a motion, before trial, “alleging a defect in the indictment or information — but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court’s jurisdiction or to state an offense.” Nevertheless, “[a] motion to dismiss is not a device for the summary trial of the evidence; it is addressed only to the facial validity of the indictment.” United States v. Eichman, 756 F.Supp. 143, 145-46 (S.D.N.Y.1991) (citing United States v. Winer, 323 F.Supp. 604, 605 (E.D.Pa.1971)). See Russell v. United States, 369 U.S. 749, 791, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (“There is no such thing as a motion for summary judgment in a criminal case.”) (Harlan, J. dissenting). See also United States v. Luros, 243 F.Supp. 160, 165 (D.Iowa 1965) (<HOLDING>) (citing United States v. Sampson, 371 U.S. 75,
holding that the burden lies with the plaintiff in a rule 12b motion holding that an allegation as to the time of the offense is not an essential element of the offense charged in the indictment and within reasonable time limits proof of any date before the return of the indictment and within the statute of limitations is sufficient holding motion to dismiss an indictment pursuant to rule 12b is not a device for a summary trial of the evidence the sole function of this motion is to test the sufficiency of the indictment to charge an offense holding that where the date of the offense is not an element of the charge  a variance between the indictment date and the proof at trial is not fatal so long as the acts charged were committed within the statute of limitations period and prior to the return date of the indictment holding that an indictment gave sufficient notice when the indictment charged the elements of the offense