U.S. v. Rose

• Decision Date: 05 August 2008
• Docket Number: No. 05-5199.,05-5199.
• Citation: 538 F.3d 175
• Court: U.S. Court of Appeals — Third Circuit
• Parties: UNITED STATES of America v. Larken ROSE, Appellant.

538 F.3d 175

UNITED STATES of America v. Larken ROSE, Appellant.

No. 05-5199.

United States Court of Appeals, Third Circuit.

Argued September 27, 2007.

Opinion Filed August 5, 2008.

Peter Goldberger, Esquire (Argued), Pamela A. Wilk, Esquire, Ardmore, PA, for Appellant.

Patrick L. Meehan, United States Attorney, Robert A. Zauzmer, Assistant United States Attorney, Chief of Appeals, Floyd J. Miller, Assistant United States Attorney, Peter D. Hardy (Argued), Assistant United States Attorney, Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: AMBRO, JORDAN and ROTH, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

This case raises a procedural issue that has nagged our Court for decades and for which we have unwittingly given conflicting answers: whether a criminal defendant who failed to raise a reason to suppress evidence before the District Court may raise the reason on appeal. We conclude that he cannot absent good cause: such a suppression issue is waived under Federal Rule of Criminal Procedure 12, which trumps Rule 52(b)'s plain error standard in the context of motions to suppress. For this reason and others, we affirm the conviction of Larken Rose for five counts of failure to file personal income tax returns.

I. Background

Rose failed to file federal income tax returns for tax years 1998 through 2002, despite having received compensation during those years for services relating to his medical transcription business. In February 2005 a grand jury charged Rose with willful failure to file tax returns in violation of 26 U.S.C. § 7203.¹

Before the District Court, Rose, proceeding pro se, moved to suppress physical evidence seized in a search of his home. He advanced four arguments. First, he argued the search was "neither reasonable nor necessary because all pertinent information was already in the government's possession" and because the affidavit on which the search was based "did not even suggest the existence of any additional evidence." (Emphasis in original.) Second, Rose contended the warrant was "so overly broad as to make it indistinguishable from the `general warrants' prohibited by the Fourth Amendment," as it sought "to seize numerous items which could not possibly be related to any crime, as well as many items that constitute articles of protected speech [i.e., items containing anti-tax expression]." Third, he claimed that the search was motivated by a "desire to retaliate against" him for "exercising [his] First Amendment rights." He concluded by stating that "[t]he government's seizure of various articles of protected speech was unquestionably contrary to established law."

In May 2005, the District Court held a suppression hearing and denied the motion to suppress. A five-day jury trial followed, resulting in conviction on all five counts notwithstanding Rose's defense that he believed in good faith that 26 U.S.C. § 861 rendered his income nontaxable. In November 2005, the District Court imposed a sentence of 15 months' imprisonment, one year's supervised release, and a $10,000 fine. Rose timely appealed.²

He challenges before us the District Court's denial of his motion to suppress, arguing that the warrant violated the particularity requirement of the Fourth Amendment. In support of this theory, Rose reasons that (a) the warrant was defective on its face for failing either to identify the items permitted to be searched for and seized or to incorporate expressly a document that did so, and also that the list of seizable items did not accompany the warrant; and (b) because the warrant did not refer to particular offenses (specifically, it did not indicate for which of the offenses listed in the affidavit the magistrate found probable cause), it authorized a general search in violation of the First and Fourth Amendments.³

II. Rose's Suppression Arguments Are Waived

All of the suppression issues that Rose raises on appeal are new; he did not raise them before the District Court. We disagree with the contention that Rose raised before the District Court the argument that the warrant, because it did not indicate for which of the offenses listed in the affidavit the magistrate found probable cause, authorized a general search in violation of the First and Fourth Amendments. Rose did not argue this to that Court. Instead, he argued that the warrant permitted a search for various items of evidence that could not be related to any crime, that were protected by the First Amendment, and that contained information of which the Government was already aware. Only now does Rose focus on the relationship between the warrant and the affidavit's list of offenses, asking whether the former specifically refers to any part of the latter.

