Petition for Writ of Certiorari — Ozuna v. United States

| 7 () Supreme Cour, U.8,

09-293 SEP 8 ~ 208

No. OFFICE OF THE CLERK

In the Supreme Court of the Anited States

MODESTO OZUNA,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

STEPHEN J. KANE

Counsel of Record

Mayer Brown LLP

71 South Wacker Drive

Chicago, IL 60606

(212) 782-0600

Counsel for Petitioner

(EEE SA OR a I a ee Me Bc A ME IEE Re

Wis0n-Eres Prinnne Co., inc. — (202) 788-0088 -— WASHINGTON, D. C. 20002

i

QUESTION PRESENTED

The district court granted Petitioner's motion to

suppress evidence found during a search of his ve-

hicle, holding that Petitioner did not consent to the

search. The government moved to reopen the sup-

pression hearing in order to introduce expert

handwriting analysis claiming that Petitioner signed

a form consenting to the search. Although the gov-

ernment could have introduced handwriting analysis

at the initial suppression hearing, the district court

reopened the hearing to admit the handwriting anal-

ysis, vacated its prior decision, and found the evi-

dence discovered in Petitioner’s vehicle admissible.

The Seventh Circuit affirmed. Expressly rejecting

decisions from several other circuits, it held that the

government was not required to justify its failure to

introduce handwriting analysis at the initial sup-

pression hearing.

The question presented is whether a litigant

moving to reopen a suppression hearing in order to

introduce additional evidence must justify its failure

to introduce that evidence at the initial hearing.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED... «........cccccccccoscccoccesccecccescess i

TABLE OF ALT ee eettessireerssesccesccscescecsess iv

OP TINO RI Fer eet titneesinnsaccccescceee 1

Fe ceca erate x encescceses. 1

CONSTITUTIONAL PROVISION INVOLVED ........ 1

STAT EEG 2 cccccnsccsest Ee eaibbnnssecescscesees 2

A. The District Court Suppressed

Evidence Found During The Search

Because Ozuna Did Not Provide

B. The District Court Reopened The

Suppression Hearing, Vacated Its

Original Order, And Denied The

Motion To Suppress. ............2..ececeeeceeeceeseees 5

C. The Seventh Circuit Expressly

Acknowledged A Deep Circuit Split

In Affirming Ozuna’s Conviction............... 8

REASONS FOR GRANTING THE

PES 1 2 oe ececsses en EE a Ribtbaseenesseesseccces see. 9

I. THE SEVENTH CIRCUITS

DECISION SQUARELY CONFLICTS

WITH DECISIONS FROM FIVE

OTHER COURTS OF APPEALLB................... 11

II. | THIS CASE IS AN IDEAL VEHICLE

TO RESOLVE A RECURRING ISSUE

THAT IS OF SUBSTANTIAL

Pe ee 15

Ill. THE SEVENTH CIRCUITS

DECISION IS INCORRECT ................ ce ccceeee 19

CONCLUSION «..cccsccssnsteiie aN aT isassesscesersccscees 23

1

TABLE OF CONTENTS—continued

Page

Appendix A: Opinion of Court

aii htrincn eh cctiiniidiitinitiniichindeae homme la

Appendix 3: Judgment................. iebanleiieehaawauabenacand 23a

Appendix C: Transcript of Proceedings

(Motion to Suppress) (excerpt) .................005 31a

Appendix D: District Court Order |

Granting Motion to Suppress....................... 38a

Appendix E: Transcript of Proceedings

CORRE COMICIINED vccicnccscsccncsacsnessissnescistccisnes 39a

Appendix F: District Court Order Vacating

CPUMION 00 TOI vinci csccesssssvrsdacddesccctsccavastses 50a

1V

TABLE OF AUTHORITIES

Page(s)

