United States v. Akeem Joseph

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3808
_____________
UNITED STATES OF AMERICA
v.
AKEEM JOSEPH
also known as
AKEEM OLAJUWON
Akeem Joseph,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-09-cr-00673-001
District Judge: The Honorable Gene E. K. Pratter
Argued July 17, 2013
Before: RENDELL, SMITH, and SHWARTZ,
Circuit Judges
(Filed: September 19, 2013)
Mary Kay Costello , Esq. [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Keith M. Donoghue, Esq. [ARGUED]
Robert Epstein, Esq.
Nina C. Spizer, Esq.
Federal Community Defender Office for
the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
________________
OPINION
________________
SMITH, Circuit Judge.
Lawyers and judges are familiar with the well-
worn adage that bad facts make bad law. A possible
corollary to this proposition is that good facts make good
law. This case is of the latter type, in which
2
straightforward facts present an opportunity to rectify
imprecisions in our case law regarding the preservation
and waiver of suppression arguments. We must decide
the degree of particularity required for a party to preserve
a suppression argument for appeal purposes. To
determine this, we must clarify our terminology as to
what it is parties preserve. We conclude that “issues” and
“arguments” are distinct concepts: an issue can be
broader in scope than an argument in that an issue may
be addressed by multiple arguments, which are the most
basic building blocks of legal reasoning. We hold that for
parties to preserve an argument for appeal, they must
have raised the same argument in the District Court—
merely raising an issue that encompasses the appellate
argument is not enough. Consequently, the degree of
particularity required to preserve an argument is
exacting. Because appellant here has not preserved the
sole argument made on appeal, we will affirm.
I
In the early morning hours of October 16, 2008,
Akeem Joseph was arrested outside the Atlantis
Gentlemen’s Club in Philadelphia. One of the arresting
officers, Officer Julia Umbrell, was flagged down by the
club’s security officer, who explained that Joseph had
tried to “pass” (exchange counterfeit currency for
authentic currency) several $100 bills at the club.
Umbrell did not inspect the bills for authenticity but did
ask Joseph for identification and whether he tendered
3
them at the bar. Joseph acknowledged that he tendered
the bills and, for identification, provided a passport with
a torn photograph.
Officer James Morrison arrived after Umbrell
called for backup. Morrison asked Joseph where he had
acquired the bills, and Joseph explained that he had
obtained them when he cashed his pay check at a local
racetrack. Morrison then shined his flashlight on one of
the bills provided by the club’s security officer. This
inspection revealed a discrepancy in the bill’s security
features: the president’s face in the bill’s watermark did
not match the face printed on the bill. Meanwhile,
Umbrell confirmed with the club’s manager and barkeep
that Joseph had tendered the bills.
Joseph was then arrested and searched at the scene.
The officers found fourteen more counterfeit $100 bills
in one of Joseph’s pockets. Joseph was subsequently
taken in for questioning by the Secret Service. After
waiving his Miranda rights, Joseph provided a Secret
Service agent with several incriminating text messages
from his cell phone and confessed to attempting to pass
the counterfeit bills. Consequently, Joseph was indicted
on one count of passing two counterfeit $100 bills and
one count of possessing fourteen counterfeit bills. See 18
U.S.C. § 472.
In the District Court, Joseph moved to suppress the
counterfeit bills in his pocket, the text messages, and his
4
confession. He argued that the search was unlawful on
two grounds. First, he contended that it was an illegal
Terry stop and frisk. Second, he asserted that the officers
lacked probable cause for the arrest because no one at the
scene had sufficient expertise in counterfeiting to know
whether the bills were in fact counterfeit. After an
evidentiary hearing, the District Court denied Joseph’s
motion. The case proceeded to trial, and a jury found
Joseph guilty on both counts.
Joseph appeals the denial of his suppression
motion.1 He now argues, for the first time, that probable
cause to arrest was absent because the officers had
insufficient evidence to establish his intent to defraud at
the time he passed and possessed the counterfeit bills.
