Originally From:
Federal Criminal Procedure Litigation Manual 2016 – Hardcover Edition
Federal Criminal Procedure Litigation Manual 2016 – PDF eBook
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§ 40-1 Text of Rule
Rule 40. Arrest for Failure to Appear in Another District or for
Violating Conditions of Release Set in Another District
(a) In General. A person must be taken without unnecessary delay before a
magistrate judge in the district of arrest if the person has been arrested under a
warrant issued in another district for:
(i) failing to appear as required by the terms of that person’s release under
18 U.S.C. §§ 3141–3156 or by a subpoena; or
(ii) violating conditions of release set in another district.
(b) Proceedings. The judge must proceed under Rule 5(c)(3) as applicable.
(c) Release or Detention Order. The judge may modify any previous release
or detention order issued in another district, but must state in writing the
reasons for doing so.
(d) Video Teleconferencing. Video teleconferencing may be used to conduct
an appearance under this rule if the defendant consents.
§ 40-2 Commentary
A person who has been arrested on a warrant issued in another district for
1. Failing to appear in response to a subpoena or in violation of a condition
of release under 18 U.S.C. §§ 3141–3156; or
2. Violating a condition of release set in another district, including failure
to appear, must be taken promptly before a federal magistrate judge in the district of arrest for
initial appearance under Rule 5.
Rule 40 was amended in 2011 to permit the judge to conduct the proceedings by
video teleconference, if the defendant consents.
Stephen A. Saltzburg is the Wallace and Beverley Woodbury University Professor
of Law at The George Washington University Law School. Professor Saltzburg is a
leading national expert on evidence and criminal procedure. His numerous writings
include the FEDERAL RULES OF EVIDENCE MANUAL, a six-volume treatise on the
Federal Rules of Evidence. He is the former Reporter for, and member of, the Federal
Rules of Criminal Procedure Advisory Committee and a former member of the
Federal Rules of Evidence Advisory Committee. He served as an American Bar
Association representative to the Advisory Committee on the Federal Rules of
Evidence during the "restyling" of the Rules. Before taking his current teaching
position, he taught for many years at the University of Virginia and served as Deputy
Assistant Attorney General in the Criminal Division of the U.S. Department of
Justice. He has also served as an Ex-Officio Member of the United States Sentencing
Commission and as the Director of the Tax Refund Fraud Task Force for the U.S.
Treasury Department.
David A. Schlueter is the Hardy Professor of Law and Director of Advocacy
Programs at St. Mary's University School of Law in San Antonio, Texas. Professor
Schlueter teaches evidence, trial advocacy, and constitutional law and has served as
both a criminal trial and appellate counsel. He has authored, co-authored, or edited
fourteen books on procedure, advocacy, and evidence, including the two volume
work, FEDERAL EVIDENCE TACTICS. Before joining the faculty at St. Mary's in 1983,
he served on active duty as an Army JAGC and for two years as legal counsel for the
Supreme Court of the United States. He is a fellow in the American Law Institute and
a Life Fellow in the American Bar Foundation. From 1988 until 2005, he served as
the Reporter for the Federal Rules of Criminal Procedure Advisory Committee.