In our Court, suppression issues raised for the first time on appeal are waived absent good cause under Rule of Criminal Procedure 12. See United States v. Lockett, 406 F.3d 207, 212 (3d Cir.2005); United States v. Martinez-Hidalgo, 993 F.2d 1052, 1057-58 (3d Cir.1993); United States v. Velasquez, 885 F.2d 1076, 1084 n. 6 (3d Cir.1989); United States v. Frank, 864 F.2d 992, 1006 (3d Cir.1988). Although a few of our opinions have inadvertently applied plain error review under Rule of Criminal Procedure 52(b), see United States v. Loy, 191 F.3d 360, 369 n. 6 (3d Cir.1999); United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998); United States v. Martinez-Zayas, 857 F.2d 122, 134 (3d Cir.1988), for the reasons stated below, we do not find these cases to be controlling. Further, the Criminal Rules' text, their history, and pertinent policy considerations direct a waiver approach. Thus, a suppression issue not raised in the District Court is waived absent good cause, and we accordingly affirm.

A. The Rules' Text and History⁴

The text of Rule 52(b) has remained substantially unchanged since the initial version of the Criminal Rules. See Fed. R.Crim.P. 52 advisory committee's notes; United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Following a stylistic change in 2002, see Fed.R.Crim.P. 52 advisory committee note to 2002 amendment, the current version provides that "[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention."

Rule 12, by contrast, states that where a motion to suppress evidence is concerned, the motion "must be raised before trial." Fed.R.Crim.P. 12(b)(3)(C). Section (c) of the Rule permits the district court to "set a deadline for the parties to make" such a motion, and section (e) provides that a "party waives any Rule 12(b)(3) [which includes motions to suppress] defense, objection, or request not raised by the deadline the court sets" (emphasis added), though "[f]or good cause, the court may grant relief from the waiver."

Rule 12's history is considerably more complex than Rule 52(b)'s. Suppression motions were previously covered by Rule 41(e), which provided that "[a] person aggrieved by an unlawful search and seizure may move the district court . . . to suppress [unlawfully obtained evidence]," and that "[t]he motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing." Though Criminal Procedure Rule 41(e) at the outset required a defendant to raise suppression motions before trial or hearing absent cause or permission from the district court, it did not specify the consequences should the defendant fail to do so. The consequence, we presume, would have been forfeiture, not waiver; whereas the intentional relinquishment or abandonment of a known right is typically a waiver, an unintentional failure to assert timely a right is a forfeiture that results in plain error review. See Olano, 507 U.S. at 733-34, 113 S.Ct. 1770; Chavez-Valencia, 116 F.3d at 130.

When the provisions governing suppression issues moved to Rules 41(f) and 12 in 1972, they arguably no longer required that motions to suppress be raised before trial. See Chavez-Valencia, 116 F.3d at 130. Rule 41(f) read that "[a] motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12." Rule 12, in turn, stated that "[a]ny defense or objection which is capable of determination without the trial of the general issue may be raised before the trial by motion." Fed.R.Crim.P. 12(b)(1) (emphasis added). Although subsection (b)(2) of Rule 12 listed some defenses and objections that "must" be raised before trial or else be "waive[d]," suppression motions were not among them. Only defenses and objections based on "defects in the institution of the prosecution or in the indictment or information" were listed in that subsection.

All of this changed in 1974, when the Rules were amended explicitly to require—this time with threat of waiver— that motions to suppress be raised prior to trial. Rule 12(b) was amended to state that "[m]otions to suppress evidence" "must be raised prior to trial" (emphasis added), and section (f) of the amended Rule explicitly stated that

[f]ailure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

The advisory committee notes to the 1974 amendment to Rule 12 confirmed that "[s]ubdivision (b) is changed to provide for some additional motions and requests which must be made prior to trial," and specifically that "[s]ubdivision (b)(3) makes clear that objections to evidence on the ground that it was illegally obtained must be raised prior to trial." Fed.R.Crim.P. 12 advisory committee's note to 1974 amendment.

Subsequent minor changes notwithstanding, the 1974 amendments resulted...