1095          US. v. SMITH

Cite as 866 F.2d 1092 (9th Cir. 1989)

trial. Fed. R. Crim. P. 12(b)(,1), (2).¹ Rule 12(f) then provides that a party’s failure to raise such defenses, objections, or requests by the motion date “shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” Fed. R. Crim. P. 12(f).

[2] Appellants’ PRA contention is waived if subject to Rule 12(f). The magistrate had set November 5, 1984 as the motion date. Appellants first raised the PRA issue on January 28, 1986. Rule 12(f) does not, however, apply to appellants’ PRA defense. The defenses for which pretrial assertion is mandatory relate to procedural defects in obtaining the charge and to defects in the information that go to matters of form rather than substance that usually are apparent on the face of the pleading. In contrast, the PRA bar of prosecution is in the nature of an affirmative defense, see Navel 0range Admin. Comm. v. Exeter Orange Co., 722 F.2d 449, 453 – 54 (9th Cir.1983), that “is capable of determination without the trial of the general issue,” Fed. R. Crim. P. 12(b). As such, it is a defense that “may be raised before trial by motion” but is not waived pursuant to Rule 12(f) if not brought before trial.²

In reaching this conclusion, we first note that Rule 12 creates three categories of defenses, objections, and requests that

“may” be raised before trial: (1) the failure of the indictment or information to show subject matter jurisdiction or to state an offense (“jurisdictional defenses”); (2) the five matters enumerated in Rule 12(b) (“mandatory pretrial matters”), including defenses “based on defects in the institution of the prosecution” and defenses “based on defects in the indictment or information”; and (3) all other matters that are :capable of determination without the trial of the general issue” (“permissive pretrial matters”).

[3] Rule 12(b)(2) specifically provides that the jurisdictional defenses “shall be noticed by the court at any time during the pendency of the proceedings.” These are the most durable defenses, and may be raised for the first time on appeal. Rule 12(f) provides that matters “which must be made prior to trial” are waived if not raised prior to the motion date. The matters that “must be made prior to trial” under Rule 12(f) are the mandatory pretrial matters described in the five paragraphs of Rule 12(b). Finally, Rule 12 says nothing about the time for asserting permissive pretrial matters, which are “capable of determination without the trial of the general issue.” These matters are subject to the general rule that points not raised at trial are waived (with certain exceptions).³ See e.g.,

1. Criminal Rule 12(b) provides in pertinent part:

Pretrial Motions. Any defense. objection, or request which is

capable of determination without the trial of the general isle

may be raised before trial by motion. Motions may be written

or oral at the discretion of the judge. The following duct be

raised prior to trial:

(1) Defenses and objections based on defects in the institution

of the prosecution; or

(2) Defenses and objections based on defects in the

indictment or information (other than that it fails to show

jurisdiction in the court or to charge an offense which

objections shall be noticed by the court at any time during the

pendency of the proceedings)....

Fed. R. Crim. P. 12(b)(1). (2).

2. Navel Orange. cited by the magistrate in support of his reliance proposition is not to the contrary. In Navel Orange we rejected a PRA defense on two grounds. First we stated that a

defendant could not raise affirmative defenses on appeal that have not been "finally determined" at the trial level (there. au administrative proceeding). 722 F.2d at 453-54. Second. we noted that the government sought relief only for periods during which it was in compliance with the PRA. Id. at 454. Neither of those rationales is pertinent in this case. Appellants raised the PRA issue no later than trial, and the government does not contend that the Forest Service is in compliance with the PRA with respect to the regulations at issue.

3.  We also note that the Advisory Committee Notes on Rule 12(b)(1), (2) indicate that obtain matters that "may” be raised by motion prior to trial need not be raised at that time. The Notes provide:

These two paragraphs classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12(a) In one group are defenses and objections which must be rail by motion. failure to do so constituting a waiver. In the other group are