United States v. Elliott

• Decision Date: 05 April 2017
• Docket Number: No. 15-8138,15-8138
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEL S. ELLIOTT, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEL S. ELLIOTT, Defendant - Appellant.

No. 15-8138

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

April 5, 2017

(D. Wyo.)

(D.C. No. 1:15-CR-00042-SWS-1)

ORDER AND JUDGMENT^*

Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.

In 2014, Mr. Joel Elliott bombed a building owned by Sheridan County, leading to his conviction on charges that included arson of a building owned or possessed by an entity receiving federal funds. See 18 U.S.C. § 844(f)(1)-(2) (2012).¹ Mr. Elliott appeals, raising issues about how the government investigated the bombing and whether the building's occupant was receiving federal funds at the time of the bombing.

The government obtained evidence by using an undercover informant (Mr. Robert Weber) to elicit and record incriminating admissions from Mr. Elliott. At that time, Mr. Elliott was allegedly represented by an attorney on the matter under investigation. In light of the alleged legal representation, Mr. Elliott alleges an ethical violation and argues that his incriminating statements should have been suppressed. We disagree for two reasons:

1. Mr. Elliott's argument is waived. At a minimum, Mr. Elliott forfeited the argument in district court and then waived the argument on appeal by failing to request plain-error review.

2. His argument fails on the merits. Even if we credit Mr. Elliott's factual allegations, the Assistant U.S. Attorney did not violate an ethical rule.²

Mr. Elliott challenges not only the ethics of the Assistant U.S. Attorney's conduct but also the applicability of the federal statute that criminalizes arson of a building owned or possessed by an entity receiving federal funds. The building that Mr. Elliott bombed was occupied by the Sheridan County Attorney's Office and owned by Sheridan County. When Mr. Elliott bombed the building, the county attorney's office was not receiving federal funds, but the county itself was. In our view, this funding triggered the criminal statute for arson of a building owned or possessedby an entity receiving federal funds. As a result, we reject Mr. Elliott's challenge to the applicability of the arson statute.

I. Ethical Conduct

Mr. Elliott urges use of the Court's supervisory power to order suppression of his incriminating statements, claiming that an Assistant U.S. Attorney violated state ethical rules in authorizing the undercover investigation.³ We reject this contention for two reasons. First, at a minimum, Mr. Elliott forfeited his present argument in district court and subsequently waived the argument on appeal by failing to request plain-error review. Second, Mr. Elliott's argument fails on the merits because the Assistant U.S. Attorney's alleged conduct would not have violated state ethical rules.

1. Waiver

In district court, Mr. Elliott filed a motion to suppress and supporting memorandum that relied on the Fifth Amendment, omitting any mention of an ethical rule or an ethical violation. At a hearing on the motion to suppress, Mr. Elliott proffered an excerpt of the American Bar Association's Annotated Model Rules of Professional Conduct. Thegovernment objected based on relevance. Responding to the objection, Mr. Elliott made two references to the Model Rules:

1. "I would direct your attention to page 432 and following [of the excerpt]. It talks about statement, federal prosecutions, and there's some case law citations there that talk about represented criminal defendants in other matters and so forth. So I'm offering that to the Court . . . as some authority that the Court can certainly take a look at if there are questions related to those issues."

2. "Model Rule 4.2 and the annotations that are contained on page 432 do have some applicability here."

R. vol. III, at 203, 208. These are the only references to an ethical rule that Mr. Elliott made in district court.

On appeal, Mr. Elliott drops his Fifth Amendment argument for suppression. Instead, Mr. Elliott argues that his incriminating statements should have been suppressed because the Assistant U.S. Attorney had violated state ethical rules.

The threshold issue is whether Mr. Elliott failed to preserve this argument in district court. Appellants can fail to preserve an argument through forfeiture or waiver. Forfeiture occurs when the appellant fails to timely and adequately present the argument in district court. See United States v. Olano, 507 U.S. 725, 733 (1993). Waiver can occur when the appellant intentionally relinquishes or abandons the argument in district court. See id. At the least, Mr. Elliott failed to timely and adequately present his ethical argument when urging the district court to suppress theevidence; thus, at a minimum, the present argument was forfeited in district court.⁴ See Ave. Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 884 (10th Cir. 2016).

