U.S. v. Chavez-Valencia, CHAVEZ-VALENCI

• Citation: 116 F.3d 127
• Decision Date: 11 June 1997
• Docket Number: D,No. 96-40182,CHAVEZ-VALENCI,96-40182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Fernandoefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 127

116 F.3d 127

UNITED STATES of America, Plaintiff-Appellee, v. Juan Fernando CHAVEZ-VALENCIA, Defendant-Appellant.

No. 96-40182.

United States Court of Appeals Fifth Circuit.

June 11, 1997.

Alice Ann Burns, Paula Camille Offenhauser, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Richard Bruce Gould, McAllen, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, JOLLY and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Juan Fernando Chavez-Valencia appeals his conviction, contending that certain evidence should have been suppressed at trial. We hold that because Chavez failed to file a pretrial motion to suppress in accordance with Rule 12(b)(3) of the Federal Rules of Criminal Procedure, he has waived the point for appeal and we are barred from considering it. Chavez also contends that he received ineffective assistance of counsel. Again he failed to raise the claim at trial. Chavez's conviction is therefore affirmed.

I

Two border patrol agents, who were spending their early morning shift watching for undocumented workers, spotted a Suburban being driven on a rural road. The agents were approximately 9 miles south and 8 miles west of the Falfurrias, Texas border checkpoint. The agents' suspicions were aroused because the vehicle was driving in the early morning on a road that allows vehicles to bypass the border checkpoint. After the vehicle appeared to stop, the agents drove towards it. The vehicle began to move again, and when it passed the border patrol agents, one agent believed he recognized it from a previous encounter. Although the agents could not see the driver, or determine whether there were any passengers, they pulled over the vehicle. One of the agents recognized the driver, Chavez, and remembered that an arrest warrant for Chavez was outstanding.

The agents brought Chavez to the Falfurrias checkpoint, and a search revealed several items, including a money order and personal notes, that supported the agents' conclusion that Chavez was smuggling people into the United States. This evidence was eventually used to convict Chavez. The agents then returned to inspect the Suburban. In the back of the vehicle was fresh mud and a small bag of women's clothes. After inspecting the vicinity where the Suburban had stopped, they found a fresh set of footprints. A search located five persons. All were foreign nationals illegally in this country. Chavez was convicted of conspiracy to illegally bring foreign nationals into the United States in violation of 18 U.S.C. § 371.

II

On appeal, Chavez maintains that the border agents did not have probable cause to stop his vehicle, and, therefore, all evidence found as a result of this stop must be suppressed. Chavez, however, failed to raise this claim in a pretrial motion, as required by Fed.R.Crim.P. 12(b)(3) and 12(f). He also failed to raise the issue at anytime during the trial. Nonetheless, Chavez maintains that he may raise his suppression claim for the first time on appeal. The government contends the defendant's failure to raise properly his suppression claim at trial constituted a waiver and bars the issue on appeal.

We find that the plain language of Rules 12(b)(3) and 12(f), the history of the rules relating to motions to suppress, the relevant Fifth Circuit case law and sound policy considerations all dictate that the failure to raise a suppression issue at trial forecloses a defendant from raising the issue for the first time on appeal.

III

Rule 12(b)(3) requires that motions to suppress evidence "must" be raised before trial. ¹ Rule 12(f) provides that failing to raise a 12(b)(3) motion prior to trial "shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." ² Fed.R.Crim.P. 12(f)(emphasis added).

We have held that once a right is waived at trial, it may not be resurrected on appeal. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1418 (5th Cir.1996) (en banc); United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994), cert. denied, 513 U.S. 1196, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995); see also, United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). Therefore, if the words used in Rules 12(b)(3) and 12(f), particularly the word "waiver," are to be given their generally accepted meaning, a defendant who fails to present a timely pretrial motion to suppress evidence is foreclosed from raising the issue on appeal.