CASES

Bourjaily v. United States,

Re ee le Be te var idicinvcxsnstscasniacssarscasansseursoenioe 11

Flanagan v. United States,

AGB U.S. 259 (1984) .......ccccccccccceccececsecsescecseeseseeees 16

Giordenello v. United States,

Be Te Me I aiacasansbrasconcctccesadepsncsioannecscssacs 22

McRae v. United States,

420 F.2d 1283 (D.C. Cir. 1969)...................5 14, 15

Puckett v. United States,

Bee ee es We i ciinesnctcicccsvnanssncccdenssvescsonsace 20

Steagald v. United States,

Re ee ee OED weniveacn snccecinenixstenecactansescsecs 22, 23

Steel Co. v. Citizens for a Better Env’,

Re rasa s sas cavasensnapnboveconsis 17

Terrorist Bombings of U.S. Embassies in

E. Afr., In re, 552 F.3d 177 (2d Cir. 2008).... 11, 18

United States v. Angelou,

2008 WL 5004311 (S.D. Fla. July 9, 2008)......... 15

United States v. Banks,

2009 WL 585506 (E.D. Tex. Mar. 6, 2009)......... 15

United States v. Bayer,

331 U.S. SER (1G47).......000000-2 eee eae al 31, 33

United States v. Bayless,

PR Bee I is OOD sanrenccncevesecnsecsarrassinns 11

Vv

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Carter,

374 F.3d 399 (6th Cir. 2004),

vacated on other grounds,

Re Bs FE 6 I ence nnsicesevccsesconscsnsncee 13, 14, 21

United States v. Chanley,

2009 WL 2447983 (D. Nev. Aug: 10, 2009) ........ 15

United States v. Coward,

296 F.3d 176 (Sd Cir. 2OOZ) ..........cccccccccccscccccceses 13

United States v. Dennis,

2008 WL 2381549 (E.D. Pa. June 10, 2008) ...... 16

United States v. Dickerson,

166 F.3d 667 (4th Cir. 1999),

rev'd on other grounds, 530 U.S. 428 (2000)...... 13

United States v. Flores-Ortega,

2006 WL 3041372 (D. Utah Oct. 24, 2006) ........ 12

United States v. Goncalves,

2008 WL 4238707 (N.D.N.Y. Sept. 5, 2008)....... 15

United States v. Greely,

GOD Fe OS E.G. Cie. TODD oncnccoccecsccccssvcavccreces 15

United States v. Jarnigan,

2008 WL 1848902 (E.D. Tenn. Apr. 24,

RTA Ea ae ag i ain Oe ides deioauenimavaneeneie 16

United States v. Kithcart,

218 F.3d 213 (6d Cir. 2000) ..................... ‘eee i ao

vi

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Martinez,

2008 WL 4982263 (E.D. Tenn. Nov. 19,

aa saseosensnanesonnenane 15

United States v. Matos,

2008 WL 5169112 (E.D.N.Y. Dec. 8, 2008) ........ 15

United States v. Pena Ontiveros,

2008 WL 2446824 (S.D.N.Y. June 16, 2008)...... 15

United States v. Rabb,

762 F.2d 1320 (9th Cir. 1984)................sscesecseeees 11

United States v. Scheffer,

523 U.S. 303 (1998)........... NS Ae oO TOTO 20

United States v. Thompson,

710 F.2d 1600 (11th Cir. 19638)..............ccccccoccesee 14

United States v. Valentine,

591 F. Supp. 2d 238 (E.D.N.Y. 2008) ................. 15

United States v. Valle-Sierra,

2008 WL 94805 (D. Colo. Jan. 7, 2008).............. 16

United States v. Villabona-Garnica,

63 F.8d 1061 (11th Cir. 1906).................cccccccccces 14

United States v. Watson,

391 F. Supp. 2d 89 (D.D.C. 20085)....................... 12

Wainwright v. Sykes,

I sc. ss seuveabsnsnanéecbaesceente -

Vii

TABLE OF AUTHORITIES—continued

Page(s)

CONSTITUTION, STATUTES, AND RULES

UE, CODD. FMI BY occcienpscesivecescsvessssssnsesscsssesceensen 1

LE Ck | ae a ee 2

GB io oinccccenetsctecaciserecisreceesncsemernice 1

ee Bs 2 I athsicntacietatnickanciissonensetnitesnseens 21

Ps ic a Ta St ata ccusidacusnennendecauensecnacunnmnenoduenies 21

Pe Be is Be ED siiesaitchscctcicctseisnsvesssrcctasenees 21

OTHER AUTHORITIES

Administrative Office of the United States

Courts, 2008 ANNUAL REPORT OF THE

DIRECTOR: JUDICIAL BUSINESS OF THE

UNITED STATES COURTS (2009) ..............-..cs0cce000 17

PETITION FOR A WRIT OF CERTIORARI

Petitioner Modesto Ozuna respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Cir-

cuit in this case.

OPINIONS BELOW

The Seventh Circuit’s opinion (App., infra, la-—

22a) is reported at 561 F.3d 728. The district court’s

order and oral opinion granting the motion to sup-

press (App., infra, 3la—38a) and the court’s order

and oral opinion vacating its grant of the motion to

suppress and denying suppression (App., infra, 39a—

50a) are unreported. The district court’s judgment

(App., infra, 23a—30a) is also unreported.

JURISDICTION

The Seventh Circuit entered judgment on April

6, 2009. Justice Stevens extended the time for a writ

of certiorari until September 3, 2009. This Court’s ju-

risdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or af-

firmation, and particularly describing the place

to be searched, and the persons or things to be

seized.

2

STATEMENT

In July 2003, an agent of the Drug Enforcement

Agency (“DEA”) based in Texas informed DEA agents

in Chicago that a confidential informant had pro-

vided information about a plan to transport cocaine

from Texas to the Chicago area in a tractor-trailer

registered to “Ozuna’s Express.” App., infra, 2a. On

July 28, Chicago DEA agents identified a tractor-

trailer bearing the name “Ozuna’s Express” and

stopped the vehicle. Jd. The agents searched the trai-

ler, found 200 kilograms of cocaine, and arrested the

driver—Modesto Ozuna. Jd. Ozuna was subsequently

indicted for possession with intent to distribute more

than five kilograms of cocaine in violation of 21

U.S.C. § 841(a)(1). Jd.

A. The District Court Suppressed Evidence

Found During The Search Because

Ozuna Did Not Provide Consent.

Ozuna moved to suppress the cocaine found in

his vehicle, arguing (among other things) that he did

not consent to the search. C.A. App., Tab 21 at 14—

16. On March 2, 2005, United States District Judge

John F. Grady held a hearing on Ozuna’s motion. At

that hearing, the government produced a single wit-

ness: DEA Special Agent Robert Glynn, one of the

agents involved in Ozuna’s arrest.

