Untimely Pre-Trial Motions: Clarification for "Unwary Counsel"

The Court has had a relatively quiet week with few published opinions.  One opinion, however, is worth a brief discussion.  In United States v. Trujillo-Molina, the defendant, who had been indicted for possessing a firearm while being illegally and unlawfully present in the United States, filed a motion to dismiss the indictment arguing that he was not, in fact, illegal because he had received relief from removal under ICE's Deferred Action for Childhood Arrivals ("DACA") program.  The problem, however, was that he filed the motion one month after the district court's pre-trial motions deadline.  The District Court subsequently denied the motion as untimely pursuant to Fed. R. Crim. P. 12.  

On appeal, the Court held, in an unpublished opinion, that the District Court did not abuse its discretion in denying the defendant's motion to dismiss as untimely.  While the Court's main holding was no surprise, the Court attempted to clarify, in a footnote, a point that it worried would cause confusion for "unwary counsel."  In particular, the Court reiterated that a party who fails to make a timely motion pursuant to Rule 12(b)(3) does not necessarily waive the issue he failed to raise in the motion.  Instead, the Court will review the issue for plain error.  Thus, the failure to timely file a timely pre-trial motion does not necessarily foreclose appellate review of the issue, although a defendant will have a difficult time in any appeal challenging the district court's denial of his pre-trial motion.