Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 CR 145-Virginia M. Kendall, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge
Before EASTERBROOK, Chief Judge, and CUDAHY and MANION, Circuit Judges.
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). 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 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 question. 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 statement in Davis that the appellate role is deferential), so they do not establish holdings. Cf. United States v. Brodie, 507 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 committed 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 possible to apply Strickland's prejudice component. An ineffective-assistance argument on an empty record is doomed. Entertaining and rejecting an ineffective-assistance argument would make it impossible to present the 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 withdrew 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 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.
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 addition to withdrawing the ineffective-assistance argument, Acox's reply brief contends that in-court testimony 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 ...