The Honorable Edmond E. Chang, United States District 

Court for the Northern District of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2690

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD L. JOHNSON, also known as

JOSHUA MCGHEE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 10-CR-121—Rudolph T. Randa, Judge.

ARGUED JANUARY 9, 2012—DECIDED FEBRUARY 9, 2012

Before FLAUM and KANNE, Circuit Judges, and CHANG,

District Judge.



KANNE, Circuit Judge. Ronald L. Johnson was arrested

on the morning of January 29, 2009, while officers

executed a search warrant at the apartment he shared
2 No. 11-2690

with his fiancée. Relying upon items found within the

apartment and Johnson’s statements to police officers,

a federal grand jury charged Johnson with possession

of cocaine base with intent to distribute, possession of

MDMA (Ecstasy) with intent to distribute, and possession of a firearm by a convicted felon. His case was docketed as 09-CR-83 and assigned to the Honorable J.P.

Stadtmueller. Johnson filed a motion to suppress his

statements and the evidence obtained from his apartment based on an alleged Miranda violation. See Miranda

v. Arizona, 384 U.S. 436 (1966). Following an evidentiary hearing, the magistrate judge recommended that

the motion be denied. After Johnson filed his motion

to suppress but before the magistrate judge made

his recommendation, Judge Stadtmueller recused himself and the case was reassigned to the Honorable

Rudolph T. Randa. Judge Randa adopted the magistrate

judge’s recommendation denying the motion to suppress. On May 27, 2010, Johnson moved for dismissal of

his case, arguing that his trial had not been conducted

within the time requirements of the Speedy Trial Act,

18 U.S.C. § 3162(a)(2). Judge Randa agreed and dismissed

the case without prejudice on June 10, 2010.

On June 22, 2010, a federal grand jury returned another

three-count indictment against Johnson based upon the

same circumstances as Johnson’s first case. This second

case, docketed as 10-CR-121, was again assigned to Judge

Stadtmueller, who presided over the trial but recused

himself prior to sentencing. Although a new motions

deadline was set, Johnson did not file a suppression

motion based on the alleged Miranda violation. Following
No. 11-2690 3

Count Two, possession with intent to distribute MDMA, 1

was dismissed prior to trial.

a two-day jury trial, Johnson was convicted of possession with intent to distribute 50 grams or more of crack

cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). At trial, the government 1

sought and obtained an aiding and abetting jury instruction based upon Johnson’s testimony that a man named

“Simon” lived in the apartment and sold crack cocaine

from that address.

On July 21, 2011, Judge Randa sentenced Johnson to

300 months’ imprisonment. In calculating his sentence,

Judge Randa applied an obstruction of justice enhancement pursuant to § 3C1.1 of the Sentencing Guidelines

and determined that Johnson was a “career offender”

based on his prior convictions.

On appeal, Johnson challenges several aspects of his

conviction and sentence, including (1) the denial of his

motion to suppress in the first case, 09-CR-83; (2) Judge

Stadtmueller’s failure to recuse himself sua sponte in

the second case, 10-CR-121; (3) the aiding and abetting

instruction given at trial; (4) application of the obstruction of justice enhancement; and (5) the finding that

Johnson is a career offender.

First, Johnson argues that the district court should

have granted his motion to suppress in 09-CR-83.

Although case number 09-CR-83 is not before us on

appeal, Johnson asserts that it is proper for us to con-
4 No. 11-2690

sider the denial of his Miranda argument because the

two cases are essentially one and the same. We disagree

with Johnson’s interpretation. Although the first and

second cases concern the same offenses, there are two

separate indictments and case numbers. Further, the

second case did not proceed as a continuation of the

first. Instead, Johnson had a new arraignment hearing

and new pretrial motion deadlines were set. Thus, we

hold that 09-CR-83 and 10-CR-121 represent two distinguishable cases, not one.

