Pretrial motions to dismiss allow criminal defendants to avoid trial when the prosecution’s legal theory is flawed. Federal Rule of Criminal Procedure (FRCrP) 12(b)(2) permits pretrial motions raising “any defense, objection, or request that the court can determine without a trial of the general issue.” This Comment examines courts’ disagreement about a procedure under FRCrP 12(b)(2) that will be termed a motion for summary dismissal. Such motions ask courts to examine undisputed material facts to determine whether the government can prove its case as a matter of law. In this way, summary dismissal is roughly analogous to summary judgment in civil procedure.

Consider an example. A defendant awaits trial under a statute that applies only to “US persons.” The indictment alleges that he had once held lawful permanent resident (LPR) status. The government and defendant agree about certain facts outside the indictment’s four corners: the defendant had moved away from the US after gaining LPR status and returned infrequently to visit family. These undisputed facts present two alternative conclusions: either he retains LPR status because it had not been formally revoked, or he abandons it by moving away.

In the case on which this example is patterned, the district court held that the defendant abandoned his LPR status as a matter of law and dismissed because the government could not prove the “US person” element. The DC Circuit agreed, and explicitly held that defendants may seek dismissal under FRCrP 12(b)(2) when the material facts are undisputed and the government does not object. But it warned that these motions are appropriate only in “unusual circumstance[s]” and noted the absence of an explicit “criminal procedural mechanism that resembles a motion for summary judgment.” 

While one court refuses to allow summary dismissals at all, the majority of courts take the DC Circuit’s position—permitting summary dismissals whenever the relevant facts are undisputed, which in practice means stipulated. Others require the government to make a “full proffer of the evidence it intends to present at trial” before the evidence can be considered undisputed. Both the minority view rejecting, and the near-total scholarly silence regarding, summary dismissals likely reflect an overly formalistic, uncreative, and ultimately incorrect reading of the FRCrP.