Committee Action. (a) All matters to be acted on by the Management Committee shall be brought up for a vote or approval in the form of a motion, which must be seconded. Only one motion may be pending at one time.
(b) The sum of affirmative votes necessary to pass the pending motion shall be fifty-eight (58) percent of the total votes cast by the Parties pursuant to the rules set forth in Section 7.06, including all votes cast by individual Parties in sectors or subsectors that have not become active or that have failed to achieve a quorum, as provided for in Section 7.09;
(c) Parties not in attendance at a meeting, as provided for in Section 7.03, or abstaining shall not have their unexercised votes counted as affirmative or negative votes.
Committee Action. In the event that the Employer appoints such person or persons to act as the Committee, such Committee shall act by a majority of its members at a meeting (which can be by telephone) or in writing without a meeting. A member of the Committee who is also a Participant of the Plan shall not vote or act as a member of the Committee upon any matter relating solely to his rights or benefits under the Plan.
Committee Action. The proposed amendments to Rule 11, particularly those relating to the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact that the Federal Rules of Criminal Procedure should contend with. The Committee accepts the basic structure and provisions of Rule 11(e). Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)
Committee Action. The Committee modified sub- division (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. The Committee also modified subdivision (h), which deals with what happens when the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Note to Subdivision (i). As noted in the recent decision of United States v. Raddatz, 447 U.S. 667 (1980), hearings on pretrial suppression motions not infrequently neces- sitate a determination of the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by Raddatz, that the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held that in light of the Jencks Act, 18 U.S.C. § 3500, such production of statements cannot be compelled at a pretrial suppres- sion hearing. United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975); Unit...
Committee Action. 8 1.22 Sponsor ............................ 3 6.6
Committee Action. The Committee disagrees with the defendant-triggered procedures of the rule proposed by the Supreme Court. The major purpose of a notice- of-alibi rule is to prevent unfair surprise to the pros- ecution. The Committee, therefore, believes that it should be up to the prosecution to trigger the alibi de- fense discovery procedures. If the prosecution is wor- ried about being surprised by an alibi defense, it can trigger the alibi defense discovery procedures. If the government fails to trigger the procedures and if the defendant raises an alibi defense at trial, then the gov- ernment cannot claim surprise and get a continuance of the trial. The Committee has adopted a notice-of-alibi rule similar to the one now used in the District of Colum- bia. [See Rule 2–5(b) of the Rules of the United States District Court for the District of Columbia. See also Rule 16–1 of the Rules of Criminal Procedure for the Su- perior Court of the District of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the de- fendant of the time, place, and date of the alleged of- fense, then the defendant has 10 days in which to notify the prosecutor of his intention to rely upon an alibi de- fense, specify where he claims to have been at the time of the alleged offense, and provide a list of his alibi wit- nesses. The prosecutor, within 10 days but no later than 10 days before trial, must then provide the defendant with a list of witnesses who will place the defendant at the scene of the alleged crime and those witnesses who will be used to rebut the defendant’s alibi witnesses. The Committee’s rule does not operate only to the benefit of the prosecution. In fact, its rule will provide the defendant with more information than the rule pro- posed by the Supreme Court. The rule proposed by the Supreme Court permits the defendant to obtain a list of only those witnesses who will place him at the scene of the crime. The defendant, however, would get the names of these witnesses anyway as part of his discov- ery under Rule 16(a)(1)(E). The Committee rule not only requires the prosecution to provide the names of wit- nesses who place the defendant at the scene of the crime, but it also requires the prosecution to turn over the names of those witnesses who will be called in re- buttal to the defendant’s alibi witnesses. This is infor- mation that the defendant is not otherwise entitled to discover.
Committee Action. In the absence of specific rules to the contrary, action by the Committee shall require the consent of a majority of the members of the Committee, expressed either orally at a meeting of the Committee or in writing in the absence of a meeting. No member of the Committee shall have any liability for any good faith action, inaction or determination in connection with the Plan.
Committee Action. The Committee agrees with
Committee Action. To the extent any provision of this Restricted Stock Agreement provides authority to the Committee or its delegee to act related to a non-ministerial matter, only the Committee may act to the extent such provision applies to an Insider. “Insider” means an individual who is, on the relevant date, subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934, as amended.
Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed rule did not explic- itly provide for payment of the cost of transcribing, and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the rules of evi- dence, the Committee understands that the Federal Rules of Evidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. 94–414; 1975 AMENDMENT Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is una...
