                                                            FILED
                                                United States Court of Appeals
                 UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                         April 5, 2017
                    _________________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                  No. 15-8138
                                                      (D. Wyo.)
JOEL S. ELLIOTT,                          (D.C. No. 1:15-CR-00042-SWS-1)

       Defendant - Appellant.
                   _________________________________________

                           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.


*
      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
1
      Mr. Elliott was also convicted of using a firearm during and in
relation to a crime of violence, possessing an unregistered firearm, and
making a false declaration to a grand jury.
      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 possessed

2
      In explaining that Mr. Elliott’s argument fails on the merits, we do
not suggest that we would have reversed here even though Mr. Elliott had
waived his appeal point. We simply explain that the appeal point suffers
two defects: It is both (1) waived and (2) invalid.

                                      2
by 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. The



3
      In district court, Mr. Elliott asserted that he had known that Mr.
Weber was acting as a government agent. The court rejected this assertion.
In this appeal, Mr. Elliott does not address whether he had known that Mr.
Weber was working for the government.

                                       3
government 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 the


                                       4
evidence; 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. See

4
     Mr. Elliott may even have committed two separate waivers of the
argument in district court.

      First, Mr. Elliott may have waived the argument in district court by
failing to mention a potential ethical violation in his motion to suppress.
This omission implicates Federal Rule of Criminal Procedure 12(c)(3). In
two unpublished opinions, we have held that under Rule 12(c)(3), waiver
occurs when a defendant fails to adequately present an argument in a
motion to suppress. In these cases, we found waivers without determining
whether the omission was intentional or inadvertent. See United States v.
Shrader, No. 15-5073, 2016 WL 4497984, at *4 (10th Cir. Aug. 26, 2016)
(unpublished); United States v. Franco, 632 F. App’x 961, 963-64, 963 n.1
(10th Cir. 2015) (unpublished). But see United States v. Soto, 794 F.3d
635, 648-52, 655 (6th Cir. 2015) (concluding that under the 2014
amendments to Federal Rule of Criminal Procedure 12, an untimely pretrial
motion listed in Rule 12(b)(3) no longer constitutes a waiver); United
States v. Sperrazza, 804 F.3d 1113, 1119 (11th Cir. 2015) (same).

      Second, Mr. Elliott may have intentionally abandoned the ethical
argument later in the proceedings. During the hearing on the motion to
suppress, the government challenged Mr. Elliott to flesh out his allegation
of an ethical violation, and Mr. Elliott failed to do so. This failure
arguably constituted an intentional abandonment of the argument.

      But we need not decide whether Mr. Elliott waived his argument in
district court. Even if Mr. Elliott had only forfeited the argument in
district court, he waived the argument on appeal by failing to request
plain-error review. See pp. 4-7.

                                      5
McKissick 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.


                                      6
      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 appellate



                                       7
record. 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 challenges

                                        8
forfeited 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 McHugh, J.); Rife v. Okla. Dep’t of Pub. Safety, 846

F.3d 1119, 1135 (10th Cir. 2017). We elect to do the same here,

independently affirming on the merits even though Mr. Elliott has waived

his challenge.

     In deciding whether to independently reject Mr. Elliott’s challenge

on the merits, we are guided here by two factors:

     1.    Would rejection on the merits serve the public interest?

     2.    May we reject the argument, with certainty, purely as a matter
           of law? 5




5
      In other cases, different factors may affect whether to independently
reject a waived argument on the merits.

                                     9
      We first examine whether rejecting the waived argument on the

merits would serve the public interest. See Carlson v. Green, 446 U.S. 14,

17 n.2 (1980) (deciding an unpreserved argument on the merits because

doing so would serve the interests of judicial administration); Bylin v.

Billings, 568 F.3d 1224, 1231 (10th Cir. 2009) (indicating that we may

“consider issues not raised or argued in the district court” when the “public

interest is implicated”); Sussman v. Patterson, 108 F.3d 1206, 1210 (10th

Cir. 1997) (deciding to reach the merits of a forfeited issue, in part

because of “the important public policy concerns raised by the issue”).

      The ethical issue here involves a state’s “no-contact rule.” A no-

contact rule prohibits an attorney from knowingly communicating with

individuals who are known to be represented by counsel. Caleb Mason, The

Police-Prosecutor Relationship & the No-Contact Rule: Conflicting

Incentives After Montejo v. Louisiana & Maryland v. Shatzer, 58 Clev. St.

L. Rev. 747, 755 (2010). Some version of this rule has long existed in

every state. See Frank O. Bowman, III, A Bludgeon by Any Other Name:

The Misuse of “Ethical Rules” Against Prosecutors to Control the Law of

the State, 9 Geo. J. Legal Ethics 665, 722 n.265 (1996). Uncertainty

regarding the scope of these rules can chill prosecutors’ use of legitimate

investigative techniques. See John G. Douglass, Jimmy Hoffa’s Revenge:

White-Collar Rights Under the McDade Amendment, 11 Wm. & Mary Bill

Rts. J. 123, 137-38 & 138 n.117 (2002). By rejecting Mr. Elliott’s waived

                                      10
argument on the merits, we can mitigate this chilling effect within our

circuit. Doing so will serve the public interest.

