                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           June 9, 2020

                                                                          Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-5085

 SCOTT FREDRICK ARTERBURY,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                       for the Northern District of Oklahoma
                          (D.C. No. 4:18-CR-00056-CVE-1)
                       _________________________________

J. Lance Hopkins, Tahlequah, Oklahoma, for Defendant-Appellant.

Jeffrey A. Gallant, Assistant United States Attorney (R. Trent Shores, United States
Attorney with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
                         _________________________________

Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.
                 _________________________________

PHILLIPS, Circuit Judge.
                     _________________________________

      The federal government twice charged Scott Fredrick Arterbury with the same

crime for the same possession of child pornography. In the original prosecution, the

district court suppressed the child-pornography evidence seized from Arterbury’s

personal computer. The government appealed the suppression order but withdrew its
appeal without filing a brief. Once back in district court, the government obtained an

order dismissing the case without prejudice. Eight months later, in a case involving a

defendant in a different state, this court reversed an order suppressing child-

pornography evidence obtained in reliance on the same FBI search warrant as at issue

in Arterbury’s case. Armed with this decision, the government re-indicted Arterbury

on the original child-pornography charge. Arterbury argued that the court was bound

by collateral estoppel1 to enforce its earlier order suppressing the evidence. But the

court disagreed and later denied the motion to suppress on the merits. We conclude

that the district court erred in its analysis of criminal collateral estoppel.

Accordingly, we vacate its order denying Arterbury’s motion to enforce the original

suppression order, and we remand for the court to enforce its earlier suppression

order.

                                    BACKGROUND

I.       Arterbury I

         In 2015, the FBI seized an internet server used to operate a child-pornography

website known as PlayPen. The FBI loaded the PlayPen server’s contents onto the

FBI’s server located in the Eastern District of Virginia. The FBI planned to operate

the website to identify PlayPen’s visitors. But the FBI soon encountered an obstacle:

PlayPen ran on the Tor network, which blocked the Internet Protocol (IP) addresses

of its visitors.


         1
        Though the more modern term is “issue preclusion,” we use “collateral
estoppel” to be consistent with the usage of the district court and parties.
                                             2
      The FBI had its own software to overcome this difficulty. The FBI’s software

could surreptitiously install malware on the computer of any PlayPen visitor. The

malware would then obtain the visiting computer’s IP address and relay it back to the

FBI. But because this activity would amount to a search of the user’s computer, the

FBI needed a search warrant.

      The FBI obtained the needed search warrant from a magistrate judge in the

Eastern District of Virginia. Backed by the search warrant, the FBI soon installed its

software and placed its malware on the computers of PlayPen-website visitors. After

doing so, the FBI retrieved the IP addresses of hundreds of PlayPen visitors,

including a visitor (later determined to be Arterbury) who had logged on to the

PlayPen site several times between February 20 and March 4, 2015. The FBI issued a

subpoena to this visitor’s internet provider to obtain the physical address associated

with the IP address. In this way, the FBI learned the account holder’s street address

in Broken Arrow, Oklahoma.

      With the street address in hand, an FBI agent sought a second search warrant,

this time from a magistrate judge in the Northern District of Oklahoma. This warrant

authorized a search for child-pornography evidence at the Broken Arrow residence

located at that street address. In issuing the search warrant, the court relied on the

agent’s affidavit, which included key information obtained from execution of the

Virginia magistrate’s search warrant. For instance, the agent’s affidavit represented

that a person using an IP address associated with the Broken Arrow street address

had logged on to the PlayPen site several times during the FBI’s investigation. An

                                            3
Oklahoma magistrate judge issued the search warrant. In executing the search

warrant, the FBI found 3,500 images and 270 videos of child pornography on

Arterbury’s computer.

      On December 7, 2015, a grand jury sitting in the Northern District of

Oklahoma returned an indictment charging Arterbury with a single count of

possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B), (b)(2). Before the

trial date, Arterbury filed a motion to suppress, arguing that the “magistrate judge in

Virginia exceeded her authority under Fed. R. Crim. P. 41 by issuing a warrant for

property outside her jurisdiction.” R. Vol. I at 39. When the Virginia magistrate

judge issued the search warrant, Rule 41 permitted magistrate judges to issue “a

warrant to search for and seize a person or property located within the [magistrate’s]

district.” 2 Id. at 42 (quoting Fed. R. Crim. P. 41(b) (2015)). Arterbury noted that the

FBI had searched in Oklahoma when it installed malware on his computer and

obtained his IP address. Thus, Arterbury claimed, the Virginia magistrate judge’s

warrant was void ab initio for authorizing a search of property outside the Virginia

magistrate judge’s jurisdiction.

