2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-5-2008

USA v. Rose

Precedential or Non-Precedential: Precedential

Docket No. 05-5199

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Rose" (2008). 2008 Decisions. Paper 604.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/604
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-5199

 

UNITED STATES OF AMERICA

v.

LARKEN ROSE,

Appellant

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 05-cr-00101-1)

District Judge: Honorable Michael M. Baylson

 

Argued September 27, 2007

Before: AMBRO, JORDAN and ROTH, Circuit Judges

(Opinion filed August 5, 2008 )
2

Peter Goldberger, Esquire (Argued)

Pamela A. Wilk, Esquire

50 Rittenhouse Place

Ardmore, PA 19003-2276

Counsel 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

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

This case raises a procedural issue that has nagged our
 The grand jury also charged Rose’s wife, Tessa David 1

Rose. She stood trial separately and is not a party to this appeal.

3

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
 The District Court had jurisdiction pursuant to 18 U.S.C. 2

§ 3231. We exercise appellate jurisdiction under 28 U.S.C.

§ 1291.

4

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
 Rose also argues that the District Court denied him a fair 3

trial and that the prosecutor committed reversible error. We

have considered these arguments, and conclude that they lack

sufficient merit to require our addressing them in depth. As to

the fair trial argument, we are satisfied that submission to the

jury of allegedly inflammatory e-mail evidence was not plain

error or an abuse of discretion, that the District Court did not err

in excluding documentary, videotape, and testimonial evidence

that Rose sought to introduce, and that the Court did not abuse

its discretion in instructing the jury as to our decision in United

States v. Bell, 414 F.3d 474 (3d Cir. 2005) (rejecting tax-evasive

argument based on 26 U.S.C. § 861). As to prosecutorial

misconduct, because Rose did not object before the District

Court, we review for plain error, and the prosecutor’s comments

fall well short of “egregious error or a manifest miscarriage of

justice.” United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996)

(internal quotation marks omitted).

5

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
6

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
 For a helpful review of the Rules’ pre-1997 text and history, 4

see United States v. Chavez-Valencia, 116 F.3d 127, 130–31

(5th Cir. 1997).

7

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 (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]
8

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; 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 ChavezValencia, 116 F.3d at 130. Rule 41(f) read that “[a] motion to
9

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
10

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 in the treatment of suppression motions in

Rule 12 that exists today. The waiver provision of section (f)

was moved to section (e) in 2002, and its text was revised, but

in making the change “the [Advisory] Committee intend[ed] to

make no change in the . . . law regarding waivers of motions or

defenses.” Fed. R. Crim. P. 12 advisory committee’s note to

2002 amendments.

B. Our Court’s Decisions

Our Court has never explicitly acknowledged the tension

between Rule 12’s waiver provision and Rule 52(b)’s plain error

provision where suppression issues raised for the first time on

appeal are concerned. In one line of cases we have applied

waiver and in another we have applied plain error, yet no case

in either line refers to any case in the other line during its

discussion of the suppression issue, nor to the Rule that arguably

presents a different standard.

Our waiver cases began with Frank, where we invoked
 In another portion of its brief, the Government did suggest 5

the issue was waived. Brief for the Appellee, supra, at 18, 1993

WL 13121408, at *18.

 Neither party in Lockett raised in its briefing the possibility 6

of plain error review. The Government argued that the

11

Rule 12(b)(3) to hold that the defendant waived his argument

that, inter alia, the warrant did not issue in compliance with

Federal Rule of Criminal Procedure 41(a) because he did not

raise the issue to the district court. 864 F.2d at 1006. Then, in

Velasquez we held that because the defendant did not raise to

the district court her argument that her confession was

involuntary, we “d[id] not reach the confession issue.” 885 F.2d

at 1084 n.6. And in Martinez-Hidalgo, where the defendant

never filed a motion to suppress in the district court, we held

that he “waived” his argument of unreasonable seizure on

appeal, 993 F.2d at 1057–58 (citing Frank, 864 F.2d at 1006),

even though the Government suggested that we review the

argument for plain error, see Brief for the Appellee, MartinezHidalgo, 993 F.2d 1052 (No. 92-7574), 1993 WL 13121408

(unnumbered page at beginning).5

We most fully explained the propriety of a waiver

approach in Lockett, 406 F.3d at 212. We held that the

defendant waived his argument on appeal that his consent to a

certain search was limited, as that argument before the district

court addressed a different issue. Id. In doing so, we noted that 6
defendant had not raised the issue before the district court and

therefore waived it, Brief for Appellee United States of America

at 15, 27–30, Lockett, 406 F.3d 207 (No. 04-2244), 2004 WL

5040478, at *15, 27–30, while the defendant contended that he

had raised the issue before the district court, Reply Brief for

Appellant at 2–7, Lockett, 406 F.3d 207 (No. 04-2244), 2002

WL 33969221, at *2–7.

