The text of the bill below is as of Jul 30, 1977 (Passed Congress).
PUBLIC LAW 95-78—JULY 30, 1977 91 STAT. 319 Public Law 95-78 95th Congress An Act To approve with modifications certain proposed amendments to the Federal July 30, 1977 Rules of Criminal Procedure, to disapprove other such proposed amendments, [H.R. 5864] and for other related purposes. Be it enacted 'by the Senate and House of Representatives of the United States of America in Congress a^semhled^ T h a t notwithstand- Federal Rules of ing the first section of the Act entitled " A n Act to delay the effective Criminal date of certain proposed amendments to the Federal Rules of Criminal Procedure, Procedure and certain other rules promulgated by the United States proposed amendments. Supreme Court" (Public L a w 94-349, approved J u l y 8, 1976) the 18 u s e 3771 amendments to rules 6 ( e ) , 23, 24, 40.1, and 41(c) (2) of the Eules of note. Criminal Procedure for the United States district courts which are 28 u s e 2071 embraced by the order entered by the United States Supreme Court note. on A p r i l 26,1976, shall take effect only as provided in this Act. 18 u s e app. SEC. 2. (a) T h e amendment proposed by the Supreme Court to subdivision (e) of rule 6 of such Rules of Criminal Prbcedure is 18 u s e app. approved in a modified form as follows: Such subdivision (e) is amended to read as follows: "(e) SECRECY OF PROCEEDINGS AND DISCLOSURE.— " ( 1 ) GENERAL RULE.—A grand juror, an interpreter, a stenog- rapher, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any per- son to whom disclosure is made under p a r a g r a p h (2) ( A ) (ii) of this subdivision shall not disclose matters occurring before the g r a n d jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of rule 6 may be punished as a contempt of court. "(2) EXCEPTIONS.— " ( A ) Disclosure otherwise prohibited by this rule of mat- ters occurring before the g r a n d jury, other t h a n its delibera- '\ tions and the vote of any g r a n d juror, may be made to— " ( i ) an attorney for the government for use in t h e performance of such attorney's d u t y ; and " ( i i ) such government personnel as are deemed neces- sary by an attorney for the government to assist an attorney for t h e government in the performance of such attorney's d u t y to enforce Federal criminal law. " ( B ) A n y person to whom matters are disclosed under s u b p a r a g r a p h ( A ) (ii) of this p a r a g r a p h shall not utilize t h a t g r a n d j u r y material for any purpose other t h a n assisting the attorney for the government in the performance of such attorney's duty to enforce Federal criminal law. A n attorney for the government shall promptly provide the district court, before which was impaneled the g r a n d j u r y whose material has been so disclosed, with the names of t h e persons to whom such disclosure has been made. " ( C ) Disclosure otherwise prohibited by this rule of mat- ters occurring before the g r a n d j u r y may also be made— 29-19'4 0
91 STAT. 3 2 0 PUBLIC LAW 95-78—JULY 30, 1977 " ( i ) when so directed by a court preliminarily to or in connection with a judicial proceeding; or " ( i i ) when permitted by a court at t h e request of t h e defendant, upon a showing t h a t grounds may exist for a motion to dismiss t h e indictment because of matters occurring before the g r a n d jury. " ( 3 ) SEALED INDICTMENTS.—The Federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pend- ing trial. Thereupon t h e clerk shall seal the indictment a n d no - person shall disclose t h e return of t h e indictment except when necessary for the issuance a n d execution of a w a r r a n t or summons.". " (b) T h e amendments proposed by the Supreme Court to subdivi- 18 u s e app. sions (b) and (c) of rule 23 of such Rules of Criminal Procedure are approved. (c) T h e amendment proposed by t h e Supreme Court to rule 24 of . . such Rules of Criminal Procedure is disapproved a n d shall not take effect. (d) The amendment proposed by the Supreme Court to such Rules of Criminal Procedure, a d d i n g a new rule designated as rule 40.1, is disapproved and shall not take effect. (e) The amendment proposed by the Supreme Court to subdivision (c) of rule 41 of such Rules of Criminal Procedure is approved in a modified form as follows: Such subdivision (c) of the Federal Rules of Criminal Procedure is amended— (1) by striking out "(c) ISSUANCE AND C O N T E N T S . — A w a r r a n t s h a l l " and i n s e r t i n g in lieu thereof the following: "(c) ISSUANCE AND C O N T E N T S . — " ( 1 ) W A R R A N T UPON AFFIDAVIT.—A warrant other than a warrant upon oral testimony under p a r a g r a p h (2) of this subdivision shall"; a n d (2) by adding at the end the following: "(2) WARRANT UPON ORAL TESTIMONY.— " ( A ) GENERAL RULE.—If the circumstances make it rea- i; sonable to dispense with a written affidavit, a Federal magis- trate may issue a w a r r a n t based upon sworn oral testimony :<; communicated by telephone or other a p p r o p r i a t e means. " ( B ) APPLICATION.