                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 09-1258

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

E RWIN A COX,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 07 CR 145—Virginia M. Kendall, Judge.


    A RGUED JANUARY 21, 2010—D ECIDED F EBRUARY 9, 2010




 Before E ASTERBROOK, Chief Judge, and C UDAHY and
M ANION, Circuit Judges.
  E ASTERBROOK, Chief Judge. Convicted of bank robbery
and sentenced to 65 months’ imprisonment, Edwin Acox
presents a single appellate argument: that two em-
ployees of the bank should not have been allowed to
identify him, because they saw a photo array that “was
so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.”
Simmons v. United States, 390 U.S. 377, 384 (1968).
2                                             No. 09-1258

Acox’s lawyer did not ask the district judge to suppress
the out-of-court identifications (the witness’ selections
from the photos). His appellate lawyer says that the
district judge committed plain error in allowing the
witnesses to testify in court that they had selected his
picture.
   Plain error is the standard for appellate review of
issues that have been forfeited; arguments that have been
waived are not reviewable on the plain-error or any other
standard. See United States v. Olano, 507 U.S. 725, 732–34
(1993). And Fed. R. Crim. P. 12(e) provides: “A party
waives any Rule 12(b)(3) defense, objection, or request
not raised by the deadline the court sets under Rule 12(c)
or by any extension the court provides.” Rule 12(b)(3),
titled “Motions That Must Be Made Before Trial”, includes
a “motion to suppress evidence”. Fed. R. Crim. P.
12(b)(3)(C).
  It often takes evidence from psychology and statistics
to decide whether a photo spread or lineup is “unduly
suggestive” and, if so, whether the suggestiveness is
“irreparable.” See United States v. Williams, 522 F.3d 809
(7th Cir. 2008). Lawyers’ assertions that the effects of a
photo spread are “clear” or “obvious” are no substitute
for evidence. A mid-trial motion to suppress may
require a delay of days or weeks while evidence is mar-
shaled and presented. Requiring all suppression
motions to be made in advance allows the trial itself to
be conducted without interruption and serves a second
function as well: it ensures that, if the judge excludes
evidence, the prosecutor can obtain appellate resolu-
No. 09-1258                                               3

tion free from any problem under the fifth amendment’s
double jeopardy clause. See 18 U.S.C. §3731 ¶2. Acox did
not file a pretrial motion to suppress the results of the
photo spreads and so has waived, and not just forfeited,
his objection to use of this evidence.
  Now it is true that Rule 12(e) uses “waiver” in an
unusual way. Normally waiver in criminal procedure
means an intentional relinquishment of a known right.
See Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Absence of
a pretrial motion may reflect only a lawyer’s failure to
appreciate the motion’s benefit. See United States v.
Johnson, 415 F.3d 728 (7th Cir. 2005). But to say that
Rule 12(e) applies the word “waiver” to a circumstance
that otherwise would be called a “forfeiture” is not to
say that plain-error review proceeds just as if it were
a forfeiture. For the plain-error doctrine comes from
Fed. R. Crim. P. 52(b), part of the same set of rules that
includes Rule 12(e). It would be inappropriate to use
Rule 52(b) to undercut an express provision of Rule
12(e), which contains its own safety valve: “For good
cause, the court may grant relief from the waiver.” Before
a court of appeals can reach the plain-error question, a
defendant must first establish good cause for the
absence of a pretrial motion. Johnson, 415 F.3d at 730–31.
And the reference in Rule 12(e) to “the court” must be
to the district court, not the court of appeals, for Rule 12
as a whole governs pretrial proceedings in federal
district courts. But Acox did not ask the district court
to grant relief for good cause.
  Lawyers sometimes attempt to get around Rule 12(e) by
asking the court of appeals to find “good cause” on its
4                                                No. 09-1258