      The federal district court assigned Arterbury’s motion to suppress to a

magistrate judge, who, after a hearing, recommended granting the motion. The

district court adopted the magistrate’s recommendation and suppressed the evidence.


      2
        Rule 41 has since been amended to permit a magistrate judge to issue a
search of electronic storage media outside the magistrate’s district if certain
conditions are met. See Fed. R. Crim. P. 41(b)(6) advisory committee’s note to 2016
amendment.
                                            4
Relying on Rule 41, the district court ruled that the Virginia magistrate judge’s

search warrant was void ab initio. Additionally, the court ruled that the second search

warrant—that is, the Oklahoma search warrant for Arterbury’s home—was likewise

void, because it “would not have occurred had Rule 41(b) been followed.” See id. at

54. Finally, the court ruled that the Leon good-faith exception did not apply, because

the search warrant was void ab initio. Id. at 55–58 (citing United States v. Leon, 468

U.S. 897 (1984) (holding that suppression is unwarranted when officers have acted in

“good faith” in relying on a defective search warrant)). In sum, the court suppressed

the evidence obtained under both the Virginia magistrate’s search warrant and the

later Oklahoma search warrant.

      On July 27, 2016, the government filed a notice of interlocutory appeal. But

before any briefing, the government chose to dismiss its appeal. This court granted

the government’s motion and dismissed the appeal under 10th Cir. R. 46.3(C). The

government then moved the district court to dismiss the indictment without prejudice.

On November 11, 2016, the district court granted the government’s motion.

II.   United States v. Workman

      As Arterbury’s prosecution sputtered to a dismissal and then lay dormant for

months, the United States Attorney for the District of Colorado was prosecuting

another man, Andrew Workman, on a child-pornography-possession charge also

arising from the FBI’s PlayPen sting. United States v. Workman, 863 F.3d 1313,

1315–16 (10th Cir. 2017). In Arterbury’s wake, Workman filed a motion to suppress,



                                           5
arguing that the search warrant issued by the Virginia magistrate judge had violated

Rule 41. Id. at 1316–17.

      On September 6, 2016, the district court granted Mr. Workman’s motion and

suppressed the evidence. United States v. Workman, 205 F. Supp. 3d 1256, 1259 (D.

Colo. 2016), rev’d, 863 F.3d 1313 (10th Cir. 2017). Lacking any Tenth Circuit

precedent on this issue, and partly relying on the district court’s decision in Arterbury

I, the district court concluded that the Virginia magistrate’s warrant had violated Rule

41(b) of the Federal Rules of Criminal Procedure. Id. at 1266–67. The court also

concluded that the Leon exception did not apply, after deeming the magistrate’s

warrant to be void ab initio. Id. at 1267. The government appealed the district court’s

order, and this time it (the U.S. Attorney’s Office for the District of Colorado)

maintained the appeal to a final decision from this court. Workman, 863 F.3d at 1321.

      On appeal, this court reversed the district court’s order suppressing the

evidence. Id. We applied the Leon exception to the Virginia magistrate’s warrant. Id.

at 1317–18. We assumed without deciding that “the magistrate judge in the Eastern

District of Virginia lacked authority to issue the warrant” and that the “resulting

search was unconstitutional.” Id. at 1317 (citing United States v. Potts, 586 F.3d 823,

832 (10th Cir. 2009)). Even so, we concluded that Supreme Court precedent

foreclosed Mr. Workman’s argument that the Leon exception did not apply to a

warrant that was void ab initio. Id. at 1318. In support, we cited two Supreme Court

cases applying the Leon exception when officers, acting in good faith, had relied on

expired warrants mistakenly listed as active. Id. (citing Herring v. United States, 555

                                           6
U.S. 135 (2009); Arizona v. Evans, 514 U.S. 1 (1995)). Because the Supreme Court

had applied the Leon exception in those circumstances, we concluded that its

precedent “require[d] us to apply the Leon exception even if we were to conclude that

the warrant had exceeded geographical constraints.” Id. at 1319. We therefore

instructed the district court to deny Mr. Workman’s suppression motion and proceed

with the case. Id. at 1321.

