                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2008

USA v. Rose
Precedential or Non-Precedential: Precedential

Docket No. 05-5199




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                                       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 )
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

                              2
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


     1
     The grand jury also charged Rose’s wife, Tessa David
Rose. She stood trial separately and is not a party to this appeal.

                                3
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


   2
    The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We exercise appellate jurisdiction under 28 U.S.C.
§ 1291.

                                4
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



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

                               6
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 History 4

        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]


  4
    For a helpful review of the Rules’ pre-1997 text and history,
see United States v. Chavez-Valencia, 116 F.3d 127, 130–31
(5th Cir. 1997).

                                7
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 Chavez-
Valencia, 116 F.3d at 130. Rule 41(f) read that “[a] motion to

                                 8
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

                                9
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

                               10
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, Martinez-
Hidalgo, 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.6 In doing so, we noted that


   5
     In another portion of its brief, the Government did suggest
the issue was waived. Brief for the Appellee, supra, at 18, 1993
WL 13121408, at *18.
  6
   Neither party in Lockett raised in its briefing the possibility
of plain error review. The Government argued that the

                               11
“[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



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
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, Martinez-
Zayas, 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

                                 13
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)7 as a mere “forfeiture” provision despite the Rule’s use of
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


  7
   As discussed previously, the contents of current Rule 12(e)
were contained in Rule 12(f) prior to 2002.

                                14
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.

                               15
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, Chavez-
Valencia 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

                               16
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

                               17
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

                                 18
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.”

                                19
(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.



                               20
        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.8 And we agree with the Chavez-Valencia Court
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


  8
    Though we offer this rationale, we think it unwise to excuse
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
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),9 yet we went further and held the issue to be
“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


   9
    To be fair, we reiterate that, in another portion of its brief,
the Government suggested the issue was waived. Brief for the
Appellee, supra, at 18, 1993 WL 13121408, at *18.

                                22
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).10 We see no need for remand here,


  10
     We are unpersuaded by Rose’s argument that because Rule
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
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.



colorable claim of “cause” that merits further fact-finding.

                                24
