1098          866 FEDERAL REPORTER, 2d SERIES


It is also important to observe that the [ ] rule 12(b) defenses [enumerated in clauses (1)–(5)] are all “curable” within the meaning of Blackledge [v. Perry, 417  U.S. 21, 94 S.Ct. 2098,  40 L.Ed.2d 628 (19- 74)]: if raised and corrected before trial, each would leave the way open to the state to obtain a valid conviction at trial.

Westen, Away From waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich L Rev 1214, 1241 (1977) (footnotes omitted) (emphasis in original).

In other words, Rule 12(b)(1) defenses generally involve defects in the procedures leading up to the indictment, because this type of defect can be cured by the prosecutor prior to trial “Rule l 2 [merely] makes explicit the application of the ‘harmless error’ rule to indictments by providing that objections to technical defects in the institution of a prosecution, including those in the indictment, are waived unless raised, by a motion to dismiss before trial ' Note, lndictment Sufficiency,  70 Colum. L. Rev.  876, 883 (1970); cf. 1 C. Wright,  Federal Practice and Procedure  § 193 (2d ed 1982) (venue is not jurisdictional and is waived if not raised before trial, but only if impropriety of venue is apparent on the face of the indictment).

Unlike defenses based on procedural or formal defects, affirmative defenses, such as appellants’ PRA defense,  may not be cured by prosecutorial action. They continue to operate as defenses regardless of the regularity of the prosecutor’s conduct or of the indictment Thus. the Advisory Committee Notes provide that “the defendant a( his open may raise by motion before trial” “such matters as former jeopardy, former conviction, former acquittal, statute of limitations, [and] immunity ’” See note 3 supra (emphasis supplied) These matters are in the nature of affirmative defenses, as is appellants' PRA defense.  We see no reason to distinguish the PRA defense, and conclude that the PRA defense is a permissive pretrial matter that the defendant


may, but need not, raise by motion before trial. See United States v. Hahn, 381 F. Supp. 1311, 1313 (ED. Mich.1974). It follows that appellants did not waive the defense by failing to assert it prior to the motion date but before the conclusion of their trial.



The Alaska Placer Mining Application form, which the Forest Service would have accepted as appellants' Plan of Operations, amounts to an information collection request that does not bear a current control number and therefore does not satisfy the PRA Nevertheless,  appellants were prosecuted for a failure to file a Plan of  Operations pursuant to a  Forest Service regulation, not a failure to file the Placer Mining Application Accordingly, we first consider whether the Forest Service regulation requiring appellants to Re the Plan of Operations is itself an information collection request within the meaning of the PRA.  If our answer to that inquiry is affirmative, we will then consider whether the PRA prohibits the judgments of conviction entered against the appellants.


[6]   The PRA includes within the definition of “information collection request" a “reporting . . . requirement, collection of information requirement, or other similar method calling for the collection of information,” see 44 U S C § 3502(11). The PRA further defines “[c]ollection of information” as:

the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or record keeping requirements, or other similar methods calling for . . .

answers to identical questions posed to, or identical reporting or record keeping requirements imposed on, ten or more persons . . .

44 U S C § 3502(4). This definition encompasses agency regulations that require disclosure of information to the government