III.   United States v. Arterbury (Arterbury II)

       On March 7, 2018, almost nine months after our decision in Workman and

more than fifteen months after the district court dismissed Arterbury’s case, the

government obtained a second indictment from an Oklahoma grand jury, recharging

Arterbury with the original child-pornography offense. Arterbury filed a motion

requesting that the district court enforce its earlier suppression order. According to

Arterbury, the doctrine of criminal collateral estoppel barred the government from

relitigating the suppression issue.

       The district court denied Arterbury’s motion. In doing so, the court noted that

the Supreme Court has ruled that the Fifth Amendment’s Double Jeopardy Clause

incorporates some collateral-estoppel principles. United States v. Arterbury

(Arterbury II), 322 F. Supp. 3d 1195, 1200 (N.D. Okla. 2018) (citing Ashe v.

Swenson, 397 U.S. 436, 442 (1970)). But because jeopardy had not attached in

Arterbury’s original prosecution, the court deemed the “operative question” as

“whether criminal collateral estoppel has a source other than the Double Jeopardy

Clause.” Id. Relying on a string of four cases, the court ruled that it could apply a

                                            7
“due process-oriented, federal rule of criminal collateral estoppel.” Id. at 1201 (citing

Ashe, 397 U.S. at 443; United States v. Oppenheimer, 242 U.S. 85 (1916); United

States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262 (2d Cir. 1975); United States v.

Evans, 655 F. Supp. 243 (E.D. La. 1987)).

      Having gotten that far, the court defined the issue before it as one “of first

impression, whether the due process-oriented, federal rule of criminal collateral

estoppel bars [the government] from reprosecuting Arterbury in spite of Workman—

i.e. a statement of controlling authority that overruled the legal basis upon which an

earlier motion to suppress was granted.” Id. at 1203 (some emphasis removed).

Generally, the court noted that collateral estoppel “bars relitigation between the same

parties of issues actually determined at a prior, separate proceeding.” Id. at 1200

(citing Ashe, 397 U.S. at 442).

      Though the government apparently did not contest that Arterbury could show

that much, it argued that the court should apply an exception to collateral estoppel for

intervening changes in the law. Id. at 1199. The court rejected the proposed

exception, observing that the government had offered no authority that a criminal

collateral estoppel even has such an exception. Id. at 1203 (pointing out that no such

exception applies to collateral estoppel when applied as part of a Double Jeopardy

Clause analysis). Nor has the government cited supporting authority on appeal. And

even if it had, it would not matter. After all, the pertinent law did not change here.

On that point, we are concerned with “whether . . . legal principles have changed

significantly.” Montana v. United States, 440 U.S. 147, 155 (1979) (emphasis added);

                                            8
see also Klein v. Comm’r, 880 F.2d 260, 263 (10th Cir. 1989) (asking whether “legal

principles have changed significantly” (citing Montana, 440 U.S. at 153–55)). In our

case, the legal principle at issue is good-faith reliance on a search warrant under

Leon. The same Leon rule applied to the original Arterbury prosecution as applied in

Workman. See Bryant v. Merit Sys. Prot. Bd., 878 F.3d 1320, 1327–28 (Fed. Cir.

2017) (evaluating an asserted change in law based on whether “pursuing a certain

course of action was unavailable or otherwise futile under the then-controlling

precedent” (citing Blonder–Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313,

350 (1971))).

      Having disposed of the change-in-law argument, the court was left to decide

only whether Arterbury had satisfied the “due process-oriented, federal rule of

criminal collateral estoppel.” Arterbury II, 322 F. Supp. 3d at 1203. Here, the court

said that the question “boils down to this: is it fundamentally unfair to defendant, in

light of Workman, for the Court to allow [the government] to reprosecute

Arterbury?” Id. To aid in resolving this question, the court looked to six “basic aims

of the due-process oriented, federal rule of criminal collateral estoppel”: “(1)

reducing the chance that relitigation of an acquitted act could result in the conviction

of an innocent defendant; (2) promoting finality; (3) promoting judicial economy; (4)

denying the prosecution the opportunity to improve its case for a second trial; (5)

preventing prosecutorial harassment; and (6) preventing prosecutorial forum

shopping.” Id. at 1203–04 (citing Evans, 655 F. Supp. at 245; Note, The Due Process

Roots of Criminal Collateral Estoppel, 109 Harv. L. Rev. 1729, 1732–33 (1996)).

