18 U.S.C. § 3161 : US Code - Section 3161: Time limits and exclusions

Search 18 U.S.C. § 3161 : US Code - Section 3161: Time limits and exclusions

(a) In any case involving a defendant charged with an offense,
the appropriate judicial officer, at the earliest practicable time,
shall, after consultation with the counsel for the defendant and
the attorney for the Government, set the case for trial on a day
certain, or list it for trial on a weekly or other short-term trial
calendar at a place within the judicial district, so as to assure a
speedy trial.
(b) Any information or indictment charging an individual with the
commission of an offense shall be filed within thirty days from the
date on which such individual was arrested or served with a summons
in connection with such charges. If an individual has been charged
with a felony in a district in which no grand jury has been in
session during such thirty-day period, the period of time for
filing of the indictment shall be extended an additional thirty
days.
(c)(1) In any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or indictment with
the commission of an offense shall commence within seventy days
from the filing date (and making public) of the information or
indictment, or from the date the defendant has appeared before a
judicial officer of the court in which such charge is pending,
whichever date last occurs. If a defendant consents in writing to
be tried before a magistrate judge on a complaint, the trial shall
commence within seventy days from the date of such consent.
(2) Unless the defendant consents in writing to the contrary, the
trial shall not commence less than thirty days from the date on
which the defendant first appears through counsel or expressly
waives counsel and elects to proceed pro se.
(d)(1) If any indictment or information is dismissed upon motion
of the defendant, or any charge contained in a complaint filed
against an individual is dismissed or otherwise dropped, and
thereafter a complaint is filed against such defendant or
individual charging him with the same offense or an offense based
on the same conduct or arising from the same criminal episode, or
an information or indictment is filed charging such defendant with
the same offense or an offense based on the same conduct or arising
from the same criminal episode, the provisions of subsections (b)
and (c) of this section shall be applicable with respect to such
subsequent complaint, indictment, or information, as the case may
be.
(2) If the defendant is to be tried upon an indictment or
information dismissed by a trial court and reinstated following an
appeal, the trial shall commence within seventy days from the date
the action occasioning the trial becomes final, except that the
court retrying the case may extend the period for trial not to
exceed one hundred and eighty days from the date the action
occasioning the trial becomes final if the unavailability of
witnesses or other factors resulting from the passage of time shall
make trial within seventy days impractical. The periods of delay
enumerated in section 3161(h) are excluded in computing the time
limitations specified in this section. The sanctions of section
3162 apply to this subsection.
(e) If the defendant is to be tried again following a declaration
by the trial judge of a mistrial or following an order of such
judge for a new trial, the trial shall commence within seventy days
from the date the action occasioning the retrial becomes final. If
the defendant is to be tried again following an appeal or a
collateral attack, the trial shall commence within seventy days
from the date the action occasioning the retrial becomes final,
except that the court retrying the case may extend the period for
retrial not to exceed one hundred and eighty days from the date the
action occasioning the retrial becomes final if unavailability of
witnesses or other factors resulting from passage of time shall
make trial within seventy days impractical. The periods of delay
enumerated in section 3161(h) are excluded in computing the time
limitations specified in this section. The sanctions of section
3162 apply to this subsection.
(f) Notwithstanding the provisions of subsection (b) of this
section, for the first twelve-calendar-month period following the
effective date of this section as set forth in section 3163(a) of
this chapter the time limit imposed with respect to the period
between arrest and indictment by subsection (b) of this section
shall be sixty days, for the second such twelve-month period such
time limit shall be forty-five days and for the third such period
such time limit shall be thirty-five days.
(g) Notwithstanding the provisions of subsection (c) of this
section, for the first twelve-calendar-month period following the
effective date of this section as set forth in section 3163(b) of
this chapter, the time limit with respect to the period between
arraignment and trial imposed by subsection (c) of this section
shall be one hundred and eighty days, for the second such twelve-
month period such time limit shall be one hundred and twenty days,
and for the third such period such time limit with respect to the
period between arraignment and trial shall be eighty days.
(h) The following periods of delay shall be excluded in computing
the time within which an information or an indictment must be
filed, or in computing the time within which the trial of any such
offense must commence:
(1) Any period of delay resulting from other proceedings
concerning the defendant, including but not limited to -
(A) delay resulting from any proceeding, including any
examinations, to determine the mental competency or physical
capacity of the defendant;
(B) delay resulting from any proceeding, including any
examination of the defendant, pursuant to section 2902 (!1) of
title 28, United States Code;
(C) delay resulting from deferral of prosecution pursuant to
section 2902 (!1) of title 28, United States Code;
(D) delay resulting from trial with respect to other charges
against the defendant;
(E) delay resulting from any interlocutory appeal;
(F) delay resulting from any pretrial motion, from the filing
of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion;
(G) delay resulting from any proceeding relating to the
transfer of a case or the removal of any defendant from another
district under the Federal Rules of Criminal Procedure;
(H) delay resulting from transportation of any defendant from
another district, or to and from places of examination or
hospitalization, except that any time consumed in excess of ten
days from the date an order of removal or an order directing
such transportation, and the defendant's arrival at the
destination shall be presumed to be unreasonable;
(I) delay resulting from consideration by the court of a
proposed plea agreement to be entered into by the defendant and
the attorney for the Government; and
(J) delay reasonably attributable to any period, not to
exceed thirty days, during which any proceeding concerning the
defendant is actually under advisement by the court.
(2) Any period of delay during which prosecution is deferred by
the attorney for the Government pursuant to written agreement
with the defendant, with the approval of the court, for the
purpose of allowing the defendant to demonstrate his good
conduct.
