(1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement.

(2) Alternate Jurors. When a grand jury is selected, the court may also select alternate jurors. Alternate jurors must have the same qualifications and be selected in the same manner as any other juror. Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror is subject to the same challenges, takes the same oath, and has the same authority as the other jurors.

(1) Challenges. Either the government or a defendant may challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and may challenge an individual juror on the ground that the juror is not legally qualified.

(2) Motion to Dismiss an Indictment. A party may move to dismiss the indictment based on an objection to the grand jury or on an individual jurors lack of legal qualification, unless the court has previously ruled on the same objection under Rule 6 (b)(1). The motion to dismiss is governed by 28 U.S.C. 1867 (e). The court must not dismiss the indictment on the ground that a grand juror was not legally qualified if the record shows that at least 12 qualified jurors concurred in the indictment.

(1) While the Grand Jury Is in Session. The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.

(2) During Deliberations and Voting. No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.

(1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a court reporter or by a suitable recording device. But the validity of a prosecution is not affected by the unintentional failure to make a recording. Unless the court orders otherwise, an attorney for the government will retain control of the recording, the reporters notes, and any transcript prepared from those notes.

(2) Secrecy.

(3) Exceptions.

(E) The court may authorize disclosureat a time, in a manner, and subject to any other conditions that it directsof a grand-jury matter:

(F) A petition to disclose a grand-jury matter under Rule 6 (e)(3)(E)(i) must be filed in the district where the grand jury convened. Unless the hearing is ex parteas it may be when the government is the petitionerthe petitioner must serve the petition on, and the court must afford a reasonable opportunity to appear and be heard to:

(G) If the petition to disclose arises out of a judicial proceeding in another district, the petitioned court must transfer the petition to the other court unless the petitioned court can reasonably determine whether disclosure is proper. If the petitioned court decides to transfer, it must send to the transferee court the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand-jury secrecy. The transferee court must afford those persons identified in Rule 6 (e)(3)(F) a reasonable opportunity to appear and be heard.

(1) Ensuring that the defendant may impeach a prosecution witness on the basis of his prior inconsistent statements before the grand jury. As noted in the opinion of Oakes, J., in United States v. Cramer: First since Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), a defendant has been entitled to examine the grand jury testimony of witnesses against him. On this point, the Court was unanimous, holding that there was no justification for the District of Columbia Court of Appeals relying upon [the] assumption that no inconsistencies would have come to light. The Courts decision was based on the general proposition that [i]n our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant facts. In the case at bar the prosecution did have exclusive access to the grand jury testimony of the witness Sager, by virtue of being present, and the defense had noneto determine whether there were any inconsistencies with, say, his subsequent testimony as to damaging admissions by the defendant and his attorney Richard Thaler. The Government claims, and it is supported by the majority here, that there is no problem since defendants were given the benefit of Sagers subsequent statements including these admissions as Jencks Act materials. But assuming this to be true, it does not cure the basic infirmity that the defense could not know whether the witness testified inconsistently before the grand jury.

(2) Ensuring that the testimony received by the grand jury is trustworthy. In United States v. Cramer, Oakes, J., also observed: The recording of testimony is in a very real sense a circumstantial guaranty of trustworthiness. Without the restraint of being subject to prosecution for perjury, a restraint which is wholly meaningless or nonexistent if the testimony is unrecorded, a witness may make baseless accusations founded on hearsay or false accusations, all resulting in the indictment of a fellow citizen for a crime.

(3) Restraining prosecutorial abuses before the grand jury. As noted in United States v. Gramolini: In no way does recordation inhibit the grand jurys investigation. True, recordation restrains certain prosecutorial practices which might, in its absence be used, but that is no reason not to record. Indeed, a sophisticated prosecutor must acknowledge that there develops between a grand jury and the prosecutor with whom the jury is closeted a rapporta dependency relationshipwhich can easily be turned into an instrument of influence on grand jury deliberations. Recordation is the most effective restraint upon such potential abuses.

