TITLE II. PRELIMINARY PROCEEDINGS
FCrR 3: The Complaint
The complaint is a written statement of the essential facts constituting the offense charged. Except as provided in Rule 4.1, it must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.
FCrR 4: Arrest Warrant or Summons on a Complaint
(a) Issuance. If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of an attorney for the government, the judge must issue a summons, instead of a warrant, to a person authorized to serve it. A judge may issue more than one warrant or summons on the same complaint. If a defendant fails to appear in response to a summons, a judge may, and upon request of an attorney for the government must, issue a warrant.
(1) Warrant. A warrant must:
(A) contain the defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty;
(B) describe the offense charged in the complaint;
(C) command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer; and
(D) be signed by a judge.
(2) Summons. A summons must be in the same form as a warrant except that it must require the defendant to appear before a magistrate judge at a stated time and place.
(c) Execution or Service, and Return.
(1) By Whom. Only a marshal or other authorized officer may execute a warrant. Any person authorized to serve a summons in a federal civil action may serve a summons.
(2) Location. A warrant may be executed, or a summons served, within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest.
(A) A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the original or a duplicate original warrant must show it to the defendant. If the officer does not possess the warrant, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request, must show the original or a duplicate original warrant to the defendant as soon as possible.
(B) A summons is served on an individual defendant:
(i) by delivering a copy to the defendant personally; or
(ii) by leaving a copy at the defendant's residence or usual place of abode with a person of suitable age and discretion residing at that location and by mailing a copy to the defendant's last known address.
(C) A summons is served on an organization by delivering a copy to an officer, to a managing or general agent, or to another agent appointed or legally authorized to receive service of process. A copy must also be mailed to the organization's last known address within the district or to its principal place of business elsewhere in the United States.
(A) After executing a warrant, the officer must return it to the judge before whom the defendant is brought in accordance with Rule 5. The officer may do so by reliable electronic means. At the request of an attorney for the government, an unexecuted warrant must be brought back to and canceled by a magistrate judge or, if none is reasonably available, by a state or local judicial officer.
(B) The person to whom a summons was delivered for service must return it on or before the return day.
(C) At the request of an attorney for the government, a judge may deliver an unexecuted warrant, an unserved summons, or a copy of the warrant or summons to the marshal or other authorized person for execution or service.
(d) Warrant by Telephone or Other Reliable Electronic Means. In accordance with Rule 4.1, a magistrate judge may issue a warrant or summons based on information communicated by telephone or other reliable electronic means.
FCrR 4.1: Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means
(a) In General. A magistrate judge may consider information communicated by telephone or other reliable electronic means when reviewing a complaint or deciding whether to issue a warrant or summons.
(b) Procedures. If a magistrate judge decides to proceed under this rule, the following procedures apply:
(1) Taking Testimony Under Oath. The judge must place under oath — and may examine — the applicant and any person on whose testimony the application is based.
(2) Creating a Record of the Testimony and Exhibits.
(A) Testimony Limited to Attestation. If the applicant does no more than attest to the contents of a written affidavit submitted by reliable electronic means, the judge must acknowledge the attestation in writing on the affidavit.
(B) Additional Testimony or Exhibits. If the judge considers additional testimony or exhibits, the judge must:
(i) have the testimony recorded verbatim by an electronic recording device, by a court reporter, or in writing;
(ii) have any recording or reporter’s notes transcribed, have the transcription certified as accurate, and file it;
(iii) sign any other written record, certify its accuracy, and file it; and
(iv) make sure that the exhibits are filed.
(3) Preparing a Proposed Duplicate Original of a Complaint, Warrant, or Summons. The applicant must prepare a proposed duplicate original of a complaint, warrant, or summons, and must read or otherwise transmit its contents verbatim to the judge.
(4) Preparing an Original Complaint, Warrant, or Summons. If the applicant reads the contents of the proposed duplicate original, the judge must enter those contents into an original complaint, warrant, or summons. If the applicant transmits the contents by reliable electronic means, the transmission received by the judge may serve as the original.
(5) Modification. The judge may modify the complaint, warrant, or summons. The judge must then:
(A) transmit the modified version to the applicant by reliable electronic means; or
(B) file the modified original and direct the applicant to modify the proposed duplicate original accordingly.
(6) Issuance. To issue the warrant or summons, the judge must:
(A) sign the original documents;
(B) enter the date and time of issuance on the warrant or summons; and
(C) transmit the warrant or summons by reliable electronic means to the applicant or direct the applicant to sign the judge’s name and enter the date and time on the duplicate original.
(c) Suppression Limited. Absent a finding of bad faith, evidence obtained from a warrant issued under this rule is not subject to suppression on the ground that issuing the warrant in this manner was unreasonable under the circumstances.
FCrR 5: Initial Appearance
(a) In General.
(1) Appearance Upon an Arrest.
(A) A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise.
(B) A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.
