which is limited to a description of the evidence seized; from disclosing the nature, substance, or text of the charge, including a brief description of the offense charged; from quoting or referring without comment to public records of the Court in the case; from announcing the scheduling or result of any stage in the judicial process; from requesting assistance in obtaining evidence; or from announcing without further comment that the accused denies the charges.
(c) ORDERS IN WIDELY PUBLICIZED OR SENSATIONAL CASES.
In a widely publicized or sensational criminal case, the Court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters which the Court may deem appropriate for inclusion in such an order.
COMMENT TO RULE 308: This Rule incorporates without change the "Free Press-Fair Trial" provisions of former Rule 1-27(a), (c) and (d). The provisions of former Rule 1-27(b) and (e) are now Rules 103 and 307, respectively.
(a) ASSIGNMENT TO A PROBATION OFFICER.
Immediately following a sentence of probation or a split sentence, the defendant shall be assigned to a probation officer.
(b) CONDITIONS OF PROBATION.
The Court shall impose such conditions of probation as are necessary to provide a benefit to the probationer and protection to the public and may modify or enlarge such conditions at any time prior to the expiration or termination of the sentence as deemed advisable. The probationer shall be provided by the probation office with a written statement and an explanation of the conditions imposed. If the matter cannot be resolved by the probation office, the probationer may request clarification of any condition from the sentencing judge and may petition the sentencing judge for a modification of the conditions imposed.
(c) HEARING ON ALLEGED VIOLATIONS OF PROBATION.
(i) access to records regarding the probation violation;
(ii) the right to be represented by counsel, including the right to appointed counsel if indigent;
(iii) the right to subpoena and present witnesses and documentary evidence; and
(iv) the right to confront and cross-examine witnesses against the probationer.
(d) VIOLATION OF A PROBATION CONDITION; RESENTENCING.
Upon finding a violation of a condition of probation the Court may: continue the existing sentence with or without modification; enlarge the conditions of probation; revoke the probation and require the probationer to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. In resentencing a probation violator the procedures governing initial sentencing decisions shall apply.
(e) HEARINGS DELEGATED TO THE MAGISTRATE JUDGE.
A hearing on an alleged violation of probation as provided in subsection (c)(2) may be delegated by the Court to the magistrate judge. Following a hearing before the magistrate judge, the magistrate judge shall file written findings and recommendations. The Court shall make a de novo determination of those portions of the magistrate judge's report to which objections are made and may accept, reject, or modify in whole or in part, the findings and recommendations made by the magistrate judge. The Court, however, need not conduct a new hearing and may make a determination based on the record developed before the magistrate judge. The Court may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions. While the matter is pending before the magistrate judge, the magistrate judge shall have the authority to issue a bench warrant for the apprehension of the probationer for failure to appear before the magistrate judge as directed, or for failure to comply with any release conditions imposed by the magistrate judge.
COMMENT TO RULE 309: Former Rule 2-8 has been rewritten without change in substance.
(a) PRIOR TO VERDICT.
A party in a criminal proceeding shall retain its exhibits until they are marked for identification and received in evidence. All exhibits shall thereafter be retained by the Clerk until verdict except that exhibits consisting of narcotics, weapons, money or articles of high monetary value shall be retained by the United States Attorney during adjournments.
(b) AFTER VERDICT.
In cases where a verdict of not guilty or a judgment of acquittal is entered or a mistrial declared, each party shall immediately retake its exhibits from the Clerk unless otherwise ordered by the Court. In cases where a verdict of guilty is entered the Clerk shall retain all exhibits, except those exhibits described in section (c) of this Rule. If no appeal is perfected, each party shall retake its exhibits from the Clerk within 30 days after the date of final disposition of the case in this Court. If an appeal is perfected, each party shall retake its exhibits from the Clerk within 30 days after final disposition of the case by the appellate courts.
(c) SPECIAL EXHIBITS.
Exhibits consisting of narcotics, weapons, money or articles of high monetary value shall be transmitted by the Clerk to the United States Attorney or a designee who shall receipt for them. Exhibits offered by any party which are large and unwieldy, such as diagrams, models, physical displays, etc., shall also be so transmitted unless otherwise ordered by the Court. The United States Attorney shall preserve and maintain in custody all exhibits so transmitted for the periods of time specified in section (b) of this Rule.
(d) DESTRUCTION OF EXHIBITS.
If any party, having received notice from the Clerk to retake exhibits as provided in section (b) of this Rule, fails to do so within 30 days of the date of such notice, the Clerk may destroy or otherwise dispose of those exhibits.
COMMENT TO RULE 310: Same as former Rule 2-1O. The rule (310(a)) is being revised to conform to actual practice.
(a) Not less than 27 days prior to the date set for the sentencing, the probation officer shall disclose the initial presentence report to the defendant and the prosecution. Within 10 days thereafter, counsel shall communicate to the probation officer any objections they may have as to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the report. Such communication may be oral or written, but the probation officer may require that any oral objection be promptly confirmed in writing.
(b) After receiving counsel's objections, the probation officer shall conduct any further investigation and make any revisions to the presentence report that may be necessary. The officer may require counsel for both parties to meet with the officer to discuss unresolved factual and legal issues.
(c) Not less than 7 days prior to the date of the sentencing, the probation officer shall submit the final presentence report to the sentencing judge. The report shall be accompanied by an addendum setting forth any objections counsel may have made that have not been resolved in the report, together with the officer's comments thereon. The probation officer shall certify that the contents of the final presentence report have been disclosed to the defendant and to counsel for the defendant and prosecution, that the addendum has been communicated to counsel, and the addendum fairly states any remaining objections.
(d) A hearing shall be held not more than 5 days prior to the date of sentencing to resolve any disputed issues of fact, and to gather any other information the Court finds to be relevant to the sentencing guideline calculation. The Court may consider any reliable information presented by the probation officer, the defendant, or the prosecution.
(e) When necessary to make consistent findings as to the role of each defendant in a multiple defendant case, the Court may, in lieu of or in addition to the evidentiary hearing authorized for by subsection (d), convene a joint evidentiary hearing on the same or other appropriate date.
(f) To the extent that the final presentence investigation report is undisputed by the parties, it may be accepted by the Court as accurate. The Court, however, for good cause shown, may allow a new objection to be raised at any time before the imposition of sentence. The Court shall ensure that the probation officer and the other party has ample notice of the objection and an opportunity fairly to rebut or support the assertion.
(g) Any of the time periods set forth in this Rule may be modified by the Court on its own motion, or at the request of a party or the probation officer for good cause shown, and the Court may direct that the evidentiary hearing provided for in subsection (d) shall be held on the sentencing date. However, the 10-day period set forth in subsection (a) may be diminished only with the consent of the defendant.
(h) Nothing in this Rule requires the disclosure of any portions of the presentence report that are not disclosable under Rule 32 of the Federal Rules of Criminal Procedure.
(i) The presentence report shall be deemed to have been disclosed (1) when a copy of the report is physically delivered, (2) one day after the report's availability for inspection is orally communicated, or (3) three days after a copy of the report or notice of its availability is mailed.
COMMENT ON RULE 311: Rule 311(i) has been amended to correct a typographical error leaving out the word "three."