                                            9
After considering these aims, the court ruled “that allowing [the government] to

reprosecute Arterbury is not fundamentally unfair to defendant.” Id. at 1204. For that

reason, the court declined to enforce its earlier suppression order.

       On May 9, 2018, Arterbury entered a conditional plea agreement, reserving his

ability to appeal the district court’s order denying his motion to suppress. The district

court accepted Arterbury’s guilty plea and imposed a sentence of thirty-seven months

of imprisonment, to be followed by five years of supervised release. Free on bond,

Arterbury has timely appealed.

                                     DISCUSSION

       The district court erred in denying Arterbury’s second motion to suppress and

not enforcing its original order suppressing evidence. Arterbury established the

elements of federal criminal collateral estoppel under the common law. That showing

sufficed, without any need to consider due process, to bar the government from

relitigating the district court’s original suppression ruling.

I.     Collateral Estoppel in Criminal Cases

       A.     Federal Common-Law Collateral Estoppel

       In Ashe v. Swenson, 397 U.S. 436, 443 (1970), the Court observed that

“[a]lthough first developed in civil litigation, collateral estoppel has been an

established rule of federal criminal law at least since this Court’s decision more than

50 years ago in United States v. Oppenheimer, 242 U.S. 85 [(1916)].” In

Oppenheimer, the Court applied collateral estoppel without relying on any

constitutional provision. 242 U.S. at 87–88. Because jeopardy had not attached

                                            10
before dismissal of the first prosecution, the Double Jeopardy Clause did not apply.

Id. at 86–87. And because the Court did not rule on due-process grounds, id. at 87–

88, the Court must have dismissed the second prosecution based on federal common-

law collateral estoppel. See Loera v. United States, 714 F.3d 1025, 1029 (7th Cir.

2013) (noting that collateral estoppel applies outside of double jeopardy as a

common-law principle—as “very much a common law subject” (internal quotation

marks omitted) (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice & Procedure § 4403, p. 35 (2d ed. 2002))); see also Note,

supra, at 1729 (noting that “criminal collateral estoppel has deep roots in British

common law that survived in federal common law”). Though the Double Jeopardy

Clause incorporates collateral-estoppel principles, its doing so does not abrogate

federal common-law collateral estoppel.

      B.     Collateral Estoppel and the Fifth Amendment’s Double Jeopardy
             Clause

      In reviewing state convictions in federal court, it matters greatly whether

collateral estoppel is incorporated into a federal constitutional provision. For

instance, in Ashe, the Court reviewed a Missouri conviction of a man first prosecuted

and acquitted in state court of robbing certain players in a poker game, but later

reprosecuted and convicted of robbing a different player at the same game. 397 U.S.

at 437–40. The Court struck down the state conviction under the Double Jeopardy

Clause, ruling that collateral estoppel barred the state from relitigating whether the

defendant had participated in the armed robbery. Id. at 445–46. Over the years, the


                                           11
Court has continued to shape the double-jeopardy doctrine in cases involving counts

for which juries convicted, acquitted, and hung.3 But these cases are not in play for

Arterbury’s case—everyone agrees that jeopardy never attached during his original

prosecution.

      C.       Collateral Estoppel and the Fifth Amendment’s Due Process Clause

      In cases not implicating the Double Jeopardy Clause, some courts have

considered the possibility of incorporating collateral-estoppel principles into the Due

Process Clause. Any such analysis begins with Oppenheimer. As noted, that case,

with Justice Holmes writing, relied on common-law collateral estoppel, but the Court

hinted that the Due Process Clause might reach collateral-estoppel questions. See 242

U.S. at 87. In response to the government’s position that collateral estoppel extended

no further than the Double Jeopardy Clause, the Court said this: “It cannot be that the