(4) Supporting the case made by the prosecution at trial. Oakes, J., observed in United States v. Cramer: The benefits of having grand jury testimony recorded do not all inure to the defense. See, e.g., United States v. DeSisto, 329 F.2d 929, 934: (2nd Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964) (conviction sustained in part on basis of witnessess prior sworn testimony before grand jury). Fed.R.Evid. 801(d)(1)(A) excludes from the category of hearsay the prior inconsistent testimony of a witness given before a grand jury. United States v. Morgan, 555 F.2d 238 (9th Cir. 1977). See also United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), admitting under Fed.R.Evid. 804(b)(5) the grand jury testimony of a witness who refused to testify at trial because of threats by the defendant. Commentators have also supported a recording requirement. 8 Moore, Federal Practice par. 6.02[2][d] (2d ed. 1972) states: Fairness to the defendant would seem to compel a change in the practice, particularly in view of the 1970 amendment to 18 USC 3500 making grand jury testimony of government witnesses available at trial for purposes of impeachment. The requirement of a record may also prove salutary in controlling overreaching or improper examination of witnesses by the prosecutor. Similarly, 1 Wright, Federal Practice and ProcedureCriminal 103 (1969), states that the present rule ought to be changed, either by amendment or by judicial construction. The Supreme Court has emphasized the importance to the defense of access to the transcript of the grand jury proceedings [citing Dennis]. A defendant cannot have that advantage if the proceedings go unrecorded. American Bar Association, Report of the Special Committee on Federal Rules of Procedure, 52 F.R.D. 87, 9495 (1971), renews the committees 1965 recommendation that all accusatorial grand jury proceedings either be transcribed by a reporter or recorded by electronic means. Under proposed subdivision (e)(1), if the failure to record is unintentional, the failure to record would not invalidate subsequent judicial proceedings. Under present law, the failure to compel production of grand jury testimony where there is no record is not reversible error. See Wyatt v. United States, 388 F.2d 395 (10th Cir. 1968). The provision that the recording or reporters notes or any transcript prepared therefrom are to remain in the custody or control (as where the notes are in the immediate possession of a contract reporter employed by the Department of Justice) of the attorney for the government is in accord with present practice. It is specifically recognized, however, that the court in a particular case may have reason to order otherwise. It must be emphasized that the proposed changes in rule 6 (e) deal only with the recording requirement, and in no way expand the circumstances in which disclosure of the grand jury proceedings is permitted or required. Secrecy of grand jury proceedings is not jeopardized by recordation. The making of a record cannot be equated with disclosure of its contents, and disclosure is controlled by other means. United States v. Price, 474 F.2d 1223 (9th Cir. 1973). Specifically, the proposed changes do not provide for copies of the grand jury minutes to defendants as a matter of right, as is the case in some states. See, e.g., Cal.Pen.Code 938.1; Iowa Code Ann. 772.4. The matter of disclosure continues to be governed by other provisions, such as rule 16 (a) (recorded statements of the defendant), 18 U.S.C. 3500 (statements of government witnesses), and the unchanged portions of rule 6 (e), and the cases interpreting these provisions. See e.g., United States v. Howard, 433 F.2d 1 (5th Cir. 1970), and Beatrice Foods Co. v. United States, 312 F.2d 29 (8th Cir. 1963), concerning the showing which must be made of improper matters occurring before the grand jury before disclosure is required. Likewise, the proposed changes in rule 6 (e) are not intended to make any change regarding whether a defendant may challenge a grand jury indictment. The Supreme Court has declined to hold that defendants may challenge indictments on the ground that they are not supported by sufficient or competent evidence. Costello v. United States, 350 U.S. 359 (1956); Lawn v. United States, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966). Nor are the changes intended to permit the defendant to challenge the conduct of the attorney for the government before the grand jury absent a preliminary factual showing of serious misconduct. Note to Subdivision (e)(3)(C). The sentence added to subdivision (e)(3)(C) gives express recognition to the fact that if the court orders disclosure, it may determine the circumstances of the disclosure. For example, if the proceedings are electronically recorded, the court would have discretion in an appropriate case to deny defendant the right to a transcript at government expense. While it takes special skills to make a stenographic record understandable, an electronic recording can be understood by merely listening to it, thus avoiding the expense of transcription. Notes of Advisory Committee on Rules1983 Amendment Note to Subdivision (e)(3)(C). New subdivision (e)(3)(C)(iii) recognizes that it is permissible for the attorney for the government to make disclosure of matters occurring before one grand jury to another federal grand jury. Even absent a specific provision to that effect, the courts have permitted such disclosure in some circumstances. See, e.g., United States v. Socony-Vacuum Oil Co. 310 U.S. 150 (1940); United States v. Garcia, 420 F.2d 309 (2d Cir. 1970). In this kind of situation, [s]ecrecy of grand jury materials should be protected almost as well by the safeguards at the second grand jury proceeding, including the oath of the jurors, as by judicial supervision of the disclosure of such materials. United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978). Note to Subdivision (e)(3)(D). In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979), the Court held on the facts there presented that it was an abuse of discretion for the district judge to order disclosure of grand jury transcripts for use in civil proceedings in another district where that judge had insufficient knowledge of those proceedings to make a determination of the need for disclosure. The Court suggested a better practice on those facts, but declared that procedures to deal with the many variations are best left to the rulemaking procedures established by Congress. The first sentence of subdivision (e)(3)(D) makes it clear that when disclosure is sought under subdivision (e)(2)(C)(i), the petition is to be filed in the district where the grand jury was convened, whether or not it is the district of the judicial proceeding giving rise to the petition. Courts which have addressed the question have generally taken this view, e.g., Illinois v. Sarbaugh, 522 F.2d 768 (7th Cir. 1977). As stated in Douglas Oil, those who seek grand jury transcripts have little choice other than to file a request with the court that supervised the grand jury, as it is the only court with control over the transcripts. Quite apart from the practical necessity, the policies underlying Rule 6 (e) dictate that the grand jurys supervisory court participate in reviewing such requests, as it is in the best position to determine the continuing need for grand jury secrecy. Ideally, the judge who supervised the grand jury should review the request for disclosure, as he will have firsthand knowledge of the grand jurys activities. But even other judges of the district where the grand jury sat may be able to discover facts affecting the need for secrecy more easily than would judges from elsewhere around the country. The records are in the custody of the District Court, and therefore are readily