Section II – Criminal Rules

Rule CR-1. Scope And Applicability Of Rules

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1. Scope. These rules apply in all criminal proceedings before the district and magistrate judges of the Western District of Texas.
2. Applicability
   1. Conflicts with Other Laws or Rules. To the extent any of these rules conflict with a law of the United States, or an applicable rule of the Supreme Court of the

      United States or the United States Court of Appeals for the Fifth Circuit, the rule must not apply.

   2. Waiver of Rules. Any judge of this court may waive a requirement of any of these rules when it is in the interest of justice.
   3. Absence of Rule. When no specific rule governs a procedural matter, the judge may prescribe the procedure for that case.
3. Citation. These rules may be cited as the Western District of Texas Rules.

Rule CR-5a. Pretrial Services Interview And Report

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1. Interview.
   1. Notice to Defendant. Before conducting a pretrial services interview, the pretrial services officer must notify the defendant of:
      1. the circumstances under which the information the defendant provides must be disclosed; and
      2. the defendant’s rights during the interview, including:
         1. the defendant’s right not to be questioned regarding the charges in the case;
         2. the defendant’s right to decline to speak or provide any information to the officer; and
         3. the defendant’s right to counsel during the interview.
   2. Notification Form. A form notifying the defendant of the rights set out in subsection (a)(1) is appended to this rule.
   3. Presence of Counsel. If the defendant wishes to have the assistance of counsel during the interview, the pretrial services officer must afford a reasonable opportunity for counsel to be present.
2. Use and Disclosure of Pretrial Service Report and Related Information.
   1. In General. The use and disclosure of the pretrial services report, and any information obtained by the pretrial services officer in the course of performing the pretrial services function, are governed by 18 U.S.C. § 3153(c). The pretrial services officer must limit disclosure to the minimum information and the minimum number of persons necessary to carry out the purpose of the disclosure.
   2. Disclosure of the Pretrial Services Report. The pretrial services report must be disclosed to the attorney for the defendant and the attorney for the government. The report should not be re-disclosed to other persons by the attorney for the defendant or the attorney for the government.
   3. Disclosure of the Pretrial Services Recommendation. Unless otherwise ordered by the court, the pretrial services officer’s recommendation as to the propriety and conditions of release will be disclosed to the parties with the pretrial services report.

Rule CR-5b. Initial Appearance Of Undocumented Alien Detained As Material Witness

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1. Appearance. Upon the filing of an affidavit under 18 U.S.C. § 3144 alleging that an undocumented alien is a material witness, the witness must bebrought before the court without unnecessary delay.
2. Procedure. Upon presentation of an undocumented alien witness, the court must:
   1. consider, with the assistance of pretrial services, whether the witness may be released under 18 U.S.C. § 3142, including release under an available community release program; and
   2. appoint counsel to represent the witness under the Criminal Justice Act, 18 U.S.C. § 3006A, if the court determines that:
      1. the witness is financially unable to retain counsel, and
      2. the witness does not waive counsel.
3. Detention. If the witness is ordered detained, the detention must accord with the provisions of Rule CR-15B.

Rule CR-6a. The Grand Jury

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Grand jurors’ selection, qualification, summoning, and exemption or excuse from service are governed by Appendix D.

Rule CR-6b. Division In Which Indictment May Be Presented And Filed

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1. In General. A case may be presented to a grand jury and may be filed in the following divisions:
   1. any division in which the offense was committed, in whole or in part; or
   2. with leave of the district judge supervising the grand jury before which the case is presented, any division whose borders are contiguous to any division in which the offense was committed, in whole or in part.
2. Multiple Offenses. A case involving multiple offenses committed in separate divisions that are joined for indictment under Federal Rule of Criminal Procedure 8(a), may be presented to a grand jury in, and may be filed in, any division in which any one of the joined offenses could be presented and filed under subsection (a).
3. Multiple Defendants. A case involving multiple defendants who are joined under Federal Rule of Criminal Procedure 8(b), may be presented to a grand jury in, and may be filed in, any division in which any one of the joined defendants could be charged under subsection (a).

