*

 Honorable Frederick P. Stamp, Senior District Court Judge, Northern

District of West Virginia, sitting by designation.

FILED

United States Court of Appeals

Tenth Circuit

July 23, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARK R. POPE,

Defendant-Appellant.

No. 09-4150

Appeal from the United States District Court

for the District of Utah 

(D.C. No. 2:08-cr-00303-DS-1)

Parker Douglas, Assistant Federal Defender (Steven B. Killpack, Federal

Defender, with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant.

Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, United

States Department of Justice, Washington, D.C. (Brett L. Tolman, United States

Attorney, and Diana Hagen and Carol A. Dain, Assistant United States Attorneys,

District of Utah; and Lanny A. Breuer, Assistant Attorney General, and Gary G.

Grindler, Deputy Assistant Attorney General, Washington, D.C., with her on the

brief), for Plaintiff-Appellee.

Before TACHA and GORSUCH, Circuit Judges, and STAMP, Senior District

Judge.*

GORSUCH, Circuit Judge.

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This case began when a grand jury indicted Mark Pope for violating 18

U.S.C. § 922(g)(9). That statute makes it a federal felony for a person previously

convicted of a misdemeanor crime of domestic violence to possess a gun. In

response to the indictment, Mr. Pope filed a motion to dismiss. While he

admitted to being previously convicted of a domestic violence crime, and to

possessing a gun, Mr. Pope pressed an affirmative defense that, he said, precluded

his conviction. Because he possessed the gun in question only on the property

where he was living and only to protect himself, others, or his property, he argued

that the application of § 922(g)(9) to him would violate the Second Amendment. 

While the statute may be constitutional as applied to other situations, it is, he

submitted, unconstitutional as applied to the facts of his case.

The district court denied Mr. Pope’s motion to dismiss and today we affirm

that decision. We do so without passing, one way or the other, on Mr. Pope’s

Second Amendment defense because an antecedent procedural problem lurks here. 

All the material facts on which Mr. Pope’s motion to dismiss relies are outside

the indictment, hotly disputed by the government, and intimately bound up in the

question of Mr. Pope’s guilt or innocence. Under these circumstances, Fed. R.

Crim. P. 12(b)(2) and our precedent preclude the resolution of Mr. Pope’s asapplied constitutional challenge before trial. 

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I

The indictment in this case is a model of Spartan prose. Count I, the only

portion of the indictment still at issue, alleges simply that “[o]n or about August

14, 2007, in the Central Division of the District of Utah, Mark R. Pope, the

defendant herein, having been convicted in any court of a misdemeanor crime of

domestic violence as defined in 18 U.S.C. § 921(33), did knowingly possess in

and affecting interstate commerce a firearm, that is, a .22 caliber High Standard

revolver; all in violation of 18 U.S.C. § 922(g)(9).” R. Vol. I at 8-9. 

In response to this charge, Mr. Pope filed a motion to dismiss arguing that

§ 922(g)(9) is unconstitutional as applied to him. Mr. Pope’s motion sought to

rely on the Supreme Court’s decision in District of Columbia v. Heller, 128 S. Ct.

2783 (2008), and its recognition of the Second Amendment’s individual right to

bear arms. See also McDonald v. City of Chicago, Illinois, __ S. Ct. __, 2010 WL

2555188 (2010). Mr. Pope readily acknowledged Heller’s dictum that its

recognition of an individual right was not meant to upset “longstanding

prohibitions on the possession of firearms by felons.” Id. at 2816-17; see also

McDonald, ___ S. Ct. at ___, 2010 WL 2555188, at *25; United States v.

