§ 3161. — Time limits and exclusions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC3161]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART II--CRIMINAL PROCEDURE
CHAPTER 208--SPEEDY TRIAL
Sec. 3161. Time limits and exclusions
(a) In any case involving a defendant charged with an offense, the
appropriate judicial officer, at the earliest practicable time, shall,
after consultation with the counsel for the defendant and the attorney
for the Government, set the case for trial on a day certain, or list it
for trial on a weekly or other short-term trial calendar at a place
within the judicial district, so as to assure a speedy trial.
(b) Any information or indictment charging an individual with the
commission of an offense shall be filed within thirty days from the date
on which such individual was arrested or served with a summons in
connection with such charges. If an individual has been charged with a
felony in a district in which no grand jury has been in session during
such thirty-day period, the period of time for filing of the indictment
shall be extended an additional thirty days.
(c)(1) In any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or indictment with the
commission of an offense shall commence within seventy days from the
filing date (and making public) of the information or indictment, or
from the date the defendant has appeared before a judicial officer of
the court in which such charge is pending, whichever date last occurs.
If a defendant consents in writing to be tried before a magistrate judge
on a complaint, the trial shall commence within seventy days from the
date of such consent.
(2) Unless the defendant consents in writing to the contrary, the
trial shall not commence less than thirty days from the date on which
the defendant first appears through counsel or expressly waives counsel
and elects to proceed pro se.
(d)(1) If any indictment or information is dismissed upon motion of
the defendant, or any charge contained in a complaint filed against an
individual is dismissed or otherwise dropped, and thereafter a complaint
is filed against such defendant or individual charging him with the same
offense or an offense based on the same conduct or arising from the same
criminal episode, or an information or indictment is filed charging such
defendant with the same offense or an offense based on the same conduct
or arising from the same criminal episode, the provisions of subsections
(b) and (c) of this section shall be applicable with respect to such
subsequent complaint, indictment, or information, as the case may be.
(2) If the defendant is to be tried upon an indictment or
information dismissed by a trial court and reinstated following an
appeal, the trial shall commence within seventy days from the date the
action occasioning the trial becomes final, except that the court
retrying the case may extend the period for trial not to exceed one
hundred and eighty days from the date the action occasioning the trial
becomes final if the unavailability of witnesses or other factors
resulting from the passage of time shall make trial within seventy days
impractical. The periods of delay enumerated in section 3161(h) are
excluded in computing the time limitations specified in this section.
The sanctions of section 3162 apply to this subsection.
(e) If the defendant is to be tried again following a declaration by
the trial judge of a mistrial or following an order of such judge for a
new trial, the trial shall commence within seventy days from the date
the action occasioning the retrial becomes final. If the defendant is to
be tried again following an appeal or a collateral attack, the trial
shall commence within seventy days from the date the action occasioning
the retrial becomes final, except that the court retrying the case may
extend the period for retrial not to exceed one hundred and eighty days
from the date the action occasioning the retrial becomes final if
unavailability of witnesses or other factors resulting from passage of
time shall make trial within seventy days impractical. The periods of
delay enumerated in section 3161(h) are excluded in computing the time
limitations specified in this section. The sanctions of section 3162
apply to this subsection.
(f) Notwithstanding the provisions of subsection (b) of this
section, for the first twelve-calendar-month period following the
effective date of this section as set forth in section 3163(a) of this
chapter the time limit imposed with respect to the period between arrest
and indictment by subsection (b) of this section shall be sixty days,
for the second such twelve-month period such time limit shall be forty-
five days and for the third such period such time limit shall be thirty-
five days.
(g) Notwithstanding the provisions of subsection (c) of this
section, for the first twelve-calendar-month period following the
effective date of this section as set forth in section 3163(b) of this
chapter, the time limit with respect to the period between arraignment
and trial imposed by subsection (c) of this section shall be one hundred
and eighty days, for the second such twelve-month period such time limit
shall be one hundred and twenty days, and for the third such period such
time limit with respect to the period between arraignment and trial
shall be eighty days.
(h) The following periods of delay shall be excluded in computing
the time within which an information or an indictment must be filed, or
in computing the time within which the trial of any such offense must
commence:
(1) Any period of delay resulting from other proceedings
concerning the defendant, including but not limited to--
(A) delay resulting from any proceeding, including any
examinations, to determine the mental competency or physical
capacity of the defendant;
(B) delay resulting from any proceeding, including any
examination of the defendant, pursuant to section 2902 \1\ of
title 28, United States Code;
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\1\ See References in Text note below.
