United States x. Xxxxxxx, 713 F.2d 654 (11th Cir. 1983, cert. denied, 484 U.S. 956 (1984) (there is no right to witness list and Rule 16 was not implicated because no reports were made in the case). The amendment should remedy that problem. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a sum- xxxx of the bases relied upon by the expert. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opin- ion under Federal Rule of Evidence 703, including opin- ions of other experts. The amendments are not intended to create unrea- sonable procedural hurdles. As with other discovery re- quests under Rule 16, subdivision (d) is available to ei- ther side to seek ex parte a protective or modifying order concerning requests for information under (a)(1)(E) or (b)(1)(C). NOTES OF ADVISORY COMMITTEE ON RULES—1994 AMENDMENT The amendment is intended to clarify that the dis- covery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (re- jecting distinction between individual and organiza- tional defendants). Because an organizational defend- ant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendant. See also United States x. Xxxxxx, 413 F.2d 1244, 1251–52 (5th Cir. 1969), vacated as moot, 397 U.S. 93 (1970) (prosecution of corporations ‘‘often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth’’). The amendment defines defendant in a broad, non- exclusive fashion. See also 18 U.S.C. § 18 (the term ‘‘or- ganization’’ includes a person other than an individ- ual). And the amendment recognizes that an organiza- tional defendant could be bound by an agent’s state- ment, see, e.g., Federal Rule of Evidence 801(d)(2), or be vicariously liable for an agent’s actions. The amend- ment contemplates that, upon request of the defendant, the Government will disclose any statements within the purview of the rule and made by persons whom the government contends to be among the classes of per- sons described in the rule. There is no requirement that the defe...
United States x. Xxxxx, 873 F.2d 555 (2d Cir.), cert. denied, 110 S.Ct. 125 (1989); United States x. Xxxxxxxxx, 841 F.2d 701 (6th Cir. 1988). While the amendment will not affect a large num- ber of cases, it should remove the dilemma in those close cases in which the court would feel pressured into making an immediate, and possibly erroneous, decision or violating the rule as presently written by reserving its ruling on the motion. The amendment also permits the trial court to bal- xxxx the defendant’s interest in an immediate resolu- tion of the motion against the interest of the govern- ment in proceeding to a verdict thereby preserving its right to appeal in the event a verdict of guilty is re- turned but is then set aside by the granting of a judg- ment of acquittal. Under the double jeopardy clause the government may appeal the granting of a motion for judgment of acquittal only if there would be no neces- sity for another trial, i.e., only where the jury has re- turned a verdict of guilty. United States x. Xxxxxx Linen Supply Co., 430 U.S. 564 (1977). Thus, the government’s right to appeal a Rule 29 motion is only preserved where the ruling is reserved until after the verdict. In addressing the issue of preserving the govern- ment’s right to appeal and at the same time recogniz- ing double jeopardy concerns, the Supreme Court ob- served: We should point out that it is entirely possible for a trial court to reconcile the public interest in the Government’s right to appeal from an erroneous conclusion of law with the defendant’s interest in avoiding a second prosecution. In United States x. Xxxxxx, 420 U.S. 332 (1975), the court permitted the case to go to the jury, which returned a verdict of guilty, but it subsequently dismissed the indict- ment for preindictment delay on the basis of evi- dence adduced at trial. Most recently in United States x. Xxxxxxxxx, 435 U.S. 268 (1978), we described similar action with approval: ‘The District Court had sensibly made its finding on the factual ques- tion of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceeding in the District Court, but merely a reinstatement of the finding of guilt.’ Id. at 271. United States x. Xxxxx, 437 U.S. 82, 100 n. 13 (1978). By analogy, reserving a ruling on a motion for judgment of acquittal strikes the same balance as that reflected by the Supreme Court in Xxxxx. Reserving a ruling on a motion made at the end of the government’s...
United States x. Xxxxxxx, supra; United States x. Xxxxxxxxx, 301 X.Xxxx. 39 (D.R.I. 1969). Recording of grand jury proceedings is currently a requirement in a number of states. See, e.g., Cal.Pen.Code §§ 938–938.3; Iowa Code Xxx. § 772.4; Ky.Rev.Stat.Xxx. § 28.
