(concurring specially):
I concur in the decision and all of the opinion except the part that relates to the sufficiency of the indictment as it assumes that F.R.Crim.P. 12(b) (2) was satisfied. Here Appellant is properly faulted, not for the initial failure to meet the precise time table of Rule 12(b) (2) (3),1 but rather because it *1198was not until the close of the evidence (if then) that the sufficiency of the indictment was challenged.
Some place between the beginning and the almost end was available to raise-the point. The Court has much discretion in allowing a tardy challenge.2 And under some circumstances it may be determined on appeal that the defect may or should be noticed.3 But those circumstances are not present here.
But I reject the Court’s holding that on a timely, or postponed, permissible attack this indictment would be upheld. Every action charged was an every day business transaction between upright business men. What made this scheme fraudulent by proof was a plan to draw apparently legitimate drafts knowing that each would not be accepted on presentment. And through this “kiting” Varner kept his cheeking account current. But that was not charged.
With the transactions occurring in states as far off as California the trial itself revealed the impossibility of obtaining during the trial rebuttal witnesses on crucial points. Indeed the record shows that the Government’s
theory shifted from time to time and it was not until the jury verdict (or maybe on argument before us) that it jelled.
Granting that the indictment was sufficient to “charge an offense” I think that under the sweep of mail fraud prosecutions a citizen is entitled to be informed why what may be legitimate is not so in fact. Van Liew v. United States, 5 Cir., 1963, 321 F.'2d 664; Russell v. United States, 1962, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240.
We ought not jeopardize the rights of citizens by encouraging slovenly draftsmanship by the sovereign’s exclusive agent for the commencement and maintenance of a prosecution. See United States v. Cox, 5 Cir., 1965, 342 F.2d 167 (en banc), cert, denied, sub nom., Cox v. Hauberg, 1965; 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700; Luna v. Beto, 5 Cir., 1968, 395 F.2d 35 (en banc), cert, denied, 394 U.S. 966, 89 S.Ct. 1310, 22 L.Ed.2d 568; Sumrall v. United States, 5 Cir., 1968, 397 F.2d 924, cert, denied, 393 U.S. 991, 89 S.Ct. 467, 21 L.Ed.2d 455.
I therefore concur specially.
. “(b) The Motion Raising Defenses and Objections.”
* $ * * *
“(2) Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indictment or information * * * may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to prevent any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver * * * failure of the indictment or information *1198to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.”
“(3) Time of Making Motion. The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter.”
F.R.Crim.P. 12(b) (2) (3).
. See Finn v. United States, 4 Cir., 1958, 256 F.2d 304, and the recapitulation therein of a number of cases in which the sufficiency of the indictment was raised during different stages of the proceedings. See also United States v. Holmes, S.D.Tex., 1953, 110 F.Supp. 233; Wright, Federal Practice and Procedure, Criminal § 193. This is expressed in the “Notes of Advisory Committee on Rules”, 18 U.S.C.A. F.R.Crim.P. 12, where it is stated that “Subdivision (b) (3) * * * vests dis-
cretionary authority in the court to permit the motion to be made within a reasonable time [after pleading] * * * [and that] the rule supersedes 18 U.S.O. §§ 3288, 3289, formerly § 566a, fixing a definite limitation of time for pleas in abatement and motions to quash.”
. The following cases acknowledge that the sufficiency of the indictment “may be noticed by the court at any time during the pendency of the proceeding”, Gendron v. United States, 8 Cir., 1961, 295 F.2d 897, and, at whatever point this may happen to be, the court can then determine whether remedial action is necessary: United States v. Manuzak, 3 Cir., 1956, 234 F.2d 421; Walker v. United States, 5 Cir., 1965, 342 F.2d 22, cert. denied, 1965, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97; Hotch v. United States, 9 Cir., 1953, 208 F.2d 244, 14 Alaska 574.