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Advisory Committee on Criminal Rules ADVISORY COMMITTEE ON CRIMINAL RULES Salt Lake City, UT October 18, 2013 TABLE OF CONTENTS AGENDA ...................................................................................................................................... 5 TAB 1 OPENING BUSINESS A. Draft Minutes of April 2013 Criminal Rules Meeting ....................... 19 B. Draft Minutes of June 2013 Standing Committee Meeting............... 37 TAB 2 AMENDMENTS TO THE CRIMINAL RULES UNDER CONSIDERATION A. Proposed Amendments Approved by the Supreme Court & Submitted to Congress Rule 11. Pleas........................................................................................ 81 B. Proposed Amendments Approved by the Judicial Conference & Transmitted to the Supreme Court Rule 5. Initial Appearance .................................................................. 87 Rule 6. The Grand Jury ...................................................................... 91 Rule 12. Pleadings & Pretrial Motions .............................................. 95 Rule 34. Arresting Judgment ............................................................ 107 Rule 58. Petty Offenses & Other Misdemeanors ............................ 109 TAB 3 PROPOSAL TO AMEND RULE 4 A. Reporters’ Memorandum Regarding Rule 4 (September 24, 2013) .......................................................................... 117 B. Proposed Amended Rule 4 (with style changes) ............................... 129 C. Proposed Amended Rule 4 (without style changes) ......................... 135 D. Letter to Judge Reena Raggi from Assistant Attorney General Lanny A. Breuer Regarding Rule 4 (October 25, 2012) .................. 139 E. Memorandum to Judge David M. Lawson from Jonathan J. Wroblewski Regarding Proposed Amendments to Rule 4 (August 23, 2013) ..................................................................... 151 October 18, 2013 Page 3 of 196 TAB 4 SUGGESTION TO AMEND RULE 41 Letter to Judge Reena Raggi from Acting Assistant Attorney General Mythili Raman Regarding Rule 41 (September 18, 2013) .......................... 159 TAB 5 STATUS OF PENDING PROJECTS A. Reporter’s Memorandum & Attachment Regarding Civil Rule 45 (September 19, 2013) ................................................... 169 B. Reporters’ Memorandum Regarding Possible Amendments to Federal Rules of Criminal Procedure to Accommodate CM/ECF (July 5, 2013) ....................................................................... 175 October 18, 2013 Page 4 of 196 AGENDA CRIMINAL RULES COMMITTEE MEETING OCTOBER 18, 2013 SALT LAKE CITY, UTAH I. PRELIMINARY MATTERS A. Chair’s Remarks and Administrative Announcements 1. Introduction of new members B. Review and Approval of Minutes of April 2013 meeting in Durham C. Status of Criminal Rules: Report of the Rules Committee Support Office II. CRIMINAL RULES UNDER CONSIDERATION (information item) A. Proposed Amendments Approved by the Supreme Court and forwarded to Congress 1. Rule 11. Advice re Immigration Consequences of Guilty Plea. B. Proposed Amendments Approved by the Judicial Conference and forwarded to the Supreme Court 1. Rule 12. Pleadings and Pretrial Motions. Proposed amendment clarifies what motions must be made before trial and addresses consequences of failure to file timely motion. 2. Rule 34. Arresting Judgment. Proposed amendment makes conforming changes to implement amendment to Rule 12. 3. Rule 5. Initial Appearance. Proposed amendment provides that non-citizen defendants in U.S. custody shall be informed that upon request a consular official from the defendant’s country of nationality will be notified, and that the government will make any other consular notification required by its international obligations. 4. Rule 58. Initial Appearance. Proposed amendment provides that in petty offense and misdemeanor cases non-citizen defendants in U.S. custody shall be informed that upon request a consular official from the defendant’s country of nationality will be notified, and that the government will make any other consular notification required by its international obligations. 