II
The dispositive question in this case is whether
Joseph waived the argument presented in this appeal. In
United States v. Rose, 538 F.3d 175 (3d Cir. 2008), we
held that under Federal Rule of Criminal Procedure 12,
“a suppression argument raised for the first time on
appeal is waived (i.e., completely barred) absent good
cause.” Id. at 182.2 This rule applies not only when
1
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
2
Joseph has offered no reason, and we see none, that any
waiver is excused because of good cause. See United
5
defendants altogether fail to raise any suppression
arguments in the District Court, but also when defendants
fail to raise particular arguments later advanced on
appeal. Id. The central dispute in this case is over the
degree of particularity required to preserve an argument.
Joseph contends that by raising the issue of probable
cause in the District Court, he can argue the absence of
probable cause for any reason on appeal. In particular, he
contends that his District Court argument that the officers
lacked probable cause as to the actus reus (the officers
did not have the expertise to know whether the bills
Joseph passed were fake) preserves his appellate
argument that they lacked probable cause as to the mens
rea (the officers did not have any evidence showing an
intent to defraud and Joseph offered a plausible
explanation for how he came to possess the bills). The
government takes the opposite position: for Joseph to
preserve the mens rea argument for appeal, he must have
argued in the District Court that probable cause was
absent for want of evidence at the time of arrest
demonstrating the requisite mental state.
States v. Harrison, 689 F.3d 301, 310 (3d Cir. 2012).
Consequently, although the terminology we establish
here may be of assistance in the good-cause context, our
holding is limited to deciding when a party has preserved
an argument and does not identify what considerations
are relevant for whether waiver is excused.
6
Although consistent in reasoning, many of our
cases are inconsistent in terminology. Our purpose here is
to clarify the framework for discussing and analyzing
waiver questions.3 Under this framework, we conclude
that Joseph has waived his mens rea argument.
A. Defining what a Party Preserves or Waives
Our case law on the degree of particularity
required for preserving an issue for appeal is less than
clear. In United States v. Lockett, 406 F.3d 207 (3d Cir.
2005), we stated that suppression arguments made on
appeal must be “substantially the same theories of
suppression” advanced in the District Court. Id. at 212. In
United States v. Dupree, 617 F.3d 724 (3d Cir. 2010),
3
Because waiver of suppression arguments is controlled
by Rule 12, we do not have occasion to consider whether
the framework explained here applies in other waiver
contexts, such as Federal Rule of Criminal Procedure
52(b) and waiver in civil cases. See Rose, 538 F.3d
at 177–78 (explaining that under Rule 52(b), arguments
not raised in the District Court are reviewed for plain
error); Huber v. Taylor, 469 F.3d 67, 74–75 (3d Cir.
2006) (explaining the “prophylactic and prudential
origins” of the waiver rule in civil cases, which provides
that “failure to raise an issue in the District Court results
in its waiver on appeal” unless the Court uses its
discretionary power to address the issue).
7
two judges of this Court suggested that an argument was
preserved because it was within the “overarching
question” of the proceedings. Id. at 740 (Fisher, J.,
concurring in part and concurring in judgment); see also
id. at 734 (Cowen, J., dissenting) (agreeing with Judge
Fisher’s waiver conclusion because the argument on
appeal followed from the same precedent that was relied
on in the District Court and was not precluded by the
argument made in that court). And in United States v.
Berrios, 676 F.3d 118 (3d Cir. 2012), we explained that
an argument is preserved only if it is the “specific
issue[]” raised in the District Court. Id. at 130.
Although a closer look at our cases reveals
consistency—that is, an approach requiring exacting
specificity—certain statements in the opinions seem to
suggest varying degrees of specificity. “[O]verarching
questions” appears less demanding than “substantially
the same theor[y],” which in turn seems less demanding
than “specific issue.” Resolving this tension first
necessitates clarification of our terminology for
discussing preservation and waiver. Unfortunately, many
of our cases have been imprecise in describing just what
a party waives. The three cases just mentioned, for
example, use the terms “question,” “theory,” and “issue”
to capture what is being waived. In other cases, we use
“argument” and “contention.” See United States v.