12

“[i]t is well settled that arguments asserted for the first time on

appeal are deemed to be waived and consequently are not

susceptible to review in this Court absent exceptional

circumstances.” Id. We reasoned that “Federal Rule of

Criminal Procedure 12(b)(3) requires a defendant to file a

suppression motion prior to trial, and Rule 12(f) provides that

failure to do so constitutes a waiver.” Id. It followed from this

Rule, we reasoned, that, “in the context of a motion to suppress,

a defendant must have advanced substantially the same theories

of suppression in the district court as he or she seeks to rely

upon in this Court”—in other words, a “‘litigant cannot jump

from theory to theory like a bee buzzing from flower to

flower.’” Id. (quoting United States v. Torres, 162 F.3d 6, 11

(1st Cir. 1998)). Thus we concluded that the defendant’s

limited-consent argument was waived. Id.

By contrast, we have occasionally applied plain error

review to suppression issues raised for the first time on appeal.

In none of these cases, however, did a party suggest in briefing

that we hold the issues to be waived. In Martinez-Zayas, we
13

considered a defendant’s claim, raised for the first time on

appeal, that a warrant issued by a nonlawyer and nonjudge bail

commissioner was invalid under Federal Rule of Criminal

Procedure 41(a). 857 F.2d at 133–34. Though the Government

consented to plenary review (mentioning neither plain error

review nor Rule 12’s waiver provision), see Reply Brief for

Appellant and Brief for Cross-Appellee at 8, 28–33, MartinezZayas, 857 F.2d 122 (Nos. 87-1749, 87-1756), we reviewed for

plain error, finding none, 857 F.2d at 134, 137.

We applied plain error review again in Riddick, this time

to a defendant’s argument, raised for the first time on appeal,

that the warrant contained stale facts and that it failed to list with

particularity the items to be seized. 156 F.3d at 509 (citing Fed.

R. Crim. P. 52(b)). The Government had asked at most for plain

error review, making no mention of waiver or Rule 12. See

Brief for Appellee/Cross-Appellant at 3, 47, Riddick, 156 F.3d

505 (Nos. 97-1367, 97-1433), 1997 WL 33558258, at *3, 47.

Finally, citing Riddick, Martinez-Zayas and United States

v. Bey, 736 F.2d 891, 895 (3d Cir. 1984) (applying plain error

review to an unpreserved objection to jury instructions), we

applied plain error in Loy to a defendant’s argument that the

warrant failed to describe the items to be seized with sufficient

particularity, where the defendant had not raised the issue in the

district court. Loy, 191 F.3d at 369 & n.6. As in Riddick, the

Government had argued only for plain error review, mentioning

neither the concept of waiver nor Rule 12. Brief for the United
 As discussed previously, the contents of current Rule 12(e) 7

were contained in Rule 12(f) prior to 2002.

14

States at 2, 31–35, Loy, 191 F.3d 360 (No. 98-3636).

C. Other Jurisdictions’ Approaches

In other courts, “the prevailing rule is that the failure to

assert a particular ground [for suppression] operates as a waiver

of the right to challenge the admissibility of the evidence on that

ground.” 6 Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment § 11.2(a) (4th ed. 2004); see also

Chavez-Valencia, 116 F.3d at 132 (noting that most courts

adhere to the waiver approach). But courts have not always

applied this rule consistently. Some courts have been willing to

review suppression claims for plain error despite a defendant’s

noncompliance with Rule 12. In United States v. Buchanon, for

instance, the Sixth Circuit Court of Appeals characterized Rule

12(f) as a mere “forfeiture” provision despite the Rule’s use of 7

the term “waiver,” and thus held that a suppression argument

forfeited under Rule 12(f) could be reviewed for plain error

under Rule 52(b). 72 F.3d 1217, 1227 (6th Cir. 1995). But see

United States v. Vincent, 20 F.3d 229, 234 (6th Cir. 1994)

(holding that defendant was precluded from raising suppression

issue for the first time on appeal). Similarly, the Eleventh

Circuit Court in United States v. Milian-Rodriguez concluded

that the defendant’s failure to raise timely (without good cause)

a suppression argument was a waiver under Rule 12(f), but then
15

went on to review the argument for plain error. 828 F.2d 679,

683–84 (11th Cir. 1987). But see United States v. Ford, 34 F.3d

992, 994 & n.2 (11th Cir. 1994) (citing Fed. R. Crim. P. 12(f))

(refusing to hear suppression claims not raised in defendant’s

pretrial motion). 

