{"id":4759,"date":"2017-08-11T19:30:14","date_gmt":"2017-08-11T19:30:14","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=4759"},"modified":"2017-08-11T19:30:14","modified_gmt":"2017-08-11T19:30:14","slug":"rule-5-initial-appearance","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=4759","title":{"rendered":"Rule 5. Initial Appearance"},"content":{"rendered":"

(a) In General<\/strong>.<\/p>\n

(1) Appearance Upon an Arrest<\/em>.<\/p>\n

(A) A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise.<\/p>\n

(B) A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.<\/p>\n

(2) Exceptions<\/em>.<\/p>\n

(A) An officer making an arrest under a warrant issued upon a complaint charging solely a violation of 18 U.S.C. \u00a71073 need not comply with this rule if:<\/p>\n

(i) the person arrested is transferred without unnecessary delay to the custody of appropriate state or local authorities in the district of arrest; and<\/p>\n

(ii) an attorney for the government moves promptly, in the district where the warrant was issued, to dismiss the complaint.<\/p>\n

(B) If a defendant is arrested for violating probation or supervised release, Rule 32.1 applies.<\/p>\n

(C) If a defendant is arrested for failing to appear in another district, Rule 40 applies.<\/p>\n

(3) Appearance Upon a Summons<\/em>. When a defendant appears in response to a summons under Rule 4, a magistrate judge must proceed under Rule 5(d) or (e), as applicable.<\/p>\n

(b) Arrest Without a Warrant<\/strong>. If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)\u2019s requirement of probable cause must be promptly filed in the district where the offense was allegedly committed.<\/p>\n

(c) Place of Initial Appearance; Transfer to Another District<\/strong>.<\/p>\n

(1) Arrest in the District Where the Offense Was Allegedly Committed<\/em>. If the defendant is arrested in the district where the offense was allegedly committed:<\/p>\n

(A) the initial appearance must be in that district; and<\/p>\n

(B) if a magistrate judge is not reasonably available, the initial appearance may be before a state or local judicial officer.<\/p>\n

(2) Arrest in a District Other Than Where the Offense Was Allegedly Committed<\/em>. If the defendant was arrested in a district other than where the offense was allegedly committed, the initial appearance must be:<\/p>\n

(A) in the district of arrest; or<\/p>\n

(B) in an adjacent district if:<\/p>\n

(i) the appearance can occur more promptly there; or<\/p>\n

(ii) the offense was allegedly committed there and the initial appearance will occur on the day of arrest.<\/p>\n

(3) Procedures in a District Other Than Where the Offense Was Allegedly Committed<\/em>. If the initial appearance occurs in a district other than where the offense was allegedly committed, the following procedures apply:<\/p>\n

(A) the magistrate judge must inform the defendant about the provisions of Rule 20;<\/p>\n

(B) if the defendant was arrested without a warrant, the district court where the offense was allegedly committed must first issue a warrant before the magistrate judge transfers the defendant to that district;<\/p>\n

(C) the magistrate judge must conduct a preliminary hearing if required by Rule 5.1;<\/p>\n

(D) the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if:<\/p>\n

(i) the government produces the warrant, a certified copy of the warrant, or a reliable electronic form of either; and<\/p>\n

(ii) the judge finds that the defendant is the same person named in the indictment, information, or warrant; and<\/p>\n

(E) when a defendant is transferred and discharged, the clerk must promptly transmit the papers and any bail to the clerk in the district where the offense was allegedly committed.<\/p>\n

(4) Procedure for Persons Extradited to the United States<\/em>. If the defendant is surrendered to the United States in accordance with a request for the defendant\u2019s extradition, the initial appearance must be in the district (or one of the districts) where the offense is charged.<\/p>\n

(d) Procedure in a Felony Case<\/strong>.<\/p>\n

(1) Advice<\/em>. If the defendant is charged with a felony, the judge must inform the defendant of the following:<\/p>\n

(A) the complaint against the defendant, and any affidavit filed with it;<\/p>\n

(B) the defendant\u2019s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel;<\/p>\n

(C) the circumstances, if any, under which the defendant may secure pretrial release;<\/p>\n

(D) any right to a preliminary hearing; and<\/p>\n

(E) the defendant\u2019s right not to make a statement, and that any statement made may be used against the defendant; and<\/p>\n

(F) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant\u2019s country of nationality that the defendant has been arrested \u2014 but that even without the defendant\u2019s request, a treaty or other international agreement may require consular notification.<\/p>\n

(2) Consulting with Counsel<\/em>. The judge must allow the defendant reasonable opportunity to consult with counsel.<\/p>\n

(3) Detention or Release<\/em>. The judge must detain or release the defendant as provided by statute or these rules.<\/p>\n

(4) Plea<\/em>. A defendant may be asked to plead only under Rule 10.<\/p>\n

(e) Procedure in a Misdemeanor Case<\/strong>. If the defendant is charged with a misdemeanor only, the judge must inform the defendant in accordance with Rule 58(b)(2).<\/p>\n

(f) Video Teleconferencing<\/strong>. Video teleconferencing may be used to conduct an appearance under this rule if the defendant consents.<\/p>\n","protected":false},"excerpt":{"rendered":"

(a) In General. (1) Appearance Upon an Arrest. (A) A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise. (B) A person making an arrest outside the United … Continue reading Rule 5. Initial Appearance<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":4732,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-4759","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages\/4759","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4759"}],"version-history":[{"count":1,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages\/4759\/revisions"}],"predecessor-version":[{"id":4765,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages\/4759\/revisions\/4765"}],"up":[{"embeddable":true,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages\/4732"}],"wp:attachment":[{"href":"https:\/\/reunitethestates.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4759"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}