Raising Defects Before Trial

Raising Defects Before Trial

The preceding sections taught two families of defect that can infect a federal prosecution before trial begins. The first lies in how the case was instituted, such as an irregularity in the grand jury proceeding. The second lies in the charging document itself, such as an indictment that fails to state an offense or describes the accusation too vaguely to give notice. Each defect has its own doctrine, but all of them raise the same procedural question: when must the defendant complain? Rule 12 answers it, and this section lays out the frame before the sub-parts below take its pieces one at a time.

The foundation is Rule 12(b)(1), which allows a party to raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.¹ The qualifying phrase sorts the questions that belong here. A judge can decide whether an indictment alleges an essential element by reading it, and can decide whether a grand jury was properly drawn by examining how it was selected. A judge cannot decide whether the defendant committed the act without hearing the evidence. Rule 12(b)(3) then turns permission into obligation for a listed set of matters: when the basis for the motion is reasonably available and the court can determine it without a trial on the merits, the defense must be raised by pretrial motion.² The list includes defects in instituting the prosecution, such as an error in the grand-jury proceeding. It also includes defects in the indictment or information: duplicity (joining two or more offenses in a single count), multiplicity (charging the same offense in more than one count), lack of specificity, improper joinder, and failure to state an offense.³

Pretrial motion practice reaches beyond charging defects, and United States v. Leon shows the ordinary sequence. The defendants there were indicted by a grand jury and charged with conspiracy to possess and distribute cocaine and a variety of substantive counts. They then filed motions to suppress evidence seized under a search warrant, and the District Court held an evidentiary hearing and granted the motions in part.⁴ The suppression issue in that case is not a grand jury or indictment defect, so it is used here only for its rhythm. The grand jury indicts, the defense files a motion, and the court hears and decides it before trial. Rule 12 builds the same rhythm for the defects taught in the earlier sections.

The reason for requiring early motions follows from how charging defects behave. A flaw in the grand jury process or in the indictment can usually be repaired by returning a new, corrected indictment, and that repair is cheapest before any trial has been held. The requirement also removes a temptation that would otherwise exist. A defendant who spots a defect at arraignment could gain by holding a known defect in reserve, staying silent while the government spends its resources on a trial, and then raising the flaw only after a conviction. If the trial went well, the defendant would say nothing, and if it went badly, the defendant would try to wipe out the verdict. Forcing the motion to the front of the case takes that option away and gives the government the chance to cure the problem while a cure is still inexpensive.

The two defendants differ in a single respect: whether the court can decide the question without a trial on the merits. That is the same condition that governs which listed defects must be raised early, so it is the first thing to check when a fact pattern presents a charging defect. The sub-parts below follow the order in which a defense lawyer meets the problem: which defects must be raised early, the deadline and the good-cause exception for a late motion, and what follows a successful motion. On the last point, a pretrial dismissal for a charging defect usually does not end the case, because the government may seek a new indictment, and the court may address whether the defendant is released or held in the meantime.⁵

Defects Raised Early

The overview above established that Rule 12 pushes certain objections to the front of the case. This section identifies which grand jury and charging defects are on that list and what separates them from objections that may be made later. Rule 12(b)(3) names the defenses, objections, and requests that must be raised by pretrial motion, and it attaches two conditions to the duty: the basis for the motion must then be reasonably available, and the motion must be one the court can determine without a trial on the merits.⁷ The rule's list extends to other pretrial matters as well, among them requests to suppress evidence, but this section follows only the grand jury and indictment items.⁸

Each condition limits the duty to what a defendant can fairly be asked to do. The availability condition ties the duty to what the defense can actually know, since no one can be required to move on a ground that has not yet come into view. That matters most for grand jury irregularities, because the proceedings happen behind closed doors and an irregularity may surface only after disclosure. The second condition ties the duty to what the court can actually decide. A question answerable from the face of the charging document, from the record of how the grand jury was assembled, or from the law alone can be resolved before trial, while a question that turns on proof of what the defendant did cannot. Together the conditions confine the early-motion duty to objections the defense is in a position to raise and the court is in a position to rule on from the papers.

The rule then lists the covered matters, and two groups of them bear on this chapter. The first group is defects in instituting the prosecution, which the rule illustrates with improper venue, preindictment delay, a violation of the constitutional right to a speedy trial, selective or vindictive prosecution, and an error in the grand-jury proceeding or preliminary hearing.⁹ Each item complains about how, where, or when the government brought the case, and none depends on the wording of the indictment. The last item ties directly to the earlier sections on the grand jury: an unlawfully drawn or selected panel, an unqualified juror, and a breach of the rules on who may be present are all errors in the grand-jury proceeding. The timing rule says only when the complaint must be made. Whether the complaint wins depends on the rules on the effect of irregularities, so a defendant who moves on time can still lose on the question of prejudice.

