Petition for Writ of Certiorari — Jorge Guerrero, Petitioner v. United States

In the

Supreme Court of the United States

JORGE GUERRERO, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Petition for Writ of Certiorari

AMY M. KARLIN

Interim Federal Public Defender

GIA KIM"

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012-4202

Telephone: (213) 894-4408

Facsimile: (213) 894-0081

Attorneys for the Petitioner

* Counsel of Record

Question Presented

Federal Rule of Criminal Procedure 12(c)(8) provides that certain pretrial

motions are “untimely” if not raised by the deadline set by the district court,

but “a court may consider the defense, objection, or request if the party shows

good cause.”

When a defendant raises a new theory on appeal in

support of a suppression motion filed in district court,

is the argument reviewable for plain error, as the

Fourth, Fifth, Sixth, and Eleventh Circuits have held,

or does Rule 12’s good-cause standard displace the

plain-error standard in Federal Rule of Criminal

Procedure 52(b), as the First, Second, Third, Seventh,

Eighth, Ninth, and Tenth Circuits have held?

Statement of Related Proceedings

e United States v. Jorge Guerrero,

2:16-cr-00681-FMO-1 (C.D. Cal. Oct. 27, 2017)

e United States v. Jorge Guerrero,

CA No. 17-50384 (9th Cir. Apr. 22, 2019)

ul

Table of Contents

Page(s)

Opinions Below...........cccccccescccseecccusscenusccccusescueceseuecceusecseuceeeseceueeceeeeceeeesessesesceues 1

SULISCICCION .........cccccccseccesceenccceecceucceseccsectenccesseeeeccsuceuseceeceenetencecsesenseusseseeeeasceuanes 1

Federal Rules Involved .............ccccccccccsesececcnesseceteuesecceeeeesseeaeusesceueeecsseuuesecsseuueens 2

Statement of the Case .......cccceeccccccccssseccesecccceececauececeececeesseseseceeceeeescseeeeseuenessees 3

Reasons for Granting the Petition ............cccccccccccccccssseseseceeeeneaessesceccceeaaeasseceeees 9

A. The Circuits Are Deeply Divided on the Applicability of

Rule 12’s Good-Cause Standard on Appeal. ..............0000000- 11

B. The ‘Availability of Appellate Review for Untimely Rule 12

Motions Is a Question of Significant and Recurring

Tm portance. .......cccccccccesecccescccnuecceeeeeccasceseencceeseeceusceeueeensensess 15

C. The Ninth Circuit’s Decision Is Wrong. ..............ccccceeeseeeeees 18

D. Mr. Guerrero’s Case Is a Suitable Vehicle for Resolving the

Question Presented. ............cccccccesssesceteeesececceeeeccecueeeesensenseees 28

Appendix

Opinion of the United States Court of Appeals

for the Ninth Circuit (April 22, 2019) oo... ccccccceeecceseescueseeeneesceunes la

Order of the United States Court of Appeals

for the Ninth Circuit Denying Panel Rehearing and

Rehearing En Banc (July 1, 2019)... ecccccccccceesessecceceeeseaneseseeeeeseees 8a

Letter from Scott C. Harris, Clerk,

Re: Extension of Time Geptember 13, 2019)..........cccccccccsseeseeeeeeeeeeeeeees 9a

District Court (In Chambers) Order

Re: Motion to Suppress (June 18, 2017) ........ cece cecccsecceecceecceeeseneceees 10a

iii

Table of Authorities

Page(s)

Federal Cases

Beech Aircraft Corp. v. Rainey,

488 U.S. 158 (1988) oo. cccecccccescccseccceseccceeceseeeeeseneeesuuceuenssecescssnecessaesseneveees 22

Blanchette v. Conn. Gen. Ins. Corps.,

A19 U.S. 102 (197A) ooo cceccccsescccseccceneccseecscessescesesteasssescceeeseceuscesseseenes 24

Class v. United States,

138 S. Ct. 798 (2018) oo. ccccccceecccuescscessccccsscesuscscuscccaecceuseceseceeusecesseecsens 23

Davis v. United States,

A11 U.S. 238 (1978) o.cec ee ccecccecscecccscceesscsscecscccecceuscecscetseseesseusceusecesceesssuseces 21

Kaufman v. United States,

394 U.S. 217 (1969) ooo. ice cceecccessccceecceeseccussccessscceuseceeecssausccseeceesaecenseness 21

Lott v. United States,

B67 U.S. 421 (1961) wen eccecccesscccessccccsccceeuceeeeecceeceseussceusscseaesstsaeseenauecs 15

Morton v. Mancari,

417 U.S. 535 (197A) woo ccccccceccccsecccceeecccunecceeseeseeseceeeeeseeecceueecesaeeseesesseeenseues 24

Puckett v. United States,

556 U.S. 129 (2009) 00... ccceccccescccceeecceeeceeseccuseeceuuesecuseseueesstssceseescseenecees 17

United States v. Anderson,

783 F.3d 727 (8th Cir. 2015)... cceecccccccccssecccsececeucceeecscesessenecteseceesaees 12,17

United States v. Bowline,

917 F.3d 1227 (10th Cir. 2019) oo... cceceeccccceeeseceeeeeeesecuneeeeesanneees passim

United States v. Browne,

778 F. App’x 421 (9th Cir. July 16, 2019) ...... cece cceeescccsenececeeueeseeeseees 18

United States v. Burroughs,

810 F.3d 833 (D.C. Cir. 2016)... cccccccccssccneccceceeeccasctencenseceneeeeses 12, 21

United States v. Caseres,

533 F.3d 1068 (Oth Cir, 2008) ...... ce cccccccesecccscccceeceeeecseeseseaueecceenecsnaeeess 6

United States v. Chavez- Valencia,

116 F.3d 127 (5th Cir. 1997) oo... cccccceccccceccccesecceesesceseseeuesesenssesaascceuaecces 19, 20

ata sine iach

Table of Authorities

Page(s)

Federal Cases (cont.)