Harrison, 689 F.3d 301, 310 (3d Cir. 2012) (“It is well-
settled that suppression arguments raised for the first
8
time on appeal are waived absent good cause.”); United
States v. Tracey, 597 F.3d 140, 149–50 (3d Cir. 2010)
(concluding alternate “argument” was waived); United
States v. Frank, 864 F.2d 992, 1006 (3d Cir. 1988)
(“Since this contention was not raised in his suppression
motion as a ground for suppression it is waived.”). Other
circuits have been similarly inconsistent, using many of
the words we do as well as others, such as “ground” and
“basis.” See, e.g., United States v. Hewlett, 395 F.3d 458,
460 (D.C. Cir. 2005).4
To be sure, some of these words are synonyms.
But not all of them are. The crucial difference between
these words goes to the degree of specificity they entail.
In our view, the synonymous words “question” and
4
See also, e.g., United States v. Torres, 162 F.3d 6, 11
(1st Cir. 1998) (using theory and ground); United States
v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976) (using
ground); United States v. Pope, 467 F.3d 912, 918–19
(5th Cir. 2006) (using issue and argument); United States
v. King, 627 F.3d 641, 647 (7th Cir. 2010) (using
argument and issue); United States v. Green, 691 F.3d
960, 965 (8th Cir. 2012) (using argument and issue);
United States v. Scott, 705 F.3d 410, 415–16 (9th Cir.
2012) (using theory, issue, and argument); United States
v. Burke, 633 F.3d 984, 987–88 (10th Cir. 2011) (using
argument); United States v. Orr, 864 F.2d 1505, 1508
(10th Cir. 1988) (using ground).
9
“issue” are broader in scope than the synonymous words
“argument,” “contention,” “theory,” “ground,” or “basis”
in that the former words can encompass more than one of
the latter. This is best seen in the Supreme Court’s
interpretation of Rule 14.1(a). That rule explains that
“[o]nly the questions set out in the petition [for a writ of
certiorari] . . . will be considered by the Court.” Sup. Ct.
R. 14.1(a) (emphasis added). In Lebron v. National R.R.
Passenger Corp., 513 U.S. 374 (1995), the Court
explained that while it “will not reach questions not fairly
included in the petition,” it will reach “argument[s]” that
are “fairly embraced within the question set forth in the
petition.” Id. at 379–80. Questions are therefore broader
in scope than arguments—which the Court used
synonymously with theory, id. at 380—because the
former can include more than one of the latter.
“Issue” is akin to “question” because it is the term
in our procedural rules that serves the same role as a
“question” in the Supreme Court’s rules. Rule 28(a)(5)
requires the appellant’s brief to provide “a statement of
the issues presented for review.” Fed. R. App. P. 28(a)(5)
(emphasis added). This rule is based on the 1966 version
of Supreme Court Rule 40, id. 1967 advisory
committee’s note, which stated that the appellant’s brief
must include the “questions presented for review,” Sup.
Ct. R. 40(d)(1), 388 U.S. 970–71 (1966) (emphasis
added); see also Sup. Ct. R. 24.1(a) (retaining this
requirement). Given the identical role the words serve in
10
these procedural rules, it is reasonable to treat them as
being coextensive in scope. That is, issues and questions
may include multiple legal arguments, contentions,
theories, grounds, or bases.
With this clarification, we are able to reframe the
debate before us regarding waiver of suppression
arguments: is raising an issue in a suppression motion or
hearing sufficient to preserve any argument within that
issue? Our decisions in Lockett, Rose, and Tracey show
that it is not. In Lockett, we concluded that the
defendant’s appellate argument of limited consent was
waived although he had raised the issue of consent in the
District Court through a voluntariness argument. 406
F.3d at 211–12. In Rose, we held as waived an appellate
argument that a warrant authorized an unlawful general
search despite the issue of the warrant’s validity being
raised in the District Court through three different
challenges. 538 F.3d at 177 (recounting the defendant’s
District Court arguments that the warrant permitted a
search for items unrelated to a crime, protected by the
First Amendment, and already available to the
government). And in Tracey, we determined that the
government waived its appellate argument that a
defective warrant was cured through an unincorporated,
accompanying affidavit that was sufficiently narrow and
confined the search performed even though the issue of
cure by the affidavit had been raised in the District Court
through the government’s argument that the warrant
11
incorporated the affidavit. Tracey, 597 F.3d at 149–50.