      The second factor is whether we may reject the waived argument,

with certainty, purely as a matter of law. See United States v. Lyons, 510

F.3d 1225, 1238 (10th Cir. 2007); United States v. Jarvis, 499 F.3d 1196,

1202 (10th Cir. 2007).

      As discussed above, Mr. Elliott’s argument depends on five alleged

facts. See pp. 6-7, above. If we assume that these alleged facts are true, the

resulting issue would be purely legal: Under the no-contact rule, could a

prosecutor who knows that a suspect is represented by counsel on a

particular matter use an undercover informant to elicit incriminating

admissions from the suspect on that matter? As discussed below, the

answer is clearly yes. See pp. 11-22, below. This consideration favors

rejecting Mr. Elliott’s argument based on the merits as well as on waiver.

      Considering the two factors, we conclude that it is appropriate to

reject Mr. Elliott’s waived argument on the merits.

      3.    Rejecting Mr. Elliott’s Argument on the Merits

      On the merits, we conclude that the Assistant U.S. Attorney did not

commit an ethical violation.

      As a general rule, an Assistant U.S. Attorney is bound by the ethical

rules of the state where he or she practices. 28 U.S.C. § 530B(a) (2012).

When the government was investigating Mr. Elliott in 2015, the Assistant

                                      11
U.S. Attorney was practicing in the State of Wyoming. Consequently, he

was bound by Wyoming’s ethical rules as they existed in 2015.

     Rule 4.2 of Wyoming’s ethical rules was a no-contact rule. It stated:

     In representing a client, a lawyer shall not communicate about
     the subject of the representation with a person or entity the
     lawyer knows to be represented by another lawyer in the
     matter, unless the lawyer has the consent of the other lawyer or
     is authorized to do so by law or a court order.

Wyo. Rules of Prof’l Conduct R. 4.2 (2015). The text of Wyoming’s

version of Rule 4.2 was nearly identical to the text of the American Bar

Association’s version. The sole difference was that the ABA’s version used

the word “person” rather than the phrase “person or entity.” See Model

Rules of Prof’l Conduct R. 4.2 (2015).

     As the text of Wyoming’s version of Rule 4.2 rule indicates, this rule

generally prohibited attorneys from knowingly communicating with a

“person” represented by another attorney about the subject of the

representation. Wyo. Rules of Prof’l Conduct R. 4.2 (2015). This

prohibition applied even if the communication had taken place through an

intermediary. See Wyo. Rules of Prof’l Conduct R. 8.4(a) (2015). But an

exception existed for communications “authorized by law.” Wyo. Rules of

Prof’l Conduct R. 4.2 (2015).

     The issue here is whether Rule 4.2 prohibited the Assistant U.S.

Attorney from using an undercover informant to elicit incriminating

admissions from Mr. Elliott, who was allegedly represented by an attorney

                                    12
on the matter under investigation. We answer “no” because the “authorized

by law” exception applied.

     In addressing this issue, we are guided by

          the historical development of Wyoming’s version of Rule 4.2,

          the ways that other courts have interpreted Rule 4.2 and its
           predecessor, Disciplinary Rule 7-104(A)(1) of the ABA’s
           Model Code of Professional Responsibility, and

          policy considerations, previously recognized by our circuit,
           supporting the use of undercover informants in pre-indictment
           investigations.

     Because the issue involves Wyoming law, we examine the decisions

of the Wyoming Supreme Court. ACE Fire Underwriters Ins. Co. v.

Romero, 831 F.3d 1285, 1289 (10th Cir. 2016). That court has not yet

interpreted the “authorized by law” exception under Wyoming’s current

version of Rule 4.2. Thus, we must predict how the Wyoming Supreme

Court would interpret the exception. Balknap v. IASIS Healthcare, 844

F.3d 1272, 1295 (10th Cir. 2017). To make this prediction, we follow

Wyoming’s rules of statutory construction and all relevant sources that

would inform the Wyoming Supreme Court’s decision. See United States v.

Ruiz, 589 F.3d 1310, 1313-14 (10th Cir. 2009) (following state rules of

construction); Rock Island Improvement Co. v. Helmerich & Payne, 698

F.2d 1075, 1079 (10th Cir. 1983) (using all relevant sources that would

inform the state supreme court’s decision).



                                    13
      In interpreting a prior version of Rule 4.2, the Supreme Court of

Wyoming has examined not only the text and commentary of the rule, but

also the ways that other courts and secondary sources understand Rule 4.2

and Disciplinary Rule 7-104(A)(1). See Strawser v. Exxon Co., U.S.A., 843

P.2d 613, 617-23 (Wyo. 1992). To predict how the Wyoming Supreme

Court would interpret the current version of Rule 4.2, we follow the same

approach.

