Tuesday, April 23, 2019
Differs With Three Circuits That Plain Error Standard Applies
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday aligned itself with five circuits that apply a “good cause” requirement for raising a contention on appeal that was not made in a pre-trial motion, rejecting the view of three other circuits that a showing of plain error suffices.
Defendant Jorge Guerrero challenged on appeal the denial of his motion to suppress a gun and ammunition charge found during a traffic stop. District Court Judge Fernando M. Olguin of the Central District of California had rejected his contention that the officer lacked probable cause to stop the vehicle based on the driver having failed to make a left turn signal because the driver did, in fact, so signal.
On appeal, Guerrero argued, for the first time, that no such signal need be made under California law if no other car is near enough that the driver would be affected.
A three-judge Ninth Circuit panel affirmed in a memorandum opinion, explaining:
“Guerrero has not shown good cause for failing to present in his pre-trial motion the new theory for suppression he raises in this appeal. Nor has he challenged the district court’s rejection of the one theory that he did raise below. We therefore affirm the district court’s denial of his motion to suppress.”
Reason for Publishing
The opinion notes:
“We have decided to publish in this case to clarify the standard of review that governs in the wake of the 2014 amendments to Federal Rule of Criminal Procedure 12.”
Before the amendments, Rule 12 said that a party who failed to raise certain “defenses, objections, and requests,” including seeking a suppression of evidence, “waives” the ground. It also provided:
“For good cause, the court may grant relief from the waiver.”
The requirement of “good cause” was found prior to the amendments to replace the usual inquiry into whether there is “plain error.”
In 2014, reference to waiver was removed, and the rule now provides:
“If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.”
Three circuits have found that plain error is now the standard of review. The Fifth Circuit said in the 2018 case of United States v. Vasquez that the deletion of the word “waiver” stemmed from the recommendation of an advisory committee, pointing out:
“The advisory committee explained that it revised the rule ‘to avoid possible confusion’ stemming from the use of the word ‘waiver,’ given that Rule 12 ‘never required any determination that a party who failed to make a timely motion intended to relinquish a defense, objection, or request.’…Taken together, the amendment and note make clear that our prior approach does not endure….They clarify that Rule 12 recognizes the traditional distinction between forfeiture and waiver. Thus, we review Vasquez’s untimely— that is, forfeited —…challenge for plain error.”
Disagreeing, the Ninth Circuit said yesterday:
“As Guerrero points out, Rule 12 no longer labels untimely defenses, objections, and requests as ‘waived.’ But the 2014 amendments to Rule 12 did not eliminate the good-cause standard. Nor did they clarify that appellate courts should apply Rule 52(b)’s plain-error standard instead of the good-cause standard. In fact, the rulemaking history indicates that the Advisory Committee chose not to take a position on which of the two standards should apply, leaving that matter for the circuit courts to decide….Accordingly, we cannot say that our prior precedent is clearly irreconcilable with the amended version of Rule 12.
“Rule 12(c)(3)’s good-cause standard continues to apply when, as in this case, the defendant attempts to raise new theories on appeal in support of a motion to suppress.”
The case is United States v. Guerrero, 17-50384.
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