In United States v. Walker, 665 F.3d 212 (1st Cir. 2011), the defendant asserted, for the first time on appeal, that the indictment was defective.
The United States Court of Appeals for the First Circuit ruled that Walker's challenge was barred.
Judge Selya explained for the court:
"Under the Criminal Rules, a defendant must challenge a perceived defect in an indictment before the commencement of trial. Fed. R. Crim. P. 12(b)(3)(B). A failure to mount such a challenge within the prescribed time frame constitutes a waiver. Fed. R. Crim. P. 12(e). This is not a judicial gloss; Rule 12(e) itself uses that precise terminology." (United States v. Walker, 665 F.3d at 227.)