Rule CR-12. Pretrial Motions

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1. Motion by Defendant. Unless otherwise ordered by the court, the defendant must file any pretrial motion:
   1. within 14 days after arraignment; or
   2. if the defendant has waived arraignment, within 14 days after the latest scheduled arraignment date.
2. Motion by the Government. Unless otherwise ordered by the Court, the government must file any pretrial motion by the latest of the following dates:
   1. within 14 days after receiving defendant’s motions;
   2. within 21 days after the arraignment; or
   3. if the defendant has waived arraignment, within 21 days after the latest scheduled arraignment date.

Rule CR-15a. Deposition Of Witness Other Than Material Witnesses

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1. Manner Taken. Except in the case of the deposition of a material witness, an oral deposition ordered by the court under Federal Rule of Criminal Procedure 15, may be recorded stenographically or on videotape if taken in accordance with the “Guidelines for Non-Stenographic Deposition,” set forth in Appendix I.
2. Stenographic Deposition. The original of a stenographic deposition must be delivered to the party who sought the deposition after one of the following has occurred:
   1. the deponent has signed the original deposition;
   2. the deponent and all interested parties have waived on the record the signing by the deponent; or
   3. the stenographic reporter has certified that the deponent has failed to sign the deposition after giving reasonable notice of the availability of the transcript to the deponent and the deponent’s attorney (if any).
3. Videotape Deposition. The original of a videotape deposition must be delivered to the party who sought the deposition after one of the following has occurred:
   1. the deponent has reviewed the videotape and certified its accuracy; or
   2. writing; or the deponent and all interested parties have waived review and certification in
   3. the reporter has certified that the deponent has failed to sign an acknowledgment of review of the deposition after giving reasonable notice of the availability of the videotape to the deponent and the deponent’s attorney (if any).
4. Custody. The party who sought to take a deposition must maintain custody of the original transcript, or the original videotape deposition and certification, or any written waiver of certification. That party must make the deposition available for appropriate use by any party in a hearing or a trial of the case.
5. Material Witnesses. The deposition of a material witness is governed by CR-15B.

