United States v. Robert Green ( 2012 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 11-2308
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Robert E. Green
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: March 16, 2012
    Filed: September 10, 2012
    ____________
    Before WOLLMAN and COLLOTON, Circuit Judges, and HICKEY,1 District
    Judge.
    ____________
    1
    The Honorable Susan O. Hickey, United States District Judge for the Western
    District of Arkansas, sitting by designation.
    COLLOTON, Circuit Judge.
    Following a bench trial, Robert Green was convicted of one count of bank
    robbery, in violation of 
    18 U.S.C. § 2113
    (a). The district court2 sentenced him to 96
    months’ imprisonment. On appeal, Green challenges the district court’s denial of a
    motion to suppress evidence and the sentence imposed. We affirm.
    I.
    On March 28, 2009, Officers Ricky Ropka and Kevin Growney of the Kansas
    City, Missouri, Police Department were on patrol. It was a cloudy day with
    occasional moderate to heavy rain. At approximately 9:00 a.m., Growney and Ropka
    heard a radio call reporting a robbery at the Commerce Bank at 63rd Street and
    Brookside Plaza in Kansas City. The suspect was described as a 30 to 40-year-old
    black male with facial hair and a medium build, wearing a black raincoat, black
    baseball cap, blue jeans, and white Nike tennis shoes. Growney, Ropka, and other
    officers set up a perimeter in the area surrounding the bank.
    Growney noticed a black male walking near 65th and Wyandotte Streets,
    approximately two blocks from Commerce Bank. The man, later identified as Green,
    had a medium build, was approximately 5'10" to 5'11" tall, had a goatee, and wore
    white Nike tennis shoes. Growney asked Green to stop, and he complied. Green told
    Growney that he was a personal trainer and was in the area looking for a trail on
    which to run.
    Growney ran a computer check and discovered two outstanding warrants for
    Green’s arrest. Growney arrested Green and found a large amount of cash in his front
    2
    The Honorable Greg Kays, United States District Judge for the Western
    District of Missouri.
    -2-
    pants pocket. While canvassing the area, other officers found a black rain jacket,
    black sweatshirt, black hat, and a box cutter in a trash can at a nearby home. Green
    later made inculpatory statements during an interview with law enforcement. After
    the interview, officers seized a Styrofoam cup that Green had used in the interview
    room and submitted it for DNA testing.
    A grand jury charged Green with bank robbery. He moved to suppress his
    statements to law enforcement and several pieces of physical evidence. Green argued
    that Growney’s investigatory stop violated the Fourth Amendment, because the
    officer had nothing more than an “inchoate and unparticularized suspicion or hunch”
    of criminal activity. After a hearing, a magistrate judge3 recommended denial of the
    motion. Citing the facts that Green was walking in the area of the recent bank
    robbery and matched many aspects of the suspect’s description, the magistrate judge
    concluded that Growney was justified in conducting an investigative detention.4
    After issuing the report and recommendation, but before the deadline for filing
    objections had expired, the magistrate judge granted Green’s request to proceed pro
    se, with his former counsel continuing only as stand-by counsel. Green did not file
    3
    The Honorable John T. Maughmer, United States Magistrate Judge for the
    Western District of Missouri.
    4
    The magistrate judge also found that Growney noticed that Green “was not
    wearing a coat, but [his] clothes appeared to be fairly dry,” and the judge relied on
    this fact in concluding that the stop was supported by reasonable suspicion. Green
    argues on appeal, however, that Growney did not observe Green’s dry clothing until
    after initiating the detention. Green did not file objections to the magistrate judge’s
    factual findings, so we review this disputed finding for plain error. See United States
    v. Looking, 
    156 F.3d 803
    , 809 (8th Cir. 1998). We conclude that Growney had
    reasonable suspicion to stop Green even without an observation of dry clothes, so any