McCane, 573 F.3d 1037, 1047 (10th Cir. 2009). But, while felons may be barred

from possessing firearms, Mr. Pope argued, the Second Amendment is violated

when misdemeanants are prevented from possessing firearms purely for the

“protection of self, property and home.” R. Vol. I at 23. See generally In re

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United States, 578 F.3d 1195 (10th Cir. 2009) (Murphy, J., dissenting); McCane,

573 F.3d at 1047-50 (Tymkovich, J., concurring); United States v. Skoien, ___

F.3d ___, 2010 WL 2735747 (7th Cir. 2010) (en banc). 

And this, he submitted, describes his situation exactly. While the

indictment was silent about the reason for his possession, Mr. Pope provided an

evidentiary proffer in an effort to fill the void. In his proffer, Mr. Pope claimed

that, while he was living with friends, he and one of his dogs were attacked by a

neighbor’s dogs. In response, he walked to the neighbor’s house carrying the

handle of an ax (though, he stressed, without the blade) and confronted her. After

the confrontation, the neighbor called the police to report the incident. When

officers arrived at the home where Mr. Pope was living, they found him in the

front yard with a pistol in his front pocket. Mr. Pope claimed the gun belonged to

his wife and, consistent with Heller’s recognition that “the need for defense of

self, family, and property is most acute” in “the home,” 128 S. Ct. at 2817, he

claimed that he had taken possession of his wife’s gun for exactly these reasons. 

In these circumstances, he contended, any conviction under § 922(g)(9) would be

unconstitutional and so the indictment against him had to be dismissed.

Opposing Mr. Pope’s motion, the government argued that, as a general rule,

motions to dismiss seeking to test the legal adequacy of an indictment must be

analyzed solely on the basis of the factual allegations contained in the indictment. 

And, the government emphasized, none of the facts essential to Mr. Pope’s asAppellate Case: 09-4150 Document: 01018462704 Date Filed: 07/23/2010 Page: 4 
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applied constitutional challenge could be found in the indictment. The

government acknowledged that an exception to the general rule against resort to

facts outside the indictment exists when the motion is based on agreed facts, the

government offers no objection to the consideration of those facts, and the motion

is capable of resolution as a matter of law. But, the government argued, this

particular exception “is inapplicable here.” R. Vol. I at 29. Indeed, the

government proceeded to argue that the facts surrounding Mr. Pope’s offense

were very different from those he described. At trial, the government said it

would show that (1) Mr. Pope was never attacked by the neighbor’s dogs, and (2)

Mr. Pope threatened the neighbor that, if he ever saw her dogs outside her yard,

he would kill both them and her. And, the government seemed to suggest, if the

district court did venture outside the indictment to consider the facts likely to be

adduced at trial, these same facts would preclude the conclusion that § 922(g)(9)

is unconstitutional as applied to this case because they show Mr. Pope wasn’t

seeking simply to protect “self, property, and home.” R. Vol. I at 23.

The district court took the parties’ dispute under advisement and soon

issued a succinct order stating that “the Court hereby adopts the position of the

United States and denies the Defendant’s Motion to Dismiss.” R. Vol. I at 49.

From this, we understand the district court to have adopted both (1) the

government’s position that the motion wasn’t ripe for resolution before trial,

because deciding it would require resort to disputed facts outside the indictment;

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and (2) the government’s apparent additional view that, even if the motion could

be resolved before trial, it would have to be decided against Mr. Pope on the

merits. 

After the district court’s ruling, Mr. Pope opted to plead guilty and was

sentenced. In agreeing to plead guilty, however, he reserved his right to appeal

the district court’s denial of his pre-plea motion to dismiss. Mr. Pope now

exercises that reserved right before us. 

II

We affirm. We do so not on the merits of the constitutional question but

because we agree that Mr. Pope’s motion to dismiss could not be appropriately

resolved before trial. In reaching this holding, we first outline the legal principles

that govern our analysis before turning to their application in this case.

