bringing criminal charges, and also failed to tell the jury what to do if the jury found that the government did not give the defendants the notice referred to in the instruction. (See Appellants’ App. at 60, 92.) The proposed instructions were inadequate and incomplete. We further hold that this claimed theory of defense, i.e., that the government failed to abide by its own regulations before seeking the indictment, is not a defense submissible to the jury. Rather, it is the kind‘of attack on the indictment that should be made by a motion to dismiss before trial pursuant to Federal Rule of Criminal Procedure 12(b)(1) since it is a claimed defense or objection based on a defect “in the institution of the prosecution.” See United States v. Henderson-Durand, 985 F.2d 970, 973 (8th Cir.) (<HOLDING>), cert. denied, 510 U.S. 856, 114 S.Ct. 164,
holding that counsels total failure to conduct pretrial discovery constituted ineffective assistance holding a defendants failure to raise aclaim of outrageous government conduct in a pretrial motion pursuant to rule 12b2 constituted waiver of the claim holding that under rule 12b3 and f failure to raise inter alia claim that statements were inadmissible under miranda constituted a waiver holding that failure to raise a speedy trial issue constituted waiver under article 10 ucmj absent a timely challenge on the part of the appellant to any pretrial delay holding that failure to raise pretrial objection to alleged duplicitous counts in the indictment constitutes waiver of the defense