      Wyoming’s version of Rule 4.2 has generally tracked the American

Bar Association’s version, which also uses the word “person.” See Model

Rules of Prof’l Conduct R. 4.2 (2015). Both versions closely resemble the

ABA’s earlier version of the no-contact rule, Disciplinary Rule 7-

104(A)(1) of the ABA’s Model Code of Professional Responsibility. See

Model Code of Prof’l Responsibility DR 7-104(A)(1) (1969). Unlike Rule

4.2, Disciplinary Rule 7-104(A)(1) prohibited communications with a

“party” rather than a “person.” Id. But like Rule 4.2, Disciplinary Rule 7-

104(A)(1) contained an exception for communications “authorized by law.”

Id.

      In interpreting Disciplinary Rule 7-104(A)(1), many courts held that

the rule did not apply when a prosecutor used an informant, prior to

indictment, to communicate with a suspect. See, e.g., United States v.

Cope, 312 F.3d 757, 773 (6th Cir. 2002) (stating that the defendant “has

cited no authority, nor have we found any, to support his contention that

                                     14
the government’s working with confidential informants to elicit

incriminating information from a represented defendant violates”

Disciplinary Rule 7-104(A)(1)). Some courts, like ours, arrived at this

holding based largely on the rule’s limitation to communications with a

“party.” See, e.g., United States v. Ryans, 903 F.2d 731, 739-40 (10th Cir.

1990); accord State v. Smart, 622 A.2d 1197, 1214 (N.H. 1993). Other

courts relied, at least in part, on the exception for communications

“authorized by law.” See, e.g., United States v. Hammad, 858 F.2d 834,

839 (2d Cir. 1988); State v. Lang, 702 A.2d 135, 137 (Vt. 1997); see also

United States v. Heinz, 983 F.2d 609, 618 (5th Cir. 1993) (Parker, J.,

concurring in part and dissenting in part) (asserting that “[t]he use of

informants to gather evidence against a suspect will generally, if not

almost always, fall within the ambit of the ‘authorized by law’ exception

to” Disciplinary Rule 7-104(A)(1)).

      In 1983, the ABA replaced Disciplinary Rule 7-104(A)(1) with Rule

4.2 of the Model Rules of Professional Conduct. See ABA Ctr. for Prof’l

Responsibility, A Legislative History: The Development of the ABA Model

Rules of Professional Conduct, 1982-2013, at vii, 555, 558 (Art Garwin

ed., 2013). The new rule was virtually identical to the old rule. Id. at 558.

Like its predecessor, Rule 4.2 generally prohibited attorneys from

communicating with a “party” about the subject of the representation.

Model Rules of Prof’l Conduct R. 4.2 (1983). And like its predecessor,

                                      15
Rule 4.2 contained an exception for communications “authorized by law.”

Id.

      Interpreting Rule 4.2, most courts continued to hold that the rule did

not apply when prosecutors used informants to communicate with

represented suspects. United States v. Balter, 91 F.3d 427, 436 (3d Cir.

1996) (Alito, J.) (stating that virtually every federal appellate court to

address the issue had held that pre-indictment criminal investigations did

not violate Rule 4.2 because (1) the rule was limited to communications

with a “party” or (2) such communications were “authorized by law”);

Colo. Bar Ass’n Ethics Comm., Formal Op. 96: Ex Parte Communications

with Represented Persons During Criminal and Civil

Regulatory/Investigations and Proceedings, 23 Colo. Law. 2297, 2298

(1994) (“Most courts interpreting Rule 4.2 or its predecessor [Disciplinary

Rule] 7-104(A)(1) have reached the conclusion that [the use of informants

is] ‘authorized by law.’”).

      In 1995, the ABA amended the rule, changing the word “party” to

“person.” Model Rules of Prof’l Conduct R. 4.2 (1995). Eleven years later,

Wyoming followed suit, amending Rule 4.2 to cover persons or entities

rather than parties. Wyo. Rules of Prof’l Conduct R. 4.2 (2006).

      Mr. Elliott seizes on this change. He argues that the change

broadened the rule, prohibiting prosecutors from using informants to



                                      16
communicate with represented suspects at the investigation stage. We

disagree.

      When amending the rule, the ABA indicated that the change from

“party” to “person” would not create new ethical constraints for

prosecutors using informants to communicate with represented suspects.