Agent Glynn testified that he pulled Ozuna’s ve-

hicle over to the side of the road while a second DEA

agent parked his car directly in front of Ozuna’s ve-

hicle. C.A. App., Tr. Vol. 1 at 17-18. Glynn claimed

that he neither handcuffed Ozuna after Ozuna exited

the vehicle nor drew his weapon at any time during

the encounter. Jd. at 21, 56-58. Admittedly lacking

probable cause to arrest Ozuna, Glynn purportedly

3

informed Ozuna that “he was not under arrest, that

he was free to go, and that he did not do anything

wrong.” Id. at 19, 51. Glynn testified that Ozuna

nevertheless both orally consented to the search of

his vehicle and signed a form consenting to the

search. Id. at 22—23. Because a padlock protected the

trailer, Glynn “allowed [Ozuna] to go up in the truck

and grab the key” and unlock the padlock, even

though Glynn admittedly had not searched the truck

for weapons. Jd. at 22, 25, 60-61. DEA agents then

found cocaine in the trailer and placed Ozuna under

arrest. Jd. at 25, 28.

Ozuna testified in support of his motion. He

stated that he had been hired to drive a tractor-

trailer loaded with limes and mangoes from Texas to

the Chicago area. C.A. App., Tr. Vol. 1 at 71. Ozuna

explained that the DEA agents cut his vehicle off the

road, pointed a shotgun at his head, told him to

“(gjet the f*** out of the truck,” and handcuffed him.

Id. at 73-76. He testified that he rejected the agents’

oral request to consent to a search of his vehicle, did

not sign any form consenting to such a search, and

did not provide the agents with the key to the trai-

ler’s padlock. Jd. at 77—78, 82. Instead, Ozuna heard

a “bang” coming from the trailer, saw its doors swing

open, and later saw that the padlock had been bro-

ken. Id. at 83—84.

After hearing the testimony of Glynn and Ozuna,

the district court granted Ozuna’s motion to sup-

press. App., infra, 38a. The court observed in an oral

ruling that the search was conducted “without a

search warrant,” and that “nobody says there was

any probable cause to search the truck.” Jd. at 31a,

37a. Therefore, “[t]he search was either consented to

or it was invalid.” Jd. at 37a.

4

In finding that Ozuna did not consent to the

search, the court recognized that the DEA agents

may well have “perceived Ozuna to be a threat.”

App., infra, 35a. It explained that “[t]his is not a traf-

fic stop of sn ordinary citizen who’s exceeding the

speed limit. This is a stop of a potentially dangerous

and potentially murderous criminal.” Jd. at 36a. The

court therefore expressed doubt about Agent Glynn’s

testimony that the DEA agents did not draw their

weapons and allowed Ozuna to retrieve the key to

the trailer padlock without having “the slightest idea

what’s inside the cab of that truck, whether there’s a

shotgun in there or a handgun or any other kind of

weapon that the driver of the truck could turn on

them and kill or injure them.” Jd. at 35a. “The idea

that the agents would let [Ozuna] get up into the cab

without their being there and before they searched

the cab for the purpose of getting a key, doesn’t make

any more sense to me than the proposition that they

would not have prepared to meet violence with vi-

olence at the time they made the stop of this person

who was suspected of being the repeated hauler of

enormous quantities of illegal drugs.” Jd. at 36a.

Turning to the consent-to-search form purported-

ly signed by Ozuna, the court compared the signa-

ture on that form to several documents containing

Ozuna’s known signature. While acknowledging that

“we sign our name a different way every time,” the

court found that the signature on the consent-to-

search form “looks different to me than the signa-

tures on the other * * * documents.” App., infra, 35a,

36a. The court concluded that the differences be-

tween the signature on the consent-to-search form

and Ozuna’s known signature were “too great” to

find that Ozuna had signed the form. Jd. at 36a. Ac-

cordingly, while expressing disbelief with certain as-

5

pects of Ozuna’s testimony, the court held that the

government had failed to prove by a preponderance

of the evidence that Ozuna voluntarily consented to

the search and therefore excluded the cocaine found

in the trailer. Jd. at 37a.

B. The District Court Reopened The Sup-

pression Hearing, Vacated Its Original

Order, And Denied The Motion To Sup-

press.

On March 14, 2005, the government moved to re-

consider the district court’s suppression order or, al-

ternatively, to reopen the suppression hearing in or-

der to introduce expert handwriting analysis about

the signature on the consent-to-search form. C.A.

App., Tab 27. In its motion, the government made no

effort to justify its failure to introduce the handwrit-

ing analysis at the initial suppression hearing. In-

stead, the government argued that evidence that is

not “newly discovered” may be admitted at a succes-

sive hearing, and that the handwriting analysis “had

a direct bearing on the credibility of both witnesses

who testified at the suppression hearing.” Jd. at 17.

The district court denied the government’s mo-

tion to reconsider. C.A. App., Tab 33. However, with-

out issuing an order resolving the government’s mo-

tion to reopen, the court set a hearing to admit addi-

tional testimony regarding the motion to suppress

and authorized Ozuna to hire a handwriting expert.

C.A. App., Tabs 34, 37. The reopening of the sup-

pression hearing spawned significant satellite litiga-

tion: the parties’ experts authored reports opining

about the authenticity of the signature on the con-

sent-to-search form followed by three separate hear-

ings to introduce the experts’ testimony arid provide

oral argument about that testimony.

6

At a hearing held on June 14, 2005, Ozuna intro-

duced testimony by his court-appointed handwriting

expert, Ellen Schuetzner. Schuetzner testified that

although there were “indications” that Ozuna may

have signed the form—which she described as a

“very weak opinion of authorship”—there were sev-

eral inconsistencies that could indicate forgery. C.A.