United States x. Xxxxxxx, supra; United States x. Xxxxxxxxx, 301 X.Xxxx. 39 (D.R.I. 1969). Recording of
United States x. Xxxxxx, supra, where the officers’ actions in installing and following tracking device did not amount to a search under the Fourth Amendment. Subdivision (d). Amended Rule 41(d) includes new lan- guage on tracking devices. The tracking device statute, 18 U.S.C. § 3117, does not specify the standard an appli- cant must meet to install a tracking device. The Su- preme Court has acknowledged that the standard for installation of a tracking device is unresolved, and has reserved ruling on the issue until it is squarely pre- sented by the facts of a case. See United States v. Karo, 468 U.S. 705, 718 n. 5 (1984). The amendment to Rule 41 does not resolve this issue or hold that such warrants may issue only on a showing of probable cause. Instead, it simply provides that if probable cause is shown, the magistrate judge must issue the warrant. And the war- rant is only needed if the device is installed (for exam- ple, in the trunk of the defendant’s car) or monitored (for example, while the car is in the defendant’s garage) in an area in which the person being monitored has a reasonable expectation of privacy.
United States x. Xxxx, supra, 152 F.3d at 398 (noting that sealing of record, although not constitutionally required, ‘‘likely advances inter- ests of judicial economy by avoiding litigation over [derivative use issue]’’). Except as provided in Rule 12.2(c)(3), the rule does not address the time for disclosing results and reports of any expert examination conducted by the defendant. New Rule 12.2(c)(3) provides that upon disclosure under subdivision (c)(2) of the results and reports of the gov- ernment’s examination, disclosure of the results and reports of the defendant’s expert examination is man- datory, if the defendant intends to introduce expert evidence relating to the examination. Rule 12.2(c), as previously written, restricted admissi- xxxxxx of the defendant’s statements during the course of an examination conducted under the rule to an issue respecting mental condition on which the defendant ‘‘has introduced testimony’’—expert or otherwise. As amended, Rule 12.2(c)(4) provides that the admissibility of such evidence in a capital sentencing proceeding is triggered only by the defendant’s introduction of ex- pert evidence. The Committee believed that, in this context, it was appropriate to limit the government’s ability to use the results of its expert mental examina- tion to instances in which the defendant has first intro- duced expert evidence on the issue. Rule 12.2(d) has been amended to extend sanctions for failure to comply with the rule to the penalty phase of a capital case. The selection of an appropriate remedy for the failure of a defendant to provide notice or sub- mit to an examination under subdivisions (b) and (c) is entrusted to the discretion of the court. While subdivi- sion (d) recognizes that the court may exclude the evi- dence of the defendant’s own expert in such a situation, the court should also consider ‘‘the effectiveness of less severe sanctions, the impact of preclusion on the evi- dence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful.’’ Xxxxxx v. Illinois, 484 U.S. 400, 414 n.19 (1988) (citing Xxxxxxx x. Xxxxxxxxx, 728 F.2d 1181 (9th Cir. 1983)). COMMITTEE NOTES ON RULES—2005 AMENDMENT The amendment to Rule 12.2(d) fills a gap created in the 2002 amendments to the rule. The substantively amended rule that took effect December 1, 2002, permits a sanction of exclusion of ‘‘any expert evidence’’ for failure to give notice or failure to submit to an exam- inat...
