18 U.S.C. § 3161 — Time limits and exclusions

Page 730 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3161 (A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense; or (C) any felony under chapter 77, 109A, 110, or 117; and (5) the term ‘‘State’’ includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. (b) As used in sections 3152–3155 of this chap- ter— (1) the term ‘‘judicial officer’’ means, unless otherwise indicated, any person or court au- thorized pursuant to section 3041 of this title, or the Federal Rules of Criminal Procedure, to detain or release a person before trial or sen- tencing or pending appeal in a court of the United States, and (2) the term ‘‘offense’’ means any Federal criminal offense which is in violation of any Act of Congress and is triable by any court es- tablished by Act of Congress (other than a Class B or C misdemeanor or an infraction, or an offense triable by court-martial, military commission, provost court, or other military tribunal). (Added Pub. L. 93–619, title II, § 201, Jan. 3, 1975, 88 Stat. 2088; amended Pub. L. 98–473, title II, §§ 203(c), 223(h), Oct. 12, 1984, 98 Stat. 1985, 2029; Pub. L. 99–646, § 55(i), Nov. 10, 1986, 100 Stat. 3610; Pub. L. 103–322, title IV, § 40501, Sept. 13, 1994, 108 Stat. 1945; Pub. L. 104–294, title VI, § 607(i), Oct. 11, 1996, 110 Stat. 3512; Pub. L. 105–314, title VI, § 601, Oct. 30, 1998, 112 Stat. 2982; Pub. L. 114–22, title I, § 112, May 29, 2015, 129 Stat. 240.) Editorial Notes AMENDMENTS 2015—Subsec. (a)(4)(C). Pub. L. 114–22 inserted ‘‘77,’’ after ‘‘chapter’’. 1998—Subsec. (a)(4)(C). Pub. L. 105–314 added subpar. (C) and struck out former subpar. (C) which read as fol- lows: ‘‘any felony under chapter 109A or chapter 110; and’’. 1996—Subsec. (a)(5). Pub. L. 104–294 added par. (5). 1994—Subsec. (a)(4)(C). Pub. L. 103–322 added subpar. (C). 1986—Subsec. (a). Pub. L. 99–646 substituted ‘‘the term’’ for ‘‘The term’’ in pars. (1) to (4) and struck out ‘‘and’’ after ‘‘Congress;’’ in par. (2). 1984—Subsec. (a). Pub. L. 98–473, § 203(c)(1), sub- stituted ‘‘3141’’ for ‘‘3146’’ in provision preceding par. (1). Subsec. (a)(1). Pub. L. 98–473, § 203(c)(2), substituted ‘‘to detain or release’’ for ‘‘to bail or otherwise release’’ and struck out ‘‘and’’ after ‘‘District of Columbia;’’. Subsec. (a)(3), (4). Pub. L. 98–473, § 203(c)(3), (4), added pars. (3) and (4). Subsec. (b)(1). Pub. L. 98–473, § 203(c)(5), substituted ‘‘to detain or release’’ for ‘‘to bail or otherwise re- lease’’. Subsec. (b)(2). Pub. L. 98–473, § 223(h), substituted ‘‘Class B or C misdemeanor or an infraction’’ for ‘‘petty offense as defined in section 1(3) of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–646 effective 30 days after Nov. 10, 1986, see section 55(j) of Pub. L. 99–646, set out as a note under section 3141 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 223(h) of Pub. L. 98–473 effec- tive Nov. 1, 1987, and applicable only to offenses com- mitted after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98–473, set out as an Effec- tive Date note under section 3551 of this title. CHAPTER 208—SPEEDY TRIAL Sec. 3161. Time limits and exclusions. 3162. Sanctions. 3163. Effective dates. 3164. Persons detained or designated as being of high risk. 3165. District plans—generally. 3166. District plans—contents. 3167. Reports to Congress. 3168. Planning process. 3169. Federal Judicial Center. 3170. Speedy trial data. 3171. Planning appropriations. 3172. Definitions. 3173. Sixth amendment rights. 3174. Judicial emergency and implementation. Statutory Notes and Related Subsidiaries AMENDMENTS 1979—Pub. L. 96–43, § 11, Aug. 2, 1979, 93 Stat. 332, sub- stituted ‘‘Persons detained or designated as being of high risk’’ for ‘‘Interim limits’’ in item 3164 and in- serted ‘‘and implementation’’ in item 3174. 1975—Pub. L. 93–619, title I, § 101, Jan. 3, 1975, 88 Stat. 2076, added chapter 208 and items 3161 to 3174. § 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 con- sultation 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 offi- cer of the court in which such charge is pending, whichever date last occurs. If a defendant con- sents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such con- sent. Page 731 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3161 (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 de- fendant first appears through counsel or ex- pressly waives counsel and elects to proceed pro se. (d)(1) If any indictment or information is dis- missed 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 epi- sode, or an information or indictment is filed charging such defendant with the same offense or an offense based on the same conduct or aris- ing from the same criminal episode, the provi- sions of subsections (b) and (c) of this section shall be applicable with respect to such subse- quent complaint, indictment, or information, as the case may be. (2) If the defendant is to be tried upon an in- dictment 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 be- comes final, except that the court retrying the case may extend the period for trial not to ex- ceed 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 peri- ods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section. The sanctions of sec- tion 3162 apply to this subsection. (e) If the defendant is to be tried