Shortly before the amendment, the ABA issued a formal opinion, which

acknowledged the case law holding that the use of informants fell within

the “authorized by law” exception:

      [T]he Committee recognizes that there is a body of decisional
      law that in effect concludes that the public interest in
      investigating crime may outweigh the interests served by [Rule
      4.2] in the criminal context, at least where the contacts are
      made with represented persons who have been neither arrested
      nor formally charged, and the contacts are made by undercover
      agents or informants and not by the government lawyers
      themselves (or by agents acting so closely under the lawyers’
      direction as to be their “alter egos”). Accordingly, the
      Committee believes that so long as this body of precedent
      remains good law, it is appropriate to treat contacts that are
      recognized as proper by such decisional authority as being
      “authorized by law” within the meaning of that exception stated
      in [Rule 4.2].

ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-396, at 11

(1995). The ABA then amended the rule’s commentary “to acknowledge

the case law that ha[d] limited the application of ‘anti-contact’

prohibitions in the context of pre-indictment, non-custodial contacts,

principally by ‘undercover’ investigative agents.” ABA Ctr. for Prof’l




                                      17
Responsibility, A Legislative History: The Development of the ABA Model

Rules of Professional Conduct, 1982-2013, at 559 (Art Garwin ed., 2013).

     Wyoming took the same approach, commenting that the “authorized

by law” exception “may” include the use of “investigative agents” before

criminal proceedings begin. Wyo. Rules of Prof’l Conduct R. 4.2 cmt. 5

(2015). This commentary signaled that undercover criminal investigations

“may” have been authorized by law. But were they? We answer “yes”

based on prevailing case law and policy considerations favoring the use of

informants prior to an indictment.

     In United States v. Ryans, we held that prosecutors could use

informants to communicate with represented suspects even though

Disciplinary Rule 7-104(A)(1) prohibited communications with a “party”

represented by an attorney. 903 F.2d 731, 739-40 (10th Cir. 1990). We

reaffirmed this view in United States v. Mullins, again applying a version

of the no-contact rule that used the term “party” rather than “person.” 613

F.3d 1273, 1288-89 (10th Cir. 2010).

     We did not squarely apply the “authorized by law” exception in those

cases. But other courts have applied this exception, concluding that the use

of informants prior to indictment is generally authorized by law. See

pp. 14-16, above. For example, Justice Alito, while serving as a judge on

the Third Circuit Court of Appeals, observed in 1996 that virtually every

federal appellate court to address the issue had held that Rule 4.2 does not

                                     18
apply to pre-indictment criminal investigations. United States v. Balter, 91

F.3d 427, 436 (3d Cir. 1996) (Alito, J.). Writing for a Third Circuit panel,

he explained that “even if a criminal suspect were a ‘party’ within the

meaning of [Rule 4.2], pre-indictment investigation by prosecutors is

precisely the type of contact exempted from [Rule 4.2] as ‘authorized by

law.’” Id.

      Then-Judge Alito reasoned in part that a contrary approach would

“significantly hamper legitimate law enforcement operations.” Id. We

employed similar reasoning in Ryans, stating that broad application of the

no-contact rule would unduly hinder investigators. United States v. Ryans,

903 F.2d 731, 739-40 (10th Cir. 1990). We explained that the government

should be able to capitalize on suspects’ misplaced trust in others:

      A broader interpretation of the rule to cover this type of
      investigative activity would seem inconsistent with the general
      view expressed by the Supreme Court in Hoffa v. United States,
      385 U.S. 293, 87 S. Ct. 408, 17 L.Ed.2d 374 (1966). As the
      District of Columbia Circuit observed in [United States v.
      Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973)]:

             [W]e cannot say that at this stage of the
             Government’s investigation of a criminal matter,
             the public interest does not . . . permit advantage
             to be legally and ethically taken of “a wrongdoer’s
             misplaced belief that a person to whom he
             voluntarily confides his wrongdoing will not reveal
             it.”

      Under Ryans’ view of the rule, once the subject of an
      investigation retains counsel, investigators would be unduly
      restricted in their use of informants to gather additional
      evidence.

                                     19
Id. (second alteration in original) (citation omitted).

      Similarly, in United States v. Hammad, the Second Circuit Court of

Appeals expressed concern that applying the no-contact rule in criminal

investigations “would impede legitimate investigatory practices,” for

“career criminals with permanent ‘house counsel’ [would be able to]

immunize themselves from infiltration by informants.” 858 F.2d 834, 839

(2d Cir. 1988).

      Academics have echoed this concern. See, e.g., Geoffrey C. Hazard,

Jr. & Dana Remus Irwin, Toward a Revised 4.2 No-Contact Rule, 60

Hastings L.J. 797, 811, 817-18 (2009); Pamela S. Karlan, Discrete and

Relational Criminal Representation: The Changing Vision of the Right to

Counsel, 105 Harv. L. Rev. 670, 701 (1992). For instance, Professor

Karlan has observed that

      [r]ead literally, the no-contact rule could quite obviously
      impede the investigation of complex crime. A potential
      defendant could retain an attorney, announce to federal and
      state prosecutors that he was represented by counsel with
      regard to all matters, and thereby prevent all governmental
      operatives (including informants and undercover agents) from
      eliciting statements from him. Moreover, corporations and
      other formal entities would be able to use their regular counsel
      to monitor and thus perhaps deter subordinate employees’
      contacts and cooperation with investigators. Such preclusion
      would be rendered particularly effective by a singular aspect of
      the no[]-contact rule: the lawyer, not the client, must consent to
      the direct contact. Thus, control over waiver would rest, at
      least in the first instance, in the enterprise counsel, because
      investigators would often be unable to determine whether an
      individual whom they wished to contact was actually a client of

                                      20
     an attorney who announced that “his client” did not wish to be
     contacted directly.