A

The Federal Rules of Criminal Procedure encourage the pretrial resolution

of a number of important, and even some potentially dispositive, matters. So, for

example, parties must raise certain arguments before trial — such as those

seeking the suppression of the evidence on which the prosecution relies — or risk

waiving them. See Fed. R. Crim. P. 12(b)(3), (e). Other issues may be addressed

by pretrial motion at a party’s election. See Fed. R. Crim. P. 12(b)(2). But still

other matters may not be raised by pretrial motion at all. Id.

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With respect to this final category, Rule 12 authorizes the district court to

resolve before trial only those motions “that the court can determine without a

trial of the general issue.” Fed. R. Crim. P. 12(b)(2) (emphasis added). In a

criminal case, the “general issue” is “defined as evidence relevant to the question

of guilt or innocence.” United States v. Yakou, 428 F.3d 241, 246 (D.C. Cir.

2005) (quotation marks omitted). Thus, the Supreme Court has instructed, Rule

12 permits pretrial resolution of a motion to dismiss the indictment only when

“trial of the facts surrounding the commission of the alleged offense would be of

no assistance in determining the validity of the defense.” United States v.

Covington, 395 U.S. 57, 60 (1969); see also United States v. Knox, 396 U.S. 77,

83, 83 n.7 (1969); United States v. Mandujano, 425 U.S. 564, 585 n.1 (1976)

(Brennan, J., concurring). If contested facts surrounding the commission of the

offense would be of any assistance in determining the validity of the motion, Rule

12 doesn’t authorize its disposition before trial.

The reasons that have been offered for this longstanding rule are many and

various. See 1A Charles Alan Wright & Andrew D. Leipold, Federal Practice and

Procedure § 190, at 385 (4th ed. 2008) (“With slight alteration [Rule 12(b)(2)] has

remained unchanged since the Rules were first adopted”); id. at 442 n.7

(discussing alteration of language in 1975). Perhaps most prominent among them

is respect for the role of the jury. The jury is, of course, charged with

determining the general issue of a defendant’s guilt or innocence. Fact-finding by

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the district court based on evidence that goes to this question can risk trespassing

on territory reserved to the jury as the ultimate finder of fact in our criminal

justice system. See United States v. Fadel, 844 F.2d 1425, 1430 (10th Cir. 1988);

United States v. King, 581 F.2d 800, 801-02 (10th Cir. 1978); United States v.

Shortt Accountancy Corp., 785 F.2d 1448, 1452-53 (9th Cir. 1986); see also

Wright & Leipold, supra, § 194, at 442 n.7 (noting that genesis of the rule was to

prevent resolution of issues that belonged to the jury). But this is not the only

rationale cited for the rule. Even when the court is ultimately responsible for

deciding the merits of a legal defense, it is sometimes said evidence adduced at

trial can provide a “more certain framework” for its analysis — particularly when

it isn’t clear before trial precisely what evidence will and won’t be admissible. 

United States v. Reed, 114 F.3d 1067, 1070 (10th Cir. 1997) (holding that district

court’s void-for-vagueness determination “should be based only on the facts as

they emerge at trial”). And, of course, it also disserves judicial economy to hold

a separate “mini-trial”on a defense only to repeat the exercise with largely the

same evidence a short time later at the trial itself. A pretrial hearing in these

circumstances may wind up being little more than a “dress rehearsal[]” that is not

only needlessly repetitive but that might also facilitate an end-run around the

limited discovery rules governing criminal prosecutions. Fadel, 844 F.2d at

1430; see Fed. R. Crim. P. 16(a), 26.2; 18 U.S.C. § 3500. After all, unlike their

civil counterparts, criminal proceedings have no extensive discovery and

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summary judgment procedures requiring both sides to lay their evidentiary cards

on the table before trial. See, e.g., United States v. DeLaurentis, 230 F.3d 659,

661 (3d Cir. 2000). Rule 12(b)(2), it is said, helps draw and police this

distinction between civil and criminal procedure.