United States v. Fattah,

858 F.3d 801 (8d Cir. 2017) oo. cceeccccecccceseccceeececeeseeeeeeceueecceeceeescereeeesees 12

United States v. Ferriero,

866 F.3d 107 (8d Cir. 2017) ooo. cee ceccccsnccccssecccesccceeescceneccuecseasesseuesseeeeeeuees 13

United States v. Griffith,

928 F.3d 855 (LOth Cir. 2019) oo... ceccccecccccesecceseccccesccueeeseeecseuseseeesssseeneeees 18

United States v. Guerrero,

921 F.3d 895 (Oth Cir. 2019) oo. c ee eecceeccascccsecceeceuecceseceuecevecearsesecens passim

United States v. Lane,

ATA U.S. 4388 (1986) 00... ceecccccccescccccseseceenseeseeecceeeeesseueesccceueeesseeaescesensaenes 15

United States v. McMillian,

786 F.3d 630 (7th Cir. 2015)... ccccccccccseecccceeeesccecueecsceuaeecsseueeesesansseeeseeea 12

United States v. O’Brien,

926 F.3d 57 (2d Cir. 2019) oo. cccccccceeececssceecescesevsceeeeeeceueeecusesseeesceeeeesenes 13

United States v. Olano,

BOT U.S. 725 (1998) oo... cccecccceseccccscceeessceceececeeceesecessneceasecseueeeseascesanscss 10, 11

United States v. Restrepo-Rua,

815 F.2d 1327 (8th Cir. 1987) (per curiam) ........... ccc cceeccceseceneeeceeeseseneeseees 19

United States v. Robinson,

B61 U.S. 220 (1960) ooo. ccccesccceeceeeccenscnseceeuccaueeceessseceasessuseaeeceeecesueeeaees 15

United States v. Robinson,

855 F.8d 265 (4th Cir. 2017) ccc ccccccccsecccsssecccceeesecceaeeeceeuneecessaaeeeeeseaeees 13

United States v. Soto,

794 F.3d 635 (6th Cir. 2015)... cccecccscccssccnseceeeeeeceeesensceneeceeeees 14, 17, 26

United States v. Sperrazza,

804 F.3d 1113 (11th Cir. 2015)... ecccecccnsccceecceseeeeeeseecseseseeeeaes 14, 17

United States v. Sweeney,

887 F.3d 529 (Ast Cir. 2018) oii eccccccccccccsseececeeesccsceueeecceessesecessaeeseeeeseeea 13

Table of Authorities

Page(s)

Federal Cases (cont.)

United States v. Tejeda,

2019 WL 3801530 (9th Cir. Aug. 18, 2019)... eee cceeccceeccceeecceuteseneeeeeees 18

United States v. VanDyck,

776 F. App’x 495 (9th Cir. Aug. 28, 2019)..cccccccccssssssssesecssssesessesessesssseeseeseees 18

United States v. Vasquez,

899 F.3d 363 (5th Cir. 2018) oo... ccc ceeeccseccescecseceeceesccesseasscesceeueeens passim

United States v. Vonn,

535 U.S. 55 (2002) ooo. cecccccccssccesccessceescceuseceeseesccesseeseceesceuaceneccensees 15, 23, 25

United States v. Walker-Couvertier,

860 F.3d 1 (1st Cir, 2017) ccccccccccsessscscscsssscscsesssscscscsseseseaeressscacsseacassversseacevens 13

United States v. Warwick,

928 F.3d 939 (LOth Cir. 2019) o.oo ceeccceescccesscceeseccusccceesescesusceeeecesseeesees 18

United States v. Weathers,

186 F.3d 948 (D.C. Cir. 1999) oo. ecccceeeccceeccesessceseceeseseeeeeeenseseseess 19, 20

United States v. Williams,

__ F.8d __ (10th Cir. Nov. 14, 2019) oo... eee ceccccsccesccescceeseceseseneeeuaeees 18

United States v. Wright,

215 F.3d 1020 (9th Cir. 2000) 0.0... cccceeccceeccesccesecesccesececeeescesceensceeess 19

State Cases

People v. Carmona,

124 Cal. Rptr. 3d 819 (Cal. Ct. App. 2011) v.esecsecccsessesesessesessesessesvsscsestsseseaee 6

Phillips v. People,

4A3 P.38d 1016 (Colo. 2019) 0... eee cceccccseccceeeccteeccccenccssecceseeccsenccenececeuneceaes 11

Rodriguez v. State,

435 P.3d 399 (WYO. 2019)... cece cceccccaseecceeececeesccsuecccuesceseeeseuaeccesencceseneceaea 11

Federal Statutes

2B U.S.C. § 1254 cecccccceccsscsesesscsssescscevsvsusscsvsueacsvsvsusacaeseevssessacstssacavacausavavsveseaeenens 1

Table of Authorities

Page(s)

State Statutes

Cal. Veh. Code § 22107 .o....ccccccccccccccccccccceccesseeececcseceeusesuseseccsseussesseussaueeeeusess 5, 6

Cal. Veh. Code § 22108 wo... ccccccccccccssssecccueseeccscevscccsseueevecsuuceceuanevecenaenss 4,5,6

Cal. Veh. Code § 22110 oo... cccccccccccccecasesssececceeeeeeaenececcessetessececseeceeeeeeeeeess 5

Federal Rules

April 25, 2013, Minutes, Advisory Committee on Criminal Rules,

at 4, available at https://www.uscourts.gov/rules-

policies/archives/meeting-minutes/advisory-committee-rules-

criminal-procedure-april-2013 (last visited Nov. 25, 2019)... eee 27

Advisory Committee’s Notes on 1944 Adoption of Fed. R. Crim. P.