Other courts, by contrast, have depended for their answer

on whether the record is sufficiently developed to permit an

accurate resolution of the issue on appeal. In United States v.

Lopez-Lopez, the First Circuit Court refused to apply plain error

review to an argument that was waived under Rule 12, in part

because the district court record was “insufficiently developed,”

due to the defendant’s “own failure to raise the issue, to permit

reliable appellate review.” 282 F.3d 1, 10 (1st Cir. 2002). The

Court went on to note as an “open” issue in its Circuit whether

an appellate court can review for plain error where the record is

sufficiently developed. Id. at 10 n.4. Similarly, in United States

v. Hawkins, 249 F.3d 867, 871–72 (9th Cir. 2001), although the

Ninth Circuit Court noted that “failure to raise a particular

ground in support of a motion to suppress constitutes a waiver

of that challenge,” it “recognized an exception to this rule where

the issue not raised in the trial court does not affect or rely on

the factual record developed by the parties.”

Other courts have gone further, holding untimely claims

under Rule 12 were completely barred absent good cause,

without apparent reliance on whether the record was sufficiently

developed. In United States v. Sobin, for instance, the D.C.
16

Circuit Court held that the defendant waived his right to seek

suppression by waiting (without cause) until after the district

court’s motion deadline to assert it. 56 F.3d 1423, 1427 (D.C.

Cir. 1995); see also United States v. Hewlett, 395 F.3d 458,

460–61 (D.C. Cir. 2005) (holding that suppression issue not

raised to the district court was waived under Rule 12). 

Similarly, in United States v. Neumann our Eighth Circuit

colleagues refused to consider a challenge to a search warrant

that was not raised to the district court. 887 F.2d 880, 885–86

(8th Cir. 1989) (en banc) (citing Fed. R. Crim. P. 12). The

Tenth Circuit Court likewise refused to consider a defendant’s

suppression argument that his detention and the search of his car

were unconstitutional because he raised the argument for the

first time on appeal. United States v. Dirden, 38 F.3d 1131,

1139 n.10 (10th Cir. 1994) (citing Fed. R. Crim. P. 12(b)(3),

(f)). But see United States v. Dewitt, 946 F.2d 1497, 1502 (10th

Cir. 1991) (holding that suppression issue was waived under

Rule 12, but then noting that the Court did “not find plain error

in the district court’s admission of the evidence”). The Second

Circuit Court followed the waiver route in United States v.

Yousef, where it found “complete waiver of a suppression

argument that was made in an untimely fashion” to be without

cause. 327 F.3d 56, 125 (2d Cir. 2003). 

In a particularly detailed treatment of this issue, ChavezValencia in the Fifth Circuit joined those courts employing a

waiver approach. 116 F.3d at 129–33. After providing a history

of the Rules’ text similar to the one we provided above, the
17

Court noted that 

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 [clear].

Id. at 131.

After reconciling this textual reading with Fifth Circuit

precedent, Chavez-Valencia examined various policy

considerations that support a waiver approach. It noted that

because the exclusionary rule is “not devised so much [as] a

personal right of the defendant, but, instead, as an incentive to

protect the public against an over-aggressive police force,” the

Supreme Court has “refused to apply the exclusionary rule for

Fourth Amendment violations where the costs of its

implementation outweigh[] the benefit gained by deterrence of

future violations.” Id. (citing United States v. Leon, 468 U.S.

897 (1984)). It therefore examined the costs and benefits of

allowing a criminal defendant to raise a suppression issue on

appeal notwithstanding noncompliance with Rule 12. In doing
18

so, it noted that “allowing appellate review of suppression

claims not raised in the district court inflicts a significant cost on

the criminal justice process.” Id. at 131–32. Specifically, if the

Government has no reason to believe the defendant will seek to

suppress certain evidence, it may see no need to produce the

quality or quantity of evidence otherwise needed to prevail. Id.

at 132. Further, the Government will be forced on appeal to rely

on an underdeveloped record in defending itself from the

suppression argument. Id. And allowing a defendant to raise a

suppression motion after jeopardy has attached (i.e., after the

jury has been sworn) robs the Government of its ability to appeal

an adverse ruling on the suppression issue. Id.; see also 18

U.S.C. § 3731.