Rule CR-15b. Deposition And Release Of Material Witness In Custody

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1. Scope.
   1. This rule provides for the deposition and release of a material witness who:
      1. is held pursuant to 18 U.S.C. § 3144;
      2. is found by the court to be an alien illegally in the United States; and
      3. has not been released on conditions under 18 U.S.C. § 3142.
   2. This rule does not affect the determination whether a material witness should be released under 18 U.S.C. § 3142.
2. Deposition.
   1. Entry and Service of Order.
      1. Immediately after a material witness described in subsection (a) makes his or her first appearance before the court, the officer must enter an order setting the time and place for taking the deposition of the witness. No motion or notice is required by either the witness or any party. The order must comply with Federal Rule of Criminal Procedure 15. A form order is appended to this rule.
      2. An order entered under subsection (b)(1)(A) will serve as the notice of deposition required by Federal Rule of Criminal Procedure 15(b). The clerk of the court must serve the order on counsel for all parties; on counsel for the material witness; on an interpreter; and on the U.S. Marshals Service.
   2. When Taken; Cancellation or Continuance.
      1. The court must order that the deposition be taken not later than 35 days after the witness first appeared before the officer.
      2. The deposition may be continued or canceled only on order of the court. If the government and the defendant or defendants reach an agreement disposing of related criminal charges before the deposition is taken, they must notify the court, which will then promptly determine whether to cancel or continue the deposition. The deposition cannot be continued beyond the 45-day deadline for release of the witness set out in subsection (c)(1).
      3. Subject to a finding of additional exceptional circumstances under Federal Rule of Criminal Procedure 15(a), the court must cancel the deposition if the material witness is released on conditions of release before the scheduled date of the deposition.
   3. Discovery. The parties must exchange all required discovery reasonably in advance of the date of the deposition.
   4. Location. Unless impracticable, the deposition should be taken in a court facility.
   5. Attendance.
      1. All parties and persons served under subsection (b)(1)(B) of this rule must attend the deposition, except that any defendant may waive attendance by filing a written waiver before the date of the deposition, in accordance with Federal Rule of Criminal Procedure 15(c)(1).
      2. The U.S. Marshals Service must make available the witness and defendant in its custody, at the time and place of the deposition ordered by the court.
   6. How Taken. The deposition must be recorded by videotape. The U.S. Attorney’s Office must provide a videographer to record the deposition, and will bear the costs and expenses of taking the deposition. Other expenses will be borne by the parties, except as provided in Federal Rule of Criminal Procedure 15(d).
   7. Review and Certification.
      1. After the deposition is completed, the videotape recording must immediately be played back in the presence of the witness, the interpreter, and all parties attending the deposition, and their attorneys. Any corrections or modifications to the deposition must be recorded on the same videotape used to record the deposition, and should immediately follow the deposition on the recording.
      2. The deposition must be certified consistent with Federal Rule of Civil Procedure 30, except as otherwise provided by this rule or ordered by the court. It is not required for certification that the videotape recording be transcribed.
      3. The material witness and all interested parties may waive review and certification in writing, in accordance with Rule CR-15.
   8. Custody of Deposition. The government must maintain custody of the videotape deposition and certification, or any waiver of certification. Upon request, the government must provide a copy of the deposition to the witness or any defendant.
   9. Use as Evidence. The use and admissibility of the deposition are governed by Federal Rule of Criminal Procedure 15, the Federal Rules of Evidence, and applicable court precedent. The presiding judge should rule on any objections to the deposition at or before trial. Nothing in this rule relieves the proponent’s burden of demonstrating the unavailability of the material witness under Federal Rule of Evidence 804(a).
3. Release.
   1. Mandatory Deadline for Release. A material witness described in subsection (a) must be ordered released from the custody of the U.S. Marshals Service by the first to occur of the following deadlines:
      1. within 24 hours of the taking, and the certification or waiver of certification, of the witness’ deposition; or
      2. within 45 days of the witness’ first appearance before a court.
   2. Earlier Release. If the deposition is canceled under subsection (b)(2)(B), the court should determine promptly whether to order the release of the material witness from U.S. Marshals Service custody.

Rule CR-16. Discovery And Inspection

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1. Discovery Conference and Agreement.
   1. The parties need not make standard discovery requests, motions, or responses if, not later than the deadline for filing pretrial motions (or as otherwise authorized by the court), they confer, attempt to agree on procedures for pretrial discovery, and sign and file a copy of the Disclosure Agreement Checklist appended to this rule.
   2. If the Disclosure Agreement Checklist indicates that a party intends to disclose, but does not currently possess, certain listed information, that party must disclose the information as soon as practicable.
   3. If the Disclosure Agreement Checklist indicates that a party refuses to disclose information, the other party may file motions regarding the undisclosed information within 14 days after filing of the checklist.
   4. Filing of the Disclosure Agreement Checklist does not preclude a party from filing motions relating to information not listed in the checklist.
2. Timing of Discovery.
   1. Discovery deadlines. Unless otherwise ordered by the court, or agreed to by the parties in writing:
      1. The parties must provide discovery in connection with pretrial release or detention not later than the commencement of a hearing on pretrial release or detention;
      2. The parties must provide discovery in connection with a pretrial hearing, other than a pretrial release or detention hearing, not later than 48 hours before the hearing; and
      3. The parties must provide discovery in connection with trial, whether agreed to by the parties or otherwise required, not later than:
         1. 14 days after arraignment; or
         2. if the defendant has waived arraignment, within 14 days after the latest scheduled arraignment date.
   2. Earlier disclosure. The court encourages prompt disclosure, including disclosure before the deadlines set out in this rule.
   3. Disclosure after motions deadline. The disclosure of information after the expiration of a motions deadline usually provides good cause for an extension of time to file motions based on that information.
   4. Continuing duty to disclose. The parties have a continuing duty to disclose promptly to opposing counsel all newly discovered information the party is required to disclose, or has agreed to disclose in the Disclosure Agreement Checklist.
3. Late Disclosure.
   1. The late disclosure of material information under this rule is not usually a ground for exclusion of evidence, unless:
      1. the information was within the party’s possession, custody or control, and its existence was known, or by the exercise of due diligence could have been known, to the party’s attorney; and
      2. the party’s attorney has not made good faith efforts to obtain and disclose the information on time.
   2. If not excluded under subsection (c)(1), material information that is not timely disclosed usually provides good cause for:
      1. extending the time to file a motion or notice, or to request a hearing, based on the late-disclosed information;
      2. extending a deadline for reaching a plea-bargain agreement; and
      3. continuing the trial setting.