United States x. Xxxxxx-Xxxxxxx, 922 F.2d 33, 36 (1st Cir. 1990) (trial court did not err in denying defendant’s late request to introduce rebuttal evidence by way of cross-examination). Subdivision (c)(1) (formerly subdivision (c)(3)(D)) in- dicates that the court need not resolve controverted matters which will ‘‘not be taken into account in, or will not affect, sentencing.’’ The words ‘‘will not af- fect’’ did not exist in the former provision but were added in the revision in recognition that there might be situations, due to overlaps in the sentencing ranges, where a controverted matter would not alter the sen- tence even if the sentencing range were changed. The provision for disclosure of a witness’ statements, which was recently proposed as an amendment to Rule 32 as new subdivision (e), is now located in subdivision (c)(2). Subdivision (c)(3) includes minor changes. First, if the court intends to rely on information otherwise ex- cluded from the presentence report under subdivision (b)(5), that information is to be summarized in writing and submitted to the defendant and the defendant’s counsel. Under the former provision in (c)(3)(A), such information could be summarized orally. Once the in- formation is presented, the defendant and the defend- ant’s counsel are to be given a reasonable opportunity to comment; in appropriate cases, that may require a continuance of the sentencing proceedings. Subdivision (c)(5), concerning notification of the right to appeal, was formerly included in subdivision (a)(2). Although the provision has been rewritten, the Committee intends no substantive change in practice. That is, the court may, but is not required to, advise a defendant who has entered a guilty plea, nolo con- tendere plea or a conditional guilty plea of any right to appeal (such as an appeal challenging jurisdiction). However, the duty to advise the defendant in such cases extends only to advice on the right to appeal any sen- tence imposed. Subdivision (d). Subdivision (d), dealing with entry of the court’s judgment, is former subdivision (b). Subdivision (e). Subdivision (e), which addresses the topic of withdrawing pleas, was formerly subdivision (d). Both provisions remain the same except for minor stylistic changes. Under present practice, the court may permit, but is not required to hear, victim allocution before imposing sentence. The Committee considered, but rejected, a provision which would have required the court to hear victim allocution at sentencing. ...
United States x. Xxxxxxxxx, supra (dissent notes that ‘‘under the prosecution’s own ad- mission, it did not intend to produce at trial the wit- nesses called at the pre-trial suppression hearing’’). Moreover, even if that person did testify at the trial, if that testimony went to a different subject matter, then Rule 12.1 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 56 under rule 26.2(c) only portions of prior statements cov- ering the same subject matter need be produced, and thus portions which might contradict the suppression hearing testimony would not be revealed. Thus, while it may be true, as declared in United States v. Montos, supra, that ‘‘due process does not require premature production at pre-trial hearings on motions to suppress of statements ultimately subject to discovery under the Xxxxxx Act,’’ the fact of the matter is that those statements—or, the essential portions thereof—are not necessarily subject to later discovery.
United States x. Xxxxxx, supra. It also avoids the present undesirable situation in which the mere se- lection of one of two highly similar avenues of relief, rule 32(d) or § 2255, may have significant procedural con-
United States x. Xxxxxxx-Xxxxxxxx, 494 U.S. 259, 273 (1990); D am es & Xxxxx x. Xxxxx, 453 U.S. 654, 686 (1981); see also Xxxxxx X. Xxx, The National Security Constitution 70-71 (1990) (historical precedent serves as “quasi-constitutional custom” in foreign affairs); Xxxxxxx X. Xxxx & X. Xxxxx Xxx, The President, the Congress, and the Panama Canal: An Essay on the Powers o f the Executive and Legislative Branches in the Field o f Foreign Affairs, 16 Ga. J. Int’l & Comp. L. 607, 640-41 (1986); Xxxxxxx Xxxxxx, Constitutional Constraints on the Conduct o f Foreign and Defense Policy: A N onjudicial M odel, 43 U. Chi. L. Rev. 463, 478 (1976). Such practical construction has long established (and Professor Tribe acknowl edges) that “there are many classes of agreements with foreign countries which are not required to be formulated as treaties” for constitutional purposes.9 Most perti nently here, practice under the Constitution has established that the United States can assume major international trade obligations such as those found in the Uru xxxx Round Agreements when they are negotiated by the President and approved and implemented by Act of Congress pursuant to procedures such as those set forth in 19 U.S.C. §§ 2902 & 2903.10 In following these procedures, Congress acts un der its broad Foreign Commerce Clause pow ers," and the President acts pursuant to his constitutional responsibility for conducting the Nation’s foreign affairs.12 The use of these procedures, in which both political branches deploy sweeping constitutional powers, fully satisfies the Constitution’s requirements; the Treaty Clause’s provision for concurrence by two-thirds of the Senators present is not constitutionally mandatory for international agreements of this kind.13