available for references. Moreover, the personnel of that courtparticularly those of the United States Attorneys Office who worked with the grand juryare more likely to be informed about the grand jury proceedings than those in a district that had no prior experience with the subject of the request. The second sentence requires the petitioner to serve notice of his petition upon several persons who, by the third sentence, are recognized as entitled to appear and be heard on the matter. The notice requirement ensures that all interested parties, if they wish, may make a timely appearance. Absent such notice, these persons, who then might only learn of the order made in response to the motion after it was entered, have had to resort to the cumbersome and inefficient procedure of a motion to vacate the order. In re Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894 (7th Cir. 1973). Though some authority is to be found that parties to the judicial proceeding giving rise to the motion are not entitled to intervene, in that the order to produce was not directed to them, United States v. American Oil Co., 456 F.2d 1043 (3d Cir. 1972), that position was rejected in Douglas Oil, where it was noted that such persons have standing to object to the disclosure order, as release of the transcripts to their civil adversaries could result in substantial injury to them. As noted in Illinois v. Sarbaugh, supra, while present rule 6 (e) omits to state whether any one is entitled to object to disclosure, the rule seems to contemplate a proceeding of some kind, judicial proceedings are not normally ex parte, and persons in the situation of the intervenors [parties to the civil proceeding] are likely to be the only ones to object to an order for disclosure. If they are not allowed to appear, the advantages of an adversary proceeding are lost. If the judicial proceeding is a class action, notice to the representative is sufficient. The amendment also recognizes that the attorney for the government in the district where the grand jury convened also has an interest in the matter and should be allowed to be heard. It may sometimes be the case, as in Douglas Oil, that the prosecutor will have relatively little concern for secrecy, at least as compared with certain parties to the civil proceeding. Nonetheless, it is appropriate to recognize that generally the attorney for the government is entitled to be heard so that he may represent what Douglas Oil characterizes as the public interest in secrecy, including the governments legitimate concern about the possible effect upon the functioning of future grand juries of unduly liberal disclosure. The second sentence leaves it to the court to decide whether any other persons should receive notice and be allowed to intervene. This is appropriate, for the necessity for and feasibility of involving others may vary substantially from case to case. In Douglas Oil, it was noted that the individual who produced before the grand jury the information now sought has an interest in the matter: Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties. Concern as to the future consequences of frank and full testimony is heightened where the witness is an employee of a company under investigation. Notice to such persons, however is by no means inevitably necessary, and in some cases the information sought may have reached the grand jury from such a variety of sources that it is not practicable to involve these sources in the disclosure proceeding. Similarly, while Douglas Oil notes that rule 6 (e) secrecy affords protection of the innocent accused from disclosure of the accusation made against him before the grand jury, it is appropriate to leave to the court whether that interest requires representation directly by the grand jury target at this time. When deemed necessary to protect the identity of such other persons, it would be a permissible alternative for the government or the court directly to give notice to these other persons, and thus the rule does not foreclose such action. The notice requirement in the second sentence is inapplicable if the hearing is to be ex parte. The legislative history of rule 6 (e) states: It is contemplated that the judicial hearing in connection with an application for a court order by the government, under subparagraph (3)(C)(i) should be ex parte so as to preserve, to the maximum extent possible, grand jury secrecy. S.Rep. No. 95354, 1977 U.S. Code Cong. & Admin. News p. 532. Although such cases are distinguishable from other cases arising under this subdivision because internal regulations limit further disclosure of information disclosed to the government, the rule provides only that the hearing may be ex parte when the petitioner is the government. This allows the court to decide that matter based upon the circumstances of the particular case. For example, an ex parte proceeding is much less likely to be appropriate if the government acts as petitioner as an accommodation to, e.g., a state agency. Note to Subdivision (e)(3)(E). Under the first sentence in new subdivision (e)(3)(E), the petitioner or any intervenor might seek to have the matter transferred to the federal district court where the judicial proceeding giving rise to the petition is pending. Usually, it will be the petitioner, who is seeking disclosure, who will desire the transfer, but this is not inevitably the case. An intervenor might seek transfer on the ground that the other court, with greater knowledge of the extent of the need, would be less likely to conclude that the material *** is needed to avoid a possible injustice (the test under Douglas Oil). The court may transfer on its own motion, for as noted in Douglas Oil, if transfer is the better course of action it should not be foreclosed merely because the parties have failed to specify the relief to which they are entitled. It must be emphasized that transfer is proper only if the proceeding giving rise to the petition is in federal district court in another district. If, for example, the proceeding is located in another district but is at the state level, a situation encompassed within rule 6 (e)(3)(C)(i), In re Special February 1971 Grand Jury v. Conlisk, supra, there is no occasion to transfer. Ultimate resolution of the matter cannot be placed in the hands of the state court, and in such a case the federal court in that place would lack what Douglas Oil recognizes as the benefit to be derived from transfer: first-hand knowledge of the litigation in which the transcripts allegedly are needed. Formal transfer is unnecessary in intradistrict cases, even when the grand jury court and judicial proceeding court are not in the same division. As stated in the first sentence, transfer by the court is appropriate unless it can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper. (As reflected by the whether disclosure is proper language, the amendment makes no effort to define the disclosure standard; that matter is currently governed by Douglas Oil and the authorities cited therein, and is best left to elaboration by future case law.) The amendment expresses a preference for having the disclosure issue decided by the grand jury court. Yet, it must be recognized, as stated in Douglas Oil, that often this will not be possible because the judges of the court having custody of the grand jury transcripts will have no first-hand knowledge of the litigation in which the transcripts allegedly are needed, and no practical means by which such knowledge can be obtained. In such a case, a judge in the district of the grand jury cannot weigh in an informed manner the need for disclosure against the need for maintaining grand jury secrecy. The penultimate sentence provides that upon transfer the transferring court shall order transmitted the material sought to be