These cases show that raising an issue in the
District Court is insufficient to preserve for appeal all
arguments bearing on that issue. Instead, to preserve a
suppression argument, a party must make the same
argument in the District Court that he makes on appeal.
To be sure, we have made statements suggesting
otherwise. The waiver majority in Dupree suggests that
an argument is preserved if it is within the “overarching
question” raised in the District Court. 617 F.3d at 740
(Fisher, J., concurring in part and concurring in
judgment). This suggestion, however, is in conflict with
our earlier decisions in Lockett, Rose, and Tracey from
which we derive our holding that raising an issue is not
sufficient to preserve all arguments within the issue.
Because these cases were decided earlier, the rule derived
from them is controlling. See Pardini v. Allegheny
Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008)
(“[T]his Circuit has long held that if its cases conflict, the
earlier is the controlling authority and the latter is
ineffective as precedent[].”).
At first glance, Lockett too might be viewed as
authority supporting an expansive approach. There, we
stated that appellate suppression arguments must be
“substantially the same” as those made in the District
Court. 406 F.3d at 212. “Substantially” suggests some
degree of latitude. The case makes clear, however, that
this flexibility does not extend to the substance of the
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arguments. This is seen in its holding as waived a
defendant’s argument that his consent to a search was
limited when the issue of consent had been raised in the
District Court through an argument that his consent was
not given voluntarily. Id. at 211–12. If the word
“substantially” actually meant that the parties could
change their substantive arguments, we would have come
to the opposite conclusion in Lockett. After all, the scope
of consent and the voluntariness of consent both fit
within the general issue of whether there was consent for
a search.
Rather than substantive flexibility, the latitude
suggested by Lockett pertains to the parties’ ability to
control how they present and support their preserved
arguments. Parties are free, for example, to place greater
emphasis and more fully explain an argument on appeal
than they did in the District Court. They may even,
within the bounds of reason, reframe their argument.5 As
explained, however, they may not change the substance
of those arguments.
5
There is a limit, however, on the extent to which an
argument may be reframed. Revisions at some point become
differences in kind, presenting a completely new argument
altogether. Because such modifications would subvert the
very purpose of the waiver doctrine as it applies to
suppression motions, they cannot be countenanced.
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B. Differentiating between Issues and Arguments and
between Different Arguments
Our conclusion that arguments rather than issues
are what parties preserve or waive is helpful, of course,
only so far as there is a meaningful way to distinguish
between issues and arguments as well as between
different arguments. The distinction between issues and
arguments goes to the heart of the dispute in this case: the
degree of particularity required. This degree is exacting
because legal arguments—as well as legal theories,
grounds, and bases—are the most basic building blocks
of legal reasoning.
In Tracey, we distinguished between issues and
arguments. The issue was whether an affidavit cured a
warrant that lacked particularity. See 597 F.3d at 146–47.
The government offered two arguments for why the
affidavit was curative: it was incorporated into the
warrant and if not, it was narrower than the warrant and
controlled the scope of the search. Id. at 146–49. These
are arguments because they do not contain subsidiary
legal frameworks of analysis. To be sure, either of these
arguments could be lacking for different factual
reasons—the affidavit, for instance, may have been
narrower but not sufficiently controlling of the search; or
it may have been too broad even though it was
controlling. But these factual differences are irrelevant
for distinguishing between issues and arguments because
the facts relevant to an argument will always be relevant
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to the issue containing the argument.