We can consider forfeited arguments under the plain-error standard. Id. at 885. But Mr. Elliott has not asked for plain-error review of his argument. Therefore, even if Mr. Elliott had merely forfeited his argument in district court, he has waived the argument while on appeal. SeeMcKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) ("[E]ven if [the appellant's] arguments were merely forfeited before the district court, her failure to explain in her opening appellate brief . . . how they survive the plain error standard waives the arguments in this court.").

In the appeal, the government has not argued forfeiture or waiver. Thus, the government has arguably waived the issue of Mr. Elliott's waiver. See, e.g., United States v. Heckenliable, 446 F.3d 1048, 1049 n.3 (10th Cir. 2006). Nevertheless, we have discretion to raise Mr. Elliott's waiver sua sponte. See United States v. Rodebaugh, 798 F.3d 1281, 1314 (10th Cir. 2015) ("[T]he 'waiver of the waiver' principle is discretionary, not mandatory.").

In deciding whether to raise this issue sua sponte, we may weigh the relative harm from each party's failure to adequately present an argument. See id. at 1314-17 (assuming for the sake of argument that the government forfeited or waived the appellant's forfeiture and then comparing the consequences of each party's failure to adequately present an argument). We conclude that Mr. Elliott's failure created greater harm by impeding the development of the record on key factual issues. We therefore raise Mr. Elliott's waiver sua sponte.

Mr. Elliott's argument depends on five alleged facts:

1. The Assistant U.S. Attorney authorized the undercover investigation of the bombing.

2. Mr. Weber served as the Assistant U.S. Attorney's agent during the investigation.

3. Mr. Elliott was represented by counsel on the matter under investigation.

4. The Assistant U.S. Attorney knew that Mr. Elliott was represented by counsel on the matter under investigation.

5. Mr. Weber communicated with Mr. Elliott about the matter under investigation.

On appeal, Mr. Elliott urges us to accept these alleged facts.

Most of these factual issues arose in district court, but only in the context of an alleged Fifth Amendment violation. In that context, the parties barely discussed the Assistant U.S. Attorney's role in the investigation and the district court did not address the scope of Mr. Elliott's legal representation.

Mr. Elliott had an opportunity to develop the record concerning these factual issues. For example, in the hearing on the motion to suppress, the government invited Mr. Elliott to develop his argument regarding a violation of the ethical rules: "If [Mr. Elliott is] making a professional responsibility argument, that's a whole nother subject, and . . . I will represent to the Court that it's one that the Government is more than willing to take on." R. vol. III, at 204. If Mr. Elliott had taken this invitation, the district court could have elicited evidence on these factual issues. But Mr. Elliott declined, leaving us with a deficient appellaterecord. By contrast, the government's omission did not affect the appellate record, which makes Mr. Elliott's waiver readily apparent.

* * *

In our view, Mr. Elliott has waived his argument for suppression based on an ethical violation. Thus, even if his argument were meritorious, we would not reverse.

2. Discretion to Independently Affirm on the Merits

Having rejected Mr. Elliott's argument based on waiver, we could stop our analysis. But we need not do so. Instead, we may provide an additional, independent basis for affirming: His argument fails on the merits.

The Supreme Court has held that "[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121 (1976); accord Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) ("[T]he decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary."); see also Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 837 (10th Cir. 2014) ("Waiver . . . binds only the party, not the court.").

We have frequently exercised this discretion by rejecting appellate challenges on the merits even after finding the appellate challengesforfeited or waived. See, e.g., United States v. Norman T., 129 F.3d 1099, 1106 & n.3 (10th Cir. 1997); Bones v. Honeywell Int'l, Inc., 366 F.3d 869 877-78 (10th Cir. 2004); United States v. Luke-Sanchez, 483 F.3d 703, 706-07 (10th Cir. 2007); United States v. Pursley, 577 F.3d 1204, 1228-29 (10th Cir. 2009); United States v. Cooper, 654 F.3d 1104, 1127-29 (10th Cir. 2011); Harvey v. United States, 685 F.3d 939, 946 (10th Cir. 2012); Fulghum v. Embarq Corp., 785 F.3d 395, 408-09 (10th Cir.), cert. denied, 136 S. Ct. 537 & 136 S. Ct. 538 (2015); Mitchell v. Comm'r, 775 F.3d 1243, 1248-49 n.3 (10th Cir. 2015); Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219, 1224-25 (10th Cir. 2016) (Bacharach, J., concurring, joined by...