Friday, September 27, 2013
A Party May Not Preserve General Suppression Issues For Appeal, But Rather Individual Arguments Must Be Preserved With An Exacting “Degree of Particularity.”
In United States v. Joseph, -- F.3d --, 2013 WL 5273120 (September 19, 2013), the Third Circuit clarified the exactness with which an argument must be preserved for appeal, holding that raising a general issue is not sufficient to preserve an individual appellate argument. Rather, individual legal arguments must be preserved with an “exacting” degree of “particularity.” In reaching this decision, the appellate court differentiated between the concepts of an “issue” and an “argument.” Specifically, an issue is a broad concept or a question that may be addressed by multiple arguments or theories. The only arguments that are preserved for appeal are the same arguments made before a district court. Thus, raising one argument at trial does not preserve every possible argument that is related to an issue.
Akeem Joseph was arrested and charged with using counterfeit money at a Philadelphia club. He made numerous statements to law enforcement both pre- and post-arrest. Most damaging, he confessed to Secret Service after being Mirandized, and handed over incriminating text messages. Prior to trial, Mr. Joseph filed a motion to suppress the counterfeit bills, the text messages and his confession. To support the motion he raised both a Terry argument, for illegal stop and frisk at the club, and a lack of probable cause argument. The probable cause argument was based on the arresting officers’ lack of expertise to know if the bills were counterfeit. The motion was rejected and he was convicted.
On appeal, Mr. Joseph again raised lack of probable cause for the arrest, but this time his argument was based on mens rea. Specifically, he argued that the officer did not have sufficient evidence to establish that he had an intent to defraud at the time he possessed the counterfeit bills. The Third Circuit found this was a completely new argument that was raised for the first time on appeal. The opinion notes that the two different theories presented by Mr. Joseph at trial and at appeal had different legal burdens and relied on different facts. Therefore these were separate arguments. When arguments are not based on the same legal rule and the same facts, they are not the same for purposes of preservation. Because suppression arguments are waived if not raised at trial, Mr. Joseph could not make the mens rea argument on appeal. The circuit court further explained that probable cause is a general issue; the specific arguments made to support the motion must be preserved individually. Simply making a suppression motion below does not allow a party to then appeal under all possible suppression arguments. In this case, the probable cause challenge at trial did not allow appellant to appeal the suppression decision based on a completely different theory
In sum, following this opinion parties are limited on appeal to the specific arguments they made before the district court. A specific suppression argument not raised below is deemed waived for purposes of appeal.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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