      3
         See, e.g., Bravo-Fernandez v. United States, 137 S. Ct. 352, 356–57 (2016)
(addressing the preclusive effect of acquitted counts when inconsistent convicted
counts were later vacated on appeal on grounds unrelated to the inconsistency);
Yeager v. United States, 557 U.S. 110, 122 (2009) (addressing the preclusive effect
of acquitted fraud counts on hung insider-trading counts with interrelated facts);
Dowling v. United States, 493 U.S. 342, 348–50 (1990) (addressing the preclusive
effect of facts involved in acquittal of an earlier prosecution for a different offense,
when used under Federal Rule of Evidence 404(b), and whether the defendant
demonstrated that the jury earlier acquitting him necessarily resolved the Rule 404(b)
evidence in his favor, that is, that he was not one of the men who entered the victim’s
home.); United States v. Powell, 469 U.S. 57, 68 (1984) (declining to apply collateral
estoppel from acquitted counts when guilty counts are rationally irreconcilable);
Richardson v. United States, 468 U.S. 317, 318–19, 324–25 (1984) (addressing the
preclusive effect of two drug counts on which the jury hung in combination with an
acquittal on a third drug count); Harris v. Washington, 404 U.S. 55, 55–57 (1971)
(per curiam) (addressing the preclusive effect of an acquittal in a deadly bombing
against family members in a second prosecution for the death of another family
member not included in the first prosecution).
                                          12
safeguards of the person, so often and so rightly mentioned with solemn reverence,

are less than those that protect from a liability in debt.” Id. Because the first

prosecution had ended with a judgment of acquittal (based on an application of the

statute of limitations later rejected in a different case), the Court barred the second

prosecution. Id. The Court concluded its opinion with these words: “But the 5th

Amendment was not intended to do away with what in the civil law is a fundamental

principle of justice [citation omitted] in order, when a man once has been acquitted

on the merits, to enable the government to prosecute him a second time.” Id. at 88.

       The next significant decision concerning due process and collateral estoppel

was DiGiangiemo, 528 F.2d 1262. This decision, written by Judge Friendly,

concerned a first state prosecution for which jeopardy had not attached (as here, the

government dismissed its case after losing a suppression ruling), followed by a

second prosecution and conviction. Id. at 1265, 1271. In this circumstance, the court

remarked that it was “back to the question which the Court left unanswered in Hoag

[v. New Jersey, 356 U.S. 464 (1958)], namely, how far due process, unaided by the

double jeopardy clause, requires a state to apply collateral estoppel in favor of a

criminal defendant.” Id. at 1265 (emphasis added). Turning to Oppenheimer for help,

the court noted that though there “it was unnecessary to determine . . . whether

application of collateral estoppel on behalf of a criminal defendant was

constitutionally required, overly sensitive ears are not needed to detect due process

overtones in Mr. Justice Holmes’ statement.” Id. at 1265–66. Even so, because the



                                            13
defendant had not preserved the collateral-estoppel issue in state court, the court

deemed it waived and did not decide the due-process question. Id. at 1266–67, 1270.

      A third opinion often cited on the due-process effect on criminal collateral

estoppel is United States v. Evans, 655 F. Supp. 243 (E.D. La. 1987). In that case, a

woman was first prosecuted in federal court in Connecticut and prevailed in

suppressing certain evidence. Id. at 243. She later was charged with a different crime

in federal court in Louisiana, in which the government sought admission of the

earlier suppressed evidence. Id. at 243–44. Even though that case involved two

federal prosecutions, the court analyzed the collateral-estoppel issue on due-process

grounds, not simply as a matter of federal common law. Id. at 244 (reasoning that

“collateral estoppel is doctrinally involved with notions of due process, as well as

double jeopardy”). Relying on DiGiangiemo, the court held that the government was

collaterally estopped on due-process grounds from relitigating the suppression ruling

in the Louisiana court.4 Id. at 244–45.

II.   Arterbury’s Case

      In Ashe, the Court noted that collateral estoppel “stands for an extremely

important principle in our adversary system of justice. It means simply that when an

issue of ultimate fact has once been determined by a valid and final judgment, that


      4
        The government contends that Evans is not good law even in its circuit. It
cites Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir. 1987), for the proposition
that “[w]e are unpersuaded, however, by [the defendant’s] attempts to erect a due
process basis, independent of the double jeopardy clause, for the application of
collateral estoppel.” Appellee’s Br. at 24 (internal quotation marks omitted).

                                           14
issue cannot again be litigated between the same parties in any future lawsuit.”5 397

U.S. at 443. The Court further stated that “the rule of collateral estoppel in criminal

cases is not to be applied with the hypertechnical and archaic approach of a 19th

century pleading book, but with realism and rationality.” Id. at 444. To that end,

collateral estoppel requires two showings before barring re-litigation of an issue: “(1)

the issue to be precluded must have been actually and necessarily decided in the prior

case, and (2) the party against whom collateral estoppel is invoked must have had a

full and fair opportunity in the earlier case to litigate the issue to be precluded.”