Rule CR-17.1 Marking Exhibits

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A party must mark any exhibit it offers at a trial or hearing in accordance with Rule CV-16(g).

Rule CR-18. Place Of Trial Within District

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1. Division in Which Prosecution and Trial May Occur.
   1. Unless a statute, other rule, or court order requires otherwise, the government may prosecute a case in any division in the district in which the offense was committed, in whole or in part.
   2. The court may fix trial in:
      1. any division within the district consistent with Federal Rule of Criminal Procedure 18; or
      2. any other division within the district, if the court is satisfied that there exists in the division where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial.
2. Multiple Offenses. In cases involving multiple offenses joined for trial under Federal Rule of Criminal Procedure 8(a), the court may fix the place of trial in any division in which any one of the joined offenses may be tried.
3. Multiple Defendants. In cases involving multiple defendants joined for trial under Federal Rule of Criminal Procedure 8(b), the court may fix the place of trial in any division in which any one of the joined defendants may be tried.

Rule CR-24. Trial Jurors

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1. Selecting Trial Jurors.
   1. Trial jurors’ selection, qualification, summoning, and exemption or excuse from service are governed by Appendix D.
   2. To assist the court in selecting a jury, each prospective juror must complete the juror information form set out in Appendix D-1.
2. Bailiff’s Oath. The bailiff, or other special officer appointed to attend upon a jury, must take the following oath:
   

   “You solemnly swear that you will keep this jury during their retirement, in some convenient place removed from the presence of other persons; that you will not, without

   leave of the Court, suffer any person to speak to them; that you will not without such leave, hold or have any communication with them yourself, except to ascertain whether they have

   agreed upon their verdict and to attend to their needs; and that you will well and faithfully discharge your duties as bailiff. So help you God.”

Rule CR-32. Sentence And Judgment

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1. Time of Sentencing. Except for good cause, the court should sentence the defendant within 60 days after the date of the verdict or entry of guilty plea.
2. Time Limits Regarding the Presentence Report. If the defendant and the government waive the time limits under Federal Rule of Criminal Procedure 32, the following time limits apply.
   1. Disclosing the Report. The probation officer must give the presentence report to the defendant, the defendant’s attorney, and the attorney for the government at least 24 days before sentencing. Delivery of an extra copy of the presentence report to the defendant’s attorney constitutes giving the report to the defendant.
   2. Reviewing the Report. Within 10 days after the presentence report is given, the attorney for the defendant must certify to the probation officer that the defendant has reviewed the presentence report and consulted with the attorney regarding the report.
   3. Objecting to the Report. Within 10 days after the presentence report is given, the parties must state in writing any objections to the report.
   4. Acting on Objections. Within 10 days after receiving objections, the probation officer may meet with the parties to discuss the objections, investigate further, and revise the presentence report as appropriate.
   5. Submitting the Report. At least 4 days before sentencing, the probation officer must submit the presentence report, any revision to the report, and any addendum to the court and the parties.
3. Changing Time Limits. The court may, for good cause, change any time limit prescribed in subsection (b), except that the time limit for objecting to the presentence report may be shortened only with the consent of the defendant, the defendant’s attorney, and the attorney for the government.
4. Sentencing. At sentencing, the court may:
   1. allow a party, for good cause, to make a new objection before sentence is imposed;
   2. accept the presentence report as accurate, except with regard to any unresolved objection; and
   3. in resolving an objection, consider any reliable information presented by the probation officer, the defendant, or the government.
5. Post-Sentencing Disclosures.
   1. Presentence Report. After sentencing, the presentence report and its contents must remain confidential, except that the probation officer may disclose the presentence report or its contents to:
      1. the U.S. Sentencing Commission;
      2. the U.S. Parole Commission;
      3. the U.S. Pretrial Services Office;
      4. another U.S. Court;
      5. the Federal Bureau of Prisons, if a term of imprisonment is imposed; or
      6. any person as ordered by the court.
   2. Confidential Sentencing Recommendation. Except as ordered by the sentencing judge, the probation officer’s confidential sentencing recommendation must not be disclosed.