App., Tr. Vol. 2 at 42, 61, 70. For example, unlike the

twenty-two known Ozuna signatures that Schuetz-

ner reviewed, the signature on the consent-to-search

form misspelled Ozuna’s first name. Jd. at 35. Schu-

etzner also observed that three different pens were

used on the form (id. at 19-20), consistent with Ozu-

na’s claim of forgery. Finally, Schuetzner testified

that the government’s use of a solvent to test the

consent-to-search form for fingerprints—a test that.

did not detect Ozuna’s fingerprints—damaged the

form for purposes of conducting handwriting analysis

and prevented her from determining whether the

signature was forged. Jd. at 18, 25. The court ob-

served that the government’s degradation of the con-

sent-to-search form “strikes me as coming pretty

close to spoliation.” Id. at 28.

At a subsequent hearing held on June 23, 2005,

the government introduced testimony from its

handwriting expert, James Regent. Regent testified

that he had the “highest degree of confidence” that

Ozuna signed the consent-to-search form. C.A. App.,

Tr. Vol. 3 at 32. In doing so, however, Regent admit-

ted that the signature on the consent-to-search form

differed from Ozuna’s known signature in numerous

respects. Jd. at 66.

On June 24, 2005, the district court held yet

another hearing during which the parties provided

argument and the court issued an oral ruling vacat-

7

ing its prior order and denying Ozuna’s motion to

suppress. The court explained that it did “not give

any weight * * * to the government’s expert when he

said he believes this is the defendant’s signature” on

the consent-to-search form. App., infra, 40a. Instead,

the court found the handwriting analysts’ testimony

helpful “in coming to [fits] own conclusion,” after

comparing the consent-to-search form with Ozuna’s

known signature, that Ozuna had in fact signed the

form. Id. The court thus rejected Ozuna’s assertion

that his signature had been forged, reasoning in part

that “it does not make sense to me that someone who

was going to * * * attempt a forgery * * * would leave

off * * * the O from Modesto” and “put two Ss in

Modesto.” Id. at 45a, 46a. Finally, the court held that

the DEA agents’ stop of Ozuna’s vehicle did not ripen

into an arrest before Ozuna provided consent, con-

cluding that “this is a close case,” but finding “by the

bare preponderance of the evidence that this was not

an arrest but rather a Terry stop followed by a volun-

tary consent to search.” Jd. at 48a.

Ozuna’s first trial was held in August 2006. The

district court declared a mistrial because the jury

was unable to reach a unanimous verdict. App., in-

fra, 6e—7a. After a second trial held in November

2006, a jury found Ozuna guilty. Jd. at 7a—8a. The

1 Ozuna subsequently moved for reconsideration of the district

court’s denial of his motion to suppress or, alternatively, to reo-

pen the suppression hearing in order to introduce evidence in-

dicating that—contrary to Agent Glynn’s testimony—the pad-

lock on the trailer door was broken during the search. C.A.

App., Tab 56. The district court denied the motion to reconsider

but held two hearings to admit additional evidence before ulti-

mately adhering to its denial of the motion to suppress. C.A.

App., Tr. Vols. 5-6, C.A. App., Tab 67.

8

district court sentenced Ozuna to twenty-five years

imprisonment. Id. at 25a.

C. The Seventh Circuit Expressly Ac-

knowledged A Deep Circuit Split In Af-

firming Ozuna’s Conviction.

The Seventh Circuit, per Judge Kanne, affirmed

Ozuna’s conviction. In doing so, the court rejected

Ozuna’s argument that “the district court erred in

reopening the suppression hearing and allowing the

government to present new evidence’—Regent’s

handwriting analysis—“that was available to it at

the time of the original hearing.” App., infra, 9a. The

court “decline[d] to impose” a requirement that the

party moving to reopen a suppression hearing in or-

der to introduce additional evidence “justify” its faii-

ure to introduce that evidence at the initial hearing.

Id. at 10a.

The Seventh Circuit expressly acknowledged,

however, that “[sJeveral of our sister circuits have

* * * adopted rules requiring the government to justi-

fy reconsidering, reopening, or supplementing sup-

pression hearings.” App., infra, lla. The Seventh

Circuit rejected the “bright-line rule” followed by

these courts, instead adopting a “totality of the cir-

cumstances” approach that “leavi[es] the matter to

the district court’s discretion.” Id. at 12a. The court

explained that its “flexible approach” better “protects

society's interest” in admitting “all relevant, consti-

tutionally obtained evidence,” while allowing district

judges “to refuse to reopen the suppression hearing

or to decline to consider the government’s evidence if

the government is wasting judicial resources or pro-

ceeding in a way that is unfair to the defendant.” /d.

9

The Seventh Circuit went on to hold that the dis-

trict court did not abuse its discretion by reopening

the suppression hearing. It reasoned that the

handwriting analysis helped the district court to de-

termine “whose version of the search to believe, re-

sulting in a more accurate ruling”; that there was “no

evidence that the government was engaged in a deli-

berate strategy to proceed in a piecemeal fashion”;

and that “Ozuna has not convinced us that he was

harmed in any way by the fact that the handwriting

testimony was presented at the second, rather than

the first suppression hearing.” App., infra, 13a—14a.

The court also rejected Ozuna’s remaining argu-

ments and therefore affirmed.

Ozuna filed a motion asking the Seventh Circuit

to appoint counsel to file a petition for certiorari on

his behalf. The Seventh Circuit granted Ozuna’s mo-

tion and, acting pursuant to the Criminal Justice

Act, appointed the undersigned counsel] to file a peti-

tion for certiorari.

REASONS FOR GRANTING THE PETITION

There are three principal reasons why the Court

should grant this petition. First, the courts of ap-

peals are deeply divided with respect to whether a 1i-

tigant moving to reopen a suppression hearing must

justify its failure to produce the evidence forming the

basis for the motion at the initial hearing. Five cir-

cuits have held that the moving party must provide

justification, while three—-including the Seventh Cir-

cuit in this case—have held that justification is un-

necessary. The Court should resolve this longstand-

ing circuit split to provide guidance to the lower

courts and create uniformity in the law.