           A broad interpretation of the no-contact rule would
     provide a powerful incentive for criminal actors to seek
     relational   representation   because   having   an   ongoing
     relationship with an attorney could insulate them from several
     of the most effective law enforcement techniques for
     investigating complex crime.

Pamela S. Karlan, Discrete and Relational Criminal Representation: The

Changing Vision of the Right to Counsel, 105 Harv. L. Rev. 670, 701

(1992) (footnotes omitted); 6 see also Geoffrey C. Hazard, Jr. & Dana

Remus Irwin, Toward a Revised 4.2 No-Contact Rule, 60 Hastings L.J. 797,

811 (2009) (“[E]ffective law enforcement could be severely hampered by

strict application of Rule 4.2.”); 2 Restatement (Third) of the Law

Governing Lawyers § 99 cmt. h (2000). 7


6
      The Wyoming Supreme Court has consulted law review articles when
they are considered persuasive. E.g., Yates v. State, 723 P.2d 37, 41 (Wyo.
1986).
7
     The Restatement commentary provides:

     Law-enforcement officials traditionally have resorted to
     undercover means of gathering important evidence. If retention
     of a lawyer alone precluded direct prosecutorial contact, a
     knowledgeable criminal suspect could obtain immunity from
     otherwise lawful forms of investigation by retaining a lawyer,
     while unsophisticated suspects would have no similar
     protection. Moreover, nonlawyer law-enforcement personnel
     such as the police are not subject to the rule of this Section.
     Rigidly extending the anti-contact rule to prosecutors would
     create unfortunate incentives to eliminate them from
     involvement in investigations.

                                     21
      In applying the “authorized by law” exception, we are guided by the

near-unanimity of opinions applying this exception and policy

considerations previously embraced by our circuit. Both lead us to

conclude that the “authorized by law” exception allowed the Assistant U.S.

Attorney to use an undercover informant, prior to indictment, to elicit

incriminating admissions from Mr. Elliott. For this reason, Mr. Elliott’s

argument fails on the merits.

                                   * * *

      In sum, we reject Mr. Elliott’s argument for two reasons:

      1.   Mr. Elliott’s argument is waived. At a minimum, he forfeited
           the argument in district court and then waived the argument on
           appeal by failing to ask for plain-error review. Therefore, even
           if Mr. Elliott’s underlying argument had been meritorious, it
           would not support reversal.

      2.   Mr. Elliott’s argument fails on the merits. Even if we were to
           credit his factual allegations, the Assistant U.S. Attorney
           would not have violated Wyoming’s ethical rules.

II.   Federal Funding of the Building’s Owner: The Sufficiency of the
      Evidence and the Correctness of a Jury Instruction

      Focusing on the conviction for arson, Mr. Elliott also argues that

          the evidence was insufficient for a finding of guilt and

          a jury instruction misstated the law.


2 Restatement (Third) of the Law Governing Lawyers § 99 cmt. h (2000);
see also Jones v. Union Carbide Corp., 577 F.3d 1234, 1245 (10th Cir.
2009) (“In our view, . . . it would be too adventurous on our part to assume
that Colorado would depart from the Restatements.”).

                                     22
These arguments involve the nature of the federal funding.

      A.    Sufficiency of the Evidence

      On the challenge involving sufficiency of the evidence, we engage in

de novo review, considering whether a rational jury could find Mr. Elliott

guilty. United States v. Austin, 231 F.3d 1278, 1283 (10th Cir. 2000). We

conclude that sufficient evidence existed for a finding of guilt.

      Mr. Elliott does not question

           the use of the building by the county attorney’s office or
            ownership by the county itself or

           the county’s receipt of federal funds at the time of the
            bombing.

But Mr. Elliott points out that at the time of the bombing, the federal funds

were not being directed to the building or to the county attorney’s office.

      The resulting question is a legal one: Does the arson statute apply

even when federal funds are not being directed to the building that was

bombed or to the entity that was occupying the building? In our view, the

arson statute applies in this situation.

      The statute expressly covers arson of any building owned by an

entity receiving federal funds:

      Whoever maliciously damages or destroys, . . . by means of fire
      or an explosive, any building, vehicle, or other personal or real
      property in whole or in part owned or possessed by, or leased
      to, . . . any institution or organization receiving Federal
      financial assistance, shall be imprisoned for not less than 5


                                       23
      years and not more than 20 years, fined under this title, or
      both.

