A footnote in an opinion issued earlier this week appears to resolve an implicit intra-circuit split over the government’s ability to appeal a pre-trial order dismissing a particular count or counts in an indictment when the dismissal is based on a stipulation that the government will be unable to prove (or will not seek to prove) certain facts.
This past March, a panel consisting of Judge King, Judge Davis and Judge Keenan heard oral argument in United States v. Said (10-4970). In that case, the government appealed from the dismissal of its piracy count against Somalis apprehended by the United States Navy after their attack on the U.S.S. Ashland. The defendants argued in a motion to dismiss under Federal Rule of Criminal Procedure 12(b)(2) that their conduct did not amount to piracy under federal law because they never took possession of the U.S.S. Ashland. The government stipulated that the defendants never took possession of the vessel, but argued that taking possession was not an element of the crime of piracy. The district court dismissed the piracy count, and the government appealed. At oral argument, the panel questioned whether it had authority to reach the possession-as-element-of-piracy issue. Shortly after argument, the panel issued an order for supplemental briefing on the procedural propriety of the pre-trial dismissal leading to the appeal. Both the federal government’s supplemental brief and the defendants’ supplemental brief argued that the dismissal and appeal were procedurally proper. The panel apparently thought otherwise and issued an order placing the appeal in abeyance pending its decision in United States v. Dire, another piracy case presenting the same legal issue. (The Dire appeal, arising out of the pirate attack on the U.S.S. Nicholas, was argued on September 20, as I have previously discussed.)
The Fourth Circuit’s decision earlier this week in United States v. Weaver came to the court of appeals in a similar procedural posture. As discussed earlier in this post, the case involved charges of illegal gun possession against alleged members of the Pagans Motorcycle Club. The defense moved to dismiss certain charges pursuant to Federal Rule of Criminal Procedure 12(b)(2). In particular, the defendants argued that an essential element of a particular possession offense with which they had been charged under 18 U.S.C. § 922(h) was that they had received tangible compensation in return for carrying a firearm for the protection of a convicted felon who was an officer of the PMC. The government stipulated that it could not (and would not seek to) prove that the defendants had received the tangible compensation that the defense argued was an element of the crime. Based on this stipulation and on an interpretation of the statute defining the charged offense, the district court dismissed the § 922(h) charges. On appeal, the Fourth Circuit reversed. With respect to jurisdiction and the propriety of addressing on appeal the legal sufficiency of the § 922(h) charges in light of the government’s stipulation about what it did not intend to prove, the panel opinion states as follows:
We have jurisdiction under 18 U.S.C. § 3731, which states: “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment. . . as to any one or more counts, or any part thereof . . . .” Although there is no provision for summary judgment in the Federal Rules of Criminal Procedure, the district court’s pretrial dismissal of the § 922(h) charges was procedurally appropriate under Rule 12(b)(2). That rule provides that”[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Fed. R.Crim. P. 12(b)(2). As circuit courts have almost uniformly concluded, a district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts. Here, the government did not challenge the trial court’s authority to decide the motion, and it conceded its inability to obtain convictions under the court’s interpretation of § 922(h). Thus, the district court considered a purely legal question: whether § 922(h) applies only to persons employed for tangible compensation. There is no good reason to force the court to incur the expense and delay of a trial that would inevitably lead to the same outcome as its pretrial ruling.
In light of this analysis in a published opinion of the court, the federal government should not in the future run into the problem that resulted in abeyance of its appeal in the U.S.S. Ashland piracy case.