10

Second, this case presents an ideal vehicle to re-

solve a recurring question that is of substantial im-

portance. Like the government here, disappointed li-

tigants routinely move. to reopen suppression hear-

ings in order to introduce additional evidence. The

resulting successive suppression hearings to hear

evidence that could have been introduced at the ini-

tial hearing impair important societal interests in

prompt criminal proceedings and in the conservation

of scarce judicial resources. Moreover, the Seventh

Circuit did not state an alternative holding or identi-

fy any other factor that might prevent the Court

from resolving the question presented.

Third, the Seventh Circuit’s decision is incorrect.

The bright-line rule adopted by the majority of cir-

cuits requiring justification to reopen suppression

hearings promotes predictability, finality, and the

prompt adjudication of motions to suppress by plac-

ing litigants on notice that they must introduce all

relevant, available evidence at the initial hearing. By

contrast, the Seventh Circuit’s malleable “totality of

the circumstances” approach delays resolution of pre-

trial proceedings; needlessly expends judicial re-

sources to hold successive hearings; encourages the

piecemeal introduction of evidence; and threatens to

overwhelm defendants with the government’s supe-

rior resources. Finally, the Seventh Circuit’s decision

is inconsistent with this Court’s conclusion under

analogous facts that litigants must provide justifica-

tion in order to introduce untimely evidence.

11

I. THE SEVENTH CIRCUITS DECISION

SQUARELY CONFLICTS WITH DECISIONS

FROM FIVE OTHER COURTS OF AP-

PEALS.

In holding that district courts may reopen sup-

pression hearings in order to admit additional evi-

dence without requiring the moving party to justify

its failure to produce that evidence at the initial

hearing, the Seventh Circuit observed that the

Second and Ninth Circuits have reached the same

conclusion. App., infra, 10a (citing Jn re Terrorist

Bombings of U.S. Embassies in E. Afr., 552 F.3d 177,

196-97 (2d Cir. 2008) (“we row hold that, on a mo-

tion to reopen a suppression hearing, there is no

bright-line rule that necessarily and invariably re-

quires the government to provide a reasonable justi-

fication for its failure to offer relevant evidence at an

earlier suppression proceeding”); United States v.

Rabb, 752 F.2d 1320, 1822-23 (9th Cir. 1984) (“the

district court may reconsider its suppression order”

without requiring movant to provide “justification”

for its failure to make new argument to admit evi-

dence at initial hearing), abrogated on other grounds

by Bourjaily v. United States, 483 U.S. 171 (1987)).

The Seventh Circuit expressly acknowledged,

however, that “[sleveral of our sister circuits” have

reached the contrary conclusion, “requiring the gov-

ernment to justify reconsidering, reopening, or sup-

plementing suppression hearings.” App., infra, 11a.

Other circuits have likewise recognized that courts of

appeals have taken “two approaches” to resolving

motions for reopening based on evidence that was

available at the time of the initial suppression hear-

ing. United States v. Bayless, 201 F.3d 116, 131 (2d

Cir. 2000); see Rabb, 752 F.2d at 1323 (“[w]e reject

12

[the D.C. Circuit’s] ‘justification’ requirement”); see

also United States v. Flores-Ortega, 2006 WL

3041372, at *2 (D. Utah Oct. 24, 2006) (“There is a

split of authority on whether, when it moves for re-

consideration * * * , the government must ‘proffer a

justification for its failure to present the relevant

evidence at the original suppression hearing”); Unit-

ed States v. Watson, 391 F. Supp. 2d 89, 91-92

(D.D.C. 2005) (“The courts of appeals have articu-

lated various approaches to assessing a motion to

reopen a suppression hearing”).

Indeed, five courts of appeals have held, contrary

to the Second, Seventh, and Ninth Circuits, that a

party moving to reconsider a suppression order or to

reopen a suppression hearing must justify its failure

to produce the evidence forming the basis for the mo-

tion at the original hearing:

e In United States v. Kithcart, 218 F.3d 213 (3d.

Cir. 2000), the district court reopened a suppression

hearing to allow the government to introduce testi-

mony that the car in which the defendant was a pas-

senger had run a red light, providing police with rea-

sonable suspicion to conduct a Terry search. The

Third Circuit reversed, holding that the district court

erred in reopening the suppression hearing because

“no explanation was even offered by the government”

for its failure to introduce testimony that the car had

run a red light at the initial hearing. Jd. at 220. The

court stated that “to properly exercise its discretion,

the district court must evaluate [the government's]

explanation and determine if it is both reasonable,

and adequate to explain why the government initial-

ly failed to introduce evidence that may have been

essential to meeting its burden of proof.” Jd. (empha-

13

sis added); accord United States v. Coward, 296 F.3d

176, 181—82 (3d Cir. 2002).

e In United States v. Dickerson, 166 F.3d 667

(4th Cir. 1999), rev'd on other grounds, 530 U.S. 428

(2000), the district court suppressed the defendant’s

confession, rejecting an FBI agent’s testimony that

the defendant waived his Miranda rights before con-

fessing. The district court denied the government’s

motion to reconsider based on testimony from two

other FBI agents who “corroborated” the first agent’s

“testimony concerning when [defendant] was read

his Miranda warnings” because this evidence “was

available at the time of the suppression hearing.” Jd.