LD ee eecccccccseeeccecneeceeeaeseccetsueseseeseesecccesaueccccusseecsseseeeessssussesceseseceseuaeescssuuenesess 16

Advisory Committee’s Notes on 1974 Amendment to Fed. R.

Crim. P. 12... ccc cccsssssseccccccccceesseececcccesueeesesccceceseeeeesseeesetsucueseeecessuuneeeens 16

Advisory Committee’s Notes on 2002 Amendments to Fed. R.

Crim, Po Lecce cecccccccsssecccaeeecceccueseeceeeevseccesseeecseeseeceseueeeteseusuecsseeauessueeeaees 23

Advisory Committee’s Notes on 2014 Amendments to Fed. R.

Crim. Po 12 iii cece ccecccscccsccessceeccescceesececeussecucecsuceaueceucessecensecaeeers 10, 16, 27

Fed. R. Crim. Poo... ccccccccecccccceessccccnssesececaeenscescesseeecesueeseceeauaeccesssneesseeueeeeeess 23

Fed. R. Crim. P. 12 (2014)... ieee cccccccsecccesessecuececuecsscussensesssauesenseesoenes passim

Fed. R. Crim. P. 12 (1946)... .. cece eecccccseesecccceeseccccesseeceecscesecseeccerseseecsssens 16, 22

Fed. R. Crim. P. 12 (1975)... ccecccccssssseeccuseeeeetecssccessesnecseeeesessseanesess 16, 19, 24

Fed. R. Crim. P. 12 (2002).......... cc cceeccccccssececcccuseececeeseeecetenseseeeueesseeceeeseess 9, 19, 24

Fed. R. Crim. P. 32.2.0... cccccccceccccccccsveccecscseccccueuescescueneeseeuueceeeuesusessuseessceeneesssss 24

Fed. R. Crim. P. 52 oo... icccccccccccsccecssccccusesccuscceaessseusececesceeesceesseseusesetaness passim

Fed. R. Crim. P. 56.0... ccccccccccccccccuesseeeececeesceuueeeseeseeeessuusseeeeceeseeueseseaeeceseseeeas 24

vil

In the

Supreme Court of the United States

JORGE GUERRERO, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari

Jorge Guerrero petitions for a writ of certiorari to review the judgment

and opinion of the United States Court of Appeals for the Ninth Circuit in his

case.

Opinions Below

The opinion of the court of appeals is reported at 921 F.3d 895. App. la-

7a. The ruling of the district court is unreported. App. 10a-13a.

Jurisdiction

The judgment of the court of appeals was entered on April 22, 2019.

App. la. A timely petition for rehearing en banc was denied on July 1, 2019.

App. 8a. On September 13, 2019, Justice Kagan extended the time within

which to file a petition for a writ of certiorari to and including November 28,

2019. App. 9a. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

Federal Rules Involved

Rule 12. Pleadings and Pretrial Motions

(b) Pretrial Motions.

(3) Motions That Must Be Made Before Trial. The

following defenses, objections, and requests must be raised

by pretrial motion if the basis for the motion is then

reasonably available and the motion can be determined

without a trial on the merits:

(A) a defect in instituting the prosecution, including:

(1) improper venue;

Gi) preindictment delay;

Gii) a violation of the constitutional right to a speedy trial;

(iv) selective or vindictive prosecution; and

(v) anerror in the grand-jury proceeding or preliminary

hearing;

(B) a defect in the indictment or information, including:

(i) joining two or more offenses in the same count

(duplicity);

Gi) charging the same offense in more than one count

(multiplicity);

Gii) lack of specificity;

(iv) improper joinder; and

(v) failure to state an offense;

(C) suppression of evidence;

(D) severance of charges or defendants under Rule 14; and

(E) discovery under Rule 16.

(c) Deadline for a Pretrial Motion; Consequences of

Not Making a Timely Motion.

(1) Setting the Deadline. The court may, at the

arraignment or as soon afterward as practicable, set a

deadline for the parties to make pretrial motions and may

also schedule a motion hearing. If the court does not set

one, the deadline is the start of trial.

(2) Extending or Resetting the Deadline. At any

time before trial, the court may extend or reset the deadline

for pretrial motions.

(3) Consequences of Not Making a Timely Motion

Under Rule 12(b)(3). If a party does not meet the

deadline for making a Rule 12(b)(3) motion, the motion is

untimely. But a court may consider the defense, objection,

or request if the party shows good cause.

Fed. R. Crim. P. 12(b)(3), (c) (2014).

Rule 52. Harmless and Plain Error

(b) Plain Error. 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) (2002).

Statement of the Case

1. Mr. Guerrero pleaded guilty to being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

2. Law enforcement had recovered the firearm and ammunition

underlying the indictment during a warrantless traffic stop of a car, driven

by Alyssa Gonzales Romero, in which Mr. Guerrero was riding as a

passenger. The asserted basis for the stop was Ms. Romero’s failure to

signal as she made a left turn.