Normally, our analysis would stop here with the unmistakable language of the rule, except for a sort of definitional paradox. The term waiver ordinarily suggests the intentional relinquishment or abandonment of a known right. See, e.g., Calverley, 37 F.3d at 162. Practically speaking, however, a defendant's failure to follow Rule 12 usually is not an intentional abandonment of the right of suppression. Surely today, we have no basis on the record before us to conclude that such is the case with Chavez. Therefore, in the following pages we carefully examine whether the use of the word "waiver," as applied to motions to suppress in Rule 12, must be interpreted to have its usual legal consequences. This analysis leads us to the conclusion that a defendant who fails to make a timely suppression motion cannot raise the claim for the first time on appeal. As we will show, this conclusion is supported by the language, history and structure of Rules 12(b)(3) and 12(f), by Fifth Circuit precedent, by the case law of our sister circuits, and by sound policy considerations.

IV

The history of the rule relating to suppression of evidence supports giving the term "waiver" its usual meaning. Originally, suppression motions were addressed in Fed.R.Crim.P. 41, entitled "Search and Seizure." Rule 41(e) provided that "[a] person aggrieved by an unlawful search and seizure may move the district court ... to suppress [unlawfully obtained evidence]. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial or hearing."

Rule 41(e) did not explicitly identify the penalty of "waiver" for failing to make a proper pretrial suppression motion. Ordinarily, in the absence of explicit language or reasons to the contrary, the failure to claim a right at trial constitutes a forfeiture, not a waiver, of that right for the purposes of appeal. Thus at the outset a failure to move to suppress evidence ordinarily would have been treated as a "forfeiture." ³ There is, of course, a significant difference between the two: A defendant who has forfeited a claim may appeal, but the claim is subjected to plain error review. See Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508. In contrast, a claim that is waived is barred on appeal. Id.

The suppression rule did not, however, remain static. In 1972, the rule was moved to Rule 41(f), which provided in its entirety: "A motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12." This amendment meant that suppression motions became governed by Rule 12(b)(1). This rule, however, simply provided 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." (Emphasis added.) Thus under the 1972 amendment, suppression motions were not yet placed under Rule 12(b)(2), which addressed motions that were required to be raised prior to trial, on penalty of waiver. After the 1972 amendment, only two motions were governed by this section: objections based on defects in the institution of the prosecution and objections based on defects in the indictment.

In 1974, the Rules were again revised. These revisions resulted in the current Rule 12. The rule for filing a suppression motion was moved from 41(f) to Rule 12. Furthermore, suppression motions were no longer included among motions that may be raised at trial; they were listed as motions under 12(b) that must be made before trial. ⁴ Rule 12(f) specifically provides that the failure to raise an objection that must be made before trial is waived.

Consequently, under the current Rule 12, motions to suppress are now given identical treatment as motions based on defects in the institution of the prosecution and motions based on defects in the indictment. As noted above, these two claims historically have been foreclosed on appeal if not first raised in the district court. It therefore seems to us that the intent of the drafters to give the term "waiver" its ordinary meaning as it applies to motions to suppress is pellucid.

V

Fifth Circuit case law also suggests that a suppression claim not properly raised in the district court cannot be raised on appeal. We have recognized that a district court may reject a tardy suppression motion solely on the grounds of its untimeliness. In United States v. Knezek, 964 F.2d 394, 397-399 (5th Cir.1992) a defendant moved for suppression of evidence after the deadline for pretrial motions, but three days before the start of the trial. The district court ruled that the defendant had waived his right to challenge evidence. In Knezek we held that a "district court does not abuse its discretion under Rule 12(f) in denying a suppression motion solely on the grounds that the defendant failed to comply with pretrial procedures." Id. at 397 (emphasis added).

In United States v. Marx, 635 F.2d 436, 440-41 (5th Cir. Unit B 1981), a district court exercised its authority to hear a tardy suppression motion under Rule 12(f). In affirming the district court's denial of the suppression motion, we observed that "the district court would not have abused its discretion under Rule 12(f) if it had denied the motion solely on the ground of appellants' non-compliance with pre-trial procedure."...