Chavez-Valencia found little benefit to allowing a

defendant to raise an untimely suppression issue on appeal.

Specifically, this would not deter much (if any) police

misconduct. It noted that, to find an effect on police

misconduct, “‘we would have to imagine a policeman tempted

to make an unconstitutional search or seizure pausing to think

and then being dissuaded by the consideration that the

prospective defendant, if he is so unlucky as to have a lawyer

who commits plain error in failing to file a timely pretrial

suppression motion, will have another bite at the apple.’”

Chavez-Valencia, 116 F.3d at 132 (quoting United States v.

Brown, 663 F.2d 229, 238 (D.C. Cir. 1981) (en banc) (Wiley, J.,

concurring)). Thus the Court concluded that, in addition to Rule

12’s text and history as well as pertinent case law, policy
19

considerations counseled in favor of a waiver approach.

D. Analysis

We agree with Chavez-Valencia that under Rule 12 a

suppression argument raised for the first time on appeal is

waived (i.e., completely barred) absent good cause. As in

Lockett, our holding applies not only where the defendant failed

to file a suppression motion at all in the district court, but also

where he filed one but did not include the issues raised on

appeal. See 406 F.3d at 212 (stating that “in the context of a

motion to suppress, a defendant must have advanced

substantially the same theories of suppression in the district

court as he or she seeks to rely upon in this Court”). Because

Rose failed without good cause to raise these suppression

arguments to the District Court, we do not consider them.

1. Rule 12, not Rule 52(b), Controls

Though each of Rule 52(b) and Rule 12 appears

applicable when read alone, when considered together we

believe Rule 12’s waiver provision must prevail. The latter is

much more specific than is Rule 52(b); while Rule 52(b) states

generally that “[a] plain error that affects substantial rights may

be considered even though it was not brought to the court’s

attention,” Rule 12(e) singles out motions to suppress, stating

that a “party waives any [suppression] defense, objection, or

request not raised by the [pretrial] deadline the court sets.”
20

(Emphasis added.) In this context, “we apply the well-settled

maxim that specific statutory provisions prevail over more

general provisions.” Chavarria v. Gonzalez, 446 F.3d 508, 517

(3d Cir. 2006) (internal quotation marks omitted). Thus we

avoid “applying a general provision when doing so would

undermine limitations created by a more specific provision.”

Varity Corp. v. Howe, 516 U.S. 489, 511 (1996). 

Rose counters that Rule 12’s use of the term “waives” is

arguably at odds with the Supreme Court’s definition of

“waiver” in Olano—the “intentional relinquishment or

abandonment of a right.” Olano, 507 U.S. at 733. Per this

argument, failure to comply with Rule 12 could be seen as more

akin to a forfeiture—an inadvertent “failure to make the timely

assertion of a right”—that would result in plain error review

rather than a waiver. Id. Rule 12’s history, however, indicates

that its text means what it says. As previously noted, in 1974 the

Rules were changed to require—with an explicit threat of

waiver—that motions to suppress be raised prior to trial in

accordance with the district court’s desired timetable. In 2002,

well after Olano, the waiver provision of section (f) was moved

to section (e) and its text was revised, but the Advisory

Committee kept the term “waiver” in place. See Fed. R. Crim.

P. 12 advisory committee’s note to 2002 amendments. Had the

drafters thought that term outdated in light of Olano or other

precedent, they could have changed the term to “forfeiture,” but

they did not.
 Though we offer this rationale, we think it unwise to excuse 8

a defendant from compliance with Rule 12 even where the court

of appeals thinks the record is sufficiently developed. To do so

would ignore the specific language of Rule 12, something we do

not consider ourselves at liberty to do.

21

Moreover, we join the Fifth Circuit’s conclusion in

Chavez-Valencia that policy considerations support a waiver

approach. See 116 F.3d at 131–32. Allowing a defendant to

raise a suppression issue for the first time on appeal absent good

cause carries substantial costs that are not outweighed by any

attendant benefits. If a defendant has not raised a suppression

issue before the district court, the Government (under an

assumption that its proffered evidence was admissible) may

plausibly conclude during trial that it does not need to

accumulate and introduce additional evidence to prevail. Id. at

132. Moreover, on appeal the Government has lost its chance

to introduce valuable evidence in opposition to the suppression

motion. See id. And we agree with the Chavez-Valencia Court 8

that a choice of plain error review over a waiver approach would

do little, if anything, to further the deterrent effect of the

exclusionary rule. See id. at 132.