3. In district court, Mr. Guerrero moved to suppress the evidence

obtained during the traffic stop and any fruits thereof. He argued generally

that the officers “did not have reasonable suspicion to conduct a traffic stop”

and “lack[ed] reasonable suspicion to stop the Kia Soul in which [he] was

riding.” (ER 14.) Specifically, Guerrero argued that Ms. Romero had in fact

used her turn signal. (ER 14.) Guerrero also noted that the government

bore the burden of showing that an exception to the Fourth Amendment’s

warrant requirement applied. (ER 14-15.)

The government defended the traffic stop based on a claimed violation

of California Vehicle Code § 22108. (ER 34.) Section 22108 provides that

“lajny signal of intention to turn right or left shall be given continuously

during the last 100 feet traveled by the vehicle before turning.” Cal. Veh.

Code § 22108. Two officers had conducted the traffic stop: each filed a

declaration stating that Ms. Romero had turned left without activating her

turn signal, that this conduct violated Section 22108, and that there was “no

other reason” for the stop. (ER 36, 44.)

At an evidentiary hearing, both officers, Mr. Guerrero, and Ms.

Romero testified regarding the circumstances of the stop. In post-hearing

briefing, Mr. Guerrero reiterated that the government bore the burden of

proving a “valid basis” for the traffic stop. (ER 113, 115-116.) He then

focused on the factual dispute regarding turn-signal use, arguing that the

government could not prove by a preponderance of the evidence that Romero

failed to use her turn signal. (ER 116-117.)

The government, for its part, contended that the officers were more

credible than Mr. Guerrero and Ms. Romero with respect to use of the turn

signal. (ER 121-124, 127-129.) It urged the district court to conclude that

“the turn signal was off and the traffic stop therefore was valid.” (ER 127.)

The district court denied the motion to suppress in a written order.

App. 10a-13a. It characterized the disputed issue as follows: “whether the

vehicle in which Guerrero was a passenger failed to use its left turn signal,

thereby justifying the traffic stop that preceded his admission.” App. lla.

Although the government had relied solely on Vehicle Code § 22108

(“Duration of signal”) as the basis for the stop (ER 34), the district court

regarded two additional California traffic laws as relevant to the reasonablesuspicion inquiry: Vehicle Code §§ 22107 (“Turning movements and required

signals”)! and 22110 (“Method of signaling”).2, App. 12a. It found the

officers’ testimony regarding the lack of a turn signal credible and denied the

suppression motion. App. 12a-13a.

4. Mr. Guerrero appealed the denial of his suppression motion to the

Ninth Circuit. On appeal, he did not challenge the district court’s

1 This statute provides: “No person shall turn a vehicle from a direct course or move right

or left upon a roadway until such movement can be made with reasonable safety and then

only after the giving of an appropriate signal in the manner provided in this chapter in the

event any other vehicle may be affected by the movement.” Cal. Veh. Code § 22107.

2 This statute provides that required signals “shall be given by signal lamp,” with certain

exceptions not relevant here. Cal. Veh. Code § 22110.

5

credibility-based finding as to whether Ms. Romero had activated her turn

signal. He argued that the officers lacked reasonable suspicion for the traffic

stop because the California Court of Appeal and the Ninth Circuit have

interpreted Section 22108 (“Duration of turn signal”) to contain no command

as to when a turn signal must be used.? A stop based solely on a purported

violation of Section 22108, Mr. Guerrero reasoned, was therefore based on an

unreasonable mistake of law. Under California law, a turn signal is

required only “in the event any other vehicle may be affected by the

movement.” Cal. Veh. Code § 22107. Mr. Guerrero argued that the

government failed to present sufficient evidence that Ms. Romero’s

unsignaled left turn — at a T-intersection with no oncoming traffic — might

have affected any other vehicle, as required for reasonable suspicion.

The government responded that the reasonable-suspicion argument

was waived under Federal Rule of Criminal Procedure 12 and, in the

alternative, failed on the merits. It did not address Mr. Guerrero’s

argument respecting an unreasonable mistake of law.

Mr. Guerrero replied that the government’s waiver argument relied on

caselaw predating the 2014 amendments to Rule 12. Those amendments

removed the term “waiver” from Rule 12, Mr. Guerrero argued, thereby

3 See People v. Carmona, 124 Cal. Rptr. 3d 819, 823-25 (Cal. Ct. App. 2011); United States

v. Caseres, 533 F.3d 1068, 1068-69 (9th Cir. 2008).

6

Gel Sea iaiabsiokd

allowing the court of appeals to apply its normal forfeiture principles to a new

theory raised in support of the reasonable-suspicion claim presented below.

The Ninth Circuit affirmed the denial of the suppression motion in a

published, per curiam opinion. App. la-7a. The Ninth Circuit explained

that, prior to the 2014 amendments, it had construed Rule 12’s good-cause

standard for untimely motions “as displacing the plain-error standard under

Federal Rule of Criminal Procedure 52(b), which ordinarily applies when a

party presents an issue for the first time on appeal.” App. 4a. It

acknowledged the “conflicting conclusions” reached by other courts of appeal

in the wake of the 2014 amendments: whereas three circuits had elected to

review untimely Rule 12(b)(8) defenses, objections, and requests for plain

error under Rule 52(b), five courts of appeal had continued to apply Rule

12(c)(3)’s good-cause standard. App. 5a.

The Ninth Circuit stated that were it “writing on a blank slate,” it

“might have been inclined” to review untimely defenses, objections, and

requests for plain error. App. 5a. It noted that plain-error review under

Rule 52(b) is the “default standard” for appellate review of issues not properly

raised in the district court, and that this Court has “set a high bar” for

creating exceptions to that standard. App. 5a. In addition, it explained

that appellate courts are familiar with the plain-error standard but are “less

well-versed” in applying Rule 12’s good-cause standard, which often requires

factual development. App. 5a-6a.

