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A Federal Judge Dismisses An Indictment On A Pretrial Motion Based On Determination About The Facts In The Case, And All I Do Is Complain

One of the massively frustrating things about federal criminal procedure is that you cannot normally challenge, through a pretrial motion, whether the facts that the government think happened actually violate some criminal law.

By contrast, in a civil case, if I’m suing you, you can file a motion that says my lawsuit should be dismissed. This is a good thing.

For example, suppose I file suit against you and say, in my complaint, “You gave me a banana. That was negligent. The Court should give me 20 million dollars. A jury trial is requested.” The very first thing you would do is file a motion that says “Matt said that I was negligent, but didn’t say how, other than that I gave him a banana, which is not normally negligent. His law suit should be dismissed.”

And, when a judge read that, he, or she, would seriously think about whether to dismiss my lawsuit, before everyone spent thousands of dollars preparing and worrying and yelling at each other on the phone.

In a criminal case, though, this is normally not possible. The government can put in an indictment “Larry gave Susan a banana. He distributed cocaine in violation of 21 U.S.C. S 841 in the District of Columbia.” and that will pass muster. If the person charged with the crime tries to file a motion to dismiss, they’ll lose – Federal Rule of Criminal Procedure 7 requires just about nothing in the way of factual specificity. On to trial you’ll go.*

Sometimes, the government and the defendant agree about what happened for the purposes of a pretrial motion. The government thinks that it was a crime, and the person accused thinks that it wasn’t a crime. Normally, there is little way for the person accused to ask the court if the conduct was a crime, before everyone spends a tremendous amount of money, and the person accused of the crime undergoes a tremendous amount of stress. The most reliable way to handle something like this is on a stipulated facts trial, like in the Ninth Circuit’s case on racially motivated threats against President Obama. Of course, then the person charged with the crime doesn’t get to have a meaningful trial.

Most federal district court judges, in most cases, will not consider a motion to dismiss an indictment if it relies on any assumptions about what the facts of the case are.

Happily, Judge Boasberg on the United States District Court for the District of Columbia,** granted a motion to dismiss a count on an indictment based on a pretrial determination about the facts in the case in United States v. Nitschke.

Judge Boasberg dismissed an indictment where the facts of the case – as set out by pretrial motion which were not objected to by the government – showed that there was no crime.

The opinion defends the normal practice, though, asserting that,

“[i]t would certainly be improper to force the government in the normal case to proffer its evidence pretrial so that the defense might test its sufficiency. That could, for instance, curtail the government’s ability to obtain additional evidence or locate additional witnesses.”

I just don’t understand that point. What would be bad about putting the government’s theory of the evidence to the test? If there are additional witnesses the government needs, why is it indicting?

Robust pretrial motions practice in civil cases – dismissing bad lawsuits before they go too far – is a good thing. It saves money, time, and stress.

What’s so broken about our civil justice system that it won’t work for criminal cases?

* Though perhaps you could file a motion to strike the part about the banana. It’s kind of surplus language.

** Yes, this is is strictly speaking not about a federal criminal appeal. Here’s to hoping it doesn’t undermine the thematic content of this blog too much.

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