    error on this point was not prejudicial.
    -3-
    objections to the magistrate’s recommendation. The district court then adopted the
    recommendation and denied the motion to suppress.
    After a two-day bench trial, the district court found Green guilty of bank
    robbery. At sentencing, the court varied upward from the advisory guideline
    sentencing range of 46 to 57 months’ imprisonment and sentenced Green to a 96-
    month term.
    II.
    On appeal, Green reasserts his claim that Growney lacked reasonable suspicion
    to make an investigative stop. He also contends for the first time on appeal that even
    if the stop were justified, Growney exceeded the permissible scope of an investigative
    detention under Terry v. Ohio, 
    392 U.S. 1
     (1968), and subjected him to a de facto
    arrest without probable cause. As a result, Green argues, the currency seized from his
    pocket, his statements to law enforcement, and the “genetic profile” developed from
    the Styrofoam cup must be suppressed.
    A.
    A law enforcement officer may detain a person for investigation without
    probable cause to arrest if the officer “has a reasonable suspicion supported by
    articulable facts that criminal activity ‘may be afoot.’” United States v. Sokolow, 
    490 U.S. 1
    , 7 (1989) (quoting Terry, 
    392 U.S. at 30
    ). “Whether the particular facts known
    to the officer amount to an objective and particularized basis for a reasonable
    suspicion of criminal activity is determined in light of the totality of the
    circumstances.” United States v. Garcia, 
    23 F.3d 1331
    , 1334 (8th Cir. 1994). We
    review de novo the district court’s determination that reasonable suspicion existed.
    Ornelas v. United States, 
    517 U.S. 690
    , 699 (1996).
    -4-
    The district court correctly held that Growney had reasonable, articulable
    suspicion that was sufficient to stop Green. An investigative stop “typically is
    justified when a suspect matches the description of a person involved in a disturbance
    near in time and location to the stop.” United States v. Horton, 
    611 F.3d 936
    , 940
    (8th Cir. 2010). After receiving a description of the suspected bank robber, Growney
    observed a black male with a medium build and facial hair wearing white Nike tennis
    shoes. Each of these features matched the description given to Growney. Growney
    also observed Green walking approximately two blocks away from the bank that had
    just been robbed. Given Green’s similarities to the description of the suspected
    robber and his proximity in both time and place to the crime, Growney had reasonable
    suspicion that Green committed a crime.
    B.
    Green next argues that Growney exceeded the permissible scope of a Terry
    stop and subjected him to a de facto arrest without probable cause. He contends that
    Growney effected a de facto arrest because the officer was driving a “patrol wagon”
    used to transport arrestees for booking, and he instructed Green to “stop and walk
    toward me.” Green also complains that when Growney placed his hand on Green’s
    chest to feel his heartbeat, presumably to see if he had been running in the immediate
    aftermath of the bank robbery, the officer conducted a search for evidence that went
    beyond the scope of a permissible Terry stop. These contentions were not raised in
    a pretrial motion to suppress evidence, and they are therefore waived. See Fed. R.
    Crim. P. 12(e).
    Federal Rule of Criminal Procedure 12(b)(3) specifies that “a motion to
    suppress evidence” must be made before trial. The district court may establish a
    deadline for pretrial motions, Fed. R. Crim. P. 12(c), and a “party waives any Rule
    12(b)(3) defense, objection, or request not raised” by the court’s pretrial deadline.
    Fed. R. Crim. P. 12(e) (emphasis added). The court may, however, grant relief from
    -5-
    the waiver for “good cause.” 
    Id.
     Because “waived claims are unreviewable on
    appeal,” United States v. Booker, 
    576 F.3d 506
    , 511 (8th Cir. 2009), the waiver
    provision of Rule 12 precludes appellate review of arguments to suppress evidence
    that are not raised in a pretrial motion to suppress. See United States v. Henderson,
    