—The person who is requesting t h e w a r r a n t shall prepare a document to be known as a duplicate original w a r r a n t a n d shall read such duplicate original war- rant, verbatim, t o the Federal magistrate. T h e Federal magistrate shall enter, verbatim, what is so read to such o;; i magistrate on a document to be known as the oi'iginal warrant. '•<•.;•: T h e Federal magistrate m a y direct t h a t the w a r r a n t be modified. " ( C ) ISSUANCE.—If the Federal magistrate is satisfied t h a t the circumstances are such as to make it reasonable to dispense j: r with a written affidavit and t h a t grounds for the application exist or t h a t there is probable cause to believe t h a t they exist, ? the Federal magistrate shall order the issuance of a w a r r a n t by directing t h e person requesting the w a r r a n t to sign the Federal magistrate's name on the duplicate original warrant. The Federal magistrate shall immediately sign the original w a r r a n t a n d enter on the face of the original w a r r a n t t h e exact time when t h e w a r r a n t was ordered to be issued. T h e
PUBLIC LAW 95-78—JULY 30, 1977 9 1 STAT. 321 finding of probable cause for a w a r r a n t upon oral testimony may be based on the same kind of evidence as is sufficient for a w a r r a n t upon affidavit. "(D) RECORDING AND CERTIFICATION OF TESTIMONY.—^Wben a caller informs the Federal magistrate t h a t the purpose of t h e call is to request a warrant, the Federal magistrate shall immediately place under oath each person whose testimony forms a basis of the application and each person applying for t h a t warrant. I f a voice recording device is available, t h e Federal magistrate shall record by means of such device all of the call after the caller informs the Federal magistrate t h a t the purpose of the call is to request a warrant. Otherwise a stenographic or longhand verbatim record shall be made. I f a voice recording device is used or a stenographic record made, the Federal magistrate shall have the record t r a n - scribed, shall certify t h e accuracy of t h e transcription, and shall file a copy of t h e original record and the transcription with the court. If a longhand verbatim record is made, the Federal magistrate shall file a signed copy with the court. " ( E ) CONTENTS.—^The contents of a w a r r a n t upon oral testimony shall be the same as the contents of a w a r r a n t upon affidavit. "(F) ADDITIONAL RULE FOR EXECUTION.—The person who executes the w a r r a n t shall enter the exact time of execution on the face of the duplicate original warrant. "(G) MOTION TO SUPPRESS PRECLUDED,—Absent a finding of bad faith, evidence obtained pursuant to a w a r r a n t issued under this p a r a g r a p h is not subject to a motion to suppress on the ground t h a t the circumstances were not such as to make it reasonable to dispense with a written affidavit.". SEC. 3. Section 1446 of title 28 of the United States Code is amended as follows: (a) Subsection (c) is amended to read as follows: " ( c ) (1) A petition for removal of a criminal prosecution shall be Removal petition, filed not later than t h i r t y days after the arraignment in the State court, or at any time before trial, whichever is earlier, except t h a t for good cause shown the United States district court may enter an order g r a n t i n g the petitioner leave to file the petition at a later time. " ( 2 ) A petition for removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds which exist at the time of the filing of the petition shall constitute a waiver of such grounds, and a second petition may be filed only on grounds not existing at the time of the original petition. F o r good cause shown, the United States district court may g r a n t relief from the limitations of this p a r a g r a p h . " ( 3 ) T h e filing of a petition for removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except t h a t a judgment of conviction shall not be entered unless the petition is first denied. " ( 4 ) T h e United States district court to which such petition is directed shall examine the petition promptly. I f it clearly appears on the face of the petition and any exhibits annexed thereto t h a t the petition for removal should not be granted, the court shall make an order for its summary dismissal. " (5) If t h e United States district court does not order the summary Hearing. dismissal of such petition, it shall order an evidentiary hearing to be held promptly and after such hearing shall make such disposition of
91 STAT. 322 PUBLIC LAW 95-78—JULY 30, 1977 the petition as justice shall require. If the United States district court determines that such petition shall be granted, it shall so notify the State court in which prosecution is pending, which shall proceed no further.". (b) Subsection (e) is amended by striking out "such petition" and inserting "such petition for the removal of a civil action" in lieu thereof. Effective dates. SEC. 4. (a) The first section of this Act shall take effect on the date 18 use 3771 of the enactment of this Act. note. (b) Sections 2 and 3 of this Act shall take effect October 1, 1977. Approved July 30, 1977. LEGISLATIVE HISTORY: HOUSE REPORT No. 95-195 (Comm. on the Judiciary). SENATE REPORT No. 95-354 (Comm. on the Judiciary). CONGRESSIONAL RECORD, Vol. .123 (1977): Apr. 19, considered and passed House. July 25, considered and passed Senate, amended. July 27, House concurred in Senate amendment.