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(C) delay resulting from deferral of prosecution pursuant to
section 2902 \1\ of title 28, United States Code;
(D) delay resulting from trial with respect to other charges
against the defendant;
(E) delay resulting from any interlocutory appeal;
(F) delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on,
or other prompt disposition of, such motion;
(G) delay resulting from any proceeding relating to the
transfer of a case or the removal of any defendant from another
district under the Federal Rules of Criminal Procedure;
(H) delay resulting from transportation of any defendant
from another district, or to and from places of examination or
hospitalization, except that any time consumed in excess of ten
days from the date an order of removal or an order directing
such transportation, and the defendant's arrival at the
destination shall be presumed to be unreasonable;
(I) delay resulting from consideration by the court of a
proposed plea agreement to be entered into by the defendant and
the attorney for the Government; and
(J) delay reasonably attributable to any period, not to
exceed thirty days, during which any proceeding concerning the
defendant is actually under advisement by the court.
(2) Any period of delay during which prosecution is deferred by
the attorney for the Government pursuant to written agreement with
the defendant, with the approval of the court, for the purpose of
allowing the defendant to demonstrate his good conduct.
(3)(A) Any period of delay resulting from the absence or
unavailability of the defendant or an essential witness.
(B) For purposes of subparagraph (A) of this paragraph, a
defendant or an essential witness shall be considered absent when
his whereabouts are unknown and, in addition, he is attempting to
avoid apprehension or prosecution or his whereabouts cannot be
determined by due diligence. For purposes of such subparagraph, a
defendant or an essential witness shall be considered unavailable
whenever his whereabouts are known but his presence for trial cannot
be obtained by due diligence or he resists appearing at or being
returned for trial.
(4) Any period of delay resulting from the fact that the
defendant is mentally incompetent or physically unable to stand
trial.
(5) Any period of delay resulting from the treatment of the
defendant pursuant to section 2902 \1\ of title 28, United States
Code.
(6) If the information or indictment is dismissed upon motion of
the attorney for the Government and thereafter a charge is filed
against the defendant for the same offense, or any offense required
to be joined with that offense, any period of delay from the date
the charge was dismissed to the date the time limitation would
commence to run as to the subsequent charge had there been no
previous charge.
(7) A reasonable period of delay when the defendant is joined
for trial with a codefendant as to whom the time for trial has not
run and no motion for severance has been granted.
(8)(A) Any period of delay resulting from a continuance granted
by any judge on his own motion or at the request of the defendant or
his counsel or at the request of the attorney for the Government, if
the judge granted such continuance on the basis of his findings that
the ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial. No such
period of delay resulting from a continuance granted by the court in
accordance with this paragraph shall be excludable under this
subsection unless the court sets forth, in the record of the case,
either orally or in writing, its reasons for finding that the ends
of justice served by the granting of such continuance outweigh the
best interests of the public and the defendant in a speedy trial.
(B) The factors, among others, which a judge shall consider in
determining whether to grant a continuance under subparagraph (A) of
this paragraph in any case are as follows:
(i) Whether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible, or result in a miscarriage of justice.
(ii) Whether the case is so unusual or so complex, due to
the number of defendants, the nature of the prosecution, or the
existence of novel questions of fact or law, that it is
unreasonable to expect adequate preparation for pretrial
proceedings or for the trial itself within the time limits
established by this section.
(iii) Whether, in a case in which arrest precedes
indictment, delay in the filing of the indictment is caused
because the arrest occurs at a time such that it is unreasonable
to expect return and filing of the indictment within the period
specified in section 3161(b), or because the facts upon which
the grand jury must base its determination are unusual or
complex.
(iv) Whether the failure to grant such a continuance in a
case which, taken as a whole, is not so unusual or so complex as
to fall within clause (ii), would deny the defendant reasonable
time to obtain counsel, would unreasonably deny the defendant or
the Government continuity of counsel, or would deny counsel for
the defendant or the attorney for the Government the reasonable
time necessary for effective preparation, taking into account
the exercise of due diligence.
(C) No continuance under subparagraph (A) of this paragraph
shall be granted because of general congestion of the court's
calendar, or lack of diligent preparation or failure to obtain
available witnesses on the part of the attorney for the Government.
(9) Any period of delay, not to exceed one year, ordered by a
district court upon an application of a party and a finding by a
preponderance of the evidence that an official request, as defined
in section 3292 of this title, has been made for evidence of any
such offense and that it reasonably appears, or reasonably appeared
at the time the request was made, that such evidence is, or was, in
such foreign country.
(i) If trial did not commence within the time limitation specified
in section 3161 because the defendant had entered a plea of guilty or
nolo contendere subsequently withdrawn to any or all charges in an
indictment or information, the defendant shall be deemed indicted with
respect to all charges therein contained within the meaning of section
3161, on the day the order permitting withdrawal of the plea becomes
final.