    613 F.3d 1177
    , 1182 (8th Cir. 2010); United States v. Spotted Elk, 
    548 F.3d 641
    , 656
    (8th Cir. 2008); United States v. New, 
    491 F.3d 369
    , 374 n.3 (8th Cir. 2007); United
    States v. Buchanan, 
    985 F.2d 1372
    , 1380 (8th Cir. 1993); United States v. Neumann,
    
    887 F.2d 880
    , 885-86 (8th Cir. 1989); see also United States v. Crooker, No. 10-
    2372, 
    2012 WL 3064846
    , at *7 (1st Cir. July 27, 2012); United States v. Burke, 
    633 F.3d 984
    , 988-89 (10th Cir. 2011); United States v. Rose, 
    538 F.3d 175
    , 182 (3d Cir.
    2008); United States v. Yousef, 
    327 F.3d 56
    , 124-25 (2d Cir. 2003); United States v.
    Murillo, 
    288 F.3d 1126
    , 1135 (9th Cir. 2002); United States v. Chavez-Valencia, 
    116 F.3d 127
    , 134 (5th Cir. 1997).5
    To be sure, there is a general rule that a “plain error that affects substantial
    rights may be considered even though it was not brought to the court’s attention,”
    Fed. R. Crim. P. 52(b), and a “mere forfeiture” typically “does not extinguish an
    5
    As of July 2011, a panel of this court said that we had “‘not yet decided
    whether the failure to raise a suppression matter in a timely pretrial motion precludes
    plain error review.’” United States v. Garcia, 
    646 F.3d 1061
    , 1068 n.7 (8th Cir.
    2011) (quoting United States v. James, 
    534 F.3d 868
    , 875 (8th Cir. 2008)). As noted
    in text, however, several decisions of this court dating at least to Neumann in 1989
    have held that an objection that evidence should be suppressed is waived if not raised
    in a pretrial motion. Other decisions from this circuit have reviewed suppression
    issues for plain error, see United States v. Quam, 
    367 F.3d 1006
    , 1008 (8th Cir.
    2004); United States v. Wheat, 
    278 F.3d 722
    , 738 (8th Cir. 2001); United States v.
    Clayton, 
    210 F.3d 841
    , 843 (8th Cir. 2000); United States v. Washington, 
    109 F.3d 459
    , 465 (8th Cir. 1997), but we have found no decision that granted relief on that
    basis. None of the decisions that applied plain error review considered the effect of
    the Rule 12 waiver provision, and a prior panel’s implicit resolution of an issue that
    was not raised or discussed is not binding precedent. Streu v. Dormire, 
    557 F.3d 960
    ,
    964 (8th Cir. 2009).
    -6-
    ‘error’ under Rule 52(b).” United States v. Olano, 
    507 U.S. 725
    , 733 (1993). But
    Rule 12 “singles out motions to suppress.” Rose, 
    538 F.3d at 183
    . Rule 12 mandates
    that such motions must be brought before trial, and it provides that a party “waives”
    any Rule 12(b)(3) “defense, objection, or request” not raised by the court’s pretrial
    deadline. Fed. R. Crim. P. 12(e). “When general and specific statutory provisions
    apparently contradict, it is well-established that the two may exist together, the
    specific provision qualifying or limiting the general.” United States v. Gullickson,
    
    981 F.2d 344
    , 349 (8th Cir. 1992) (internal quotation omitted). We do not apply “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). If we were to
    apply the forfeiture analysis of Rule 52(b) and Olano in the face of Rule 12’s specific
    waiver provision, then a Rule 12 waiver “would have no consequence other than that
    [the claim] would be reviewed for plain error”—the same result as if there were no
    Rule 12(e). United States v. Weathers, 
    186 F.3d 948
    , 955 (D.C. Cir. 1999).
    The Supreme Court in Davis v. United States, 
    411 U.S. 233
     (1973), explained
    that “waiver” in Rule 12 precludes further judicial review. The defendant there
    brought a proceeding under 
    28 U.S.C. § 2255
    , alleging that there had been
    unconstitutional discrimination in the selection of a grand jury. 
    Id. at 234-35
    .
    Although he had not raised this claim at trial, the defendant argued that his collateral
    attack was not barred unless he “deliberately bypassed” or “understandingly and
    knowingly” waived the claim. 
    Id. at 236
    . The Court, invoking the “express waiver
    provision” of Rule 12, disagreed. 
    Id. at 239
    .6 Davis held that “a claim once waived
    pursuant to that Rule may not later be resurrected, either in the criminal proceedings
    or in federal habeas, in the absence of the showing of ‘cause’ which that Rule
    requires.” 
    Id. at 242
    . The Court explained that even though the defendant “alleged
    6
    When Davis was decided, the waiver provision appeared in Rule 12(b)(2) and
    provided that the failure to present certain defenses or objections by pretrial motion
    “constitutes a waiver thereof, but the court for cause shown may grant relief from the
    waiver.” Davis, 
    411 U.S. at 236
    .
    -7-
    the deprivation of a substantial constitutional right,” 
    id. at 243
    , Rule 12 “applies to
    both procedural and constitutional defects in the institution of prosecutions.” 
    Id. at 236
    . Thus, as the D.C. Circuit summarized, “[a]lthough Olano indicates that untimely
    objections are generally regarded as forfeitures subject to Rule 52(b), Davis dictates
    that untimely objections that come within the ambit of [Rule 12] must be considered
    waivers and may not be revived on appeal.” Weathers, 
    186 F.3d at 957
    .
    The history of Rule 12 also “indicates that its text means what it says.” Rose,
    
    538 F.3d at 183
    . The rules were amended in 1974 “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.” 
    Id.
     Well after Olano, the waiver provision was
    moved to subsection (e) of Rule 12, and the text was revised, but the waiver provision
    remained intact. See Fed. R. Crim. P. 12 advisory committee’s note on 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.” Rose,
    
    538 F.3d at 183
    .
    In our case, Green did file a motion to suppress, but the mere filing of a motion
    is not sufficient to avoid waiver of specific arguments that are advanced for the first
    time on appeal. The Rule 12 “waiver provision ‘applies not only to the failure to
    make a pretrial motion, but also to the failure to include a particular argument in the
    motion.’” Spotted Elk, 
    548 F.3d at 656
     (quoting United States v. Barajas-Chavez,
    
