1097          US. v. SMITH

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


apprises the defendant of what he must be prepared to meet,”’ and, secondly, ‘‘‘in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’’’


Russell v. United States, 369 U.S. 749, 763 – 64, 82 S.Ct. 1038, 1046 – 47, 8 L.Ed.2d 240 (1962) (citations omitted), quoted in United States v. Pheaster, 544 F. 2d 353, 360  (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct 1118, 51 L.Ed.2d 546 (1977). These criteria indicate that indictments must provide the defendant with notice of the charge and of possible double jeopardy defenses. Other than the jurisdictional defenses, Rule 12(b)(2) encompasses technical defects in the indictment or information. Accordingly, Rule 12(b)(2) does not require pretrial assertion of affirmative defenses such as the PRA, and the government does not seriously argue to the contrary.

The government’s principal argument is that the PRA defense amounts to a Rule 12(b)(1) assertion of “defects in the institution of the prosecution.” This category includes such defenses as prosecutorial misconduct improper grand jury procedures, and noncompliance with the Federal Rules of Criminal Procedure. Some cases have said, not very helpfully, that a defense raises a Rule 12(b)(1) matter when it “brings into question the institution of the prosecution.” United States   v.   Jarred,       705   F.2d  198,   205 (7th Cir.1983),  cert.  denied,    465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed. 2d 228 (1984), quoted in United States v. Dion,762 F.2d 674, 680 (8th Cir. 1985), rev’d in part, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986). As these cases indicate, Rule 12(b)(1) motions are designed principally as vehicles to challenge the decision to prosecute and prosecutorial irregularity in obtaining the indictment.

[5] The word “institution” is the key to a proper understanding of Rule 12(b)(1). Any legal matter that prevents the prosecution from securing a conviction could be construed as a “defect” in the prosecution. “Institution” is the key word that prevents Rule 12(b)(1) from having an unlimited

856 F.2d – 26


reach.   The focus on the “institution” of the prosecution limits the Rule to cover the prosecutorial decision to commence the prosecution and the procedures followed in doing so.

The purposes undergirding Rule, 12 waiver also lend support to this understanding of Rule 12(b)(1). One of those purposes, conservation of judicial resources by facilitating the disposition of cases without trial, see, e.q., United States v. Griffin, 765 F.2d 677, 681 (7th Cir.1985), United States    v.    Jones,  542 F.2d 661, 664 – 65 (6th Cir.1976), is served by many procedural rules.

The Supreme Court has, however, identified a purpose more specific to Rule 12 waiver:

The waiver provisions of Rule 12(b)(2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.

Davis, 411 US. at 241, 93 S.Ct. at 1582, quoted in Francis v. Henderson, 425 U.S. 536, 540, 96 S.Ct. 1708, 1710, 48 L.Ed.2d 149 (1976). Along these lines, one commentator has analyzed the Rule 12(b)(1), (2) defenses, reasoning that:

[they] are understood to include defenses concerning selection and composition of the grand jury, the procedures of the grand jury, jurisdiction over the person of the defendant, selection of the petty jury, and the form of the indictment or information including claims that the charging paper is duplicitous or multiplicitous....