18 U.S.C. § 844(f)(1) (2012). This statute applies here, for the building

was owned by the county, which was receiving federal funds at the time of

the bombing.

      We addressed similar facts in United States v. Apodaca, 522 F.2d 568

(10th Cir. 1975). There the defendant bombed a police car that was owned

by Fremont County and possessed by the Fremont County Sheriff’s Office.

Apodaca, 522 F.2d at 569-71. At the time of the bombing, the county and

the county sheriff’s office were receiving federal funds. Id. at 571-72.

      The defendant contended that 18 U.S.C. § 844(f) did not apply

because the police car had not been purchased with federal funds. Id. at

572. We explained that this fact did not matter because “[t]he clear and

unambiguous language of the statute provides that it applies to any

property owned, possessed, used by or leased to any organization receiving

federal financial assistance.” Id. Under this language, the statute applied

because the police car had been owned by the county and possessed by the

county sheriff’s office. Id. at 571.

      In our view, the Apodaca court would have arrived at the same result

even if the county sheriff’s office had not possessed the police car. The

statutory language was disjunctive when Apodaca was decided, covering

property “owned, possessed, or used by, or leased to, . . . any institution or


                                       24
organization receiving Federal financial assistance.” Id. (emphases added)

(quoting the contemporaneous version of 18 U.S.C. § 844(f)(1)); see

United States v. O’Driscoll, 761 F.2d 589, 597 (10th Cir. 1985) (“When the

term ‘or’ is used, it is presumed to be used in the disjunctive sense unless

the legislative intent is clearly contrary.”). Thus, the county’s ownership

of the car was dispositive in Apodaca.

      Ownership is also dispositive here. The statutory language remains

disjunctive, covering property “owned or possessed by, or leased to, . . .

any institution or organization receiving Federal financial assistance.” 18

U.S.C. § 844(f)(1) (2012) (emphases added). The building was owned by

Sheridan County, which was receiving federal funds when the bombing

took place. Therefore, the statute applies under Apodaca.

      Mr. Elliott suggests that we overrule Apodaca and follow United

States v. Hersom, 588 F.3d 60 (1st Cir. 2009). In Hersom, the First Circuit

took a narrower view of 18 U.S.C. § 844(f) than we had taken in Apodaca.

See Hersom, 588 F.3d at 67 (“[I]n the case of organizations receiving

federal financial assistance related to specific property, we construe

section 844(f) as limited in general to arson of that particular property.”).

But “[w]e are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.”

In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam). Mr. Elliott has

not identified any Supreme Court opinions conflicting with Apodaca, and

                                      25
we have not reconsidered Apodaca en banc. Thus, we remain bound by

Apodaca.

      Mr. Elliott also raises four arguments to distinguish Apodaca. We

reject each argument.

      First, Mr. Elliott asserts that the federal funds in Apodaca were

“targeted for crime control,” while “none of the moneys received by

Sheridan County in 2012, 2013 and 2014 [had been] targeted to crime

control, law enforcement or the building in which the County Attorney

resided.” Appellant’s Opening Br. at 13. This difference is irrelevant;

Apodaca held that if an entity receives federal funds, 18 U.S.C. § 844(f)

applies if the entity owns the property that is bombed. Apodaca, 522 F.2d

at 572.

      Second, Mr. Elliott argues that the county attorney’s office received

only minimal federal funding in 2011. For this argument, Mr. Elliott

apparently assumes that

          an entity receiving minimal federal funding is not covered by
           18 U.S.C. § 844(f),

          the funding at issue in Apodaca was not “minimal,” and

          the county attorney’s office is separate from the county for
           purposes of 18 U.S.C. § 844(f).

      We need not determine whether these assumptions are correct

because Mr. Elliott’s argument would fail anyway. Mr. Elliott bombed a

building owned by the county, which received millions in federal funds
                                     26
from 2011 to 2014. These funds constituted a substantial portion of the

county’s yearly budget. For example, in the year of the bombing, the

county’s federal funding (roughly $2.6 million) comprised about 12% of

the county’s entire budget. This amount of federal funding was not

“minimal.”

     Third, Mr. Elliott contends that the Fremont County Sheriff’s Office

received “direct assistance.” Appellant’s Opening Br. at 13. In making this

contention, Mr. Elliott apparently assumes that

            entities receiving federal funds through indirect channels are
             not covered by 18 U.S.C. § 844(f) and

            the Sheridan County Attorney’s Office received federal funds
             only indirectly.

     We reject Mr. Elliott’s contention and conclude that Apodaca

governs. Mr. Elliott bombed a building owned by Sheridan County, not a

building owned by the Sheridan County Attorney’s Office. He has not

alleged that Sheridan County’s federal funding was indirect or explained

why the arson statute’s applicability would turn on the directness of the

federal funding.

