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 trial with respect to other charges
        against the defendant;
          (C) delay resulting from any interlocutory appeal;
          (D) 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;
          (E) 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;
          (F) 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;
          (G) 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
          (H) 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) 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.
        (6) 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.
        (7)(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.
        (8) 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.