Nevertheless, the Ninth Circuit concluded that its pre-amendment Rule

12 precedent was “not clearly irreconcilable” with the 2014 amendments and

therefore remained binding. App.6a. The Ninth Circuit pointed out that

the 2014 amendments retained the good-cause standard and did not specify

that Rule 52(b)’s plain-error standard applied. App.6a. It also cited

rulemaking history indicating that the Advisory Committee chose not to take

a position on the interplay between Rule 12 and Rule 52, instead leaving that

issue for the courts of appeal to decide. App.6a. In the Ninth Circuit’s

view, Mr. Guerrero had not shown good cause for failing to present his new

suppression theory below. App. 6a-7a. It therefore affirmed the denial of

the suppression motion without reaching the merits. App. la-7a.

5. Mr. Guerrero filed a timely petition for rehearing en banc, which

the court of appeals denied. App. 8a.

Reasons for Granting the Petition

This Court should grant certiorari to address the deep division in the

courts of appeal on whether Rule 12’s good-cause standard for untimely

pretrial motions, as amended in 2014, displaces the plain-error standard for

forfeited claims in Rule 52(b).

Rule 12 directs that certain motions, including suppression motions,

must be made before trial. Fed. R. Crim. P. 12(b)(8) (2014). Prior to 2014,

Rule 12 used the term “waiver” to describe a party’s failure to raise a Rule

12(b)(3) defense by the deadline set by the court or any extension provided by

the court. See Fed. R. Crim. P. 12(e) (2002) (“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. For good

cause, the court may grant relief from the waiver.”)

In 2014, Rule 12 was amended to eliminate references to “waiver.”

Rule 12 now simply states that “[i]f a party does not meet the deadline for

making a Rule 12(b)(3) motion, the motion is untimely. But a court may

consider the defense, objection, or request if the party shows good cause.”

Fed. R. Crim. P. 12(c)(3). The Advisory Committee Note explains that the

Committee removed the “waiver” language because “the term waiver in the

context of a criminal case ordinarily refers to the intentional relinquishment

of a known right,” and such intentional relinquishment had never been

required under Rule 12. Advisory Committee’s Notes on 2014 Amendments

to Fed. R. Crim. P. 12(c). “[T]o avoid possible confusion” arising from this

imprecise usage, the Committee “decided not to employ the term ‘waiver” in

the amended rule. Id.

The plain-error standard in Rule 52(b), by contrast, has continued

virtually unchanged since enactment. Under that rule, “[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) (2002).

In United States v. Olano, 507 U.S. 725 (1993), this Court explained

that “Rule 52(b) defines a single category of forfeited-but-reversible error.”

Id. at 732. Whether a deviation from a legal rule constitutes error depends

on whether the rule has been waived or merely forfeited: “Whereas forfeiture

is the failure to make the timely assertion of a right, waiver is the

‘intentional relinquishment or abandonment of a known right.” Id. at 733

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). “Mere forfeiture, as

opposed to waiver, does not extinguish an ‘error’ under Rule 52(b).”. Id. The

“theory” behind Rule 52(b) provides for appellate review of forfeited errors.

Id. at 733. In other words, “[i]f a legal rule was violated during the district

court proceedings, and if the defendant did not waive the rule, then there has

10

been an ‘error’ within the meaning of Rule 52(b) despite the absence of a

timely objection.” Id. at 733-34.

Mr. Guerrero’s case highlights an important issue that has produced

conflicting opinions in the courts of appeal: whether Rule 12’s good-cause

standard supplants Rule 52(b)’s plain-error standard, thereby extinguishing

any error and precluding appellate review of a large class of pretrial motions.

A. The Circuits Are Deeply Divided on the Applicability of

Rule 12’s Good-Cause Standard on Appeal.

1. In adhering to its pre-amendment precedent, the Ninth Circuit

acknowledged that it was taking sides in what already constituted a clear

circuit split on the effect of the 2014 amendments to Rule 12. App. 5a

(“Since the 2014 amendments, our sister circuits have reached conflicting

conclusions on the standard of review that should apply in this context.”).

The courts of appeal recognize the existence of a well-developed circuit split

regarding the current rule’s standard of appellate review. See United States

v. Bowline, 917 F.3d 1227, 1236-37 (10th Cir. 2019) (discussing 7-4 circuit

split), petition for cert. pending, No. 19-5563 (filed Aug. 7, 2019).4 The D.C.

Circuit, without taking a position, summarized the disagreement as follows:

4 Two state Supreme Courts have also noted the recent amendment to Rule 12 and federal

circuit split. See Phillips v. People, 443 P.3d 1016, 1024 (Colo. 2019) (“[T]here is a division

of authority among the circuit courts as to whether arguments not raised in a motion to

suppress are waived or are merely forfeited and subject to plain-error review.” ); Rodriguez

v. State, 435 P.3d 399, 410 n.6 (Wyo. 2019) (citing United States v. Vance, 893 F.3d 763, 769

n.5 (10th Cir. 2018), on circuit split).

11

Rule 12 was recently amended in a manner that may

affect appellate review....

Some circuit courts have read the newly amended

version of Rule 12 — in particular, the deletion of the

reference to “waiver” — to permit plain-error review

when a defendant did not intentionally relinquish a

claim within Rule 12’s ambit, even if the defendant has

not offered good cause for his or her failure to timely |

raise it..... Other circuits review unpreserved Rule

12 issues only when the defendant has made a

showing of good cause, regardless of whether the

defendant intentionally declined to raise those issues.

United States v. Burroughs, 810 F.3d 833, 837-38 (D.C. Cir. 2016).

