There are just some cases that should never make it to trial. One often hears that there is no such thing as a motion for summary judgment in a criminal case. True, but it is wrong to conclude that trial courts lack authority to dismiss indictments if they have to rely on facts beyond the four corners of the indictment. It has never been disputed that a trial court has the authority to dismiss an indictment when a defect is apparent on its face. It gets trickier when a defendant challenges an indictment based on a theory that requires the trial court to rely on facts outside the four corners of the indictment, but a trial court has the authority to dismiss an indictment when the undisputed (or undisputable) facts show there is no way the state could prevail as a matter of law.

Rule 12(b)(1) of the Tennessee Rules of Criminal Procedure tells us 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.”[1] If a court can determine that the state cannot win as a matter of law “without trial of the general issue,” the case can be dismissed even if certain factual findings are required. If there is no set of facts by which the state can prevail, the case should be dismissed. This isn’t summary judgment, but at times it seems close.

When possible the trial court should decide pretrial motions, including motions to dismiss, before trial, and the rule specifically contemplates the court making findings of fact:

The Court shall decide each pretrial motion before trial unless it finds good cause to defer a ruling until trial or after a verdict. The court shall not defer ruling on a pretrial motion if the deferral will adversely affect a party’s right to appeal. When factual issues are involved in deciding a motion, the court shall state its essential findings on the record.[2]

A pretrial motion to dismiss allows the trial court to decide issues that are “ripe for resolution without a full trial on the merits.”[3] Because motions to dismiss resolve issues that do not require a jury, motions to dismiss avoid “unnecessary interruption and inefficiency” at trial.[4]

Generally, “pre-trial motions to dismiss that are ‘capable of determination,’ involve questions of law, rather than fact.”[5] However, “the trial court may make some findings of fact, so long as it does not encroach upon the province of the jury.”[6] In State v. Sherman, the Tennessee Supreme Court stated, “When ruling upon a motion to dismiss, a trial court may consider evidence beyond the face of the indictment. This may include undisputed facts or stipulations by the parties.”[7] A pretrial motion that requires the court to make determinations of law and apply those determinations to undisputed facts is capable of resolution before trial.[8] The court has the authority to dismiss a case pretrial based on the application of law to undisputed facts.

What kinds of facts can the court decide and apply to a motion to dismiss? Obviously, the question of whether the defendant committed the acts in question is for the jury. However, a factual finding or stipulation regarding an issue of whether the statue criminalizes the conduct in question is fair game for the court. In Sherman, the Tennessee Supreme Court affirmed the trial court’s use of stipulations outside the four corners of the indictment to rule on a motion to dismiss, but held that the statute could apply to the conduct and therefore dismissal was not appropriate.[9] Let’s see how this worked in action. The defendant was charged with child abuse and child neglect. He was a Universal Life Church minister to the family and was not a relative or parent. The defendant moved to dismiss, alleging he had no duty of care and could not be convicted as a matter of law. The trial court applied the stipulation that the defendant had no familial relationship and thus found that the defendant had no duty of care and could not be convicted as a matter of law. The Supreme Court reversed, holding that the defendant could have had an in loco parentis duty. For our purposes, though, the important part of the opinion is that the court approved the procedure of ruling on a motion to dismiss based on undisputed facts.

The Sherman Court reviewed the historical distinction between a motion to quash and a plea in abatement. A plea in abatement allowed the defendant to present extraneous evidence in support of the challenge. Rule 12 eliminated the distinction, but retained fact-finding on a motion to dismiss. The court held that under Rule 12, a court can consider evidence beyond the fact of the indictment. These facts may include undisputed facts or stipulations or concessions at a hearing. The court held, “when the trial court interprets a statute and applies it to undisputed facts, the issue is one of law.”[10]

In one of the leading Tennessee cases on this issue, the Tennessee Supreme Court used a stipulation of fact and determined that the defendant could not have acted unlawfully under kidnapping law as it stood at the time. In State v. Goodman the defendant was charged with especially aggravated kidnapping of his daughter.[11] The defendant filed a Rule12(b) pretrial motion to dismiss on the basis that, under the statutory definition of “unlawful,” natural parents are not subject to prosecution for especially aggravated kidnapping of their own children. The defendant argued that when there is not an allegation that force was used to remove the child then a parent cannot be charged with especially aggravated kidnapping because there is parental consent. The trial court, based on the stipulation of facts that the defendant was the father of the child, dismissed the charge. The Court of Criminal Appeals reversed the decision on the basis that the motion was not capable of resolution without determination of the general question of guilt. The Tennessee Supreme Court reversed, holding that “the defendant’s pretrial motion presented a question of law which was ‘capable of determination without the trial of the general issue.’ Resolution of the defendant’s motion required the trial court to interpret a statute and apply the statute to undisputed facts.”[12]

The Federal Rule permits a similar pre-trial challenge based on undisputed facts. In United States v. Levin, the United States Court of Appeals for the Sixth Circuit affirmed the district court’s decision to dismiss a case pretrial after the application of the law to undisputed facts showed that the government could not satisfy its burden of proof.[13] The district court dismissed with prejudice all but 15 counts of a 560-count indictment because “the government was, as a matter of law, incapable of proving beyond reasonable doubt the requisite intent required to convict.”[14] The other 15 counts were dismissed without prejudice.[15]

In Levin the defendant-doctor was charged with Medicare fraud, false claims, mail fraud and false statements. He had participated in a promotion of intraocular lenses, which are lenses inserted during cataract surgery. The promotion, which had been approved by federal agencies as well as by insurance carriers, was the same throughout the industry. Federal agencies had assured participants that they would not be violating any reimbursement regulations by participating in the program.[16] It was because of his participation in this promotion that the defendant was charged with fraud. This evidence was presented during pretrial motions.