    358 F.3d 1263
    , 1266-67 (10th Cir. 2004)); accord Burke, 
    633 F.3d at 991
    ; Rose, 
    538 F.3d at 182
    . The rule declares that a party waives any Rule 12(b)(3) “objection” not
    raised by the court’s pretrial deadline. Fed. R. Crim. P. 12(e). Rule 12(b)(3) sought
    to make “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 on 1974
    amendment. Although Green filed a pretrial motion to suppress, he did not urge that
    Growney made a de facto arrest or that the officer conducted an illegal search when
    he touched Green’s chest. Thus, the government had no reason to justify the officer’s
    -8-
    actions that Green now challenges on appeal, and the district court had no occasion
    to address the issues.
    Absent a showing of good cause, the arguments that Green seeks to raise for
    the first time on appeal are waived under Rule 12(e). We discern no “good cause”
    that warrants relief from the waiver in this case. The evidence regarding Growney’s
    touching of Green’s chest was adduced at the suppression hearing. While belated
    discovery of disputed evidence might explain a defendant’s failure to raise an issue
    in his initial motion to suppress, it cannot establish “good cause” for his failure to
    raise it after the hearing but before trial. See Rose, 
    538 F.3d at 184-85
    . Nor does the
    fact that Green was proceeding pro se for a portion of the pretrial period excuse his
    noncompliance with Rule 12. The right of self-representation is not “a license not to
    comply with relevant rules of procedural and substantive law,” Faretta v. California,
    
    422 U.S. 806
    , 834 n.46 (1975), and Green’s pro se status alone does not constitute
    good cause. See Rose, 
    538 F.3d at 184-85
    . For these reasons, we hold that Green’s
    remaining arguments for suppression of evidence are waived.
    III.
    Green next challenges his 96-month sentence on procedural and substantive
    grounds. In considering assertions of procedural error, we review the district court’s
    application of the guidelines de novo and its factual findings for clear error. United
    States v. Paz, 
    622 F.3d 890
    , 891 (8th Cir. 2010). We review the substantive
    reasonableness of a sentence under a deferential abuse-of-discretion standard. Gall
    v. United States, 
    552 U.S. 38
    , 41 (2007).
    Green asserts that the district court committed procedural error when it
    departed upward under USSG § 4A1.3(a)(1), which permits an upward departure if
    “the defendant’s criminal history category substantially under-represents the
    seriousness of the defendant’s criminal history or the likelihood that the defendant
    -9-
    will commit other crimes.” Green contends that the court erroneously failed to
    consider or explain why intermediary criminal history categories failed to meet the
    purposes of § 4A1.3. See United States v. Azure, 
    536 F.3d 922
    , 932 (8th Cir. 2008).
    The premise of this contention is flawed. The district court did not depart upward
    under § 4A1.3. Rather, it considered the factors set forth in 
    18 U.S.C. § 3553
    (a) and
    found that “a variance is appropriate.” “[T]he standards justifying departures under
    the advisory Guidelines are narrower than the factors enumerated in § 3553(a),” and
    a variance based on the statutory factors may be appropriate even where a departure
    would be unjustified. United States v. Solis-Bermudez, 
    501 F.3d 882
    , 886 (8th Cir.
    2007). Because the district court did not depart pursuant to § 4A1.3, there is no merit
    to Green’s claim of procedural error.
    Green also challenges the substantive reasonableness of his sentence, arguing
    that the district court “focused almost entirely” on a fifteen-year sentence Green
    served on a prior state robbery conviction. The record does not support this assertion.
    In considering the § 3553(a) factors, the district court gave several reasons for
    imposing a sentence of 96 months’ imprisonment. As part of its analysis, the district
    court properly considered Green’s prior robbery conviction and prison disciplinary
    record, observing that Green “didn’t get along well in prison.” Green accumulated
    numerous prison violation reports for assault, threats, and fighting, and he was placed
    in disciplinary segregation sixteen times. The district court understandably found it
    “concerning” that Green went “to prison for 15 years for robbery and gets out and
    robs a bank.” The court also considered the seriousness of Green’s offense, which
    created “a dangerous circumstance to everybody,” and the court weighed Green’s
    “sporadic” work history. Finally, the court considered the need to promote respect
    for the law and deter criminal conduct, explaining, “when you get out of prison after
    a robbery, and you go out and rob a bank a few years after that, there’s a punishment
    related to this.” Giving “due deference to the district court’s decision that the
    § 3553(a) factors, on a whole, justify the extent of the variance,” Gall, 
    552 U.S. at 51
    ,
    we conclude that Green’s sentence is not unreasonable.
    -10-
    *      *       *
    The judgment of the district court is affirmed. Green’s motion for leave to file
    a pro se reply brief is denied. See United States v. Martin, 
    59 F.3d 767
    , 768 n.2 (8th
    Cir. 1995).
    ______________________________
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