     Fourth, Mr. Elliott emphasizes that the Fremont County Sheriff’s

Office received federal funds in the same year that the bombing occurred.

He points out that the Sheridan County Attorney’s Office did not receive

any federal funds in the three years before the bombing. This argument



                                      27
fails because Sheridan County, which owned the building, was receiving

federal funds when the bombing took place.

      Under Apodaca, we reject Mr. Elliott’s challenge to the sufficiency

of the evidence.

      B.    Jury Instruction 24

      In district court, Mr. Elliott objected to Jury Instruction 24,

contending that it misstated the law. The district court overruled this

objection. On appeal, Mr. Elliott again argues that the jury instruction was

flawed. But even if the jury instruction had misstated the law, the error

would have been harmless.

      Jury Instruction 24 stated that

      [i]n determining whether the property at issue was in whole or
      in part owned by an organization receiving federal financial
      assistance, it is sufficient if the Government proves beyond a
      reasonable doubt that the property was owned by Sheridan
      County at the time and that, during the time of its ownership of
      the property, Sheridan County received federal financial
      assistance.

R. vol. I, at 468 (emphasis added). Mr. Elliott challenges the jury

instruction because it deviated from the language of 18 U.S.C. § 844(f).

The instruction used the word “received,” but 18 U.S.C. § 844(f) uses the

word “receiving.” In Mr. Elliott’s view, the deviation is significant

because the building and the county attorney’s office had not received

federal funds in the three years before the bombing.



                                        28
       Unlike Jury Instruction 24, another instruction on the elements used

the statutory term “receiving.” Id. at 464. Nonetheless, we may assume for

the sake of argument that the word “receiving” should also have been used

in Jury Instruction 24. Even with this assumption, the error would have

been harmless 8 because it is immaterial when the county attorney’s office

received federal funds; what matters is when the owner of the building, the

county, received federal funds. When the building was bombed, the county

was receiving federal funding. Thus, even if Jury Instruction 24 had used

the word “receiving” rather than “received,” any reasonable jury would

still have found that the owner of the building was receiving federal funds

when Mr. Elliott committed the bombing. In these circumstances, any error

in Jury Instruction 24 would have been harmless.

III.   Conclusion

       In Mr. Elliott’s view, the Assistant U.S. Attorney violated

Wyoming’s ethical rules by authorizing the undercover investigation. Mr.

Elliott argues that the ethical violation should have led to suppression of

his incriminating statements. This argument fails for two reasons. First, the

argument is waived, for Mr. Elliott did not adequately present the argument


8
      The government does not argue harmlessness. In our view, however,
the alleged error is certainly harmless. Thus, we raise the issue of
harmlessness sua sponte. See United States v. Holly, 488 F.3d 1298, 1308
(10th Cir. 2007) (raising harmlessness sua sponte because the harmlessness
was readily apparent and certain).

                                      29
in district court and he has not asked us for plain-error review. Second,

Mr. Elliott’s argument fails on the merits. Even if we accept Mr. Elliott’s

factual allegations as true, the Assistant U.S. Attorney would not have

violated Wyoming’s ethical rules. Rule 4.2’s “authorized by law”

exception allowed the Assistant U.S. Attorney to use an undercover

informant, prior to indictment, to elicit incriminating admissions from Mr.

Elliott. For both reasons, we reject Mr. Elliott’s challenge to the denial of

his motion to suppress.

      We also reject his challenges involving sufficiency of the evidence

and the correctness of a jury instruction. Mr. Elliott bombed a building

owned by Sheridan County, which was then receiving federal funding.

Therefore, Mr. Elliott could be convicted of arson of a building owned or

possessed by an entity receiving federal funds. Because the nature of the

federal funding was undisputed, the alleged error in Jury Instruction 24

would have been harmless.

      Affirmed.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




                                      30
No. 15-8138, United States v. Elliott

MORITZ, J., concurring.

       I join the majority’s resolution of the issues relating to Elliott’s arson

conviction. See supra Part II. But unlike the majority, I wouldn’t reach the merits of

Elliott’s thrice-waived suppression argument. Accordingly, I decline to join Part I of

the majority opinion.

       Although it doesn’t heed its own ruling, the majority thoroughly and

persuasively explains why, even assuming Elliott merely forfeited his suppression

argument in the district court, he waived it on appeal by failing to argue for plain-

error review. The majority also identifies two compelling bases for finding waiver in

the district court. See Maj. Op. 5 n.4. First, Elliott declined the government’s express

invitation to argue for suppression based on alleged ethical violations. When an

argument “was intentionally relinquished or abandoned in the district court,” rather

than simply inadvertently overlooked, “we usually deem it waived and refuse to

consider it.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011).

