United States v. Known

• Decision Date: 19 September 2013
• Docket Number: No. 12–3808.,12–3808.
• Citation: 730 F.3d 336
• Parties: UNITED STATES of America v. Akeem JOSEPH also known as Akeem Olajuwon, Akeem Joseph, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

730 F.3d 336

UNITED STATES of America
v.
Akeem JOSEPH also known as Akeem Olajuwon, Akeem Joseph, Appellant.

No. 12–3808.

United States Court of Appeals,
Third Circuit.

Argued July 17, 2013.
Filed: Sept. 19, 2013.

[730 F.3d 337]

Mary Kay Costello, Esq., [argued], Office of United States Attorney, Philadelphia, PA, for Appellee.

Keith M. Donoghue, Esq., [argued], Robert Epstein, Esq., Nina C. Spizer, Esq., Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Appellant.

Before: RENDELL, SMITH, and SHWARTZ, Circuit Judges.

OPINION
SMITH, Circuit Judge.

Lawyers and judges are familiar with the well-worn adage that bad facts make bad law. A possible corollary to this proposition is that good facts make good law. This case is of the latter type, in which straightforward facts present an opportunity to rectify imprecisions in our case law regarding the preservation and waiver of suppression arguments. We must decide the degree of particularity required for a party to preserve a suppression argument for appeal purposes. To determine this, we must clarify our terminology as to what it is parties preserve. We conclude that “issues” and “arguments” are distinct concepts: an issue can be broader in scope than an argument in that an issue may be addressed by multiple arguments, which are the most basic building blocks of legal reasoning. We hold that for parties to preserve an argument for appeal, they must have raised the same argument in the District Court—merely raising an issue that encompasses the appellate argument is not enough. Consequently, the degree of particularity required to preserve an argument is exacting. Because appellant here has not preserved the sole argument made on appeal, we will affirm.

I

In the early morning hours of October 16, 2008, Akeem Joseph was arrested outside the Atlantis Gentlemen's Club in Philadelphia. One of the arresting officers, Officer Julia Umbrell, was flagged down by the club's security officer, who explained that Joseph had tried to “pass” (exchange counterfeit currency for authentic currency) several $100 bills at the club. Umbrell did not inspect the bills for authenticity but did ask Joseph for identification and whether he tendered them at the bar. Joseph acknowledged that he tendered the bills and, for identification, provided a passport with a torn photograph.

Officer James Morrison arrived after Umbrell called for backup. Morrison asked Joseph where he had acquired the bills, and Joseph explained that he had obtained them when he cashed his pay check at a local racetrack. Morrison then shined his flashlight on one of the bills

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provided by the club's security officer. This inspection revealed a discrepancy in the bill's security features: the president's face in the bill's watermark did not match the face printed on the bill. Meanwhile, Umbrell confirmed with the club's manager and barkeep that Joseph had tendered the bills.

Joseph was then arrested and searched at the scene. The officers found fourteen more counterfeit $100 bills in one of Joseph's pockets. Joseph was subsequently taken in for questioning by the Secret Service. After waiving his Miranda rights, Joseph provided a Secret Service agent with several incriminating text messages from his cell phone and confessed to attempting to pass the counterfeit bills. Consequently, Joseph was indicted on one count of passing two counterfeit $100 bills and one count of possessing fourteen counterfeit bills. See18 U.S.C. § 472.

In the District Court, Joseph moved to suppress the counterfeit bills in his pocket, the text messages, and his confession. He argued that the search was unlawful on two grounds. First, he contended that it was an illegal Terry stop and frisk. Second, he asserted that the officers lacked probable cause for the arrest because no one at the scene had sufficient expertise in counterfeiting to know whether the bills were in fact counterfeit. After an evidentiary hearing, the District Court denied Joseph's motion. The case proceeded to trial, and a jury found Joseph guilty on both counts.

Joseph appeals the denial of his suppression motion.¹ He now argues, for the first time, that probable cause to arrest was absent because the officers had insufficient evidence to establish his intent to defraud at the time he passed and possessed the counterfeit bills.

II

The dispositive question in this case is whether Joseph waived the argument presented in this appeal. In United States v. Rose, 538 F.3d 175 (3d Cir.2008), we held that under Federal Rule of Criminal Procedure 12, “a suppression argument raised for the first time on appeal is waived (i.e., completely barred) absent good cause.” Id. at 182.² This rule applies not only when defendants altogether fail to raise any suppression arguments in the District Court, but also when defendants fail to raise particular arguments later advanced on appeal. Id. The central dispute in this case is over the degree of particularity required to preserve an argument. Joseph contends that by raising the issue of probable cause in the District Court, he can argue the absence of probable cause for any reason on appeal. In particular, he contends that his District Court argument that the officers lacked probable cause as to the actus reus (the officers did not have the expertise to know whether the bills Joseph passed were fake) preserves his appellate argument that they lacked probable cause as to the mens rea (the officers did not have any evidence showing an intent to defraud and Joseph offered a plausible explanation for how he came to possess the bills). The government takes the opposite position: for Joseph to preserve the mens rea argument for appeal, he must have argued in the District Court that probable cause was

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absent for want of evidence at the time of arrest demonstrating the requisite mental state.

Although consistent in reasoning, many of our cases are inconsistent in terminology. Our purpose here is to clarify the framework for discussing and analyzing waiver questions.³ Under this framework, we conclude that Joseph has waived his mens rea argument.

A. Defining what a Party Preserves or Waives

Our case law on the degree of particularity required for preserving an issue for appeal is less than clear. In United States v. Lockett, 406 F.3d 207 (3d Cir.2005), we stated that suppression arguments made on appeal must be “substantially the same theories of suppression” advanced in the District Court. Id. at 212. In United States v. Dupree, 617 F.3d 724 (3d Cir.2010), two judges of this Court suggested that an argument was preserved because it was within the “overarching question” of the proceedings. Id. at 740 (Fisher, J., concurring in part and concurring in judgment); see also id. at 734 (Cowen, J., dissenting) (agreeing with Judge Fisher's waiver conclusion because the argument on appeal followed from the same precedent that was relied on in the District Court and was not precluded by the argument made in that court). And in United States v. Berrios, 676 F.3d 118 (3d Cir.2012), we explained that an argument is preserved only if it is the “specific issue[ ]” raised in the District Court. Id. at 130.

Although a closer look at our cases reveals consistency—that is, an approach requiring exacting specificity—certain statements in the opinions seem to suggest varying degrees of specificity. “[O]verarching questions” appears less demanding than “substantially the same theor[y],” which in turn seems less demanding than “specific issue.” Resolving this tension first necessitates clarification of our terminology for discussing preservation and waiver. Unfortunately, many of our cases have been imprecise in describing just what a party waives. The three cases just mentioned, for example, use the terms “question,” “theory,” and “issue” to capture what is being waived. In other cases, we use “argument” and “contention.” See United States v. Harrison, 689 F.3d 301, 310 (3d Cir.2012) (“It is well-settled that suppression arguments raised for the first time on appeal are waived absent good cause.”); United States v. Tracey, 597 F.3d 140, 149–50 (3d Cir.2010) (concluding alternate “argument” was waived); United States v. Frank, 864 F.2d 992, 1006 (3d Cir.1988) (“Since this contention was not raised in his suppression motion as a ground for suppression it is waived.”). Other circuits have been similarly inconsistent, using many of the words we do as well as others, such as “ground” and “basis.” See, e.g., United States v. Hewlett, 395 F.3d 458, 460 (D.C.Cir.2005).⁴

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To be sure,...