(dissenting):
Being of the view that jeopardy attached by virtue of the judgment of acquittal entered in the prior trial of defendants, and that Rule 12(b)(2), F.R. Crim.P., prevents defendants from being barred from claiming double jeopardy because of their delay in challenging the indictment, I would dismiss the government’s appeal. I therefore respectfully dissent.
Defendants-appellees Kehoe and Bullock were indicted in 1973 under 18 U.S. C.A. § 657 for the offense of embezzling real property. The case proceeded to trial and at the close of the government’s case-in-chief both defendants moved for a judgment of acquittal under Rule 29 F.R.Crim.P. on several grounds, one being that the indictment failed to charge an offense. They argued that real property could not be embezzled and that no case of embezzlement of any property had been established by the government’s evidence. The district court granted this motion, agreeing with defendants on both points.
A second indictment was then obtained charging these same defendants with fraudulently receiving the benefits of a federally insured savings association transaction in violation of 18 U.S.C.A. § 1006. This indictment related to the same criminal misconduct alleged in the indictment previously dismissed, and the evidence to have been offered was also the same. Defendants moved to dismiss this second indictment on the grounds that jeopardy had attached in the prior *87proceeding. This motion was granted and the government now appeals.
The government contends that the judgment of acquittal in the first proceeding was in fact a dismissal of the indictment for failure to charge an offense. It is argued that the district court did not reach the merits of the case, that there was no verdict in defendants’ favor, and that therefore no jeopardy attached. I find no substance in these contentions. It appears that the district court did consider the evidence presented and therefore went beyond the face of the indictment in its ruling.
Recent United States Supreme Court decisions make it clear that principles of double jeopardy bar subsequent reprosecution once a case has terminated in defendant’s favor based upon factual conclusions not found in the indictment but instead upon evidence adduced at trial. United States v. Jenkins, 1974, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250. See also Serfass v. United States, 1975, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265; United States v. Wilson, 1975, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232. The first question then is whether the trial court relied on such evidence in its determination. The district court in the second proceeding answered this question in the affirmative and I agree.
The critical language of the court in the first proceeding is as follows:
This Court was aware of and concerned with the fine distinctions being made when the motion for judgment of acquittal was urged by defendants at the close of the Government’s case. Had the evidence shown that the property was sold by and for the benefit of Surety Savings with the defendants in their fiduciary capacities diverting the consideration of such sale for their own benefit, an indictment alleging embezzlement might have been proper. However, the circumstances of this case, accepted as true for purposes of this motion, showed that the alleged consideration never was intended to flow to Surety but only to the defendants. Although the defendants ostensibly deprived Surety Savings of real estate holdings, no funds, credits or securities belonging to Surety were taken. While this distinction is a fine one, it is one that is critical to the offense of “embezzlement.” (Emphasis added)
Thus it appears that the court found that the government had not put on sufficient evidence to sustain a conviction of embezzlement since embezzlement could not be of real property and the government failed to show that any personal property had been taken in the transaction.
Jenkins, supra, is controlling where, as here, facts adduced after defendants were put on trial before a trier of facts were considered in dismissing the indict^ ment. 420 U.S. at 369-370, 95 S.Ct. 1006, 43 L.Ed.2d at 259. Jeopardy attaches, according to Serfass, when a defendant is put to trial before the trier of the facts. 420 U.S. at 389-393, 95 S.Ct. 1055, 43 L.Ed.2d at 274. This rule, according to Jenkins, includes a case where an indictment is dismissed by utilizing facts developed in that trial in connection with the dismissal although the trial did not reach the point of a verdict or judgment. 420 U.S. at 369-370, 95 S.Ct. 1006, 43 L.Ed.2d at 259. Such facts were utilized here.1
The opinion prepared by Judge Thorn-berry, as I perceive it, recognizes that Jenkins, without more, would control the disposition of this appeal and require affirmance. Jenkins is avoided, however, by deciding and applying the reserved hypothetical of Serfass, thus necessitat*88ing a balancing test with the result of estopping defendants from asserting a double jeopardy defense. This approach, in my judgment, misconstrues the reserved question in Serfass, decides it incorrectly as construed, and denies a constitutional right because of delay in the face of Rule 12(b)(2).
