John Helms Dallas Federal Drug Crime Lawyer Explains the Nuance of Filing Pretrial Motions

Sometimes, those accused of federal drug crimes believe their lawyer should file a lot of pretrial motions, and the more, the better. Usually, they are not sure what types of motions they want filed, but they often believe that filing motions shows that their lawyer is fighting for them. If they are in custody, they may have heard other detainees talking about a lawyer filing pretrial motions, so they want their own lawyer to do that, too.

To answer whether it is important to file them, let’s first discuss what a pretrial motion really is. A pretrial motion is a request to the judge, before trial and usually in writing, to make a ruling on an issue or to enter an order of some kind. So, you are asking the judge to do something. 

The Federal Rules of Criminal Procédure and the judge’s Pretrial Order and Scheduling Order will set out procedures that the parties have to follow. If something is covered by the rules or the judge’s standard orders, you do not need to file a motion requesting it. 

For example, it is very common for judges to order the Government to turn over all discovery by a certain date, as part of a standard Scheduling Order. This means there is no need to file a motion for general discovery.

Federal pretrial motions are governed by Rule 12 of the Federal Rules of Criminal Procedure. So, what are the typical pretrial motions in federal drug cases? One fairly common one is a Motion to Suppress Evidence. See Fed. R. Crim. P. 12(b)(3)(C). This type of motion asks a judge to keep certain evidence out of the trial because of a violation of a law or the Constitution. A typical example is a motion to keep out evidence that law enforcement discovered during a search of a vehicle or a house, because the search violated the defendant’s constitutional rights. Another is a motion to suppress statements the defendant made while in custody and without having been informed of the Miranda rights.

Motions to Suppress can be very effective for the defense, because they can sometimes knock out critical evidence that the Government cannot win without. A good federal criminal defense lawyer should always carefully evaluate whether there is a viable motion to suppress that could help the defense of the case. 

But what if there is not a legitimate basis to file a Motion to Suppress? What if the case does not involve any illegal searches or Miranda violations? In that case, there is simply no Motion to Suppress that can be filed.

Another type of pretrial motion is a Motion for a More Definite Statement or a Bill of Particulars. See F. R. Crim. P. 12(b)(3)(B)(iii). This asks the judge to order the Government to provide more details about the charges in the indictment. This type of motion is appropriate when the indictment does not provide enough detail to tell the defendant exactly what the Government claims the defendant did that was illegal.

For example, many types of federal crimes involve alleged false statements, such as false statements to law enforcement, in violation of 18 USC S 1001. If the indictment only says that the defendant made a false statement, but does not describe what the alleged false statement

was, then the judge should order the Government to provide that description. Otherwise, a defendant would have to guess at what the alleged false statement was.

In federal drug cases, the indictments usually identify the date of the alleged crime, the type of drug involved, and the quantity the Government must prove at trial in order to obtain a conviction. This is usually enough to give the defendant notice of the crime with which the defendant is charge, so a Motion for a More Definite Statement or a Bill of Particulars is rare in federal drug cases.

Another type of pretrial motion is a Motion to Dismiss the Indictment. See Fed. R. Crim. P. 12(b)(3)(B). These ask the judge to dismiss the indictment and end the case because of some sort of flaw in the indictment. For example, an indictment is flawed and should be dismissed if it does not allege that the defendant committed all of the essential legal elements of a crime. So, if an essential element is that a defendant acted intentionally, but the indictment does not allege that, it should be dismissed. Or, if it is an essential element that there was an effect on interstate commerce, and the indictment does not allege this, it should be dismissed. Or, if the prosecution is barred by the statute of limitations, the indictment should be dismissed.

Another type of Motion to Dismiss the Indictment is based on misconduct by the prosecutor, such as for withholding evidence the prosecutor is required to produce. For this to succeed, though, the misconduct must be severe and generally something that cannot be remedied by a continuance. This rarely happens. 

Some people believe that a Motion to Dismiss the Indictment is an opportunity to argue the case—to try to convince the judge that the Government has a weak case or that the Government’s witnesses will not be credible. This is not accurate. When a grand jury has voted for an indictment, a judge cannot weigh in on the strength of the case. That job is for a jury, which must decide whether the evidence proves guilt beyond a reasonable doubt.

Motions to Dismiss the Indictment are rare in federal drug cases and rarely succeed. Federal prosecutors generally know how to draft indictments, are aware of statutes of limitation, and very rarely commit misconduct.

Finally, another type of pretrial motion is the Motion in Limine. This asks a judge to make a pretrial ruling that certain specified evidence or information cannot

be mentioned in front of the jury unless the judge specifically allows it at that time.

For example, a defendant might file a Motion in Limine to prevent the Government or its witnesses from mentioning that another person involved in the case had a gun, if the defendant was not aware of it. By asking for this ruling before the trial begins, the defense lawyer can prevent the prosecutor or a Government witness from blurting it out before the defense can object.

Motions in Limine are fairly common, but they are filed only when there is evidence or information that a party believes the other side will try to introduce, and for which there is a reason to keep it out under the Federal Rules of Evidence. In many cases, there is not a need or basis to file one. Experienced defense counsel, however, should always try to anticipate the potentially inadmissible evidence the Government might try to introduce and file a Motion in Limine to keep it out, if appropriate.

This discussion shows that there are many different kinds of pretrial motions, but that they might not be appropriate or necessary in a given case. Whether a particular motion should be filed depends on whether it is justified in the particular case.

Although I have had a lot of success with pretrial motions in federal criminal cases, including a recent Motion to Suppress my client’s statements under Miranda that I won in federal court in Dallas, there are cases that I take to trial and win without filing any pretrial motions. See United States v. Coulter, No. 3:19-CR-00068, in the United States District Court for the Northern District of Texas. I disagree that it is important to file pretrial motions just to look busy or to impress a client. 

I also believe that filing meritless motions can hurt my clients. If I file a bunch of meritless motions, there is a chance that I may lose the one good motion I file because the judge doubts my credibility. Similarly, if I get a reputation for filing a lot of meritless motions, judges may not take a good motion as seriously. 

One thing that separates an experienced criminal defense lawyer from the others is the knowledge and judgment to understand what arguments are available and what arguments should actually be made. Just because I can make an argument does not mean it is a good idea to do so. For example, there are many times during trials when I could object to questions, but I do not, because I know that the testimony is not hurting my case, the jury is bored and not paying attention, and that an objection would just cause the jury to perk up and pay closer attention. I believe it is far more important to think strategically than to try whatever comes to mind.

Federal drug cases are extremely serious. A conviction can often mean many years in federal prison without the possibility of parole. If you or a loved one is facing federal drug charges, you should consult with an experienced federal criminal defense lawyer whose skill and judgment you can trust and on whom you can rely—not someone who tries to impress clients by doing useless things to appear busy.