Despite the existence of two distinct cases, we are not

necessarily barred from considering Johnson’s Miranda

argument. Because Johnson’s first case was dismissed

without prejudice, he did not have an opportunity

to appeal the district court’s ruling on his motion to

suppress. It is clear from the record, however, that he

could have raised the issue in his second case but failed

to do so. The government asserts that because Johnson

failed to file a second motion to suppress in 10-CR-121,

his Miranda argument is waived. Waiver involves the

intentional abandonment of a known right, United States

v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010), and precludes all appellate review on that issue, United States v.

Turner, 651 F.3d 743, 747 (7th Cir.), cert. denied, 132 S. Ct.

863 (2011). In contrast, if Johnson’s argument was

merely forfeited in the second case, we may consider the

previously raised suppression issue under plain error

review. “Forfeiture takes place when counsel or a defendant negligently bypasses a valid argument.” Anderson,

604 F.3d at 1001. We assume forfeiture where the gov-
No. 11-2690 5

ernment fails to proffer a strategic justification for a defendant’s decision to bypass an argument. Id. at 1001-02.

The government argues that Johnson intentionally

abandoned his right to renew his Miranda argument in

order to pursue a motion to suppress based on an

alleged Franks violation. See Franks v. Delaware, 438 U.S.

154, 155-56 (1978) (permitting a defendant to challenge

the constitutionality of a search if he can show intentional or reckless misrepresentations in the warrant

affidavit). Although we acknowledge that Johnson

raised a Franks argument in the second case, we see

no strategic basis for choosing to forego a Miranda argument in order to assert a Franks violation. A defendant

is not forced to choose between asserting one or the

other. In addition, although Johnson’s Miranda argument

was unsuccessful in the first case, there is no strategic

justification for failing to raise the issue in the second

case in order to preserve it for appeal. Accordingly, we

find that Johnson merely forfeited his Miranda argument, and we may review for plain error.

The government also asserts that Johnson’s argument

is waived under Federal Rule of Criminal Procedure 12(e).

Under that rule, a party waives any motion to suppress

evidence not raised by the court’s motion deadline. But

the rule also provides that “[f]or good cause, the court

may grant relief from the waiver.” Fed. R. Crim. P. 12(e).

Here, although Johnson did not file a new motion to

suppress prior to the deadline set by the district court,

we find there was good cause for his failure to do so.

In the first case, Johnson received a full evidentiary
6 No. 11-2690

hearing on his motion to suppress, which ultimately was

denied. It was reasonable for Johnson to believe that

this denial was the law of the case and Judge Stadtmueller

would not consider an identical suppression motion in

the second case, which involved the same charges, facts,

and attorneys. See United States v. O’Neill, 52 F. Supp. 2d

954, 965-66 (E.D. Wis. 1999) (following the issuance of

a superseding indictment, Judge Stadtmueller held that

the doctrine of the law of the case prevented a defendant

from relitigating a motion to suppress); accord Smith v.

United States, 406 A.2d 1262, 1263-64 (D.C. 1979) (under

law of the case doctrine, the trial court’s ruling on a

pretrial motion to suppress survived a subsequent dismissal and applied to a later proceeding involving

identical parties, facts, and charges). Because Johnson

had good cause for not raising the issue, his argument

is not waived under Rule 12(e).

For us to review the denial of Johnson’s motion to

suppress, the record must be supplemented. After filing

his appeal, Johnson moved to modify the appellate

record to include the filings from 09-CR-83 so that he

could pursue his Miranda argument. The motions panel

denied Johnson’s motion on October 17, 2011. Upon

further consideration of the merits of Johnson’s case, we

have determined that this ruling was in error and Johnson’s motion to modify the appellate record should

have been granted.

Accordingly, Johnson’s motion to expand the record

on appeal is now GRANTED and the parties are ordered

to file supplemental briefs addressing the denial of John-
No. 11-2690 7

son’s motion to suppress. The government shall file its

supplemental brief within twenty-one (21) days of the

filing of this opinion. Johnson’s response is due fourteen (14) days thereafter. We will consider Johnson’s

remaining arguments, if necessary, in our subsequent

opinion addressing the denial of Johnson’s motion to

suppress.

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