What is the test for a motion to dismiss an indictment based solely on factual allegations?

8 See the dissenting opinion in United States v. Jenkins, 490 F.2d 868, at 880 (2d Cir. 1973), for further views on the critical role of factual allegations in determining the nature of a dismissal of the indictment. It is true that the procedural situation in Jenkins was markedly different than here, since trial there was well underway; consequently we do not believe that the majority's opinion in Jenkins is contrary to our holding here.

9 The defendant argues that were we to permit an appeal under 3731 here, then no conscientious defense counsel would raise a motion to dismiss under Rule 12 until after trial had begun, thereby not only defeating the purpose of litigating defenses prior to trial, but also causing added expense to both the government and defendants so as to be ready in every case for a trial on the merits. See United States v. Findley, supra (fn. 7). We do not agree. At most counsel would only be sure to have pretrial motions under Rule 12 heard by the court, with both sides present, and with characterizations of evidence argued to the trier of fact. Where counsel has raised a defense which does not call for such a presentation of evidence, his client runs no more risk than on a motion for dismissal of an indictment based, for example, on the government's bill of particulars.