(A) An officer making an arrest under a warrant issued upon a complaint charging solely a violation of 18 U.S.C. §1073 need not comply with this rule if:
(i) the person arrested is transferred without unnecessary delay to the custody of appropriate state or local authorities in the district of arrest; and
(ii) an attorney for the government moves promptly, in the district where the warrant was issued, to dismiss the complaint.
(B) If a defendant is arrested for violating probation or supervised release, Rule 32.1 applies.
(C) If a defendant is arrested for failing to appear in another district, Rule 40 applies.
(3) Appearance Upon a Summons. When a defendant appears in response to a summons under Rule 4, a magistrate judge must proceed under Rule 5(d) or (e), as applicable.
(b) Arrest Without a Warrant. If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)'s requirement of probable cause must be promptly filed in the district where the offense was allegedly committed.
(c) Place of Initial Appearance; Transfer to Another District.
(1) Arrest in the District Where the Offense Was Allegedly Committed. If the defendant is arrested in the district where the offense was allegedly committed:
(A) the initial appearance must be in that district; and
(B) if a magistrate judge is not reasonably available, the initial appearance may be before a state or local judicial officer.
(2) Arrest in a District Other Than Where the Offense Was Allegedly Committed. If the defendant was arrested in a district other than where the offense was allegedly committed, the initial appearance must be:
(A) in the district of arrest; or
(B) in an adjacent district if:
(i) the appearance can occur more promptly there; or
(ii) the offense was allegedly committed there and the initial appearance will occur on the day of arrest.
(3) Procedures in a District Other Than Where the Offense Was Allegedly Committed. If the initial appearance occurs in a district other than where the offense was allegedly committed, the following procedures apply:
(A) the magistrate judge must inform the defendant about the provisions of Rule 20;
(B) if the defendant was arrested without a warrant, the district court where the offense was allegedly committed must first issue a warrant before the magistrate judge transfers the defendant to that district;
(C) the magistrate judge must conduct a preliminary hearing if required by Rule 5.1;
(D) the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if:
(i) the government produces the warrant, a certified copy of the warrant, or a reliable electronic form of either; and
(ii) the judge finds that the defendant is the same person named in the indictment, information, or warrant; and
(E) when a defendant is transferred and discharged, the clerk must promptly transmit the papers and any bail to the clerk in the district where the offense was allegedly committed.
(4) Procedure for Persons Extradited to the United States. If the defendant is surrendered to the United States in accordance with a request for the defendant’s extradition, the initial appearance must be in the district (or one of the districts) where the offense is charged.
(d) Procedure in a Felony Case.
(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following:
(A) the complaint against the defendant, and any affidavit filed with it;
(B) the defendant's right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel;
(C) the circumstances, if any, under which the defendant may secure pretrial release;
(D) any right to a preliminary hearing;
(E) the defendant's right not to make a statement, and that any statement made may be used against the defendant; and
(F) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant’s request, a treaty or other international agreement may require consular notification.
(2) Consulting with Counsel. The judge must allow the defendant reasonable opportunity to consult with counsel.
(3) Detention or Release. The judge must detain or release the defendant as provided by statute or these rules.
(4) Plea. A defendant may be asked to plead only under Rule 10.
(e) Procedure in a Misdemeanor Case. If the defendant is charged with a misdemeanor only, the judge must inform the defendant in accordance with Rule 58(b)(2).
(f) Video Teleconferencing. Video teleconferencing may be used to conduct an appearance under this rule if the defendant consents.
FCrR 5.1: Preliminary Hearing
(a) In General. If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless:
(1) the defendant waives the hearing;
(2) the defendant is indicted;
(3) the government files an information under Rule 7(b) charging the defendant with a felony;
(4) the government files an information charging the defendant with a misdemeanor; or
(5) the defendant is charged with a misdemeanor and consents to trial before a magistrate judge.
(b) Selecting a District. A defendant arrested in a district other than where the offense was allegedly committed may elect to have the preliminary hearing conducted in the district where the prosecution is pending.
(c) Scheduling. The magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 14 days after the initial appearance if the defendant is in custody and no later than 21 days if not in custody.
(d) Extending the Time. With the defendant's consent and upon a showing of good cause—taking into account the public interest in the prompt disposition of criminal cases—a magistrate judge may extend the time limits in Rule 5.1(c) one or more times. If the defendant does not consent, the magistrate judge may extend the time limits only on a showing that extraordinary circumstances exist and justice requires the delay.
(e) Hearing and Finding. At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired. If the magistrate judge finds probable cause to believe an offense has been committed and the defendant committed it, the magistrate judge must promptly require the defendant to appear for further proceedings.
(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.
(g) Recording the Proceedings. The preliminary hearing must be recorded by a court reporter or by a suitable recording device. A recording of the proceeding may be made available to any party upon request. A copy of the recording and a transcript may be provided to any party upon request and upon any payment required by applicable Judicial Conference regulations.
(h) Producing a Statement.
(1) In General. Rule 26.2(a)–(d) and (f) applies at any hearing under this rule, unless the magistrate judge for good cause rules otherwise in a particular case.
(2) Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to deliver a statement to the moving party, the magistrate judge must not consider the testimony of a witness whose statement is withheld.