Tracey instructs that the determination of whether
the legal challenge is an issue or an argument for
purposes of waiver depends on whether it can be distilled
into separate lines of legal analysis.6 A legal challenge
that presents multiple avenues for granting relief is a
broad issue. But if the legal challenge presents a single
point of contention, which may not be recast or reframed
to address a conceptually distinct contention, then what
has been advanced is an argument.
Once the arguments made in the District Court and
in the Court of Appeals have been identified, the next
task is to determine if they are the same argument. This is
often self-evident, but our precedents reveal at least two
characteristics that identical arguments always have.
First, they depend on the same legal rule or standard. See
Tracey, 597 F.3d at 149–50 (concluding that an argument
was waived because it invoked a different legal basis for
curing a warrant lacking particularity from the one used
in the District Court). Second, the arguments depend on
the same facts. Cf. Rose, 538 F.3d at 183 (holding that
waiver is the appropriate remedy for failing to raise a
6
We recognize that in some instances an issue may be
coextensive with an argument, presenting a single point of
contention. In such a case, advancement of the issue before
the district court will be sufficient to preserve the matter for
appeal.
15
suppression argument in part because the party opposing
the new argument “has lost its chance to introduce
valuable evidence in opposition to the suppression
motion”). If two arguments do not share one of these
characteristics, they are not the same and the raising of
one will not preserve the other. Put differently, to
preserve an argument and avoid waiver, the argument
presented in the Court of Appeals must depend on both
the same legal rule and the same facts as the argument
presented in the District Court.
C. Application
Applying this framework reveals the unavailing
nature of Joseph’s contention that he preserved his mens
rea argument because he raised probable cause in the
District Court. To make an arrest based on probable
cause, the arresting officer must have probable cause for
each element of the offense. See Wright v. City of
Philadelphia, 409 F.3d 595, 602–03 (3d Cir. 2005).
Probable cause can consequently be distilled into more
particular legal arguments related to each element
involved. This case illustrates that proposition well, as
the parties’ merits arguments on appeal focus solely on
what is legally sufficient to establish probable cause for
the requisite intent to defraud in cases involving
counterfeit currency—specifically whether the passing of
such bills alone suffices to show that intent. See
Appellant Br. at 21–22; Appellee Br. at 24–26. Absent
from their discussion are arguments related to the actus
16
reus element of the relevant criminal code. See 18 U.S.C.
§ 472 (criminalizing “[w]hoever, with intent to defraud,
passes, utters, publishes, or sells[;] or attempts to pass,
utter, publish, or sell . . . any falsely made, forged,
counterfeited, or altered obligation or other security of
the United States”). This illustrates that a probable-cause
issue can be distilled into separate arguments—
arguments whether the officers had probable cause for
each element of the offense. Because we conclude that
probable cause is an issue rather than an argument,
Joseph did not preserve his mens rea argument simply by
raising a probable-cause-related argument in the District
Court.
Accordingly, Joseph preserved his mens rea
argument only if it is the same argument he raised in the
District Court. And it is not. In that court, he argued that
the officers lacked evidence of an actus reus element—
evidence that the bills were counterfeit. This evidence-of-
counterfeit argument is not the same as his appellate
evidence-of-intent argument because the arguments lack
both of the characteristics described above. First, they do
not depend on the same legal rule or standard: Joseph’s
District Court argument focused on the legal standards
related to the actus reus element of involving counterfeit
currency for the offense while his appellate argument
relies on the standards for showing the requisite mental
state. Second, Joseph’s two arguments depend on
different facts: the evidence relevant to the bad act (the
17
mismatched watermark the officers discovered by
shining their flashlights on the bills) is quite different
from the evidence relevant to the culpable state of mind
(Joseph’s suspicious behavior in the club of which the
officers might have been unaware). The absence of these
characteristics demonstrates that Joseph’s appellate
argument is not the same suppression argument he raised
in the District Court. It is therefore waived. Rose, 538
F.3d at 182.
III
Having held that Joseph waived the sole argument
he makes on appeal, we will affirm the District Court.
18