The parties spend much time discussing our Court’s prior

cases, some of which applied plain error review and some of

which applied waiver to suppression issues raised for the first

time on appeal. This is understandable. We do not think,

however, that any of these cases controls the outcome we reach
 To be fair, we reiterate that, in another portion of its brief, 9

the Government suggested the issue was waived. Brief for the

Appellee, supra, at 18, 1993 WL 13121408, at *18.

22

today. As mentioned at the outset of this opinion, we appear to

be the first panel in our Circuit to analyze and resolve explicitly

the tension between Rule 52(b) and Rule 12 where suppression

motions are concerned, for no case in either line of decisions

mentions a case in the other line (or the arguably contrary rule)

during its discussion of the suppression issue.

To the extent there is any indication that we silently

considered (but did not explicitly discuss) the tension when

deciding these prior cases, that indication is that we resolved the

tension in favor of waiver. In Martinez-Hidalgo the

Government stated in its brief that “[a]s the [suppression] issue

was not raised below, the standard of review is plain error,”

Brief for the Appellee, Martinez-Hidalgo, 993 F.2d 1052 (No.

92-7574), 1993 WL 13121408 (unnumbered page at

beginning), yet we went further and held the issue to be 9

“waived.” 993 F.2d at 1057–58.

As for the cases that applied plain error review, we have

little doubt that those applications were inadvertent. We noted

previously that in none of the cases applying plain error review

did a party raise the possibility of waiver in its brief. That our

Court did not uncover Rule 12 itself is understandable, given

that Rule 52(b) seems applicable on its face and does not refer
 We are unpersuaded by Rose’s argument that because Rule 10

12 excuses waiver where the defendant shows “cause”—a

factual determination that a court of appeals is ill-suited to

make—the Government should not be permitted to invoke Rule

12’s waiver provision on appeal. See Rose’s Reply Br. 12–13

n.11. That argument has no force here, as Rose has presented no

23

the reader to any other portion of the Criminal Rules. But in our

view it would be imprudent to compound the error, and we

decline to do so.

For all of these reasons, we hold that Rule 12, not Rule

52(b), governs motions to suppress evidence raised for the first

time on appeal. As such, those issues are waived absent good

cause.

2. Rose Has Not Shown Good Cause

Having concluded that Rose’s suppression arguments are

untimely under Rule 12, we turn to whether he has demonstrated

“good cause” for delaying his arguments until appeal. We

believe he has not. Where a defendant argues “cause” for the

first time on appeal, and the proper disposition is not clear to us,

we could remand the case for an evidentiary hearing. See

United States v. Weathers, 186 F.3d 948, 958–59 (D.C. Cir.

1999) (remanding case for hearing on whether ineffective

assistance of counsel was cause for relief from the defendant’s

waiver under Rule 12). We see no need for remand here, 10
colorable claim of “cause” that merits further fact-finding.

24

however, as Rose has not presented any colorable explanation

why he failed to raise these suppression issues to the District

Court. Cf. United States v. Soto, 132 F.3d 56, 59 (D.C. Cir.

1997) (remand of ineffectiveness claim is unnecessary where the

proper result is clear). Though Rose has offered a reason why

he did not raise the issues before his suppression hearing, Rose’s

Reply Br. 15 (arguing that he “could not move to suppress

before the hearing on the basis of problems with documents

identified at the hearing”), he has offered no explanation, other

than that he was proceeding pro se, why he did not raise the

issues after the hearing but prior to this appeal, see Oral Arg. Tr.

at 29. In this context, we conclude that Rose has not shown

“good cause” for his failure to raise these suppression issues to

the District Court.

III. Conclusion

Under Federal Rule of Criminal Procedure 12, a federal

criminal defendant is barred, absent good cause, from raising a

reason to suppress evidence for the first time on appeal. This

conclusion finds support in the Criminal Rules’ text, their

history, our Court’s case law, and the policy underlying Rule 12.

Rose has offered no good reason why he waited until appeal to

raise the suppression issues, and accordingly the issues are

waived.