own. That’s not a sound procedure, for two reasons. First,
the existence of good cause may depend on facts that are
not in the record, such as why counsel failed to make
a pretrial motion. A court of appeals is limited to the
record built in the district court, so arguments that
depend on extra-record information have no prospect
of success. Second, even when the record contains the
essential information, whether the circumstances add up
to “good cause” is a question committed to the district
court’s discretion. Appellate review of “good cause”
decisions is deferential, see Bracy v. Gramley, 520 U.S. 899,
909 (1997); Pioneer Investment Services Co. v. Brunswick
Associates Ltd. Partnership, 507 U.S. 380 (1993), and
Rule 12(e) is no exception. See Davis v. United States,
411 U.S. 233, 243–45 (1973) (Fed. R. Crim. P. 12(b)(2), the
subject of Davis, became Rule 12(f) and is now Rule 12(e));
United States v. Hamm, 786 F.2d 804, 806 (7th Cir. 1986).
  A defendant can’t convert deferential appellate
review into a de novo appellate decision by the
expedient of failing to present his arguments to the
district court at all; that omission should make
appellate review harder, not more readily available. A
handful of opinions in this circuit make what appear to
be de novo appellate decisions on the good-cause ques-
tion. See United States v. Bright, 578 F.3d 547, 550–51 (7th
Cir. 2009); United States v. Garcia, 528 F.3d 481, 484–85 (7th
Cir. 2008). But the briefs in those cases did not join issue
on the standard of appellate review, and the opinions
do not discuss this subject (or the Supreme Court’s state-
ment in Davis that the appellate role is deferential), so they
do not establish holdings. Cf. United States v. Brodie, 507
No. 09-1258                                               5

F.3d 527, 530–31 (7th Cir. 2007) (flagging the standard
of appellate review for the attention that it needed but
did not receive from the parties in Bright and Garcia).
  A conclusion that the good-cause decision is com-
mitted to the district court rather than the court of
appeals need not preclude all possibility of relief when
trial counsel never tries to show good cause. A court of
appeals still may inquire whether, if a motion for relief
had been made and denied, the district court would
have abused its discretion in concluding that the
defense lacked good cause. Acox’s appellate lawyer
made an argument along those lines (though not in
that precise language) by contending that Acox’s trial
lawyer furnished ineffective assistance by failing to
make a pretrial motion to suppress the identifications.
But appellate counsel withdrew this contention via
the reply brief, and for good reason.
  Because the record does not show why counsel did not
make a pretrial motion to suppress, it would be
impossible to evaluate the deficient-performance part
of the formula in Strickland v. Washington, 466 U.S. 668
(1984). And because the record likewise does not reveal
whether any misidentification was “irreparable” (in the
sense that other evidence and cross-examination could
not have revealed the problem and permitted jurors
to decide whether to accept the testimony), it is not possi-
ble to apply Strickland’s prejudice component. An
ineffective-assistance argument on an empty record is
doomed. Entertaining and rejecting an ineffective-assis-
tance argument would make it impossible to present the
6                                              No. 09-1258

contention later under 28 U.S.C. §2255. See Peoples v.
United States, 403 F.3d 844 (7th Cir. 2005). Recognizing
the advantages of the §2255 procedure, counsel with-
drew the argument to preserve the option of collateral
review.
   Counsel does not contend that problems in the
photo array themselves amount to “good cause.” That
would conflate procedural requirements with the mer-
its. Appellate counsel says that the deficiencies in
the photo array are evident on cursory inspection. But
if that is so (and we do not express an opinion on the
subject), it shows the absence of “good cause”; counsel
had no plausible reason to reserve the objection for trial.
   But this leaves no argument for good cause, let alone
an argument that the district court would have abused
its discretion by finding the absence of good cause had
a motion to set aside the waiver been made. So, in addi-
tion to withdrawing the ineffective-assistance argu-
ment, Acox’s reply brief contends that in-court testi-
mony may be reviewed despite Rule 12(e). Acox’s
lawyer objected to the prosecutor’s questions asking
the witnesses who they had identified in the photo
spreads. Although trial counsel did not try to
demonstrate “irreparable misidentification” he came
close enough, his appellate lawyer contends, that plain-
error review should be available.
  This line of argument rests on a belief that an objec-
tion to testimony on the witness stand is not a “motion to
suppress evidence” within the scope of Rule 12(b)(3)(C).
Acox does not offer a definition of that critical term,
No. 09-1258                                            7