disclosed and also a written evaluation of the need for continuing grand jury secrecy. Because the transferring court is in the best position to assess the interest in continued grand jury secrecy in the particular instance, it is important that the court which will now have to balance that interest against the need for disclosure receive the benefit of the transferring courts assessment. Transmittal of the material sought to be disclosed will not only facilitate timely disclosure if it is thereafter ordered, but will also assist the other court in deciding how great the need for disclosure actually is. For example, with that material at hand the other court will be able to determine if there is any inconsistency between certain grand jury testimony and testimony received in the other judicial proceeding. The rule recognizes, however, that there may be instances in which transfer of everything sought to be disclosed is not feasible. See, e.g., In re 19752 Grand Jury Investigation, 566 F.2d 1293 (5th Cir. 1978) (court ordered transmittal of an inventory of the grand jury subpoenas, transcripts, and documents, as the materials in question were exceedingly voluminous, filling no less than 55 large file boxes and one metal filing cabinet). The last sentence makes it clear that in a case in which the matter is transferred to another court, that court should permit the various interested parties specified in the rule to be heard. Even if those persons were previously heard before the court which ordered the transfer, this will not suffice. The order of transfer did not decide the ultimate issue of whether a particularized need for disclosure outweighs the interest in continued grand jury secrecy, Douglas Oil, supra, which is what now remains to be resolved by the court to which transfer was made. Cf. In re 19752 Grand Jury Investigation, supra, holding that a transfer order is not appealable because it does not determine the ultimate question of disclosure, and thus [n]o one has yet been aggrieved and no one will become aggrieved until [the court to which the matter was transferred] acts. Note to Subdivision (e)(5). This addition to rule 6 would make it clear that certain hearings which would reveal matters which have previously occurred before a grand jury or are likely to occur before a grand jury with respect to a pending or ongoing investigation must be conducted in camera in whole or in part in order to prevent public disclosure of such secret information. One such hearing is that conducted under subdivision (e)(3)(D), for it will at least sometimes be necessary to consider and assess some of the matters occurring before the grand jury in order to decide the disclosure issue. Two other kinds of hearings at which information about a particular grand jury investigation might need to be discussed are those at which the question is whether to grant a grand jury witness immunity or whether to order a grand jury witness to comply fully with the terms of a subpoena directed to him. A recent GAO study established that there is considerable variety in the practice as to whether such hearings are closed or open, and that open hearings often seriously jeopardize grand jury secrecy: For judges to decide these matters, the witness relationship to the case under investigation must be discussed. Accordingly, the identities of witnesses and targets, the nature of expected testimony, and the extent to which the witness is cooperating are often revealed during preindictment proceedings. Because the matters discussed can compromise the purposes of grand jury secrecy, some judges close the preindictment proceedings to the public and the press; others do not. When the proceeding is open, information that may otherwise be kept secret under rule 6 (e) becomes available to the public and the press .... Open preindictment proceedings are a major source of information which can compromise the purposes of grand jury secrecy. In 25 cases we were able to establish links between open proceedings and later newspaper articles containing information about the identities of witnesses and targets and the nature of grand jury investigations. Comptroller General, More Guidance and Supervision Needed over Federal Grand Jury Proceedings 89 (Oct. 16, 1980). The provisions of rule 6 (e)(5) do not violate any constitutional right of the public or media to attend such pretrial hearings. There is no Sixth Amendment right in the public to attend pretrial proceedings, Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979), and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, (1980), only recognizes a First Amendment right to attend criminal trials. Richmond Newspapers was based largely upon the unbroken, uncontradicted history of public trials, while in Gannett it was noted there exists no persuasive evidence that at common law members of the public had any right to attend pretrial proceedings. Moreover, even assuming some public right to attend certain pretrial proceedings, see United States v. Criden, 675 F.2d 550 (3d Cir. 1982), that right is not absolute; it must give way, as stated in Richmond Newspapers, to an overriding interest in a particular case in favor of a closed proceeding. By permitting closure only to the extent necessary to prevent disclosure of matters occurring before a grand jury, rule 6 (e)(5) recognizes the longstanding interest in the secrecy of grand jury proceedings. Counsel or others allowed to be present at the closed hearing may be put under a protective order by the court. Subdivision (e)(5) is expressly made subject to any right to an open hearing in contempt proceedings. This will accommodate any First Amendment right which might be deemed applicable in that context because of the proceedings similarities to a criminal trial, cf. United States v. Criden, supra, and also any Fifth or Sixth Amendment right of the contemnor. The latter right clearly exists as to a criminal contempt proceeding, In re Oliver, 333 U.S. 257 (1948), and some authority is to be found recognizing such a right in civil contempt proceedings as well. In re Rosahn, 671 F.2d 690 (2d Cir. 1982). This right of the contemnor must be requested by him and, in any event, does not require that the entire contempt proceedings, including recitation of the substance of the questions he has refused to answer, be public. Levine v. United States, 362 U.S. 610 (1960). Note to Subdivision (e)(6). Subdivision (e)(6) provides that records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for so long as is necessary to prevent disclosure of matters occurring before a grand jury. By permitting such documents as grand jury subpoenas and immunity orders to be kept under seal, this provision addresses a serious problem of grand jury secrecy and expressly authorizes a procedure now in use in many but not all districts. As reported in Comptroller General, More Guidance and Supervision Needed over Federal Grand Jury Proceedings 10, 14 (Oct. 16, 1980): In 262 cases, documents presented at open preindictment proceedings and filed in public files revealed details of grand jury investigations. These documents are, of course, available to anyone who wants them, including targets of investigations. [There are] two documents commonly found in public files which usually reveal the identities of witnesses and targets. The first document is a Department of Justice authorization to a U.S. attorney to apply to the court for a grant of immunity for a witness. The second document is the courts order granting the witness immunity from prosecution and compelling him to testify and produce requested information. *** Subpoenas are the fundamental documents used during a grand jurys investigation because through subpoenas, grand juries can require witnesses to testify and produce documentary evidence