Rule 38 — Staying a Sentence or a Disability

Fed. R. Crim. P. 38

• Source: Federal Rules of Criminal Procedure
• Rule: 38
• TITLE VII: POST–CONVICTION PROCEDURES
• Citation: Fed. R. Crim. P. 38

Text

(a) Death Sentence. The court must stay a death sentence if the
defendant appeals the conviction or sentence.
(b) Imprisonment.
(1) Stay Granted. If the defendant is released pending appeal,
the court must stay a sentence of imprisonment.
(2) Stay Denied; Place of Confinement. If the defendant is not
released pending appeal, the court may recommend to the At-
torney General that the defendant be confined near the place
of the trial or appeal for a period reasonably necessary to per-
mit the defendant to assist in preparing the appeal.
(c) Fine. If the defendant appeals, the district court, or the court
of appeals under Federal Rule of Appellate Procedure 8, may stay
a sentence to pay a fine or a fine and costs. The court may stay
the sentence on any terms considered appropriate and may require
the defendant to:
(1) deposit all or part of the fine and costs into the district
court’s registry pending appeal;
(2) post a bond to pay the fine and costs; or
(3) submit to an examination concerning the defendant’s as-
sets and, if appropriate, order the defendant to refrain from
dissipating assets.
(d) Probation. If the defendant appeals, the court may stay a
sentence of probation. The court must set the terms of any stay.
(e) Restitution and Notice to Victims.
(1) In General. If the defendant appeals, the district court, or
the court of appeals under Federal Rule of Appellate Proce-
dure 8, may stay—on any terms considered appropriate—any
sentence providing for restitution under 18 U.S.C. §3556 or no-
tice under 18 U.S.C. §3555.
(2) Ensuring Compliance. The court may issue any order rea-
sonably necessary to ensure compliance with a restitution
order or a notice order after disposition of an appeal, includ-
ing:
(A) a restraining order;
(B) an injunction;
(C) an order requiring the defendant to deposit all or
part of any monetary restitution into the district court’s
registry; or
(D) an order requiring the defendant to post a bond.
(f) Forfeiture. A stay of a forfeiture order is governed by Rule
32.2(d).
(g) Disability. If the defendant’s conviction or sentence creates
a civil or employment disability under federal law, the district

court, or the court of appeals under Federal Rule of Appellate Pro-
cedure 8, may stay the disability pending appeal on any terms
considered appropriate. The court may issue any order reasonably
necessary to protect the interest represented by the disability
pending appeal, including a restraining order or an injunction.

Advisory Committee Notes

(As amended Dec. 27, 1948, eff. Jan. 1, 1949; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98–473, title II, §215(c), Oct. 12, 1984, 98 Stat. 2016, eff. Nov. 1, 1987; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002.)