Rule CR-45. Computing Time

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In computing any time period in any criminal case, the provisions of Rule 45, Federal Rules of Criminal Procedure (as amended effective December 1, 2009) shall be applied.

Rule CR-46. Release From Custody; Reports Of Detained Material Witnesses

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1. Management By Pretrial Services Officers of Defendants Working As Informants. The following procedures apply to a defendant under supervision of pretrial services working as an informant for a law enforcement agency:
   1. The law enforcement agency using a defendant as an informant must promptly notify the defendant’s pretrial services officer.
   2. The pretrial services officer must provide the law enforcement agency a copy of the defendant’s conditions of release and the pretrial services officer’s intended supervision activities.
   3. The law enforcement agency must advise the pretrial services officer of any requirements of the investigation that will affect supervision activities or require a change in the conditions of release.
   4. The law enforcement agency must inform the pretrial services officer of any violations by the defendant of any conditions of release.
2. Reports of Detained Material Witnesses.
   1. Government Report. Unless otherwise ordered by the court, government reports regarding detained witnesses under Federal Rule of Criminal Procedure 46(h) must be sent to:
      1. the judge presiding over the case in which the detainee is a witness;
      2. the judge who ordered the witness detained; and
      3. the Pretrial Services Office.
   2. Pretrial Services Office Recommendation. Unless otherwise ordered by the court, the Pretrial Services Office, within 7 days of receiving a government report regarding detained witnesses, must provide a recommendation as to each witness’s continued detention or release. The recommendation must be provided to:
      1. the judge presiding over the case in which the detainee is a witness;
      2. the judge who ordered the witness detained; and
      3. if the Pretrial Services Office recommends a change in status, the attorneys for the detainee and for the parties to the case in which the detainee is a witness.

Rule CR-47. Motions And Responses

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1. Requirements. When filing a motion or response, a party must:
   1. cite the legal authority upon which the party relies; and
   2. submit a proposed order stating the relief the party seeks.
2. Time for Filing Response. If a party opposes a motion, the party must file its response with the clerk and serve a copy on all parties within 11 days of service of the motion.

Rule CR-49. Serving And Filing Documents

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1. Filing and Service Requirements. RULE CV-5 of the Local Court Rules of the United States District Court for the Western District of Texas is applicable to criminal cases.
2. Format of Documents.
   1. Any document presented to the clerk for filing must:
   2. be typed or printed, double-spaced, without erasures or interlineation materially defacing it, and, if by traditional filing, on 8½ by 11 inch paper;
   3. be endorsed with the style of the case and the descriptive name of the pleading or document; and
   4. contain either:
      1. the mailing address, signature, state bar card number and telephone and fax numbers (including area code) of the attorney, if filed by an attorney; or
      2. the mailing address, signature, and telephone number (including area code) of the pro se party, if filed pro se.
3. Any proposed order submitted with a traditionally filed document must be completely separate from any other paper or document.

Rule CR-55. Removal Of Records And Exhibits

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1. Records.
   1. Except upon approval of the court, no record or paper in court files may be removed from the clerk.
   2. A party removing any record or paper must provide the clerk a receipt signed by the party or the party’s attorney reflecting each record or paper removed from the clerk.
2. Exhibits.
   1. Removal After Final Disposition. Within 60 days after final disposition of the case, including appeal, and denial of, or expiration of the time in which to file, a petition for writ of certiorari in the U.S. Supreme Court, the party who offered an exhibit must remove it from the clerk.
   2. Failure to Remove. Failure to remove any exhibit within 60 days of final disposition of the case may result in the clerk destroying or otherwise disposing of the exhibit.