for their consideration. Subpoenas can identify witnesses, potential targets, and the nature of an investigation. Rule 6 (e) does not provide specific guidance on whether a grand jurys subpoena should be kept secret. Additionally, case law has not consistently stated whether the subpoenas are protected by rule 6 (e). District courts still have different opinions about whether grand jury subpoenas should be kept secret. Out of 40 Federal District Courts we contacted, 36 consider these documents to be secret. However, 4 districts do make them available to the public. Note to Subdivision (g). In its present form, subdivision 6(g) permits a grand jury to serve no more than 18 months after its members have been sworn, and absolutely no exceptions are permitted. (By comparison, under the Organized Crime Control Act of 1970, Title I, 18 U.S.C. 3331–3334, special grand juries may be extended beyond their basic terms of 18 months if their business has not been completed.) The purpose of the amendment is to permit some degree of flexibility as to the discharge of grand juries where the public interest would be served by an extension. As noted in United States v. Fein, 504 F.2d 1170 (2d Cir. 1974), upholding the dismissal of an indictment returned 9 days after the expiration of the 18month period but during an attempted extension, under the present inflexible rule it may well be that criminal proceedings which would be in the public interest will be frustrated and that those who might be found guilty will escape trial and conviction. The present inflexible rule can produce several undesirable consequences, especially when complex fraud, organized crime, tax or antitrust cases are under investigation: (i) wastage of a significant amount of time and resources by the necessity of presenting the case once again to a successor grand jury simply because the matter could not be concluded before the term of the first grand jury expired; (ii) precipitous action to conclude the investigation before the expiration date of the grand jury; and (iii) potential defendants may be kept under investigation for a longer time because of the necessity to present the matter again to another grand jury. The amendment to subdivision 6(g) permits extension of a regular grand jury only upon a determination that such extension is in the public interest. This permits some flexibility, but reflects the fact that extension of regular grand juries beyond 18 months is to be the exception and not the norm. The intention of the amendment is to make it possible for a grand jury to have sufficient extra time to wind up an investigation when, for example, such extension becomes necessary because of the unusual nature of the case or unforeseen developments. Because terms of court have been abolished, 28 U.S.C. 138, the second sentence of subdivision 6(g) has been deleted. Notes of Advisory Committee on Rules1985 Amendment Note to Subdivision (e)(3)(A)(ii). Rule 6 (e)(3)(A)(ii) currently provides that an attorney for the government may disclose grand jury information, without prior judicial approval, to other government personnel whose assistance the attorney for the government deems necessary in conducting the grand jury investigation. Courts have differed over whether employees of state and local governments are government personnel within the meaning of the rule. Compare In re Miami Federal Grand Jury No. 799, 478 F.Supp. 490 (S.D.Fla. 1979), and In re Grand Jury Proceedings, 445 F.Supp. 349 (D.R.I. 1978) (state and local personnel not included); with In re 1979 Grand Jury Proceedings, 479 F.Supp. 93 (E.D.N.Y. 1979) (state and local personnel included). The amendment clarifies the rule to include state and local personnel. It is clearly desirable that federal and state authorities cooperate, as they often do, in organized crime and racketeering investigations, in public corruption and major fraud cases, and in various other situations where federal and state criminal jurisdictions overlap. Because of such cooperation, government attorneys in complex grand jury investigations frequently find it necessary to enlist the help of a team of government agents. While the agents are usually federal personnel, it is not uncommon in certain types of investigations that federal prosecutors wish to obtain the assistance of state law enforcement personnel, which could be uniquely beneficial. The amendment permits disclosure to those personnel in the circumstances stated. It must be emphasized that the disclosure permitted is limited. The disclosure under this subdivision is permissible only in connection with the attorney for the governments duty to enforce federal criminal law and only to those personnel deemed necessary ... to assist in the performance of that duty. Under subdivision (e)(3)(B), the material disclosed may not be used for any other purpose, and the names of persons to whom disclosure is made must be promptly provided to the court. Note to Subdivision (e)(3)(B). The amendment to subdivision (e)(3)(B) imposes upon the attorney for the government the responsibility to certify to the district court that he has advised those persons to whom disclosure was made under subdivision (e)(3)(A)(ii) of their obligation of secrecy under Rule 6. Especially with the amendment of subdivision (e)(3)(A)(ii) to include personnel of a state or subdivision of a state, who otherwise would likely be unaware of this obligation of secrecy, the giving of such advice is an important step in ensuring against inadvertent breach of grand jury secrecy. But because not all federal government personnel will otherwise know of this obligation, the giving of the advice and certification thereof is required as to all persons receiving disclosure under subdivision (e)(3)(A)(ii). Note to Subdivision (e)(3)(C). It sometimes happens that during a federal grand jury investigation evidence will be developed tending to show a violation of state law. When this occurs, it is very frequently the case that this evidence cannot be communicated to the appropriate state officials for further investigation. For one thing, any state officials who might seek this information must show particularized need. Illinois v. Abbott & Associates, 103 S.Ct. 1356 (1983). For another, and more significant, it is often the case that the information relates to a state crime outside the context of any pending or even contemplated state judicial proceeding, so that the preliminarily to or in connection with a judicial proceeding requirement of subdivision (e)(3)(C)(i) cannot be met. This inability lawfully to disclose evidence of a state criminal violationevidence legitimately obtained by the grand juryconstitutes an unreasonable barrier to the effective enforcement of our two-tiered system of criminal laws. It would be removed by new subdivision (e)(3)(C)(iv), which would allow a court to permit disclosure to a state or local official for the purpose of enforcing state law when an attorney for the government so requests and makes the requisite showing. The federal court has been given control over any disclosure which is authorized, for subdivision (e)(3)(C) presently states that the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. The Committee is advised that it will be the policy of the Department of Justice under this amendment to seek such disclosure only upon approval of the Assistant Attorney General in charge of the Criminal Division. There is no intention, by virtue of this amendment, to have federal grand juries act as an arm of the state. Notes of Advisory Committee on Rules1987 Amendment New subdivision (a)(2) gives express recognition to a practice now followed in some district courts, namely, that of designating alternate grand jurors at the time the grand jury is selected. (A person so designated does not