2. The split of authority has only deepened since Burroughs, and

has resulted in reasoned, published decisions on both sides of the question.

At least four circuits have expressly held that untimely Rule 12(b)(3) motions

can be reviewed only on a showing of good cause, and that plain-error review

is otherwise unavailable under the current version of Rule 12. See United

States v. Guerrero, App. 6a; Bowline, 917 F.3d at 1236 (“[T]he 2014

amendments did not... authorize plain-error review ... even when there

was no good cause for the failure to raise a timely Rule 12 motion.”); United

States v. McMillian, 786 F.3d 630, 636 n.3 (7th Cir. 2015) (holding that 2014

“amendment did not alter the applicable [good-cause] standard”); United

States v. Anderson, 783 F.3d 727, 741 (8th Cir. 2015) (applying good-cause

standard under “current version of Rule 12”).5

5 The Ninth and Tenth Circuits viewed the Third Circuit’s decision in United States v.

Fattah, 858 F.3d 801, 807-08 & n.4 (3d Cir. 2017), as reaffirming a good-cause standard

under the current version of Rule 12. See Guerrero, App. 5a; Bowline, 917 F.3d at 1236.

12

3. Three circuits, on the other hand, have issued published decisions

altering the appellate standard of review for untimely Rule 12(b)(3) motions

in light of the 2014 amendments’ elimination of “waiver” language. The

Fifth Circuit noted that it had previously construed Rule 12’s “waiver” to

carry the “usual legal consequences” of that term — that is, “extinguish[ing]

any errors.” United States v. Vasquez, 899 F.3d 363, 372 (5th Cir. 2018)

(internal quotation marks omitted). Because “the amendment and [Advisory

Committee] note make clear that [this] prior approach does not endure,” the

Fifth Circuit held that it would review untimely pretrial motions for plain

But in United States v. Ferriero, 866 F.3d 107 (8d Cir. 2017), issued two months after

Fattah, the Third Circuit indicated that it had “not decided the standard of review for Rule

12(b)(3) claims raised for the first time on appeal” and would not address it in that case.

Id. at 122 n.7.

The Ninth Circuit regarded the First Circuit as having reaffirmed the good-cause standard

in United States v. Walker-Couvertier, 860 F.3d 1, 9 & n.1 (1st Cir. 2017). See Guerrero,

App. 5a. While the construction of current Rule 12 in Walker-Couvertier may have been

dicta, 860 F.3d at 9 n.1, the First Circuit subsequently relied on Walker-Couvertier to deem

an untimely suppression motion waived in United States v. Sweeney, 887 F.3d 529, 534 (1st

Cir. 2018).

The Tenth Circuit treated the Second Circuit as having reaffirmed the good-cause standard

after the 2014 amendments. See Bowline, 917 F.3d at 1236 (citing United States v.

Martinez, 862 F.3d 223, 234 (2d Cir. 2017)). But the Second Circuit did not cite the 2014

amendments to Rule 12in Martinez. Seeid. Ina later case, United States v. O’Brien, 926

F.3d 57 (2d Cir. 2019), the Second Circuit cited the current language of Rule 12 and applied

the good-cause standard, but it did not expressly address the availability of plain-error

review. Id. at 82-84.

6 Relying on pre-amendment precedent, and without discussing or citing the current

wording of the rule, the Fourth Circuit permits review of untimely Rule 12(b)(8) motions

upon either a showing of good cause or for plain error. United States v. Robinson, 855 F.3d

265, 270 (Ath Cir. 2017).

13

error under the current rule. Jd. at 372-73. Similarly, in United States v.

Soto, 794 F.3d 635 (6th Cir. 2015), the Sixth Circuit analyzed the 2014

amendments to Rule 12 and concluded that it would no longer “treat the

failure to file a motion as a waiver unless the circumstances of the case

indicate that the defendant intentionally relinquished a known right.” Id. at

655. In United States v. Sperrazza, 804 F.3d 1113 (11th Cir. 2015), the

Eleventh Circuit likewise held that while untimely Rule 12 motions under

the old rule were “[n]ot subject to appellate review except ‘for good cause’

shown,” such motions would be reviewable for plain error under the current

version of the rule. Jd. at 1119-20.

A. Thus, in the five years since Rule 12 was amended, at least seven

circuits have expressly addressed whether the deletion of “waiver” language

changed the appellate standard of review for untimely defenses, objections, or

requests covered by Rule 12(b)(3). At present, whether a defendant can

obtain appellate review of a forfeited Rule 12(b)(8) defense, objection, or

request — no matter how meritorious the claim or how minor the default —

depends on geography. Given this intractable split of authority, this Court

should grant certiorari to resolve the question of whether Rule 12(c)(3)’s good-

cause standard displaces the default plain-error standard in Rule 52(b).

14

B. The Availability of Appellate Review for Untimely Rule 12

Motions Is a Question of Significant and Recurring

Importance.

The need to ensure the “proper and uniform administration of the

Federal Rules of Criminal Procedure’ is of sufficient importance to warrant

this Court’s grant of certiorari. United States v. Robinson, 361 U.S. 220, 222

(1960) (construing federal criminal rule on extensions of time); see also Lott v.

United States, 367 U.S. 421, 424 (1961) (interpreting federal criminal rule

regarding timeliness of appeal). This importance extends to circuit conflicts

on the proper appellate standard of review for asserted violations of the

federal criminal rules. Thus, this Court has granted certiorari “to resolve

conflicts among the Circuits on the legitimacy of... placing the burden of

plain error on a defendant appealing on the basis of Rule 11 error raised for

the first time on appeal.” United States v. Vonn, 535 U.S. 55, 62 (2002); see

also United States v. Lane, 474 U.S. 438, 439-40 (1986) (“We granted

certiorari to resolve a conflict among the Circuits as to whether a misjoinder

under Rule 8 of the Federal Rules of Criminal Procedure is subject to the

harmless-error rule... .”).