The second group is defects in the indictment or information, and the rule illustrates it with five items.¹⁰

• Duplicity, which means joining two or more offenses in the same count.
• Multiplicity, which means charging the same offense in more than one count.
• Lack of specificity, which means describing the accusation too vaguely to give the defendant notice of the charge.
• Improper joinder, which means combining offenses or defendants in one charging document in a way the joinder rules do not allow.
• Failure to state an offense, which means alleging facts that, even if true, omit an essential element or otherwise do not amount to a crime.

These five share a feature that explains why they sit on the early side of the line: the defect shows on the face of the charging document. The defendant has the document once it is returned, and the court can read it, so the availability condition and the decide-on-paper condition are both met without any evidence. Lack of specificity also connects to the notice guarantee, because the Sixth Amendment entitles the accused to be informed of the nature of the charge.¹¹ An indictment normally must set forth each element of each crime alleged, so one that omits an element or describes the acts too thinly leaves the defense unable to prepare.¹²

A pretrial attack on the charge is ordinarily a motion to dismiss, which asks the court to end the case or a count because the facts alleged do not constitute a crime.¹³ A model motion in a Kentucky burglary prosecution shows the form. The defendant moves before trial to dismiss one count, claiming that second-degree burglary requires a residence that could be occupied and that the residence named had been damaged by a hurricane.¹⁴ That motion presents a question of law on undisputed facts, so the court can decide it without a trial. In United States v. Lopez, a federal grand jury indicted a high school student on one count of knowingly possessing a firearm in a school zone, and he moved to dismiss the indictment on the ground that the statute was beyond the power of Congress.¹⁵ The district court denied the motion, and the case went to a bench trial and a conviction, with the same argument carried through the appeals that followed.¹⁶ The motion raised a pure question of law about the charged statute and required no evidence about what Lopez did, which is the feature that makes this kind of attack suitable for resolution before trial.

One category of objection runs on a different clock. A motion that the court lacks jurisdiction may be made at any time while the case is pending.¹⁷ The exception exists because jurisdiction is the court's power to act at all, and a court that lacks power cannot gain it from the parties' silence. A charging defect is a different kind of problem. The court has power to hear the case, and the flaw lies in a document that can be corrected.

The exception invites an obvious temptation, which is to relabel an ordinary charging defect as jurisdictional in order to escape the early-motion duty. The most common candidate is the missing element. For many years the view was that a material defect in an indictment deprived the court of jurisdiction, because the Fifth Amendment gives the accused the right to have a grand jury approve a proper indictment. In United States v. Cotton the Supreme Court made clear in 2002 that failure to allege an essential element of the crime does not deprive a federal court of the power to hear the case, and it treated the omission as a defect subject to harmless-error or plain-error review.¹⁸ A failure-to-state-an-offense objection therefore belongs on the early side of the line, under the list of indictment defects, and not under the any-time rule for jurisdiction.

Both objections attack how the government charged the case, and both were visible from the record before trial. The second differs in one respect: it carries a jurisdictional label, the one feature that would have exempted it from the early-motion duty. Cotton strips that label of its force, which is why the second defendant is treated as having raised a late charging defect rather than an any-time objection. How the court handles an objection that comes after the deadline is the subject of the next section.

Step 2 is where answers go wrong. The usual mistake is relabeling a missing element as jurisdictional to claim the any-time rule, and Cotton forecloses it. A second mistake treats the early-motion duty as a guarantee of success, when the timing rule governs only when to complain and the rules on the effect of irregularities decide whether the complaint wins.

Deadlines and Good Cause

The previous section identified which defects in instituting the prosecution and in the indictment must be raised by pretrial motion. Rule 12(c) supplies the clock for that duty and states what happens to a motion that misses it.²⁰ The court may set a deadline for pretrial motions at the arraignment or as soon afterward as practicable and may schedule a motion hearing, and if the court sets no deadline, the deadline is the start of trial.²¹ A fixed date gives the word early a measurable meaning. Without one, neither side would know when a motion stops being timely, and the court could not plan a hearing in time to rule before trial begins. The default covers the case in which nobody sets a date, so the early-motion duty always has a last day.

The deadline is firm without being frozen. At any time before trial, the court may extend or reset it.²² The flexibility reflects how cases develop: discovery arrives, new facts surface, and a date chosen on the first day may prove too tight for a defect that only later comes into view. Because the court can move the date itself, a motion filed by the new date is timely, and the defense does not have to ask for special treatment. The power runs only until trial begins, which keeps it tied to the purpose of the whole scheme, namely resolving charging defects while the government can still cure them.

A motion that misses the deadline is a different matter. When a party fails to meet the deadline for a Rule 12(b)(3) motion, the motion is untimely, but the court may still consider the defense, objection, or request if the party shows good cause.²³ The two halves of that rule rest on different reasons. The untimeliness consequence is what gives the early-motion duty force, because a deadline with no penalty would invite the same holding of a known defect in reserve that the duty was written to prevent. The good-cause exception answers a functional problem. Rule 12(b)(3) already conditions the duty on the basis for the motion being reasonably available, so a defendant who could not have found the defect before the deadline should not forfeit it for failing to raise something nobody knew. The rule leaves good cause undefined, so the working question is why the motion was late: whether the basis was reasonably available before the deadline, and whether the defense moved promptly once it appeared.