Rule CR-58. Proceedings Before Magistrate Judges

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1. Authority of Magistrate Judges.
   1. The magistrate judges of this district are authorized to perform all duties assignable to magistrate judges as set forth in 28 U.S.C. § 636.
   2. The magistrate judges of this district are specially designated to exercise jurisdiction over misdemeanor offenses as provided by 18 U.S.C. § 3401.
   3. Proceedings before the magistrate judges are governed by the “Local Rules for the Assignment of Duties to United States Magistrate Judges,” set forth in Appendix C.
2. Paying a Fixed Sum in Lieu of Appearance.
   1. Waiver of Appearance and Forfeiture of Collateral. Unless otherwise ordered by a magistrate judge, a person charged with a petty offense as defined in 18 U.S.C. § 19, and listed in subsection (b)(2), may, in lieu of appearance:
      1. post collateral in the amount indicated for the offense;
      2. waive appearance before the magistrate judge; and
      3. consent to forfeiture of collateral.
   2. Offenses Subject to Forfeiture in Lieu of Appearance. The offenses for which collateral may be posted and forfeited in lieu of appearance by the person charged, together with the amounts of collateral to be posted, are identified in the exhibits referred to below, copies of which are available in the office of the clerk in each division of this court:
      1. 1. any petty offense listed in the schedule of offenses designated as Exhibit A, occurring on a U. S. Military Installation within the Western District of Texas;
         2. any violation listed in Exhibit B, and set forth in Title 36, Code of Federal Regulations, Chapters 2-5, occurring in a National Park or National Recreation area situated within the Western District of Texas;
         3. any violation of Fish and Wildlife laws listed in Exhibit C, and set forth in16 U.S.C. § 703, 16 U.S.C. § 718a, 16 U.S.C. §§ 851- 856, 18 U.S.C. §§ 41, 42, 44 and Parts 10 and 16 of Title 50, Code of Federal Regulations, occurring within the Western District of Texas;
         4. any petty offense listed in the schedule of offenses designated as Exhibit D, involving the public use of Veterans Administration properties, occurring within the Western District of Texas;
         5. any violation of Title 36, Code of Federal Regulations, Chapter III, Part 327, (Corps of Engineers), listed in Exhibit E, occurring within the Western District of Texas;
         6. any petty offense listed in Exhibit F, set forth in 40 U.S.C. § 318 and Title 41, Code of Federal Regulations, Chapter 101, occurring on General Services Administration property within the Western District of Texas;
         7. any petty offense listed in Exhibit G, set forth in 16 U.S.C. §§ 433, 460, 670, 18 U.S.C. §§ 1361, 1852, 1853, 1856, 1857, 1858, 43 U.S.C. § 1061 and Title 43, Code of Federal Regulations, occurring on Bureau of Land Management property within the Western District of Texas; and
         8. any petty offense listed in Exhibit H, set forth in 39 U.S.C. § 401 and Title 39, Code of Federal Regulations, as made available to the United States Postal Service by Title VI of Public Law 93-143, State. 525, occurring on Postal Service property within the Western District of Texas;
         9. any petty offense listed in Exhibit I, set forth in Title 32, Code of Federal Regulations, occurring on National Security Agency property within the Western District of Texas.
         10. any petty offense listed in Exhibit J occurring on any Federal Indian Reservation, as held in trust by the United States Government, within the Western District of Texas.

   3. Punishment Other than Forfeiture of Collateral. If a person charged with an offense described in subsection (b)(2) fails to post and forfeit collateral, any punishment, including fine, imprisonment, or probation, may be imposed within the limits established by law upon conviction.
   4. Other Offenses. A person charged with a petty offense which is not listed in subsection (b)(2) must appear before a magistrate judge.
   5. Arrest and Appearance Before Magistrate Judge. Nothing contained in this rule prohibits a law enforcement officer from:
      1. arresting a person for the commission of any offense covered by this rule; or
      2. requiring the person arrested or charged for any offense covered by this rule to appear before a magistrate judge.
   6. Special Assessment. The collateral amounts set forth in Exhibits A through I include any special assessment required by 18 U.S.C. § 3013.