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Criminal Resource Manual

210. Waiver Procedure

There is no formal procedure for obtaining a waiver of indictment. Fed. R. Crim. P. 7(a), merely requires that it be waived "in open court." The "waiver of the indictment requirement embodied in Rule 7(a) is confined to specific circumstances outlined in the Rule's text . . . ." United States v. Mezzanatto, 115 S. Ct 797, 802 (1995). However, the court must be satisfied that the defendant knowingly, voluntarily, and understandingly waives the right to be indicted by a grand jury. See United States v. Moore, 37 F.3d 169, 173 (5th Cir. 1994); Bartlett v. United States, 354 F.2d 745, (8th Cir.), cert. denied, 384 U.S. 945 (1966); Farr v. United States, 314 F. Supp. 1125 (W.D.Mo. 1970) adopted, 436 F.2d 975 (8th Cir.), cert. denied, 402 U.S. 947 (1971). See also United States v. Gaudet, 81 F.3d 585, 591 (5th Cir. 1996) (finding that defendant implicitly waived indictment). However, a waiver of indictment, being merely a waiver of a finding of probable cause by a grand jury, does not call for all the protections associated with the entry of a guilty plea. See United States v. Montgomery, 628 F.2d 414 (5th Cir. 1980).

Where a waiver form is used, the fact that the defendant does not actually sign the waiver in court is not objectionable when the form is filed of record before arraignment. See Ching v. United States, 292 F.2d 31 (10th Cir. 1961).

A waiver may be executed in a district other than that in which the crime was committed. Boyes v. United States, 298 F.2d 828 (8th Cir.), cert. denied, 370 U.S. 948 (1962). United States v. Scavo, 593 F.2d 837 (8th Cir. 1979). The fact that the defendant waives indictment before the information is actually filed does not affect the information thereafter filed. The court acquires jurisdiction upon the filing of the information at which time the waiver becomes effective. Young v. United States, 354 F.2d 449 (10th Cir. 1965).