Grand jury defects test this exception more often than other charging defects, because the proceedings are closed. Misconduct before the grand jury seldom happens in front of the target or a witness friendly to the target, so it usually comes to light only after indictment, in pretrial discovery or in the review of grand jury testimony given by trial witnesses.²⁴ The defense can then ask the court to order disclosure of grand jury material by showing that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.²⁵ That showing is demanding, and the disclosure may arrive after the motion deadline has passed. When it does, the lateness of the disclosure is the circumstance that gives good cause its practical work.

Both motions are untimely, and they differ in what explains the delay. In the first, the basis was not reasonably available before the deadline, which is the very condition Rule 12(b)(3) already builds into the early-motion duty, so excusing the lateness follows the rule's own logic. In the second, the basis was in the defense's hands from the start, and excusing the lateness would erase the consequence the deadline exists to impose.

Once a motion is properly before the court, Rule 12(d) governs when it is decided. The court must decide every pretrial motion before trial unless it finds good cause to defer a ruling, and it must not defer if the deferral will adversely affect a party's right to appeal.²⁶ When factual issues are involved in deciding the motion, the court must state its essential findings on the record.²⁷ The reasons follow from the purpose of early motions. A ruling on a charging defect helps only if it comes while the government can still cure the problem, and a ruling parked until trial would drain the early-motion duty of that benefit. The findings requirement leaves a record for anyone reviewing the ruling, and Rule 12(f) supports it by requiring that all proceedings at a motion hearing, including oral findings and conclusions, be recorded by a court reporter or a suitable recording device.²⁸ Good cause appears in both Rule 12(c)(3) and Rule 12(d), and students confuse them because the two good-cause provisions do different jobs. Under Rule 12(c)(3), good cause is the showing a movant makes to excuse a late motion. Under Rule 12(d), good cause is the finding the court makes to justify postponing its own ruling.

Step 4 is where the points are earned or lost. A forgotten motion on a defect visible from the day of indictment shows no good cause, while a motion filed promptly after late disclosure of grand jury material is the paradigm case for it.

Dismissal and Reindictment

The earlier sections here concern raising a charging defect on time. A successful motion raises a further question, which is what happens to the defendant while the government repairs the problem. Rule 12(g) answers it: if the court grants a motion to dismiss based on a defect in instituting the prosecution, in the indictment, or in the information, it may order the defendant to be released or detained under 18 U.S.C. § 3142 for a specified time until a new indictment or information is filed.³⁰ The trigger therefore covers each category of defect that the early-motion duty reaches, from an unlawfully drawn grand jury to a flawed information. The order is discretionary, since the rule says the court may enter it, and it is bounded, since it runs for a specified time and ends when the new charging instrument is filed.

The rule is needed because of what a charging-defect dismissal does and does not decide. A court that sets aside an indictment returned by an unlawfully drawn grand jury has ruled on the validity of a document and has said nothing about whether the defendant committed the offense. Because there has been no acquittal on the merits, the government remains free to charge again, and a gap opens between the old indictment, which is gone, and the new one, which does not yet exist. Without a rule for that gap, nobody could say whether the defendant should leave the courthouse or stay in custody while the government re-presents the case. Rule 12(g) lets the court decide by reference to the federal statute on release and detention, and the specified time ties the interim arrangement to the effort to recharge instead of letting it continue indefinitely. The rule leaves any federal statutory period of limitations as it found it.³¹

The government's ability to try again rests on when double jeopardy protection begins. Until trial begins, double jeopardy does not protect an accused from successive grand jury investigations, so even a grand jury's refusal to return a true bill does not prevent the prosecutor from resubmitting the evidence to another grand jury.³² A pretrial dismissal for a charging defect follows the same logic, because a timely and well-founded objection allows the trial court to void the indictment and send the prosecutor back to a lawfully constituted grand jury.³³ The sequence explains the stakes of a successful motion. The defendant obtains a corrected charging process, and the government keeps its chance to prosecute, because the protection against being tried twice has no work to do before any trial has begun.

Both defendants won their motions, and neither victory ended the prosecution. The first scene shows what the court does about custody in the interval. The second shows why there is an interval at all: the dismissal removed a defective document and decided nothing about guilt. The usual error on this point is to treat a pretrial dismissal for a charging defect as an acquittal, which leads to the conclusion that the government is finished. The custody order is also a matter of discretion, so the rule gives the court a power to exercise and does not dictate release in every case.

Step 3 carries the most weight on an exam, because the answer to whether the government may try again depends on the timing of jeopardy and not on how serious the defect was. A dismissal that comes before trial sends the government back to the grand jury, and Rule 12(g) governs where the defendant waits in the meantime.