The sheer number of pretrial motions that fall under Rule 12(b)(3)’s

“must be made before trial” category heightens the need for this Court’s

intervention. As originally adopted in 1944, Rule 12 required only that

defenses and objections based on “defects in the institution of the prosecution

15

or in the indictment and information, other than lack of jurisdiction or failure

to charge an offense[,|” be raised in a pretrial motion. Advisory Committee’s

Notes on 1944 Adoption of Fed. R. Crim. P. 12(b)(1) and (b)(2); Fed. R. Crim.

P. 12(b)(2) (1946). In 1975, suppression motions, requests for discovery, and

requests for a severance of charges or defendants came within Rule 12’s

“must be made before trial” ambit. Fed. R. Crim. P. 12(b)(8)-(5) (1975);

Advisory Committee’s Notes on 1974 Amendment to Fed. R. Crim. P. 12(b).

Most recently, in 2014, claims of failure to state an offense — originally

differentiated from other defects in the indictment and information — were

added to the list of motions that must be raised prior to trial, now located in

Rule 12(b)(3). Fed. R. Crim. P. 12(b)(3)(B){v) (2014); Advisory Committee’s

Notes on 2014 Amendments to Fed. R. Crim. P. 12(b)(8).

The circuits’ published decisions on the current version of Rule 12

demonstrate the Rule’s wide-ranging applicability across a variety of

substantive claims and factual scenarios. In Mr. Guerrero’s case, trial

counsel filed a timely suppression motion challenging reasonable suspicion

for a traffic stop but raised a different reasonable-suspicion argument on

appeal. App. 3a. In Bowline, the defendant filed a vindictive-prosecution

motion 23 days after the deadline set by the district court. Bowline, 917

F.3d at 1229. The defendants in Anderson did not raise a double-jeopardy

16

challenge prior to trial, but a co-defendant did. Anderson, 783 F.3d at 740.

Despite the differences in the types of claims belatedly raised, and in the

timing of their initial presentation, the result in each case is the same: a

finding of waiver.

By contrast, defendants in circuits that reject a one-size-fits-all waiver

rule have been able to obtain merits review of other untimely defenses,

objections, and requests. In Vasquez, the Fifth Circuit addressed, at length,

defendant’s challenge to the extraterritoriality of 21 U.S.C. § 848(e)(1)(A) —

even though the claim was first presented in a post-verdict motion for

acquittal, rather than in a pretrial motion to dismiss. Vasquez, 899 F.3d at

373-78. The Eleventh Circuit conducted plain-error review of an untimely

claim that the indictment was factually inaccurate, first raised in a post-trial

motion. Sperrazza, 804 F.3d at 1117, 1126. And the Sixth Circuit reviewed

a claim of misjoinder of counts for plain error despite the fact that it was

raised for the first time on appeal. Soto, 794 F.3d at 647, 656-57.

This Court has granted certiorari as to whether particular types of

forfeited claims are reviewable for plain error under Rule 52(b). See Puckett

v. United States, 556 U.S. 129, 131 (2009) (“The question presented by this

case is whether a forfeited claim that the Government has violated the terms

of a plea agreement is subject to the plain-error standard of review set forth

17

in Rule 52(b) of the Federal Rules of Criminal Procedure.”) The need for this

Court’s intervention is even more pressing in the context of a widely

applicable federal rule of criminal procedure. The Ninth Circuit’s decision in

Mr. Guerrero’s case, issued just earlier this year, has already been cited in

multiple other cases to deem issues waived. See United States v. VanDyck,

776 F. App’x 495, 496 (9th Cir. Aug. 28, 2019) (unpublished); United States v.

Tejeda, 2019 WL 3801530, at *2 (9th Cir. Aug. 13, 2019) (unpublished);

United States v. Browne, 778 F. App’x 421, 423 (9th Cir. July 16, 2019)

(unpublished). The same is true of the Tenth Circuit’s decision in Bowline.

See United States v. Williams, __ F.3d __, 2019 WL6001581, at *3 (10th Cir.

Nov. 14, 2019); United States v. Warwick, 928 F.3d 939, 944 & n.2 (10th Cir.

2019); United States v. Griffith, 928 F.3d 855, 872 (10th Cir. 2019).

C. The Ninth Circuit’s Decision Is Wrong.

Ultimately, the Ninth Circuit concluded that the amended language of

Rule 12 was not “clearly irreconcilable” with its prior precedent applying the

good-cause standard. App.6a. It was mistaken: that prior precedent was

premised on the “waiver” language that has been eliminated from the current

version of Rule 12. Applying familiar canons of statutory construction to

Rule 12’s plain language and rulemaking history, the Ninth Circuit should

have reviewed Mr. Guerrero’s reasonable-suspicion argument on the merits,

rather than deeming it waived.

18

1. The Ninth Circuit’s prior precedent, like the decisions of other

courts that have treated untimely Rule 12 motions as true “waivers,” relied

heavily on the Rule’s now-defunct “waiver” terminology. See United States v.

Wright, 215 F.3d 1020, 1026 (9th Cir. 2000) (““[U]nder Rule 12(f) failure to

bring a timely motion to suppress evidence constitutes a waiver of the

issue[.]”); United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987)

(per curiam) (“A failure to raise an objection until after trial constitutes a

waiver of the objection. Fed. R. Crim. P. 12(f).”).7 Although these cases

contain relatively little analysis of the Rule 12 issue, Wright’s citations to

United States v. Weathers, 186 F.3d 948 (D.C. Cir. 1999), and United States v.