The issue then is whether defendants are barred from claiming double jeopardy under the circumstances because they could have but did not challenge the indictment until the close of the government’s case-in-chief. They could have questioned the indictment before trial by a motion to dismiss for failure to charge an offense under Rule 12(b)(2).2 The same rule, however, provides that such a failure may be noticed by the court at any time. Defendants chose to wait until the close of the government’s case-in-chief to make their motion and the court took notice of it. At that point, the sufficiency of the evidence was drawn into issue with respect to the validity of the indictment.
In Serfass, supra, the Supreme Court saved the question of the government being denied a right to appeal by the strategy of a defendant, although afforded an opportunity to do so prior to trial, knowingly allowing himself to be placed in jeopardy before raising a legal defense. 420 U.S. at 394, 95 S.Ct. 1055, 43 L.Ed.2d at 277.3 It must be remembered that the question being considered was only that of the right of the government to take an appeal under 18 U.S. C.A. § 3731. This statute permits an appeal by the government unless further prosecution' is prohibited by the double jeopardy clause. The question saved went only to this and not, as the majority opinion does, to the delay being a bar of a jeopardy defense itself.
Whatever the Supreme Court meant by its reservation of the question, I do not understand it as creating a problem in this case. We have, in effect, entertained the appeal to determine whether we have jurisdiction under 18 U.S.C.A. § 3731. Section 3731 provides that no appeal shall lie where the double jeopardy clause of the Constitution prohibits further prosecution.4 What the government has in fact appealed is the question whether jeopardy had attached. Thus we are in the position of having to take jurisdiction to determine if the appeal will lie. By way of analogy, cf. Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, which teaches that there are cases where jurisdiction must be exercised for the purpose of determining jurisdiction. This is such a case. If we found no error in the district court’s conclusion that jeopardy had attached, it would follow that the appeal would be dismissed rather than affirmed. This was the precise procedure followed in Jenkins, supra, in the Second Circuit. United States v. Jenkins, 2 Cir., 1973, 490 F.2d 868, 880.
It must be conceded that the reservation in Serfass of the deliberate delay question is perplexing. It purportly goes only to the right of appeal but, as expressed, it could relate also to barring double jeopardy as a defense. In any *89event, it is doubtful that the court would treat a constitutional right in such an off-hand fashion.
The Supreme Court has not considered the question whether the delay in attacking an indictment may bar a double jeopardy defense. The law of this circuit is that an indictment may be challenged for the first time on appeal, and after trial and conviction. Walker v. United States, 5 Cir., 1965, 342 F.2d 22, 26. It is also the law in other circuits. United States v. Beard, 3 Cir., 1969, 414 F.2d 1014, 1017; United States v. Bailey, 7 Cir., 1960, 277 F.2d 560, 562.
It is true that the delay was an admitted trial tactic but experienced counsel were taking advantage of what is expressly permitted by Rule 12(b)(2). They wished to see the government’s case before they moved to strike the indictment. The trial court could have ruled, but did not, that the motion came too late. It happened that the court (the trier of the facts) considered the facts in its ruling and this gave rise to the double jeopardy claim.
The obtuse problem presented in this appeal is but another example of the labyrinthian state of criminal law, particularly in the trial stages. Although not without some apprehension, I believe that defendants have the better side of the case and I would, therefore, sustain the district court judgment and dismiss the appeal.
. In both Jenkins and the present appeal, it is unclear whether the district judge terminated the trial based upon factual or legal conclusions. In both cases, however, the judge apparently relied at least in part upon the facts as developed, and thereupon concluded the trial. The court in Jenkins held that retrial of the defendant in such a posture would place him twice in jeopardy. I see the posture of the present case as requiring an identical result.
. Rule 12(b)(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 other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.
. 18 U.S.C.A. § 3731 provides:
In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
. Cf. United States v. McGough, 5 Cir., 1975, 510 F.2d 598, 602 n. 2.