Accepting that Rule 12(b)(2) has long governed, and continues to govern,

federal criminal proceedings, what motions might be said to be susceptible to

pretrial determination without implicating what the Rule calls “trial of the general

issue”? They fall into two general categories. First, some pretrial motions simply

do not implicate the general issue at all. These include motions related to what

evidence might be admitted at trial (e.g., suppression motions), or the conduct of

and preparation for trial (e.g., joinder of offenses and codefendants, venue, bills

of particulars, and discovery), for example. See Wright & Leipold, supra, § 191,

at 390-92. They also include other motions that seek and result in dismissal of

the case altogether but that can be decided, at least in the circumstances of the

case at hand, without deciding any disputed questions of fact about the

circumstances of the alleged crime (e.g., some speedy trial violations). See id. 

So long as a motion implicates “fact[s] peculiar to the motion,” and not facts

surrounding the question of guilt or innocence, it can’t be said to implicate the

general issue. Covington, 395 U.S. at 60. See also Rule 12(d) (requiring district

court to state its “essential findings on the record”). Motions of this kind,

however, may involve only the taking of evidence that is “entirely segregable

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from the evidence to be presented at trial.” United States v. Barletta, 644 F.2d

50, 58 (1st Cir. 1981) .

Second, other motions may implicate the general issue, but they present

themselves for resolution before trial because they don’t require a trial of the

general issue. So, for example, a court may always ask “whether the allegations

in the indictment, if true, are sufficient to establish a violation of the charged

offence” and dismiss the indictment if its allegations fail that standard. United

States v. Todd, 446 F.3d 1062, 1068 (10th Cir. 2006). Even if this question can

be fairly said to implicate the general issue, it doesn’t require a trial because it

focuses solely on the facts alleged in the indictment and their legal adequacy. See

United States v. Sampson, 371 U.S. 75, 78-80 (1962). Of course and likewise,

courts may entertain motions that require it to answer only pure questions of law. 

See, e.g., Covington, 395 U.S. at 60; Serfass v. United States, 420 U.S. 377, 382

(1975); see also Wright & Leipold, supra, § 191, at 392-93. And, we have held,

courts may entertain even motions to dismiss that require resort to facts outside

the indictment and bearing on the general issue in the “limited circumstances”

where “[1] the operative facts are undisputed and [2] the government fails to

object to the district court’s consideration of those undisputed facts,” and [3] the

district court can determine from them that, “as a matter of law, the government

is incapable of proving its case beyond a reasonable doubt.” United States v.

Hall, 20 F.3d 1084, 1088 (10th Cir. 1994). 

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We have explained that dismissals under this latter rubric are the “rare

exception.” Id.; see also Todd, 446 F.3d at 1068. This is because they are “not

made on account of a lack of evidence to support the government’s case” or, put

differently, the government’s refusal to come forward with evidence to support its

case in the face of a defendant who has presented his own proof. Todd, 446 F.3d

at 1068. And this is because, again, the parties to a criminal proceeding have

comparatively few obligations to present their evidence to their adversaries prior

to trial; Rule 12 is not a parallel to civil summary judgment procedures. Instead,

dismissals under the rubric we set forth in Hall can be had only when and

“because undisputed evidence shows that, as a matter of law, the Defendant could

not have committed the offense for which he was indicted.” Todd, 446 F.3d at

1068. The extra-indictment evidence thus must be undisputed in the sense that it

is agreed to by the parties — neither side having expressed any objection to its

consideration or any objection to its completeness and accuracy. Indeed, we have

held even latent factual disputes over circumstances surrounding the commission

of the alleged offense can sometimes prevent pretrial determination of a defense. 