(j)(1) If the attorney for the Government knows that a person
charged with an offense is serving a term of imprisonment in any penal
institution, he shall promptly--
(A) undertake to obtain the presence of the prisoner for trial;
or
(B) cause a detainer to be filed with the person having custody
of the prisoner and request him to so advise the prisoner and to
advise the prisoner of his right to demand trial.
(2) If the person having custody of such prisoner receives a
detainer, he shall promptly advise the prisoner of the charge and of the
prisoner's right to demand trial. If at any time thereafter the prisoner
informs the person having custody that he does demand trial, such person
shall cause notice to that effect to be sent promptly to the attorney
for the Government who caused the detainer to be filed.
(3) Upon receipt of such notice, the attorney for the Government
shall promptly seek to obtain the presence of the prisoner for trial.
(4) When the person having custody of the prisoner receives from the
attorney for the Government a properly supported request for temporary
custody of such prisoner for trial, the prisoner shall be made available
to that attorney for the Government (subject, in cases of
interjurisdictional transfer, to any right of the prisoner to contest
the legality of his delivery).
(k)(1) If the defendant is absent (as defined by subsection (h)(3))
on the day set for trial, and the defendant's subsequent appearance
before the court on a bench warrant or other process or surrender to the
court occurs more than 21 days after the day set for trial, the
defendant shall be deemed to have first appeared before a judicial
officer of the court in which the information or indictment is pending
within the meaning of subsection (c) on the date of the defendant's
subsequent appearance before the court.
(2) If the defendant is absent (as defined by subsection (h)(3)) on
the day set for trial, and the defendant's subsequent appearance before
the court on a bench warrant or other process or surrender to the court
occurs not more than 21 days after the day set for trial, the time limit
required by subsection (c), as extended by subsection (h), shall be
further extended by 21 days.
(Added Pub. L. 93-619, title I, Sec. 101, Jan. 3, 1975, 88 Stat. 2076;
amended Pub. L. 96-43, Secs. 2-5, Aug. 2, 1979, 93 Stat. 327, 328; Pub.
L. 98-473, title II, Sec. 1219, Oct. 12, 1984, 98 Stat. 2167; Pub. L.
100-690, title VI, Sec. 6476, Nov. 18, 1988, 102 Stat. 4380; Pub. L.
101-650, title III, Sec. 321, Dec. 1, 1990, 104 Stat. 5117.)
References in Text
Section 2902 of title 28, referred to in subsec. (h)(1)(B), (C),
(5), was repealed by Pub. L. 106-310, div. B, title XXXIV,
Sec. 3405(c)(1), Oct. 17, 2000, 114 Stat. 1221.
Amendments
1988--Subsec. (k). Pub. L. 100-690 added subsec. (k).
1984--Subsec. (h)(8)(C). Pub. L. 98-473, Sec. 1219(1), substituted
``subparagraph (A) of this paragraph'' for ``paragraph (8)(A) of this
subsection''.
Subsec. (h)(9). Pub. L. 98-473, Sec. 1219(2), added par. (9).
1979--Subsec. (c)(1). Pub. L. 96-43, Sec. 2, merged the ten day
indictment-to-arraignment and the sixty day arraignment-to-trial limits
into a single seventy day indictment-to-trial period.
Subsec. (c)(2). Pub. L. 96-43, Sec. 2, added par. (2).
Subsec. (d). Pub. L. 96-43, Sec. 3(a), designated existing
provisions as par. (1) and added par. (2).
Subsec. (e). Pub. L. 96-43, Sec. 3(b), substituted ``seventy days''
for ``sixty days'' in three places and inserted provisions excluding the
periods of delay enumerated in subsec. (h) of this section in computing
the time limitations specified in this section and applying the
sanctions of section 3162 of this title to this subsection.
Subsec. (h)(1). Pub. L. 96-43, Sec. 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
transportation of a defendant from another district or for the purpose
of examination or hospitalization, and expanded provisions relating to
exclusions of periods of delay resulting from hearings on pretrial
motions, examinations and hearings relating to the mental or physical
condition of defendant, or the removal of a defendant from another
district under the Federal Rules of Criminal Procedure.
Subsec. (h)(8)(B)(ii). Pub. L. 96-43, Sec. 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, including pretrial motion preparation.
Subsec. (h)(8)(B)(iii). Pub. L. 96-43, Sec. 5(b), inserted provision
authorizing a continuance where the delay in filing the indictment is
caused by the arrest taking place at such time that the return and
filing of the indictment 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, Sec. 5(c), added cl. (iv).
Change of Name
Words ``magistrate judge'' substituted for ``magistrate'' 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
Section 1 of Pub. L. 96-43 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
Section 1 of Pub. L. 93-619 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'.''
Section Referred to in Other Sections
This section is referred to in sections 3162, 3163, 3164, 3165,
3166, 3167, 3174 of this title.
