Saturday, June 29, 2019

Case o' The Week: One Good Turn Deserves . . . a stop, a search, and a federal prosecution -- Guerrero and New Rule 12 motions on appeal

  How bad is the “good cause” appellate standard?
  By comparison, plain error looks good!

United States v. Guerrero, 921 F.3d 895 (9th Cir. Apr. 22, 2019), decision available here.

Players: Per curiam decision, with Judges Tashima, Watford, and District Judge Robreno. Hard fought appeal by CD Cal AFPD Gia Kim.

Facts: Guerrero was charged with being a felon in possession of a gun an ammo. Id. at 896. At the evidentiary hearing on a suppression motion, Guerrero, the driver, and officers testified. Id. The cops were credited, and the district court held that the driver’s failure to signal a turn provided a lawful basis for the stop. Id.
  Guerrero entered a conditional plea. Id.
  On appeal, Guerrero presented a new theory – that a driver only has to signal in California if another vehicle on the road is affected by the movement. Id. He argued that because the government had failed to introduce evidence that the alleged failure to signal affected another vehicle, the officers lacked a lawful basis for the stop. Id.
  That ground for suppression had not, however, been advanced in the district court. Id. at 897.

Issue(s): “Guerrero contends that we should align ourselves with the circuits that review untimely defenses, objections and requests for plain error.” Id. at 897.

Held:Were we writing on a blank slate, we might have been inclined to follow their lead. . . . . Nevertheless, as a three-judge panel, we may not forge our own path unless our prior precedent is clearly irreconcilable with the text and history of subsequent legislation or rulemaking.” Id. at 897-98. “[W]e cannot say that our prior precedent is clearly irreconcilable with the amended version of Rule 12. Rule 12(c)(3)’s good-cause standard continues to apply when, as in this case, the defendant attempts to raise new theories on appeal in support of a motion to suppress. Guerrero has not shown good cause for failing to present in his pre-trial motion the new theory for suppression he raises in this appeal. Nor has he challenged the district court’s rejection of the one theory that he did raise below. We therefore affirm the district court’s denial of his motion to suppress.” Id. at 898.

Of Note: It is unusual when the defense wants plain error, but that’s the case here. The nub of the fight is the standard under Federal Rule of Criminal Procedure 12(c)(3), when a party does not make a timely 12(b)(3) motion (like a suppression motion). The Fifth, Sixth, and Eleventh have held that the familiar plain error standard applies in that situation. Id. at 897. Other circuits review for the amorphous “good cause” standard. Id. In this per curiam decision, the panel sticks by Ninth precedent that concludes it is “good cause” (although there is the strong sense that they think the plain error approach is a better solution).

How to Use: Bring it in the district court, or face the “good cause” gauntlet on appeal. What motions are affected by this holding? Rule 12(b)(3) includes the following: “a defect in instituting the prosecution, including: improper venue; preindictment delay; a violation of the constitutional right to a speedy trial; selective or vindictive prosecution; and an error in the grand-jury proceeding or preliminary hearing; a defect in the indictment or information, including: joining two or more offenses in the same count (duplicity);charging the same offense in more than one count (multiplicity); lack of specificity; improper joinder; and failure to state an offense; suppression of evidence; severance of charges or defendants under Rule 14; and discovery under Rule 16.”
For Further Reading: Last week Senator McConnell filed a cloture motion on the nomination of Mr. Daniel Bress to the Ninth Circuit.  See Nomination report here. Senator Feinstein is not enthused. See Sen. Feinstein statement here   A vote on Mr. Bress’s nomination is expected after the July 4th recess. See here.

Image of turn signal from

Steven Kalar, Federal Public Defender. Website at


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