attend court and is not paid the jury attendance fees and expenses authorized by 28 U.S.C. 1871 unless subsequently impanelled pursuant to Rule 6 (g).) Because such designation may be a more efficient procedure than election of additional grand jurors later as need arises under subdivision (g), the amendment makes it clear that it is a permissible step in the grand jury selection process. This amendment is not intended to work any change in subdivision (g). In particular, the fact that one or more alternate jurors either have or have not been previously designated does not limit the district courts discretion under subdivision (g) to decide whether, if a juror is excused temporarily or permanently, another person should replace him to assure the continuity of the grand jury and its ability to obtain a quorum in order to complete its business. The amendments [subdivisions (c) and (f)] are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. Committee Notes on Rules1999 Amendment Subdivision 6(d). As currently written, Rule 6 (d) absolutely bars any person, other than the jurors themselves, from being present during the jurys deliberations and voting. Accordingly, interpreters are barred from attending the deliberations and voting by the grand jury, even though they may have been present during the taking of testimony. The amendment is intended to permit interpreters to assist persons who are speech or hearing impaired and are serving on a grand jury. Although the Committee believes that the need for secrecy of grand jury deliberations and voting is paramount, permitting interpreters to assist hearing and speech impaired jurors in the process seems a reasonable accommodation. See also United States v. Dempsey, 830 F.2d 1084 (10th Cir. 1987) (constitutionally rooted prohibition of non-jurors being present during deliberations was not violated by interpreter for deaf petit jury member). The subdivision has also been restyled and reorganized. Subdivision 6(f). The amendment to Rule 6 (f) is intended to avoid the problems associated with bringing the entire jury to the court for the purpose of returning an indictment. Although the practice is long-standing, in Breese v. United States, 226 U.S. 1 (1912), the Court rejected the argument that the requirement was rooted in the Constitution and observed that if there were ever any strong reasons for the requirement, they have disappeared, at least in part. 226 U.S. at 9. The Court added that grand jurys presence at the time the indictment was presented was a defect, if at all, in form only. Id. at 11. Given the problems of space, in some jurisdictions the grand jury sits in a building completely separated from the courtrooms. In those cases, moving the entire jury to the courtroom for the simple process of presenting the indictment may prove difficult and time consuming. Even where the jury is in the same location, having all of the jurors present can be unnecessarily cumbersome in light of the fact that filing of the indictment requires a certification as to how the jurors voted. The amendment provides that the indictment must be presented either by the jurors themselves, as currently provided for in the rule, or by the foreperson or the deputy foreperson, acting on behalf of the jurors. In an appropriate case, the court might require all of the jurors to be present if it had inquiries about the indictment. GAP ReportRule 6. The Committee modified Rule 6 (d) to permit only interpreters assisting hearing or speech impaired grand jurors to be present during deliberations and voting. Committee Notes on Rules2002 Amendment The language of Rule 6 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first change is in Rule 6 (b)(1). The last sentence of current Rule 6 (b)(1) provides that Challenges shall be made before the administration of the oath to the jurors and shall be tried by the court. That language has been deleted from the amended rule. The remainder of this subdivision rests on the assumption that formal proceedings have begun against a person, i.e., an indictment has been returned. The Committee believed that although the first sentence reflects current practice of a defendant being able to challenge the composition or qualifications of the grand jurors after the indictment is returned, the second sentence does not comport with modern practice. That is, a defendant will normally not know the composition of the grand jury or identity of the grand jurors before they are administered their oath. Thus, there is no opportunity to challenge them and have the court decide the issue before the oath is given. In Rule 6 (d)(1), the term court stenographer has been changed to court reporter. Similar changes have been made in Rule 6 (e)(1) and (2). Rule 6 (e) continues to spell out the general rule of secrecy of grand-jury proceedings and the exceptions to that general rule. The last sentence in current Rule 6 (e)(2), concerning contempt for violating Rule 6, now appears in Rule 6 (e)(7). No change in substance is intended. Rule 6 (e)(3)(A)(ii) includes a new provision recognizing the sovereignty of Indian Tribes and the possibility that it would be necessary to disclose grand-jury information to appropriate tribal officials in order to enforce federal law. Similar language has been added to Rule 6 (e)(3)(D)(iii). Rule 6 (e)(3)(A)(iii) is a new provision that recognizes that disclosure may be made to a person under 18 U.S.C. 3322 (authorizing disclosures to an attorney for the government and banking regulators for enforcing civil forfeiture and civil banking laws). This reference was added to avoid the possibility of the amendments to Rule 6 superseding that particular statute. Rule 6 (e)(3)(C) consists of language located in current Rule 6 (e)(3)(C)(iii). The Committee believed that this provision, which recognizes that prior court approval is not required for disclosure of a grand-jury matter to another grand jury, should be treated as a separate subdivision in revised Rule 6 (e)(3). No change in practice is intended. Rule 6 (e)(3)(D) is new and reflects changes made to Rule 6 in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. The new provision permits an attorney for the government to disclose grand-jury matters involving foreign intelligence or counterintelligence to other Federal officials, in order to assist those officials in performing their duties. Under Rule 6 (e)(3)(D)(i), the federal official receiving the information may only use the information as necessary and may be otherwise limited in making further disclosures. Any disclosures made under this provision must be reported under seal, within a reasonable time, to the court. The term foreign intelligence information is defined in Rule 6 (e)(3)(D)(iii). Rule 6 (e)(3)(E)(iv) is a new provision that addresses disclosure of grand-jury information to armed forces personnel where the disclosure is for the purpose of enforcing military criminal law under the Uniform Code of Military Justice, 10 U.S.C. 801–946. See, e.g., Department of Defense Directive 5525.7 (January 22, 1985); 1984 Memorandum of Understanding Between Department of Justice and the Department of Defense Relating to the Investigation and Prosecution of Certain Crimes; Memorandum of Understanding Between the Departments of Justice and Transportation (Coast Guard) Relating to the Investigations and Prosecution of Crimes Over Which the Two Departments Have Concurrent Jurisdiction (October 9, 1967). In Rule 6 (e)(3)(F)(ii), the Committee considered whether to amend the language relating to parties to the judicial proceeding and determined that in the context of the rule it is understood that the parties referred to are the parties in the same judicial proceeding identified in Rule 6 (e)(3)(E)(i). The Committee decided to leave in subdivision (e) the provision stating that a knowing violation of Rule 6 may be punished by contempt notwithstanding that, due to its apparent application to the entirety of the Rule, the provision seemingly is misplaced in subdivision (e). Research shows that Congress added the provision in 1977 and that it was crafted solely to deal with violations of the secrecy prohibitions in subdivision (e). See S. Rep. No. 95354, p. 8 (1977). Supporting this narrow construction, the Committee found no reported decision involving an application or attempted use of the contempt sanction to a violation other than of the disclosure restrictions in subdivision (e). On the other hand, the Supreme Court in dicta did indicate on one occasion its arguable understanding that the contempt sanction would be available also for a violation of Rule 6 (d) relating to who may be present during the grand jurys deliberations. Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988). In sum, it appears that the scope of the contempt sanction in Rule 6 is unsettled. Because the provision creates an offense, altering its scope may be beyond the authority bestowed by the Rules Enabling Act, 28 U.S.C. 2071 et seq. See 28 U.S.C. 2072 (b) (Rules must not abridge, enlarge, or modify any substantive right). The Committee decided to leave the contempt provision in its present location in subdivision (e), because breaking it out into a separate subdivision could be construed to support the interpretation that the sanction may be applied to a knowing violation of any of the Rules provisions rather than just those in subdivision (e). Whether or not that is a correct interpretation of the provisiona matter on which the Committee takes no positionmust be determined by case law, or resolved by Congress. Current Rule 6 (g) has been divided into two new subdivisions, Rule 6 (g), Discharge, and Rule 6 (h), Excuse. The Committee added the phrase in Rule 6 (g) except as otherwise provided by statute, to recognize the provisions of 18 U.S.C. 3331 relating to special grand juries. Rule 6 (i) is a new provision defining the term Indian Tribe, a term used only in this rule. Committee Notes on Rules2006 Amendment Subdivision (e)(3) and (7). This amendment makes technical changes to the language added to Rule 6 by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108–458, Title VI, § 6501(a), 118 Stat. 3760, in order to bring the new language into conformity with the conventions introduced in the general restyling of the Criminal Rules. No substantive change is intended. References in Text The Uniform Code of Military Justice, referred to in subd. (e)(3)(E)(v), is classified to chapter 47 (801 et seq.) of Title 10, Armed Forces. Amendment by Public Law 2004Subd. (e)(3)(A)(ii). Pub. L. 108–458, § 6501(a)(1)(A), substituted ,state subdivision, Indian tribe, or foreign government for or state subdivision or of an Indian tribe. Subd. (e)(3)(D). Pub. L. 108–458, § 6501(a)(1)(B)(i), inserted after first sentence An attorney for the government may also disclose any grand jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate Federal, State, State subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities. Subd. (e)(3)(D)(i). Pub. L. 108–458, § 6501(a)(1)(B)(ii), struck out federal before official who in first sentence and inserted at end Any State, State subdivision, Indian tribal, or foreign government official who receives information under Rule 6 (e)(3)(D) may use the information only consistent with such guidelines as the Attorney General and the Director of National Intelligence shall jointly issue. Subd. (e)(3)(E)(iii). Pub. L. 108–458, § 6501(a)(1)(C)(ii), added cl. (iii). Former cl. (iii) redesignated (iv). Subd. (e)(3)(E)(iv). Pub. L. 108–458, § 6501(a)(1)(C)(iii), substituted State, Indian tribal, or foreign for state or Indian tribal and Indian tribal, or foreign government official for or Indian tribal official. Pub. L. 108–458, § 6501(a)(1)(C)(i), redesignated cl. (iii) as (iv). Former cl. (iv) redesignated (v). Subd. (e)(3)(E)(v). Pub. L. 108–458, § 6501(a)(1)(C)(i), redesignated cl. (iv) as (v). Subd. (e)(7). Pub. L. 108–458, § 6501(a)(2), inserted ,or of guidelines jointly issued by the Attorney General and the Director of National Intelligence pursuant to Rule 6, after violation of Rule 6. 2002Subd. (e). Pub. L. 107–296, § 895, which directed certain amendments to subdiv. (e), could not be executed because of the amendment by the Court by order dated Apr. 29, 2002, eff. Dec. 1, 2002. Section 895 of Pub. L. 107–296 provided: Rule 6(e) of the Federal Rules of Criminal Procedure is amended (1) in paragraph (2), by inserting ,or of guidelines jointly issued by the Attorney General and Director of Central Intelligence pursuant to Rule 6, after Rule 6; and (2) in paragraph (3) (A) in subparagraph (A)(ii), by inserting or of a foreign government after (including personnel of a state or subdivision of a state; (B) in subparagraph (C)(i) (i) in subclause (I), by inserting before the semicolon the following: or, upon a request by an attorney for the government, when sought by a foreign court or prosecutor for use in an official criminal investigation; (ii) in subclause (IV) (I) by inserting or foreign after may disclose a violation of State; (II) by inserting or of a foreign government after to an appropriate official of a State or subdivision of a State; and (III) by striking or at the end; (iii) by striking the period at the end of subclause (V) and inserting ;or; and (iv) by adding at the end the following: (VI) when matters involve a threat of actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, to any appropriate federal, state, local, or foreign government official for the purpose of preventing or responding to such a threat.; and (C) in subparagraph (C)(iii) (i) by striking Federal; (ii) by inserting or clause (i)(VI) after clause (i)(V); and (iii) by adding at the end the following: Any state, local, or foreign official who receives information pursuant to clause (i)(VI) shall use that information only consistent with such guidelines as the Attorney General and Director of Central Intelligence shall jointly issue.. 2001Subd. (e)(3)(C). Pub. L. 107–56, § 203(a)(1), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made (i) when so directed by a court preliminarily to or in connection with a judicial proceeding; (ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury; (iii) when the disclosure is made by an attorney for the government to another federal grand jury; or (iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law. If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. Subd. (e)(3)(D). Pub. L. 107–56, § 203(a)(2), substituted subdivision (e)(3)(C)(i)(I) for subdivision (e)(3)(C)(i). 1984Subd. (e)(3)(C)(iv). Pub. L. 98–473, eff. Nov. 1, 1987, added subcl. (iv), identical to subcl. (iv) which had been previously added by Order of the Supreme Court dated Apr. 29, 1985, eff. Aug. 1, 1985, thereby requiring no change in text. Effective Date of 1984 Amendment Amendment by Pub. L. 98–473 effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98–473, set out as an Effective Date note under section 3551 of this title. Effective Date of 1977 Amendment Amendment of this rule by order of the United States Supreme Court on Apr. 26, 1977, modified and approved by Pub. L. 95–78, effective Oct. 1, 1977, see section 4 of Pub. L. 95–78, set out as an Effective Date of Pub. L. 95–78 note under section 2074 of Title 28, Judiciary and Judicial Procedure. Effective Date of 1976 Amendment Amendment of subd. (f) by the order of the United States Supreme Court of Apr. 26, 1976, effective Aug. 1, 1976, see section 1 of Pub. L. 94–349, July 8, 1976, 90 Stat. 822, set out as a note under section 2074 of Title 28, Judiciary and Judicial Procedure. Rule 7 . The Indictment and the Information

