730 F.3d 336 (3rd Cir. 2013), 12-3808, United States v. Joseph

Docket Nº:12-3808
Citation:730 F.3d 336
Opinion Judge:SMITH, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. AKEEM JOSEPH also known as AKEEM OLAJUWON Akeem Joseph, Appellant
Attorney:Mary Kay Costello, Esq. [ARGUED], Office of United States Attorney, Philadelphia, PA, Counsel 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, Counsel for Appel...
Judge Panel:Before: RENDELL, SMITH, and SHWARTZ, Circuit Judges.
Case Date:September 19, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 336

730 F.3d 336 (3rd Cir. 2013)

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

September 19, 2013

Argued July 17, 2013.

On Appeal from the United States District Court for the Eastern District of Pennsylvania. District Court No. 2-09-cr-00673-001. District Judge: The Honorable Gene E. K. Pratter.

Mary Kay Costello, Esq. [ARGUED], Office of United States Attorney, Philadelphia, PA, Counsel 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, Counsel for Appellant.

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

OPINION

Page 337

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. See 18 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...

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