See Reed, 114 F.3d at 1070 (rejecting the district court’s pretrial determination of

an as-applied challenge based upon a mere proffer of facts, even when the

opposing party didn’t object to that proffer). To warrant dismissal, it must be

clear from the parties’ agreed representations about the facts surrounding the

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1

 The parties have not identified any precedent in this court concerning the

appropriate standard of appellate review for assessing a district court’s Rule

12(b)(2) decision denying a pretrial motion to dismiss. Because it doesn’t matter

to the outcome of this case, we review this appeal de novo, the most favorable

standard potentially available to Mr. Pope, and do so without holding that

standard necessarily applicable to future disputes. As a matter of judicial

restraint, we generally leave the resolution of questions of law to cases where

they make a difference. See, e.g., Hydro Res., Inc. v. Envtl. Prot. Agency, ___

F.3d ___, 2010 WL 2376163, at *12 n.10 (10th Cir. 2010) (en banc).

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commission of the alleged offense that a trial of the general issue would serve no

purpose. 

B

Applying these principles to the case before us confirms that Mr. Pope’s

motion to dismiss isn’t one eligible for resolution before trial because it

implicates the general issue and requires trial.1

 

To begin, the general issue. Mr. Pope’s motion doesn’t seek dismissal on

the basis of issues collateral to the question of his guilt or innocence. His is no

motion based on a Speedy Trial Act violation or seeking the suppression of

evidence, for example. Instead, Mr. Pope seeks to vindicate an affirmative

defense bearing directly on his guilt or innocence, arguing that he cannot be

guilty of the charged offense by dint of the Constitution’s guarantees. Proving as

much is the whole point of Mr. Pope’s motion to dismiss. Furthermore, the “facts

surrounding the commission of [Mr. Pope’s] alleged offense,” Covington, 395

U.S. at 60, are hardly irrelevant to deciding his defense: the who, what, where,

when, why, and how of his firearm possession will determine the validity of his

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as-applied challenge. He does not claim, after all, that § 922(g)(9) is facially

unconstitutional on any set of facts, but instead claims only that it’s

unconstitutional as applied to his particular circumstances. In other words, he

contends the statute is unconstitutional only in light of the “facts surrounding the

commission of the alleged offense,” Covington, 395 U.S. at 60 — the very facts a

court may not consider before trial. 

Mr. Pope’s motion likewise requires a trial of the general issue. This is

because it does not rest on a pure question of law, the facts charged in the

indictment itself, or agreed extra-indictment facts. Instead, Mr. Pope concedes

that, to prevail on his motion, certain disputed facts outside the indictment must

be found in his favor, facts that allegedly show he retained a gun only on his

property and only to protect himself, others, or his home. We must ask whether

he was threatened by the neighbor’s dogs (as he alleges) or not (as the

government contends). And we must ask whether he was seeking simply to

protect himself, others, and his place of residence from dangerous dogs (as he

suggests) or whether he also threatened to injure the dogs’ owner and did so

without provocation (as the government suggests). The resolution of these

contested facts is essential to the resolution of his affirmative defense. In all

these ways, Mr. Pope’s affirmative defense implicates trial of the general issue. 

See United States v. La Cock, 366 F.3d 883, 889 (10th Cir. 2004) (holding that “a

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contested affirmative defense” generally “should be resolved at trial, not during a

motion to dismiss the indictment”). 

 This is not to say that affirmative defenses are categorically ineligible for

pretrial resolution. Even among affirmative defenses that implicate the general

issue of the defendant’s guilt or innocence, not all require a trial of the general

issue: some involve only a pure question of law and others implicate only facts

found in the indictment or facts agreed to by the parties. See, e.g., United States

v. Poulin, 588 F. Supp. 2d 58, 61 (D. Me. 2008). At the same time, though, we

must acknowledge, as many have before us, that many affirmative defenses do

depend on the resolution of disputed facts bearing on the question of guilt or

innocence. This is just another in a long line of cases recognizing as much. See,

e.g., Knox, 396 U.S. at 83-84 (affirmative defense of duress must be determined

at trial because it implicates trial of the general issue); Reed, 114 F.3d at 1070-71

(vagueness); United States v. Tafoya, 376 F. Supp. 2d 1257, 1260 (D.N.M. 2005)

(sufficiency of the evidence); La Cock, 366 F.3d at 889 (affirmative defense that

device was not designed as a weapon within the meaning of the statute); Fadel,

844 F.2d at 1430-31 (entrapment); United States v. Doe, 63 F.3d 121, 125 (2d Cir.

1995) (affirmative defense that crime was committed as a public authority);

Poulin, 588 F. Supp. 2d at 60-62 (as-applied constitutional challenge). 