at 678. The Fourth Circuit affirmed in relevant part,

explaining that “when the evidence forming the basis

for a party’s motion for reconsideration was in the ©

movant’s possession at the time of the initial hear-

ing, * * * the movant must provide a legitimate rea-

son for failing to introduce that evidence prior to the

district court’s ruling on the motion to suppress.” Id.

at 679 (emphasis added). The court concluded that

the government’s proffered justifications for failing to

introduce the additional agents’ testimony at the ini-

tial hearing—that “it never believed that the district

court would find [defendant] more believable” than

the first agent and “did not want to burden the dis-

trict court with cumulative evidence”—were insuffi-

cient. Id. at 678-80.

e In United States v. Carter, 374 F.3d 399 (6th

Cir. 2004), vacated on other grounds, 543 U.S. 1111

(2005), the Sixth Circuit affirmed the district court’s

denial of the defendant’s motion to reopen a suppres-

sion hearing in order to ask additional questions of a

government witness and to call a new witness.

Agreeing with the Third Circuit’s decision in Kith-

14

cart that “[t]he party moving to reopen should pro-

vide a reasonable explanation for failure to present

the evidence” at the initial suppression hearing, the

Sixth Circuit held that the district court did not

abuse its discretion because “Defendant presented no

explanation * * * about why he failed to oe the

evidence initially.” Id. at 406.

e In United States v. Thompson, 710 F.2d 1500,

1503 (11th Cir. 1983), the district court suppressed

evidence found during a warrantless search, reject-

ing the government’s argument that the search “was

permissible as part of an authorized document and

safety inspection.” The district court denied the gov-

ernment’s motion to reconsider based on its new ar-

gument that reasonable suspicion existed to conduct

the search. The Eleventh Circuit affirmed, holding

that “the government waived its right to raise the

reasonable suspicion issue * * * by failing to raise the

issue at the [initial] suppression hearing without of-

fering any justification therefor.” Jd. at 1504; accord

United States v. Villabona-Garnica, 63 F.3d 1051,

1055 (11th Cir. 1995) (“This Circuit has held that

when the government moves to reconsider a suppres-

sion motion previously granted, it must provide a

justification for that motion”) (emphasis added).

e In McRae v. United States, 420 F.2d 1283

(D.C. Cir. 1969), the district court suppressed evi-

dence discovered during a warrantless search. A

second district judge granted the government’s mo-

tion to reopen, heard additional testimony, and ruled

that the evidence was admissible. The D.C. Circuit

reversed, holding that the district court erred by reo-

pening the suppression hearing without requiring

“justification for relitigating the issue.” Jd. at 1288.

The court explained that if “the Government wished

15

to develop new facts * * * , we feel that the prosecu-

tor bore some responsibility to suggest to the Court

why these facts had not been elicited at the first

hearing.” Jd. at 1289; accord United States v. Greely,

425 F.2d 592, 593 (D.C. Cir. 1970) (“The government

cannot relitigate the issues resolved by a suppression

order without advancing some justification for its

failure to develop those issues fully at the initial

hearing”) (emphasis added).

Thus, as the court below recognized, the question

presented here raises an issue that has deeply di-

vided the courts of appeals. Five circuits have

adopted the position advanced by Ozuna, while

three—including the Seventh Circuit in this case—

have held to the contrary. This deep circuit split has

percolated long enough: the Court should grant this

petition to resolve the question presented and create

uniformity in the lower courts.

II. THIS CASE IS AN IDEAL VEHICLE TO RE-

SOLVE A RECURRING ISSUE THAT IS OF

SUBSTANTIAL IMPORTANCE.

As the numerous courts of appeals’ decisions dis-

cussed above demenstrate, the issue of whether to

reopen suppression hearings recurs with substantial

frequency. Indeed, Westlaw is littered with decisions

addressing motions to reopen suppression hearings,?

2 E.g., United States v. Chanley, 2009 WL 2447983 (D. Nev.

Aug. 10, 2009); United States v. Banks, 2009 WL 585506 (E.D.

Tex. Mar. 6, 2009); United States v. Valentine, 591 F. Supp. 2d

238 (E.D.N.Y. 2008); United States v. Matos, 2008 WL 5169112

(E.D.N.Y. Dec. 8, 2008); United States v. Martinez, 2008 WL

4982263 (E.D. Tenn. Nov. 19, 2008); United States v. Goncalves,

2008 WL 4238707 (N.D.N.Y. Sept. 5, 2008); United States v.

Angelov, 2008 WL 6004311 (S.D. Fla. July 9, 2008); United

States v. Pena Ontiveros, 2008 WL 2446824 (S.D.N.Y. June 16,

16

with no doubt many more courts—like the district

court in this case—resolving such motions in unre-

ported decisions. Because motions to reopen based on

evidence available at the time of the initial suppres-

sion hearing are commonplace, this Court’s resolu-

tion of the question presented would have wide ap-

plicability beyond the particular facts of this case.

The question presented is also of substantial im-

portance. This Court has recognized a “compelling

interest in prompt trials” of criminal defendants.

Flanagan v. United States, 465 U.S. 259, 265 (1984).

“As the Sixth Amendment’s guarantee of a Speedy

Trial indicates, the accused may have a strong inter-

est in speedy resolution of the charges against him.”

Id. at 264. “In addition, ‘there is a societal interest in

providing a speedy trial,” for “[a]s time passes, the

prosecution’s ability to meet its burden of proof may

greatly diminish: evidence and witnesses may disap-

pear, and testimony becomes more easily impeacha-

ble as the events recounted become more remote.” Id.

“Delay increases the cost of pretrial detention and

extends ‘the period during which defendants released

on bail may commit other crimes.” Id.

