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.
This may explain why the government has never itself argued that the district court erred in considering extrinsic evidence for purposes of the defendants’ motion to dismiss. In fact, the government agrees with the defendants that the offenses charged took place partly in Alaska and approaches the defendants’ motion on that basis. See, e.g., Appellant’s Opening Brief at 7-8 (“[I]t is undisputed that during the time period identified ... this vessel was operated ... within three miles of land in the District of Alaska, and upon the high seas.”).
Consideration of the defendants’ evidence does no damage to the principle that we presume the truth of the allegations in the charging instruments. The defendants were charged in the Western District of Washington, their last known residence, with operating a vessel in a grossly negligent manner upon the high seas. Venue was predicated on 18 U.S.C. § 3238, which permits venue in the defendants’ last known residence for offenses “begun or committed” upon the high seas or elsewhere outside the jurisdiction of a state or district. For purposes of their motion to dismiss, the defendants do not seek to counter the informations’ factual allegations that they negligently operated a vessel upon the high seas. Rather, accepting the truth of these allegations, the defendants contend that venue is nonetheless improper because, as the undisputed evidence shows and the government concedes, the ships also sailed in Alaskan waters during the time period charged.
*671Rule 12(b) provides that “[a]ny defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.” Fed. R.Crim.P. 12(b). “A defense is thus ‘capable of determination’ if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” Covington, 395 U.S. at 60, 89 S.Ct. at 1561. The defendants’ motion to dismiss is premised on the argument that, as a matter of law, venue may not be founded upon § 3238 where the alleged offense involved any activity in the United States, even if the offense also took place partly upon the high seas. The issue presented is legal and can be resolved without interfering with the jury’s fact finding role. See Shortt Accountancy Corp., 785 F.2d at 1452. Accordingly, I would reach the merits of the motion. Cf. United States v. Levin, 973 F.2d 463, 469-70 (6th Cir.1992) (affirming district court’s pretrial dismissal of the indictment where “the undisputed extrinsic evidence” showed that the defendants could not, as a matter of law, have formulated the necessary criminal intent); Jones, 542 F.2d at 665 (upholding district court’s pretrial dismissal of indictment because “[t]he facts surrounding the alleged offense were virtually undisputed and trial of the substantive charges would not substantially assist the Court in deciding the legal issue raised by the motion to dismiss the indictment.”). Otherwise, the same issue-with the same evidence-will be raised at trial, the defendants will again move to dismiss for improper venue, the district court will again rule on the motion, and the issue will be back before this court.
Although the issue is not free from doubt, I would hold that 18 U.S.C. § 3238 is applicable despite the vessels’ traveling in Alaskan waters. 18 U.S.C. § 3238 provides that “[t]he trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district ... may be filed in the district of the last known residence of the offender....” That the defendants also operated their vessels within the District of Alaska does not remove section 3238’s applicability-the alleged offense was still “begun or committed” upon the high seas during the period charged. Cf 8A James A. Moore, et al., Moore’s Federal Practice ¶ 18.06[3] (2d ed.1995) (noting that some courts have applied section 3238 to “cover offenses which are begun or done partly outside any district or on the high seas, but are completed or have their intended effects within the United States”); 18 U.S.C. § 3237(a) (providing that offenses committed in more than one district may be prosecuted “in any district in which such offense was begun, continued or completed”); United States v. Williams, 589 F.2d 210, 213 (5th Cir.1979), adopted in pertinent part, 617 F.2d 1063, 1071 (1980) (en banc); United States v. Levy Auto Parts, 787 F.2d 946, 950-52 (4th Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 108, 93 L.Ed.2d 56 (1986). If the government is able to prove at trial that the defendants negligently operated the vessels upon the high seas during the time period charged, despite the fact that they also operated the vessels within the District of Alaska during that time, venue in the Western District of Washington will properly lie under section 3238. Thus, the district court erred in granting the defendants’ motion to dismiss.