Willner v. Budig, 848 F.2d 1032, 1034 (10th Cir. 1988) (per curiam) (citing Ten Mile

Indus. Park v. W. Plains Serv. Corp., 810 F.2d 1518, 1523 (10th Cir. 1987)). A “full

and fair opportunity” to litigate the issue includes: (1) “that the parties were fully

heard,” (2) “that the court supported its decision with a reasoned opinion,” and (3)

“that the decision was subject to appeal or was in fact reviewed on appeal.”

DiGiangiemo, 528 F.2d at 1265 (internal quotation marks and citation omitted). We

look to these factors to determine if the government is precluded from relitigating the

suppression motion.

       Arterbury has satisfied all these requirements. In 2016, the district court

decided the suppression issue after full briefing and argument by the parties. And

after the court suppressed the evidence, the government not only had an opportunity



       5
        See also Willner v. Budig, 848 F.2d 1032, 1034 (10th Cir. 1988) (per curiam)
(noting that collateral estoppel bars “the relitigation of factual or legal issues that
were decided in a previous case”).
                                            15
to appeal, it did so. For its own reasons, it chose to dismiss its appeal without

briefing it. Having failed to obtain a ruling on appeal, the government now argues

that Arterbury has not shown that his earlier prosecution was finally adjudicated—

because the district court dismissed the case without prejudice.6

      Regarding the finality requirement, we turn to Loera, 714 F.3d at 1029. In that

case, Judge Posner noted that in DiGiangiemo “Judge Friendly had pointed out the

paradoxical effects of being picky about the finality of the judgment sought to be

used as collateral estoppel.” Id. (citing 528 F.2d at 1265–66). Contrasting two

situations in which the trial court had granted a suppression motion—one before trial,

the other after it had begun—Judge Posner declared that “[t]he difference in the stage

of the proceeding at which the judge ruled shouldn’t affect whether the issue can be

revisited in the second proceeding.” Id. at 1030. He concluded by noting that “[f]or

these purposes, then, the dismissal of the first indictment should be treated as if it

were a final judgment and the evidentiary ruling that the judge made in that first

proceeding should be given collateral estoppel effect.” Id. We agree with this

reasoning.7


      6
        The district court mixed the suppression issue with whether the government
could re-prosecute Arterbury. Arterbury II, 322 F. Supp. 3d at 1204.
      7
        See also B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1301 (10th
Cir. 2008) (“To invoke issue preclusion, there need not be a prior adjudication on the
merits (as is often the case with res judicata) but only a final determination of a
material issue common to both cases.” (internal quotation marks and citation
quotation omitted)); 18A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure § 4434 (3d ed., Apr. 2020 update) (noting
“[r]ecent decisions have relaxed traditional views of the finality requirement by
                                           16
      For collateral-estoppel purposes, we note that the government had every

reason to appeal the unfavorable suppression ruling in Mr. Arterbury’s case. The

suppression order sounded the death knell for the government’s case—simply put, no

child-pornography evidence, no prosecution. And as a leading commentator puts it,

“[i]n those jurisdictions where the prosecution may take an interlocutory appeal, it is

quite proper to view the failure to appeal as rendering the pretrial order a final

determination . . . so that the order would be binding even in the event of a dismissal

and reinstitution of the charges.” 6 Wayne R. LaFave, Search and Seizure § 11.2(f)

(5th ed., Oct. 2018 update) (internal quotation marks and citations omitted). Along

the same line, this commentator notes that “if interlocutory appeal is available to the

prosecution but not exercised in a particular case, then surely the prosecution should

not be able to raise with the trial judge those objections to the pretrial ruling he could

have raised by appeal.” Id. (footnote omitted).