The Seventh Circuit’s decision will prolong crim-

inal pre-trial proceedings. Absent a strict require-

ment that a party moving to reopen justify its failure

to introduce the evidence forming the basis for the

motion at the initial suppression hearing, the lax “to-

tality of the circumstances” approach adopted by the

Seventh Circuit increases the likelihood that district

courts will hold successive hearings. Many district

2008); United States v. Dennis, 2008 WL 2381549 (E.D. Pa.

June 10, 2008); United States v. Jarnigan, 2008 WL 1848902

(E.D. Tenn. Apr. 24, 2008); United States v. Valle-Sierra, 2008

WL 94805 (D. Colo. Jan. 7, 2008).

17

judges, wary of reversal, would reopen suppression

hearings to admit evidence of dubious relevance that

should heve been introduced at the initial hearing.

Moreover, without a justification requirement, some

litigants may seek to game the system by introducing

evidence piecemeal, confident that district judges

would be unlikely to refuse to hold successive hear-

ings to consider clearly relevant evidence.

The successive suppression hearings likely to fol-

low from the Seventh Circuit’s approach necessitates

the expenditure of additional judicial resources. The

federal caseload has “grown enormously over a gen-

eration,” which “means unnecessary delay and con-

sequent added cost.” Steel Co. v. Citizens for a Better

Env’'t, 623 U.S. 83, 111 (1998) (Breyer, J., concur-

ring). Since Steel was decided, the federal caseload

has continued to grow dramatically. Pending federal

criminal cases have increased over 71% since 1999 to

more than 73,000, with criminal cases per authorized

judgeship growing to 105. Administrative Office of

the United States Courts, 2008 ANNUAL REPORT OF

THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED

STATES COURTS 13, 19 (2009). The Seventh Circuit’s

approach incentivizes district judges to hold succes-

sive suppression hearings, needlessly expending

judicial resources and exacerbating the already leng-

thy backlog of criminal cas¢¢ in the district courts.

This case illustrates the unnecessary delay

caused by the Seventh Circuit’s approach. Following

the district court’s initial decision granting Ozuna’s

motion to suppress on March 2, 2005, the parties: (a)

briefed the government’s motion to reconsider the

suppression order or reopen the suppression hearing;

(b) produced expert handwriting reports; (c) partici-

pated in two hearings to take testimony from the ex-

18

perts; and (d) presented oral argument at a third

hearing, culminating in the district court’s order de-

nying suppression on June 24, 2005. That lengthy

delay and concomitant expenditure of judicial and

party resources would not have occurred under the

bright-line rule adopted by the majority of circuits

because the government did not provide the district

court with any justification for its failure to offer

handwriting analysis at the initial suppression hear-

ing.

Finally, this case presents an ideal vehicle to re-

solve the question presented. The Seventh Circuit

did not state an alternative holding that would make

this Court’s review of the question presented irrele-

vant to the disposition of this case. Cf. In re Terrorist

Bombings, 552 F.3d at 197 (“Even if we were to im-

pose a ‘justification’ requirement, the government

surely met it here”). Accordingly, if this Court

adopted the majority view and required justification

to reopen a suppression hearing, then reversal of the

Seventh Circuit’s decision would necessarily follow.?

8 After rejecting a bright-line rule requiring justification, the

Seventh Circuit discussed several factors in concluding that the

district court did not abuse its discretion by reopening the suyp-

pression hearing. In finding no basis to conclude that the gov-

ernment intentionally introduced evidence “piecemeal,” the

court noted that “[ijt does not appear” that the authenticity of

the signature on the consent-to-search form “was clearly at is-

sue until the first suppression hearing. App., infra, lia. In fact,

Ozuna made clear in moving to suppress that his consent was

at issue. C.A. App., Tab 21 at 14-15. But even if the Seventh

Circuit’s remark were correct, the court did not suggest that it

would suffice to provide justification under the bright-line rule.

19

I.THE SEVENTH CIRCUIT’S DECISION IS

INCORRECT.

The Seventh Circuit based its decision on its

view that a “flexible approach” that considers “the

totality of the circumstances” is superior to a

“bright-line rule” that bars reopening absent justifi-

cation for the moving party’s failure to. introduce the

evidence that forms the basis for the motion to reo-

pen at the initial suppression hearing. App., infra,

12a. The court reasoned that its approach better

“protects society's interest in ensuring a complete

proceeding where the court considers all relevant,

constitutionally obtained evidence.” Jd. Moreover,

the district court “remains free to refuse to reopen

the suppression hearing or to decline to consider the

government’s evidence if the government is wasting

judicial resources or proceeding in a way that is un-

fair to the defendant.” Id.

1. The Seventh Circuit erred in concluding that

its approach better protects society's interest in ad-

mitting all relevant evidence. The bright-line rule

adopted by the majority of circuits places litigants on

notice that they must produce all relevant evidence

at the initial suppression hearing. By making clear

that a suppression order is final absent justification

for introducing additional evidence, the bright-line

rule discourages litigants from withholding evidence

at the initial hearing and thus increases the likelih-

ood that all relevant evidence will be admitted. In

contrast, the totality of the circumstances approach

encourages litigants to introduce evidence piecemeal,

confident that they will be permitted to introduce

additional evidence at a second hearing should the

first not go their way. If, however, that confidence

proves misplaced and the district court denies reo-

20

pening—as it may under the malleable totality of the

circumstances approach—then “relevant, constitu-

tionally obtained evidence” could be excluded. App.,

infra, 12a.

