1096          866 FEDERAL REPORTER, 2d SERIES


United States v. Brimberry, 744 F.2d 580, 586 – 87 (7th Cir.1984) (immunity, a matter that “may” be raised before trial, is properly raised by motion; time for making motion is unclear, but court adopts commentators’ view that these defenses may be raised at trial); see also Davis v. United States, 411 US. 233, 239 – 42, 93 S.Ct. 1577, 1581 – 83, 36 L.Ed.2d 216 (1973) (Rule 12 does not apply to bar defenses initially raised in habeas proceeding but not enumerated by Rule 12(b)) (discussing Kaufman  v.  United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) (defense based on fourth amendment exclusionary rule; applying older version of Rule 12 not requiring pretrial motion with respect to suppression of evidence)).


[4] The appellants raised the PRA defense after the motion date but no later than at trial Jurisdictional defenses and permissive pretrial matters are timely if


asserted at or before trial. Therefore, appellants’ PRA defense was waived pursuant to Rule 12(f) only if it is a mandatory pretrial matter described by Rule 12(b)(1) or (2).4

The cases provide little guidance in formulating a general definition of Rule 12(b)(1) “defects in the institution of the prosecution” or of Rule 12(b)(2) “defects in the indictment or information.”5 We ob- serve, however, that courts have addressed under Rule 12(b)(2) such defenses as misnomer, duplicity or multiplicity, misjoinder, indefiniteness, partial insufficiency, surplusage, and other defects in the indictment or information that go to matters of form rather than substance. These cases have established criteria for evaluating challenged indictments:

These criteria are, first, whether the indictment “contains the elements of the offense intended to be charged, ‘and sufficiently

defenses and objections which at the defendant’s opinion may be raised by motion, failure to do so, however, not constituting a waiver. (Cf. Rule l2 of Federal Rules of Civil Procedure.)


In the first of these groups are included all defenses and objections that are based on defects in the institution of the prosecution or in the indictment and information, other than lack of jurisdiction or failure to charge an offense. All such defenses and objections must be included in a single motion. (Cf. Rule 12(g) of Federal Rules of Civil Procedure. ) Among the defenses and objections in this group are the following: Illegal selection or organization of the grand jury, disqualification of individual grand jurors, presence of unauthorized persons in the grand jury room, other irregularities in grand jury proceedings, defects m indictment or information other than lack of jurisdiction or failure to state an offense, etc. The provision that these defenses and objections are waived if not raised by motion substantially continues existing law as they are waived at present unless raised before trial by plea m abatement, demurrer, motion to quash, etc.


In the order group of objections and defenses, which the defendant at his option may raise by motion before trial, are included all defenses and objections which are capable of de-termination without trial of the general issue. They include such matters as former jeopardy, former conviction. former acquittal, statute of limitations, immunity, lack of jurisdiction, failure of indictment or information to state an offense, etc. Such matters have

been heretofore raised by demurrers, special pleas in bar and motions to quash.


4. The matters enumerated in Rule l2(b)(3)–(5) are not relevant to this appeal. They define as mandatory pretrial matters motions to suppress evidence. Rule 16 discovery requests, and Rule 14 requests for severance of charges or defendants.


5. Courts have neglected to provide general definitions for these terms

for a variety of reasons. First, Rule 12 motions often arise in contexts that do not require close analysis of whether the matter raised falls within the rule. For example, courts cite Rule 12 in habeas corpus

cases to support the conclusion that defenses presented for the first time on collateral attack are waived. Second, Rule 12 motions usually involve one of a relatively small group of recurring defenses, such as personal jurisdiction, with which courts are familiar. Third, in much

of the litigation over defenses "capable of determination without the trial of the general issue," the government is opposing an

indisputably timely motion on the ground that the asserted defense raises questions of fact that can only be determined at trial. Most defenses, such as self-defense, insanity, and entrapment, require

factual determination that the jury should make, rendering pretrial disposition inappropriate. See, e.g., United States v.

Snyder. 428 F.2d 520, 521 (9th Cir.) (“A motion to dismiss is

not the proper way to raise a [factual] defense,”), cert. denied,

400 U.S. 903, 91 S.Ct. 139, 27 L.Ed. 2d 139 (1970). In these cases, the question is not whether the defense must be raised prior to trial, but whether it may be raised prior to trial.