Jensen
United States v. Jensen
Opinion
Lead Opinion
Kozinski, J.
Opinion by Judge KOZINSKI; Concurrence by Judge FLETCHER.
We determine whether the government charged these criminal defendants in the right place at the right time.
I.
Ronald R. Jensen and Frederick Carl Peterson were jointly charged with two counts of sending the Arctic Enterprise, a fish processing ship, 1 to sea in an unseaworthy condi *669 tion, 46 U.S.C. § 10908 . Jay Clifford was separately charged with one count of violating the same provision with respect to the Aleutian Enterprise, another fish processing ship. Defendants moved to dismiss the first count of the Jensen/Peterson indictment and the only count of the Clifford indictment. They argued that venue in the Western District of Washington was improper because, at the time the crimes were alleged to have been committed, the vessels.were either in Alaskan waters or on the high seas. To support their contention, defendants attached a marine accident report, a marine casualty report and two affidavits of a marine investigator who had examined the vessels’ logbooks.
The government then moved to dismiss the indictments and substitute informations charging Jensen and Peterson with two counts, and Clifford with one…
Concurring Opinion
Fletcher, J.
concurring:
I concur in the result, but on different grounds. The majority concludes that the district court erred in considering the documentation provided by the defendants in support of their pretrial motions to dismiss. I respectfully disagree. There is no prohibition against the consideration of extrinsic evidence for purposes of a Rule 12(b) motion to dismiss. Rule 12(b) “permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion.” United States v. Covington, 395 U.S. 57, 60 , 89 S.Ct. 1559, 1561 , 23 L.Ed.2d 94 (1969). “[A] district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motions so long as the court’s findings on the motion do not invade the province of the ultimate finder of fact.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.1986) (quoting United States v. Jones, 542 F.2d 661, 664 (6th Cir.1976) (footnote omitted)), cert. denied, 478 U.S. 1007 , 106 S.Ct. 3301 , 92 L.Ed.2d 715 (1986). “The District Court [is] not limited to the facts of the indictment in ruling on the motion to dismiss.” Jones, 542 F.2d at 665 .