(3)(A) Any period of delay resulting from the absence or
unavailability of the defendant or an essential witness.
(B) For purposes of subparagraph (A) of this paragraph, a
defendant or an essential witness shall be considered absent when
his whereabouts are unknown and, in addition, he is attempting to
avoid apprehension or prosecution or his whereabouts cannot be
determined by due diligence. For purposes of such subparagraph, a
defendant or an essential witness shall be considered unavailable
whenever his whereabouts are known but his presence for trial
cannot be obtained by due diligence or he resists appearing at or
being returned for trial.
(4) Any period of delay resulting from the fact that the
defendant is mentally incompetent or physically unable to stand
trial.
(5) Any period of delay resulting from the treatment of the
defendant pursuant to section 2902 (!1) of title 28, United
States Code.
(6) If the information or indictment is dismissed upon motion
of the attorney for the Government and thereafter a charge is
filed against the defendant for the same offense, or any offense
required to be joined with that offense, any period of delay from
the date the charge was dismissed to the date the time limitation
would commence to run as to the subsequent charge had there been
no previous charge.
(7) A reasonable period of delay when the defendant is joined
for trial with a codefendant as to whom the time for trial has
not run and no motion for severance has been granted.
(8)(A) Any period of delay resulting from a continuance granted
by any judge on his own motion or at the request of the defendant
or his counsel or at the request of the attorney for the
Government, if the judge granted such continuance on the basis of
his findings that the ends of justice served by taking such
action outweigh the best interest of the public and the defendant
in a speedy trial. No such period of delay resulting from a
continuance granted by the court in accordance with this
paragraph shall be excludable under this subsection unless the
court sets forth, in the record of the case, either orally or in
writing, its reasons for finding that the ends of justice served
by the granting of such continuance outweigh the best interests
of the public and the defendant in a speedy trial.
(B) The factors, among others, which a judge shall consider in
determining whether to grant a continuance under subparagraph (A)
of this paragraph in any case are as follows:
(i) Whether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible, or result in a miscarriage of justice.
(ii) Whether the case is so unusual or so complex, due to the
number of defendants, the nature of the prosecution, or the
existence of novel questions of fact or law, that it is
unreasonable to expect adequate preparation for pretrial
proceedings or for the trial itself within the time limits
established by this section.
(iii) Whether, in a case in which arrest precedes indictment,
delay in the filing of the indictment is caused because the
arrest occurs at a time such that it is unreasonable to expect
return and filing of the indictment within the period specified
in section 3161(b), or because the facts upon which the grand
jury must base its determination are unusual or complex.
(iv) Whether the failure to grant such a continuance in a
case which, taken as a whole, is not so unusual or so complex
as to fall within clause (ii), would deny the defendant
reasonable time to obtain counsel, would unreasonably deny the
defendant or the Government continuity of counsel, or would
deny counsel for the defendant or the attorney for the
Government the reasonable time necessary for effective
preparation, taking into account the exercise of due diligence.
(C) No continuance under subparagraph (A) of this paragraph
shall be granted because of general congestion of the court's
calendar, or lack of diligent preparation or failure to obtain
available witnesses on the part of the attorney for the
Government.
(9) Any period of delay, not to exceed one year, ordered by a
district court upon an application of a party and a finding by a
preponderance of the evidence that an official request, as
defined in section 3292 of this title, has been made for evidence
of any such offense and that it reasonably appears, or reasonably
appeared at the time the request was made, that such evidence is,
or was, in such foreign country.
(i) If trial did not commence within the time limitation
specified in section 3161 because the defendant had entered a plea
of guilty or nolo contendere subsequently withdrawn to any or all
charges in an indictment or information, the defendant shall be
deemed indicted with respect to all charges therein contained
within the meaning of section 3161, on the day the order permitting
withdrawal of the plea becomes final.
(j)(1) If the attorney for the Government knows that a person
charged with an offense is serving a term of imprisonment in any
penal institution, he shall promptly -
(A) undertake to obtain the presence of the prisoner for trial;
or
(B) cause a detainer to be filed with the person having custody
of the prisoner and request him to so advise the prisoner and to
advise the prisoner of his right to demand trial.
(2) If the person having custody of such prisoner receives a
detainer, he shall promptly advise the prisoner of the charge and
of the prisoner's right to demand trial. If at any time thereafter
the prisoner informs the person having custody that he does demand
trial, such person shall cause notice to that effect to be sent
promptly to the attorney for the Government who caused the detainer
to be filed.
(3) Upon receipt of such notice, the attorney for the Government
shall promptly seek to obtain the presence of the prisoner for
trial.
(4) When the person having custody of the prisoner receives from
the attorney for the Government a properly supported request for
temporary custody of such prisoner for trial, the prisoner shall be
made available to that attorney for the Government (subject, in
cases of interjurisdictional transfer, to any right of the prisoner
to contest the legality of his delivery).
(k)(1) If the defendant is absent (as defined by subsection
(h)(3)) on the day set for trial, and the defendant's subsequent
appearance before the court on a bench warrant or other process or
surrender to the court occurs more than 21 days after the day set
for trial, the defendant shall be deemed to have first appeared
before a judicial officer of the court in which the information or
indictment is pending within the meaning of subsection (c) on the
date of the defendant's subsequent appearance before the court.
(2) If the defendant is absent (as defined by subsection (h)(3))
on the day set for trial, and the defendant's subsequent appearance
before the court on a bench warrant or other process or surrender
to the court occurs not more than 21 days after the day set for
trial, the time limit required by subsection (c), as extended by
subsection (h), shall be further extended by 21 days.