But even if the Seventh Circuit’s approach athe

protected society’s interest in admitting all relevant

evidence, that interest “is not unlimited” and may

“bow to accommodate other legitimate interests in

the criminal trial process.” United States v. Scheffer,

523 U.S. 303, 308 (1998). As we demonstrate supra

at 17—18, the bright-line rule reduces delay in crimi-

nal proceedings and conserves judicial resources. The

bright-line rule also promotes “finality in criminal

litigation” and discourages “sandbagging” through

piecemeal introduction of evidence at successive

hearings. Wainwright v. Sykes, 433 U.S. 72, 88-89

(1977) (requiring habeas petitioner to demonstrate,

inter alia, “cause” for failure to comply with state

contemporaneous objection rule); cf. Puckett v. Unit-

ed States, 129 S. Ct. 1423, 1431 (2009) (rule requir-

ing contemporaneous objection at sentencing hearing

prevents defendant from “gam[ing]’ the system,

‘wait[ing] to see if the sentence later str[ikes] him as

satisfactory, and then seeking a second bite at the

apple by raising the claim”) (internal citation omit-

ted}. Discouraging the piecemeal introduction of evi-

dence is particularly critical in criminal proceedings,

where the government's greater resources can

swamp those of defendants. These considerations far

outweigh any interest advanced by the totality of the

circumstances approach.

It is no answer to suggest, as did the Seventh

Circuit, that district courts can ferret out instances

where litigants make strategic decisions to withhold

evidence at the initial suppression hearing. App., in-

21

fra, 12a. District judges are not mind readers. With-

out requiring the moving party to justify its failure to

introduce evidence at the initial hearing, district

judges generally have no way of knowing whether

the moving party made a strategic decision to with-

hold evidence.

2. The Seventh Circuit’s rejection of a justifica-

tion requirement is also contrary to analogous legal

- doctrines that require justification. Because the Fed-

eral Rules of Criminal Procedure do not directly ad-

dress motions to reopen suppression hearings, courts

have looked to rules governing similar circumstances

in setting forth standards for resolving such motions.

See, e.g., Fed. R. Crim. P. 12(e) (untimely motions to

suppress are waived absent “good cause”); Fed. R.

Crim. P. 33(b){1) (governing motions for new trial

based on “newly discovered evidence”); Fed. R. Civ.

P. 60(b)(2) (movant seeking to obtain relief from civil

judgment based on “newly discovered evidence” must

show that it exercised “reasonable diligence” in seek-

ing evidence before judgment was entered). Most

commonly, courts have held that “[a] ruling on

whether to reopen a suppression hearing is governed

by principles of jurisprudence that relate to reopen-

ing proceedings, generally.” Carter, 374 F.3d at 405.

Under this Court’s decisions addressing motions

to reopen criminal trials in order to introduce addi-

tional evidence, the Seventh Circuit’s rejection of a

justification requirement is incorrect. In United

States v. Bayer, 331 U.S. 532, 537 (1947), for exam-

ple, four hours after submission of the case to the

jury the defendants sought to introduce evidence

that “tended to corroborate” one of their witnesses.

Assuming that “the proffered evidence was relevant

[and] corroborative of the [defendants’] contentions,”

22

this Court nevertheless held that the district court

did not err by refusing to reopen the trial. Jd. The

Court explained in part that the evidence was “well

known” to exist before the trial began, that “it should

have been apparent that every bolster to [the wit-

ness’s] credibility would be important,” and that the

defendants offered “no excuse for the untimeliness of

the offer.” Id. at 538-39 (emphasis added).

The Seventh Circuit’s rejection of a justification

requirement is also at odds with this Court’s

precedent holding that arguments not timely made

at a suppression hearing are waived. In Steagald v.

United States, 451 U.S. 204 (1981), the district court

denied the defendant’s motion to suppress evidence

found during a warrantless search of a residence,

holding that an arrest warrant for a third person be-

lieved to be living at the residence justified the

search. In this Court, the government sought a re-

mand to the district court to resolve its new argu-

ment that the defendant lacked a reasonable expec-

tation of privacy in the residence. This Court rejected

the government’s request, stating that the govern-

ment “may lose its right to raise factual issues of this

sort * * * when it has failed to raise such questions in

a timely fashion during the litigation.” Jd. at 209. In

doing so, the Court observed that the government

provided “no explanation” for its failure to argue that

the defendant lacked a reasonable expectation of pri-

vacy in the residence during the suppression hear-

ing. Id. at 210 n.5; see also Giordenello v. United

States, 357 U.S. 480, 488 (1958) (declining to remand

with instructions that district court hold hearing to

determine validity of government’s new argument for

upholding legality of arrest, not made in opposing

motion to suppress, because facts upon which gov-

23

ernment based its new argument “were fully known

to it at the time of trial”).

Similarly, in this case, Ozuna’s motion to sup-

press made clear his position that he did not consent

to the search of his vehicle. Yet the government

failed to introduce handwriting analysis of the con-

sent-to-search form at the initial hearing and pro-

vided the district court with “no explanation” for its

failure to do so. Steagald, 451 U.S. at 210 n.5. As in

Steagald, the government therefore “los[t] its right”

to produce handwriting analysis at a successive

hearing. Jd. at 209. The Seventh Circuit erred in

holding otherwise.

CONCLUSION

The petition for a writ of certiorari should be

granted. |

Respectfully submitted.

STEPHEN J. KANE

Counsel of Record

Mayer Brown LLP

71 South Wacker Drive

. Chicago, IL, 60606

(312) 782-0600

Counsel for Petitioner

SEPTEMBER 2009