To all this, Mr. Pope offers two replies meriting mention. First, he says,

the government never objected to the district court’s consideration of facts

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outside the indictment. Mr. Pope stresses that the government offered its own

competing facts and, he suggests, this amounted to a “tacit[]” acquiescence to Mr.

Pope’s wish to look to facts outside the indictment. Reply Br. at 1. In fact,

however, the government expressly noted that a motion challenging the

indictment’s ability to state a criminal violation should normally be decided

“solely on the basis of the allegations made on [the indictment’s] face, and such

allegations are to be taken as true.” R. Vol. I at 29 (quoting Hall, 20 F.3d at

1087); see also Gov’t App. Br. at 27-28; supra Section I. The government then

argued that it is a “rare exception” when facts outside the indictment may be

considered; that this exception exists only when the motion is based on

“undisputed facts” agreed to by the parties; and that this “exception is

inapplicable here.” R. Vol. I at 29 (quoting Hall, 20 F.3d at 1088); see also supra

Section I. Plainly, the government did contest the district court’s ability to

resolve Mr. Pope’s motion on the basis of facts outside his indictment. While the

government proceeded to offer its own (disputed) extra-indictment facts and

suggest that Mr. Pope’s motion would also fail in light of them (something it

again does on appeal), this only serves to highlight that Mr. Pope’s motion lacks

the sort of genuinely undisputed factual record that might render it amenable to

pretrial resolution under Rule 12(b)(2).

 Second, Mr. Pope submits that at least some of the extra-indictment facts he

presented in connection with his motion to dismiss in the district court were

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2

 On appeal, the government argues that the agreed extra-indictment facts

actually undercut Mr. Pope’s Second Amendment argument, pointing to certain

(unhelpful to his cause) factual admissions Mr. Pope made in his plea agreement. 

Mr. Pope replies that the plea agreement came after the denial of his motion to

dismiss, so the agreement’s factual recitations were not “before the district court

when it issued the order denying Mr. Pope’s motion to dismiss the indictment,”

Reply Br. at 3; and, he argues, this court generally (if not always) confines its

review of a district court’s ruling to the materials that were before that court at

the time of its decision. This dispute, however, makes no difference to our

outcome: we need not and do not rest anything on the plea agreement or its

recitation of facts in reaching our decision today.

Separately, Mr. Pope’s motion for leave to withdraw his earlier motion to

strike portions of the government’s brief is granted. While Mr. Pope’s motions

were pending, the clerk’s office permitted the government’s brief to remain filed

under seal. We now direct the clerk’s office to lift the seal and make the

government’s brief part of the public record.

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agreed to by the parties, and he invites us to decide his case based on them. He

says, for example, that it’s agreed (1) he wasn’t carrying the gun (only an ax

handle) when he spoke to the owner of the dogs; (2) he possessed the gun only on

the property where he was then living; and (3) his reason for carrying the gun was

for the protection of himself and his property. But, as it happens, the government

has actively disputed (3), never agreed to (2), and contested the significance of

(1) and (2). The hard reality of the case for Mr. Pope is that the material facts

that might shed light on whether his gun possession was really and only for the

defense of self, others, or property are outside the indictment and fiercely

disputed. In these circumstances, we can hardly say it was error for the district

court to deny his pre-trial motion to dismiss.2

* * *

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The district court’s denial of Mr. Pope’s motion to dismiss his indictment is

Affirmed.

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