again fol- lowing a declaration by the trial judge of a mis- trial or following an order of such judge for a new trial, the trial shall commence within sev- enty 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 re- trying the case may extend the period for retrial not to exceed one hundred and eighty days from the date the action occasioning the retrial be- comes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within seventy days imprac- tical. The periods of delay enumerated in sec- tion 3161(h) are excluded in computing the time limitations specified in this section. The sanc- tions of section 3162 apply to this subsection. (f) Notwithstanding the provisions of sub- section (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 re- spect to the period between arrest and indict- ment by subsection (b) of this section shall be sixty days, for the second such twelve-month pe- riod 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 sub- section (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 im- posed 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 ex- cluded 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, includ- ing 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 mo- tion, 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 re- lating to the transfer of a case or the re- moval of any defendant from another dis- trict 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 hos- pitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such trans- portation, and the defendant’s arrival at the destination shall be presumed to be unrea- sonable; (G) delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attor- ney for the Government; and (H) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defend- ant is actually under advisement by the court. (2) Any period of delay during which pros- ecution 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 defend- ant 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 where- abouts are unknown and, in addition, he is at- tempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. For purposes of such subpara- graph, a defendant or an essential witness Page 732 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3161 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 incom- petent or physically unable to stand trial. (5) If the information or indictment is dis- missed 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 of- fense, any period of delay from the date the charge was dismissed to the date the time lim- itation would commence to run as to the sub- sequent charge had there been no previous charge. (6) A reasonable period of delay when the de- fendant 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 ac- tion 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 sub- section 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 con- tinuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of jus- tice. (ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the exist- ence of novel questions of fact or law, that it is unreasonable to expect adequate prepara- tion for pretrial proceedings or for the trial itself within the time limits established by this section. (iii) Whether, in a case in which arrest pre- cedes indictment, delay in the filing of the indictment is caused because the arrest oc- curs 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 un- usual 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 de- fendant 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 dili- gence. (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 ob- tain available witnesses on the part of the at- torney for the Government. (8) Any period of delay, not to exceed one year, ordered by a district court upon an appli- cation of a party and a finding by a preponder- ance 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 in- stitution, he shall promptly— (A) undertake to obtain the presence of the prisoner for trial; or (B) cause a detainer to be filed with the per- son 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 pris- oner receives a detainer, he shall promptly ad- vise the prisoner of the charge and of the pris- oner’s right to demand trial. If at any time thereafter the prisoner informs the person hav- ing custody that he does demand trial, such per- son 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 ob- tain the presence of the prisoner for trial. (4) When the person having custody of the pris- oner receives from the attorney for the Govern- ment a properly supported request for tem- porary custody of such prisoner for trial, the prisoner shall be made available to that attor- ney 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 Page 733 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3162 subsection (c) on the date of the defendant’s sub- sequent 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 sub- section (h), shall be further extended by 21 days. (Added Pub. L. 93–619, title I, § 101, Jan. 3, 1975, 88 Stat. 2076; amended Pub. L. 96–43, §§ 2–5, Aug. 2, 1979, 93 Stat. 327, 328; Pub. L. 98–473, title II, § 1219, Oct. 12, 1984, 98 Stat. 2167; Pub. L. 100–690, title VI, § 6476, Nov. 18, 1988, 102 Stat. 4380; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 110–406, § 13, Oct. 13, 2008, 122 Stat. 4294.) Editorial Notes AMENDMENTS 2008—Subsec. (h)(1)(B) to (J). Pub. L. 110–406, § 13(1), redesignated subpars. (D) to (J) as (B) to (H), respec- tively, and struck out former subpars. (B) and (C) which read as follows: ‘‘(B) delay resulting from any proceeding, including any examination of the defendant, pursuant to section 2902 of title 28, United States Code; ‘‘(C) delay resulting from deferral of prosecution pur- suant to section 2902 of title 28, United States Code;’’. Subsec. (h)(5) to (9). Pub. L. 110–406, § 13(2), (3), redes- ignated pars. (6) to (9) as (5) to (8), respectively, and struck out former par. (5) which read as follows: ‘‘Any period of delay resulting from the treatment of the de- fendant pursuant to section 2902 of title 28, United States Code.’’ 1988—Subsec. (k). Pub. L. 100–690 added subsec. (k). 