After the hearing on the pretrial motions, the district court found that there were no disputed facts and, because of the government agents’ assurances that these programs did not violate regulations, it was impossible for the prosecution to prove intent. At the hearing on the defendant’s Rule 12(b) pretrial motion to dismiss, the district court observed,

Technically, the government can’t be estopped, but I guess the rules don’t call for summary judgment in a criminal case, but if this is your evidence, it would be a directed verdict at the end, and I don’t know why I have to sit through two or three weeks while you put on what we know the evidence will be. There doesn’t seem to be a dispute of the facts in this case. It’s an unusual criminal case in that sense.[17]

The court affirmed the district court’s conclusion that based on “the undisputed extrinsic evidence … the defendant … could not, as a matter of law, have formulated the necessary intent to participate in a criminal act.”[18]

So, a question of government conduct may be raised pre-trial.[19[ The Levin decision shows that under certain circumstances, a trial court can even reach an issue of intent based on undisputed pre-trial fact determinations.

What other types of issues can be raised pre-trial? In United States v. Ali, a false statement case, the United States Court of Appeals for the Sixth Circuit addressed whether the statement was literally true:

Ali’s motion to dismiss did not assert an innocence defense; rather, it requested dismissal of the indictment on the ground that, as a matter of law, the undisputed facts did not give rise to the offense charged in the indictment. Stated differently, Ali’s contention that the undisputed facts demonstrate that he answered the question truthfully as a matter of law raises a purely legal question about whether the indictment stated an offense. See United States v. Vertz, 40 Fed.Appx. 69, 70 (6th Cir.2002) (unpublished) (stating that “where the defendant is arguing that as a matter of law the undisputed facts do not constitute the offense charged in the indictment, the Court is reviewing a question of law, not fact”). Because the question is a legal one, we conclude that Ali properly asserted it in a motion to dismiss.[20]

Similarly, a defense of recantation in a perjury prosecution has also been held to be capable of pre-trial determination.[21]

One big practical difference between a motion to dismiss based on undisputed facts and summary judgment is that a successful motion in a criminal case is exceedingly rare. The motion should only be considered if there is a clear question of law on whether the state can prevail. There might even be a tactical reason to reserve the argument for a motion for judgment of acquittal, but defense counsel should consider filing a motion when there is a strong legal argument that the charged statute does not apply to the alleged conduct.

Notes

1. Tenn. R. Crim. P. 12(b)(1).
2. Tenn. R. Crim. P. 12(e).
3. State v. Sherman, 266 S.W.3d 395, 403 (Tenn. 2008).
4. State v. Goodman, 90 S.W.3d 557, 561 (Tenn. 2002) (noting the disruptive nature of removing the jury during trial in order to conduct a hearing on a motion).
5. Sherman, 266 S.W.3d at 402 (citing United States v. Covington, 395 U.S. 57, 60 (1969)).
6. Id. (citing United States v. Jones, 542 F.2d 661, 665 (6th Cir. 1976)).
7. Sherman. 266 S.W.3d at 402 (emphasis added).
8. Goodman, 90 S.W.3d at 561; see also State v. Randolph, 676 S.W.2d 943 (Tenn. 1984) (holding that undisputed evidence can be used to decide a motion to dismiss based on a question of law).
9. State v. Sherman, 266 S.W.3d 395 (Tenn. 2008).
10. Sherman, 266 S.W.3d at 403.
11. Goodman, 90 S.W.3d 557, 559 (Tenn. 2002).
12. Id. at 561 (emphasis added).
13. United States v. Levin, 973 F.2d 463 (6th Cir. 1992).
14. Levin, 973 F.2d 463, 469.
15. Id. at 464.
16. Id. at 465.
17. Id. at 466 (emphasis added).
18. Id.
19. United States v. Conley, 859 F. Supp. 909, 926-31 (W.D. Pa. 1994) (defense based on misleading governmental conduct, sometimes called entrapment by estoppel, “should be raised by pretrial motion and the Court may conclusively determine the defense, resolving factual disputes as necessary”).
20. United States v. Ali, 557 F.3d 715, 719-20 (6th Cir. 2009). The Court ruled against Ali on the merits. See also United States v. Stewart, CRIM. 15-0047, 2015 WL 5012645, at *7 (W.D. Pa. Aug. 21, 2015)(citing Ali and dismissing a perjury count because it found the statement was not false).
21. United States v. Denison, 508 F. Supp. 659, 663 (M.D. La. 1981) aff’d, 663 F.2d 611 (5th Cir. 1981)(“the defense of ‘recantation’ is a matter that addresses itself to the Court and that under Rule 12, Fed.R.Cr.P., it ought to be raised by pretrial motion and disposed of by the Court”), cited in Wright & Miller, 1A Fed. Prac. & Proc. Crim. (4th Ed), § 191, Pleadings & Motions.

WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.