      Because Arterbury was prosecuted in federal court, he can rely on collateral

estoppel under the federal common law. The district court erred in limiting

Arterbury’s collateral-estoppel claim to a “due process-oriented, federal rule of

criminal collateral estoppel.” Arterbury II, 322 F. Supp. 3d at 1203. Though the Fifth

Amendment’s Double Jeopardy Clause incorporates collateral-estoppel principles, it

does not do so at the expense of federal common-law collateral estoppel. Instead, it



applying issue preclusion to . . . determinations of liability that have not yet been
completed by an award of damages or other relief,” particularly when the issue has
been resolved “by appeal prior to final judgment”).
                                           17
permits a state defendant a federal constitutional challenge in a federal court. See

Smith v. Dinwiddie, 510 F.3d 1180, 1187 (10th Cir. 2007) (noting that “state courts

are constitutionally required to apply principles of collateral estoppel in criminal

cases if and only if the protections of the Double Jeopardy Clause have been

triggered”). Whether this court or the Supreme Court ever holds that the Due Process

Clause incorporates collateral-estoppel principles—an issue we need not and do not

reach today—collateral estoppel under federal common-law collateral estoppel will

remain available to federal defendants.

      We conclude that the district court erred by imposing due-process conditions

on Arterbury’s common-law collateral-estoppel defense. When Arterbury established

the elements of collateral estoppel (and asserted it defensively, of course), the district

court was obliged to enforce its earlier suppression order. See Bravo-Fernandez v.

United States, 137 S. Ct. 352, 356 (2016) (“In criminal prosecutions, as in civil

litigation, the issue-preclusion principle means that ‘when an issue of ultimate fact

has once been determined by a valid and final judgment, that issue cannot again be

litigated between the same parties in any future lawsuit.’” (quoting Ashe, 397 U.S. at

443)). Though a due-process right may affect future cases involving convicted state

defendants unable to rely on federal common-law criminal collateral estoppel,

Arterbury may rely on this defense as a convicted federal defendant.

      For these reasons, we conclude that the district court abused its discretion in

not enforcing its earlier suppression order.



                                           18
III.   The change-in-law exception to collateral estoppel does not apply here.

       In arguing for affirmance, the government asserts that we can resolve this case

by applying a change-in-law exception—even if collateral estoppel applies here. In

short, it argues that “Workman changed the relevant law.” Appellee’s Br. at 19. But

as in the district court, the government has supplied no authority applying the

change-in-law exception to criminal collateral estoppel. And even assuming for

argument’s sake that the change-in-law exception does apply to criminal collateral

estoppel, the exception would not apply here.

       Under the civil-law variant of the issue-preclusion doctrine, the change-in-law

exception allows a party to relitigate a previously decided issue when the “controlling

facts or legal principles have changed significantly since” the judgment was issued.

Montana, 440 U.S. at 155; see also Comm’r v. Sunnen, 333 U.S. 591, 600 (1948)

(collateral estoppel applies only when “the controlling facts and applicable legal rules

remain unchanged”). The government claims that Workman changed the law and thus

it is permitted to relitigate the suppression issue.

       Any discussion of a change-in-law exception to criminal collateral estoppel

requires an answer to a preliminary question—what suffices as the “law” later

changed? At oral argument, the government asserted that the “law” is the district

court’s 2016 ruling that the Leon good-faith exception does not apply here. As the

“changed law,” the government relies on Workman. This argument fails for two

independent reasons.



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      First, the district court’s 2016 ruling did not establish Tenth Circuit law. The

government provides no authority supporting its position that a district court can set

the “law” for change-of-law purposes. Instead, Workman set the circuit law. To

present a viable change-of-law claim, the government would need a different

situation. For instance, again even assuming the exception applies in criminal cases,

the government might prevail if it had pursued its Arterbury interlocutory appeal to a

defeat, only to have a Workman en banc court go the other direction. The government

offers nothing of the sort.

       Second, Workman did not change the law. As Workman itself noted, it

reached its result by applying principles from established Supreme Court cases. In

Workman, we concluded that “the Leon exception applies even if the magistrate

judge had exceeded geographic constraints in issuing the warrant,” rejecting Mr.

Workman’s competing argument as foreclosed by Supreme Court precedent. 863

F.3d at 1318 (citations omitted); see id. at 1319 (relying on Supreme Court precedent

in Herring, 555 U.S. at 137, where the Court applied the Leon good-faith exception

when a “third party stated that an outstanding warrant existed even though it had

been recalled,” and Arizona, 514 U.S. at 4, where the Court similarly applied the

Leon exception when a “third party programmed information into a computer stating

that a warrant had remained even though it hadn’t”).

      Workman did not change any governing legal principles—it applied long-

established ones.



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                                   CONCLUSION

      For these reasons, we reverse and remand to the district court with instructions

that it enforce its previously decided suppression order and proceed with the case.




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