1 October 18, 2013 Page 5 of 196 5. Rule 6. Grand Jury. Technical and conforming amendment to correct statutory cross reference affected by recodification. III. RULE 4 PROPOSAL REFERRED TO SUBCOMMITTEE A. Rule 4 (service on foreign corporations) (memo) IV. DEPARTMENT OF JUSTICE PROPOSAL TO AMEND RULE 41 V. RULES AND PROJECTS PENDING BEFORE CONGRESS, STANDING COMMITTEE, JUDICIAL CONFERENCE, AND OTHER COMMITTEES. A. Status Report on Legislation Affecting Federal Rules of Criminal Procedure B. CM/ECF Subcommittee 1. Rule 45 (Memo) 2. Reporters’ Memo to CM/ECF Subcommittee 3. Other possible agenda items C. Other VI. PANEL DISCUSSION: AN ACADEMIC VIEW OF THE SUPREME COURT’S RECENT DECISIONS AND A PREVIEW OF THE COMING TERM Panel members: Professor Orin Kerr, Professor Carissa Hessick, and Professor Andrew Hessick Moderator: Professor Nancy King VII. DESIGNATION OF TIMES AND PLACES FOR FUTURE MEETINGS A. Spring meeting 2 October 18, 2013 Page 6 of 196 ADVISORY COMMITTEE ON CRIMINAL RULES Chair, Advisory Committee Honorable Reena Raggi on Criminal Rules United States Court of Appeals 704S United States Courthouse 225 Cadman Plaza East Brooklyn, NY 11201-1818 Reporter, Advisory Committee Professor Sara Sun Beale on Criminal Rules Charles L. B. Lowndes Professor Duke Law School 210 Science Drive Durham, NC 27708-0360 Professor Nancy J. King Vanderbilt University Law School 131 21st Avenue South, Room 248 Nashville, TN 37203-1181 Members, Advisory Committee Carol A. Brook, Esq. on Criminal Rules Executive Director Federal Defender Program for the Northern District of Illinois 55 East Monroe Street, Suite 2800 Chicago, IL 60603 Honorable Morrison C. England, Jr. United States District Court 501 I Street – Suite 14-230 Sacramento, CA 95814-7300 Mark Filip, Esq. Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 Honorable David E. Gilbertson Chief Justice Supreme Court of South Dakota 500 E. Capitol Pierre, SD 57501 Honorable John F. Keenan United States District Court 1930 Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street New York, NY 10007-1312 October 18, 2013 Page 7 of 196 Members, Advisory Committee Professor Orin S. Kerr on Criminal Rules (cont’d.) The George Washington University Law School 2000 H Street, N.W. Washington, DC 20052 Honorable Raymond M. Kethledge United States Court of Appeals Federal Building 200 East Liberty Street, Suite 224 Ann Arbor, MI 48104 Honorable David M. Lawson United States District Court Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 802 Detroit, MI 48226 Honorable Donald W. Molloy United States District Court Russell E. Smith Federal Building 201 East Broadway Street Missoula, MT 59802 Honorable Mythili Raman Assistant Attorney General Criminal Division United States Department of Justice 950 Pennsylvania Avenue, N.W. - Room 2107 Washington, DC 20530-0001 Honorable Timothy R. Rice United States District Court James A. Byrne United States Courthouse 601 Market Street, Room 3041 Philadelphia, PA 19106 October 18, 2013 Page 8 of 196 Members, Advisory Committee John S. Siffert, Esq. on Criminal Rules (cont’d.) Lankler, Siffert & Wohl LLP 500 Fifth Avenue, 33rd Floor New York, NY 10110 Clerk of Court Representative, James N. Hatten Advisory Committee on Criminal Rules Clerk United States District Court Richard B. Russell Federal Building and United States Courthouse 75 Spring Street, S. W., Room 2217 Atlanta, GA 30303-3309 Secretary, Standing Committee Jonathan C. Rose and Rules Committee Officer Secretary, Committee on Rules of Practice & Procedure and Rules Committee Officer Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-1820 Fax 202-502-1755 [email protected] Chief Counsel Andrea L. Kuperman Chief Counsel to the Rules Committees 11535 Bob Casey U.S. Courthouse 515 Rusk Ave. Houston, TX 77002-2600 Phone 713-250-5980 Fax 713-250-5213 [email protected] Deputy Rules Committee Officer Benjamin J. Robinson and Counsel Deputy Rules Committee Officer and Counsel to the Rules Committees Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-1516 Fax 202-502-1755 [email protected] October 18, 2013 Page 9 of 196 LIAISON MEMBERS Liaison for the Advisory Committee Gregory G. Garre, Esq. (Standing) on Appellate Rules Liaison for the Advisory Committee Judge Adalberto Jordan (Bankruptcy) on Appellate Rules Liaison for the Advisory Committee Roy T. Englert, Jr., Esq. (Standing) on Bankruptcy Rules Liaison for the Advisory Committee Judge Arthur I. Harris (Bankruptcy) on Civil Rules Liaison for the Advisory Committee Judge Diane P. Wood (Standing) on Civil Rules Liaison for the Advisory Committee on Criminal Rules Liaison for the Advisory Committee Judge Judith H. Wizmur (Bankruptcy) on Evidence Rules Liaison for the Advisory Committee Judge Paul S. Diamond (Civil) on Evidence Rules Liaison for the Advisory Committee Judge John F. Keenan (Criminal) on Evidence Rules Liaison for the Advisory Committee Judge Richard C. Wesley (Standing) on Evidence Rules October 18, 2013 Page 10 of 196 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS Jonathan C. Rose Secretary, Committee on Rules of Practice & Procedure and Rules Committee Officer Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-1820 Fax 202-502-1755 [email protected]
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