Chavez- Valencia, 116 F.3d 127 (5th Cir. 1997),8 underpin the Ninth Circuit’s

holding that a defendant’s failure to raise a particular ground ina

suppression motion “waived any dispute ... and placed the issue beyond this

court’s ability to review for plain error.” Wright, 215 F.3d at 1026.

7 From December 1, 2002, to December 1, 2014, this waiver language was located in Rule

12(e). Fed. R. Crim. P. 12(e) (2002) (“A party waives any Rule 12(b)(8) defense, objection,

or request not raised by the deadline the court sets under Rule 12(c) or by any extension the

court provides. For good cause, the court may grant relief from the waiver.”). Prior to

December 1, 2002, the waiver language was located in Rule 12(f). Fed. R. Crim. P. 12(f)

(1975) (“Failure by a party to raise defenses or objections or to make requests which must

be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to

any extension thereof, shall constitute waiver thereof, but the court for cause shown may

grant relief from the waiver.”).

8 As discussed below, see infra pp. 20-21, the Fifth Circuit abrogated Chavez- Valencia in

light of the 2014 amendments to Rule 12. See Vasquez, 899 F.3d at 372.

19

Weathers and Chavez- Valencia, in turn, place great emphasis on Rule

12’s former “waiver” language. In Chavez-Valencia, the Fifth Circuit

highlighted the “plain,” “unmistakeable,” and “precise” waiver language in

the previous version of Rule 12. Chavez-Valencia, 116 F.3d at 129, 130, 131.

Although the Fifth Circuit also discussed precedent and policy

considerations, the “generally accepted” and “ordinary” meaning of the term

“waiver” guided its analysis. Jd. at 129,131. Similarly, in Weathers, the

D.C. Circuit reasoned that there was no tension between its treatment of

untimely Rule 12 motions as true waivers and this Court’s decision in Olano,

which drew a clear distinction between waiver and forfeiture. Weathers, 186

F.3d at 955. This conclusion rested on Rule 12’s use, at the time, of the term

“waiver”: “While Rule 52(b) does not mention ‘waiver,’ Rule 12(f) expressly

does.” Id.

Significantly, the Fifth Circuit has repudiated its reading of Rule 12 in

light of the 2014 amendments, and the D.C. Circuit has indicated that the

issue may need to be revisited, given Rule 12’s new waiver-less wording. In

Vasquez, decided last year, the Fifth Circuit reconsidered and rejected its

prior precedent on Rule 12. Vasquez, 899 F.3d at 372. The Fifth Circuit

noted that its “pre-amendment approach to Rule 12 ascribed great

significance to the use of the word ‘waived.” Id. (citing Chavez-Valencia, 116

20

F.3d at 130). But it concluded that the new wording of Rule 12, plus the

Advisory Committee’s stated intent in deleting “waiver” language, “clarify

that Rule 12 recognizes the traditional distinction between forfeiture and

waiver.” Vasquez, 899 F.3d at 372-73. And, as discussed above, see supra p.

12, the D.C. Circuit has indicated that the amendments to Rule 12 may affect

appellate review, though it did not decide which standard applies; in any

event, it noted that its pre-amendment approach to waiver had been

“inconsistent,” and that it was “not the only circuit to have struggled with

Rule 12 in this way.” Burroughs, 810 F.3d at 837.

The D.C. Circuit in Weathers also viewed itself as bound by this Court’s

decision in Davis v. United States, 411 U.S. 233 (1973), but Davis suffers

from the same erroneous, outdated reliance on “waiver” terminology. In

Davis, this Court held that Rule 12’s waiver provision precluded a claim of

unconstitutional discrimination in grand-jury composition first raised in a

postconviction motion under 28 U.S.C. § 2255. Jd. at 234, 242. It rejected

the petitioner’s argument that the case was controlled by Kaufman v. United

States, 394 U.S. 217 (1969), which had permitted post-conviction review

under 28 U.S.C. § 2255 of a suppression claim not raised on appeal. Davis,

411 U.S. at 238-39. Again, Rule 12’s then-existing waiver language was

crucial to the outcome: “[T]he Court in Kaufman was not dealing with the

21

sort of express waiver provision contained in Rule 12(b)(2) which specifically

provides for the waiver of a particular kind of constitutional claim if it be not

timely asserted.” Id. at 239-40; see also id. at 240 (“Kaufman, therefore, is

dispositive only if the absence of a statutory provision for waiver in § 2255

and the federal habeas statute by implication precludes the application to

post-conviction proceedings of the express waiver provision found in the

Federal Rules of Criminal Procedure.”) (emphasis added); id. at 241 (“Rule

12(b)(2) . . . governs by its terms the manner in which the claims of defects in

the institution of criminal proceedings may be waived.”) (emphasis added).

Because it is so dependent on “waiver” language that was deliberately

removed, Davis is not dispositive of Rule 12’s meaning.

2. In construing the provisions of a federal rule, this Court turns to

“traditional tools of statutory construction,” “begin[ning] with the language

of the Rule itself.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988).

Rule 12, as presently worded, contains no waiver rule for untimely pretrial

motions. Rather, the rule simply provides that “[i]f a party does not meet

the deadline for making a Rule 12(b)(3) motion, the motion is untimely.

But a court may consider the defense, objection, or request if the party shows

good cause.” Fed. R. Crim. P. 12(c)(3). By its terms, Rule 12 does not

override Rule 52(b)’s plain-error standard. Although it sets forth a good-

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