United States v. Acox, No. 09-1258 (7th Cir. 02/09/2010)

Convicted of bank robbery and sentenced to 65 months' imprisonment, Edwin Acox presents a single appellate argument: that two employees 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).

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 marshaled 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 resolution 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). 

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 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.

Counsel does not contend that problems in the photo array themselves amount to "good cause." That would conflate procedural requirements with the merits. 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.

This means that an effort to prevent the witnesses from testifying about their pretrial identifications (or for that matter to prevent witnesses from directly identifying 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 hold that that Rule 12(e) applies.

In the end, 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.

AFFIRMED.

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