       Second, even if Elliott only inadvertently overlooked his new argument, we’ve

previously held that, regardless of intent, “a suppression argument raised for the first

time on appeal is waived (i.e., completely barred) absent a showing of good cause for

why it was not raised before the trial court.” United States v. Burke, 633 F.3d 984,

988 (10th Cir. 2011).1 And while the majority notes that we have discretion in some


       1
        We decided Burke under a previous version of Fed. R. Crim. P. 12(c)(3). But as
the majority notes, see Maj. Op. 5 n.4, we’ve since held in two unpublished opinions that
instances to resolve waived arguments, see Maj. Op. 8-11, Burke unequivocally

stated that “[w]hen a motion to suppress evidence is raised for the first time on

appeal, we must decline review.” Id. at 987 (emphasis added) (quoting United States

v. Brooks, 438 F.3d 1231, 1240 (10th Cir. 2006)). Moreover, even if we have

discretion to consider this belated suppression argument, I would decline to do so

here where Elliott hasn’t even attempted to show good cause for his failure to raise

this suppression argument below. Cf. id. at 988 (noting that showing good cause is

single, narrow exception to suppression-argument waiver rule).

       Accordingly, while one waiver would suffice, Elliott has waived his

suppression argument on three independent grounds. And as we’ve noted in another

context, “three strikes are more than enough to allow [a] court to call a litigant out.”

Lee v. Max Int’l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011). But instead, the

majority hypothesizes about what would have happened on the next pitch.2 I would




Burke’s reasoning survives Rule 12’s amendment. See United States v. Shrader, No. 15-
5073, 2016 WL 4497984, at *4 & n.6 (10th Cir. Aug. 26, 2016) (unpublished); United
States v. Franco, 632 F. App’x 961, 963-64 & 963 n.1 (10th Cir. 2015) (unpublished).
       2
         Because it insists on answering the ethical question, the majority is forced to
predict how the Wyoming Supreme Court would decide this unresolved issue. See Maj.
Op. 13-14; Belnap v. Iasis Healthcare, 844 F.3d 1272, 1295 (10th Cir. 2017). But
longstanding principles of comity and judicial restraint counsel against the majority’s
gratuitous prognostication. Cf. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)
(“Needless decisions of state law should be avoided both as a matter of comity and to
promote justice between the parties, by procuring for them a surer-footed reading of
applicable law.”); Michigan v. Long, 463 U.S. 1032, 1039 (1983) (explaining that out of
“[r]espect for the independence of state courts, as well as avoidance of rendering advisory
opinions, . . . we do not wish to continue to decide issues of state law that go beyond the
opinion that we review”).
                                            2
refrain from doing so for yet another reason: the rarity with which we employ the

power that Elliott asks us to exercise in the first instance.

       Although the majority fails to say so, both parties recognize that Elliott’s

suppression argument calls for us to exercise our supervisory power to exclude

evidence based on willful disobedience of the law. See Aplt. Br. 23 (citing United

States v. Hammad, 858 F.2d 834, 841 (2d Cir. 1988)); Aplee. Br. 21 (“[Elliott] asks

this court to take the extraordinary step of exercising its supervisory power[] to

suppress his statements . . . .”). We recently emphasized our “circumspect approach

to the exercise of the supervisory power.” United States v. Lilly, 810 F.3d 1205, 1219

(10th Cir. 2016); see also United States v. Payner, 447 U.S. 727, 734-35 (1980)

(noting Court’s “restrained application of the supervisory power,” which Court

“applie[s] with some caution”).3 We don’t take lightly the assertion that a prosecutor

has violated his ethical duties, and suppressing evidence is a stiff penalty. Thus, we

typically demand full development of these issues in the district court. Cf. United

States v. Thomas, 474 F.2d 110, 112 (10th Cir. 1973) (holding that “[t]he problem is

initially one for the trial courts”).4 We lack the benefit of that development here.

       In short, where a party has both waived an argument below and on appeal, I

question the majority’s decision to analyze it—especially when that argument asks us

       3
         Because the majority resolves the ethical question in the government’s favor, it
ultimately declines to exercise our supervisory power. But that resolution doesn’t
retroactively justify the majority’s willingness to even consider exercising this rarely
used authority despite Elliott’s multiple waivers of the issue.
       4
         I couldn’t locate a single case, and the parties cite none, where this court
considered a supervisory power argument for the first time on appeal—and certainly not
after we found that argument clearly forfeited or waived.
                                             3
to exercise our supervisory power. Moreover, because the government has declined

to fully brief the merits of this issue, the majority is forced to act as both advocate

and arbiter in reaching and deciding this issue. Instead, I would wait until this issue is

squarely presented to us, with adequate development below and adequate briefing by

both parties on appeal. Cf. Vasquez v. Los Angeles (“LA”) Cty., 487 F.3d 1246, 1250

(9th Cir. 2007) (noting that effective advocacy “sharpens the presentation of issues

upon which the court so largely depends for illumination” and thus improves judicial

decision-making (quoting Baker v. Carr, 369 U.S. 186, 204 (1962))).




                                            4