however, or cite any decision that defines it in a way
helpful to his position. (He does cite several decisions
that ignore the subject and engage in plain-error
review, likely because the prosecutor did not bring
Rule 12(b)(3)(C) and (e) to the court’s attention,
but assumptions attributable to oversight differ from
holdings.) The term “motion to suppress” covers efforts
to invoke the exclusionary rule, or the Miranda doctrine,
or the many other constitutional and statutory rules
that keep probative evidence out of the trial record. A
defendant who does not file a pretrial motion to
suppress evidence under the fourth amendment’s
exclusionary rule could not later make a mid-trial
motion to exclude testimony about the seized evidence,
on the ground that a “motion to suppress” refers only
to the physical evidence and not to testimony about
that evidence. The exclusionary rule covers “fruit of the
poisonous tree” (see Wong Sun v. United States, 371 U.S.
471 (1963)) and so deals with testimony about, or derived
from, unlawfully seized evidence. And if a motion to
exclude the fruits of an unlawful seizure (including
trial testimony derived from the seized evidence) is a
“motion to suppress” under Rule 12(b)(3)(C), it is hard
to see why a motion to exclude the fruit of an invalid
photo spread or lineup is not equally a “motion to sup-
press”. See United States v. Obiukwu, 17 F.3d 816, 820
(6th Cir. 1994) (holding that Rule 12(b)(3)(C) and (e)
applies to identification testimony in court).
  Although the Rules of Criminal Procedure do not
define “motion to suppress”, the phrase may be given
meaning by thinking about what it is not: a motion
8                                               No. 09-1258

under a Rule of Evidence. An objection based on those
rules may be made during trial. Fed. R. Evid. 103(a)(1). A
request for a decision under the Rules of Evidence may
be made before trial (lawyers often call these “motions
in limine”). If the issue is definitively resolved before
trial, an objection at trial is unnecessary. See Rule 103(a)
hanging paragraph; Wilson v. Williams, 182 F.3d 562,
565–67 (7th Cir. 1999) (en banc). District judges some-
times require pretrial presentation to avoid sidetracking
the trial; pretrial dispositions are common for expert
witnesses and disputes about the admissibility of prior
convictions. But if the judge does not order the parties
to join issue on a given subject before trial, objec-
tions based on relevance, hearsay, privileges, settlement
negotiations, and the many other subjects of the rules
may wait until trial.
  Objections outside the Rules of Evidence properly may
be called “motions to suppress”. Cf. Jones v. United States,
362 U.S. 257, 264 (1960); United States v. Barletta, 644
F.2d 50, 54 (1st Cir. 1981). Nothing in the Rules of
Evidence allows a court to reject relevant, inculpatory
evidence seized from the defendant’s home, heard during
a wiretap, based on his confession, or derived from a
lineup. In order to have such evidence excluded, a defen-
dant must rely on some norm that is outside the Rules
of Evidence. That’s the line between motions to sup-
press, which must be made before trial, and objections,
which may be made during trial.
  This means that an effort to prevent the witnesses
from testifying about their pretrial identifications (or
No. 09-1258                                                9

for that matter to prevent witnesses from directly identi-
fying a person in court) was a “motion to suppress”.
Accord, United States v. Gomez-Benabe, 985 F.2d 607, 612 (1st
Cir. 1993). Trial counsel did not (and appellate counsel
does not) contend that any provision in the Rules of
Evidence requires or allows a district judge to block a
witness from identifying a robber. The foundation for
Acox’s objection—a contention that the photo array was
unduly suggestive—would have been the basis for a
motion to suppress evidence about which picture the
witnesses selected from the array. And a proposal to
block in-court testimony representing the “fruits” of
earlier events that were, or could have been, the subject
of a motion to suppress, must equally be a “motion to
suppress” under Rule 12(b)(3)(C). Otherwise that rule
could not serve its two principal functions: avoiding the
disruption of trial, and ensuring that prosecutors can
appeal adverse rulings. We therefore agree with
Obiukwu and hold that that Rule 12(e) applies.
   If the prosecution’s use of evidence derived from an
illegal seizure or lineup could not have been anticipated,
the surprise would supply “good cause” for the purpose
of Rule 12(e). But Acox does not contend that his
lawyer was startled by the identification evidence or
had any other reason to wait until mid-trial to ask
for its exclusion. The only “cause” adverted to in this
court is the possibility that Acox’s trial lawyer furnished
ineffective assistance. If so—and deciding whether coun-
sel’s services were beneath the constitutional floor
requires consideration of what counsel did, as well as what
he omitted, see Williams v. Lemmon, 557 F.3d 534 (7th Cir.
10                                          No. 09-1258

2009)—then Acox may be entitled to collateral relief. A
motion under §2255 is the right way to obtain review of
contentions that an attorney’s carelessness caused a
waiver under Rule 12(e). The record on direct appeal
lacks the evidence needed to make such a decision.
                                             A FFIRMED




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