(1) Felony. An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable:

(2) Misdemeanor. An offense punishable by imprisonment for one year or less may be prosecuted in accordance with Rule 58 (b)(1).

(1) In General. The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion. A count may incorporate by reference an allegation made in another count. A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated. For purposes of an indictment referred to in section 3282 of title 18, United States Code, for which the identity of the defendant is unknown, it shall be sufficient for the indictment to describe the defendant as an individual whose name is unknown, but who has a particular DNA profile, as that term is defined in that section 3282.

(2) Criminal Forfeiture. No judgment of forfeiture may be entered in a criminal proceeding unless the indictment or the information provides notice that the defendant has an interest in property that is subject to forfeiture in accordance with the applicable statute.

(3) Citation Error. Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citations omission is a ground to dismiss the indictment or information or to reverse a conviction.

(1) Warrant. The warrant must conform to Rule 4 (b)(1) except that it must be signed by the clerk and must describe the offense charged in the indictment or information.

(2) Summons. The summons must be in the same form as a warrant except that it must require the defendant to appear before the court at a stated time and place.

(1) Execution or Service.

(2) Return. A warrant or summons must be returned in accordance with Rule 4 (c)(4).

(3) Initial Appearance. When an arrested or summoned defendant first appears before the court, the judge must proceed under Rule 5. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, § 3(4), July 31, 1975, 89 Stat. 370; Pub. L. 94–149, § 5, Dec. 12, 1975, 89 Stat. 806; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Notes of Advisory Committee on Rules1944 1. See Note to Rule 4, supra. 2. The provision of Rule 9 (a) that a warrant may be issued on the basis of an information only if the latter is supported by oath is necessitated by the Fourth Amendment to the Constitution of the United States. See Albrecht v. United States, 273 U.S. 1, 5. 3. The provision of Rule 9 (b)(1) that the amount of bail may be fixed by the court and endorsed on the warrant states a practice now prevailing in many districts and is intended to facilitate the giving of bail by the defendant and eliminate delays between the arrest and the giving of bail, which might ensue if bail cannot be fixed until after arrest. Notes of Advisory Committee on Rules1972 Amendment Subdivision (b) is amended to make clear that the person arrested shall be brought before a United States magistrate if the information or indictment charges a minor offense triable by the United States magistrate. Subdivision (c) is amended to reflect the office of United States magistrate. Subdivision (d) is new. It provides for a remand to the United States magistrate of cases in which the person is charged with a minor offense. The magistrate can then proceed in accordance with rule 5 to try the case if the right to trial before a judge of the district court is waived. Notes of Advisory Committee on Rules1974 Amendment Rule 9 is revised to give high priority to the issuance of a summons unless a valid reason is given for the issuance of an arrest warrant. See a comparable provision in rule 4. Under the rule, a summons will issue by the clerk unless the attorney for the government presents a valid reason for the issuance of an arrest warrant. Under the old rule, it has been argued that the court must issue an arrest warrant if one is desired by the attorney for the government. See authorities listed in Frankel, Bench Warrants Upon the Prosecutors Demand: A View From the Bench, 71 Colum.L.Rev. 403, 410 n. 25 (1971). For an expression of the view that this is undesirable policy, see Frankel, supra, pp. 410415. A summons may issue if there is an information supported by oath. The indictment itself is sufficient to establish the existence of probable cause. See C. Wright, Federal Practice and Procedure: Criminal 151 (1969); 8 J. Moore, Federal Practice 9.02[2] at p. 94 (2d ed.) Cipes (1969); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed. 2d 1503 (1958). This is not necessarily true in the case of an information. See C. Wright, supra, 151; 8 J. Moore, supra, 9.02. If the government requests a warrant rather than a summons, good practice would obviously require the judge to satisfy himself that there is probable cause. This may appear from the information or from an affidavit filed with the information. Also a defendant can, at a proper time, challenge an information issued without probable cause. Notes of Committee on the Judiciary, House Report No. 94247; 1975 Amendment A. Amendments Proposed by the Supreme Court. Rule 9 of the Federal Rules of Criminal Procedure is closely related to Rule 4. Rule 9 deals with arrest procedures after an information has been filed or an indictment returned. The present rule gives the prosecutor the authority to decide whether a summons or a warrant shall issue. The Supreme Courts amendments to Rule 9 parallel its amendments to Rule 4. The basic change made in Rule 4 is also made in Rule 9. B. Committee Action. For the reasons set forth above in connection with Rule 4, the Committee endorses and accepts the basic change in Rule 9. The Committee made changes in Rule 9 similar to the changes it made in Rule 4. Notes of Advisory Committee on Rules1979 Amendment Subdivision (a) is amended to make explicit the fact that a warrant may issue upon the basis of an information only if the information or an affidavit filed with the information shows probable cause for the arrest. This has generally been assumed to be the state of the law even though not specifically set out in rule 9; see C. Wright, Federal Practice and Procedure: Criminal 151 (1969); 8 J. Moore, Federal Practice par. 9.02[2] (2d ed. 1976). In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court rejected the contention that the prosecutors decision to file an information is itself a determination of probable cause that furnishes sufficient reason to detain a defendant pending trial, commenting: Although a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment standing alone meets the requirements of the Fourth Amendment. Indeed, we think the Courts previous decisions compel disapproval of [such] procedure. In Albrecht v. United States, 273 U.S. 1, 5, 47 S.Ct. 250, 251, 71 L.Ed. 505 (1927), the Court held that an arrest warrant issued solely upon a United States Attorneys information was invalid because the accompanying affidavits were defective. Although the Courts opinion did not explicitly state that the prosecutors official oath could not furnish probable cause, that conclusion was implicit in the judgment that the arrest was illegal under the Fourth Amendment. No change is made in the rule with respect to warrants issuing upon indictments. In Gerstein, the Court indicated it was not disturbing the prior rule that an indictment, fair upon its face, and returned by a properly constituted grand jury conclusively determines the existence of probable cause and requires issuance of an arrest warrant without further inquiry. See Ex parte United States, 287 U.S. 241, 250 (1932). The provision to the effect that a summons shall issue by direction of the court has been eliminated because it conflicts with the first sentence of the rule, which states that a warrant shall issue when requested by the attorney for the government, if properly supported. However, an addition has been made providing that if the attorney for the government does not make a request for either a warrant or summons, then the court may in its discretion issue either one. Other stylistic changes ensure greater consistency with comparable provisions in rule 4. Notes of Advisory Committee on Rules1982 Amendment Note to Subdivision (a). The amendment of subdivision (a), by reference to Rule 5, clarifies what is to be done once the defendant is brought before the magistrate. This means, among other things, that no preliminary hearing is to be held in a Rule 9 case, as Rule 5 (c) provides that no such hearing is to be had if the defendant is indicted or if an information against the defendant is filed. Note to Subdivision (b). The amendment of subdivision (b) conforms Rule 9 to the comparable provisions in Rule 4 (c)(1) and (2). Note to Subdivision (c). The amendment of subdivision (c) conforms Rule 9 to the comparable provisions in Rules 4 (d)(4) and 5 (a) concerning return of the warrant. Note to Subdivision (d). This subdivision, incorrect in its present form in light of the recent amendment of 18 U.S.C. 3401 (a), has been abrogated as unnecessary in light of the change to subdivision (a). Notes of Advisory Committee on Rules1993 Amendment The Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. Committee Notes on Rules2002 Amendment The language of Rule 9 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Rule 9 has been changed to reflect its relationship to Rule 4 procedures for obtaining an arrest warrant or summons. Thus, rather than simply repeating material that is already located in Rule 4, the Committee determined that where appropriate, Rule 9 should simply direct the reader to the procedures specified in Rule 4. Rule 9 (a) has been amended to permit a judge discretion whether to issue an arrest warrant when a defendant fails to respond to a summons on a complaint. Under the current language of the rule, if the defendant fails to appear, the judge must issue a warrant. Under the amended version, if the defendant fails to appear and the government requests that a warrant be issued, the judge must issue one. In the absence of such a request, the judge has the discretion to do so. This change mirrors language in amended Rule 4 (a). A second amendment has been made in Rule 9 (b)(1). The rule has been amended to delete language permitting the court to set the amount of bail on the warrant. The Committee believes that this language is inconsistent with the 1984 Bail Reform Act. See United States v. Thomas, 992 F. Supp. 782 (D.V.I. 1998) (bail amount endorsed on warrant that has not been determined in proceedings conducted under Bail Reform Act has no bearing on decision by judge conducting Rule 40 hearing). The language in current Rule 9 (c)(1), concerning service of a summons on an organization, has been moved to Rule 4. Amendment by Public Law 1975Subd. (a). Pub. L. 94–64 amended subd. (a) generally. Subd. (b)(1). Pub. L. 94–149 substituted reference to rule 4 (c)(1) for rule 4 (b)(1). Subd. (c)(1). Pub. L. 94–149 substituted reference to rule 4 (d)(1), (2), and (3) for rule 4 (c)(1), (2), and (3). Effective Date of Amendments Proposed April 22, 1974; Effective Date of 1975 Amendments Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94–64, effective Dec. 1, 1975, see section 2 of Pub. L. 94–64, set out as a note under rule 4 of these rules.