1984—Subsec. (h)(8)(C). Pub. L. 98–473, § 1219(1), sub- stituted ‘‘subparagraph (A) of this paragraph’’ for ‘‘paragraph (8)(A) of this subsection’’. Subsec. (h)(9). Pub. L. 98–473, § 1219(2), added par. (9). 1979—Subsec. (c)(1). Pub. L. 96–43, § 2, merged the ten day indictment-to-arraignment and the sixty day ar- raignment-to-trial limits into a single seventy day in- dictment-to-trial period. Subsec. (c)(2). Pub. L. 96–43, § 2, added par. (2). Subsec. (d). Pub. L. 96–43, § 3(a), designated existing provisions as par. (1) and added par. (2). Subsec. (e). Pub. L. 96–43, § 3(b), substituted ‘‘seventy days’’ for ‘‘sixty days’’ in three places and inserted pro- visions excluding the periods of delay enumerated in subsec. (h) of this section in computing the time limi- tations specified in this section and applying the sanc- tions of section 3162 of this title to this subsection. Subsec. (h)(1). Pub. L. 96–43, § 4, added to the listing of excludable delays, delays resulting from the deferral of prosecution under section 2902 of title 28, delays caused by consideration by the court of proposed plea agreements, and delays resulting from the transpor- tation of a defendant from another district or for the purpose of examination or hospitalization, and ex- panded provisions relating to exclusions of periods of delay resulting from hearings on pretrial motions, ex- aminations and hearings relating to the mental or physical condition of defendant, or the removal of a de- fendant from another district under the Federal Rules of Criminal Procedure. Subsec. (h)(8)(B)(ii). Pub. L. 96–43, § 5(a), expanded provisions authorizing the granting of continuances based on the complexity or unusual nature of a case to include delays in preparation of all phases of a case, in- cluding pretrial motion preparation. Subsec. (h)(8)(B)(iii). Pub. L. 96–43, § 5(b), inserted pro- vision authorizing a continuance where the delay in fil- ing the indictment is caused by the arrest taking place at such time that the return and filing of the indict- ment can not reasonably be expected within the period specified in section 3161(b) of this title. Subsec. (h)(8)(B)(iv). Pub. L. 96–43, § 5(c), added cl. (iv). Statutory Notes and Related Subsidiaries CHANGE OF NAME Words ‘‘magistrate judge’’ substituted for ‘‘mag- istrate’’ in subsec. (c)(1) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Procedure. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–473 effective 30 days after Oct. 12, 1984, see section 1220 of Pub. L. 98–473, set out as an Effective Date note under section 3505 of this title. SHORT TITLE OF 1979 AMENDMENT Pub. L. 96–43, § 1, Aug. 2, 1979, 93 Stat. 327, provided: ‘‘That this Act [amending this section and sections 3163 to 3168, 3170 and 3174 of this title] may be cited as the ‘Speedy Trial Act Amendments Act of 1979’.’’ SHORT TITLE Pub. L. 93–619, § 1, Jan. 3, 1975, 88 Stat. 2076, provided: ‘‘That this Act [enacting this chapter and sections 3153 to 3156 of this title, and amending section 3152 of this title, and section 604 of Title 28, Judiciary and Judicial Procedure] may be cited as the ‘Speedy Trial Act of 1974’.’’ § 3162. Sanctions (a)(1) If, in the case of any individual against whom a complaint is filed charging such indi- vidual with an offense, no indictment or infor- mation is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that indi- vidual contained in such complaint shall be dis- missed or otherwise dropped. In determining whether to dismiss the case with or without prejudice, the court shall consider, among oth- ers, each of the following factors: the serious- ness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of jus- tice. (2) If a defendant is not brought to trial within the time limit required by section 3161(c) as ex- tended by section 3161(h), the information or in- dictment shall be dismissed on motion of the de- fendant. The defendant shall have the burden of proof of supporting such motion but the Govern- ment shall have the burden of going forward with the evidence in connection with any exclu- sion of time under subparagraph 3161(h)(3). In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and cir- cumstances of the case which led to the dis- missal; and the impact of a reprosecution on the administration of this chapter and on the ad- ministration of justice. Failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall con- stitute a waiver of the right to dismissal under this section. (b) In any case in which counsel for the de- fendant or the attorney for the Government (1)