Third Circuit Elucidates Waiver Standards - United States v. Joseph, No. 12-3808, --- F.3d --- (3d Cir. Sept. 19, 2013)

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In order to present an argument on appeal, a party must have raised the same argument—that is, an argument based on the same facts and the same legal rule—in the District Court. Merely having raised an issue in the District Court that encompasses the argument asserted on appeal is insufficient.

Waiver can make or break a case. Skilled practitioners will avoid waiver at trial and invoke waiver as an offensive tool on appeal. It is thus noteworthy that the Third Circuit, in United States v. Joseph, recently clarified standards and terminology with respect to preservation and waiver. The court ruled that the degree of particularity required to preserve an argument is exacting. In order to present an argument on appeal, a party must have raised the same argument—that is, an argument based on the same facts and the same legal rule—in the District Court. Merely having raised an issue in the District Court that encompasses the argument asserted on appeal is insufficient.

In Joseph, a gentleman’s club patron, Akeem Joseph, was stopped by police after the club’s security officer reported that Joseph had attempted to pass several counterfeit $100 bills. The police examined one of the bills and discovered a discrepancy in its security features. Officers then arrested Joseph, searched him, and discovered additional counterfeit bills. After Joseph waived his Miranda rights, he confessed and turned over incriminating text messages. He was later indicted for passing and possessing counterfeit bills in violation of 18 U.S.C. § 472.

Joseph moved to suppress the counterfeit bills, text messages, and his confession in the District Court. He argued that the search was unlawful on two grounds. First, he claimed it was an illegal Terry stop. Second, he argued that the police lacked probable cause for the arrest because no one at the scene had sufficient expertise in counterfeiting to know whether the bills were in fact counterfeit (the “actus reus argument”). The District Court denied Joseph’s motion, and the case proceeded to trial, which resulted in a guilty verdict. On appeal, Joseph argued for the first time that probable cause to arrest was absent because the police had insufficient evidence to establish his intent at the time he passed and possessed the counterfeit bills (the “mens rea argument”). The Court of Appeals held that Joseph waived the mens rea argument because he did not raise that same argument in the District Court.

The Court of Appeals recognized initially that many of its precedential opinions contained inconsistent terminology pertaining to preservation and waiver. In defining what exactly is preserved and waived, the court began by accounting for each of the terms it had used in its opinions. It explained that the synonymous terms “question” and “issue” are broader in scope than the synonymous terms “argument,” “contention,” “theory,” “ground,” or “basis,” in that the former can encompass more than one of the latter. The court then reframed the waiver question before it to be whether raising an issue before the District Court is sufficient to preserve any argument encompassed within that issue. The court concluded that it is not. A party must make the same argument in the District Court that it makes on appeal.

The court went on to provide a two-step framework for analyzing whether an argument has been preserved. The first step is to differentiate between issues and arguments. While an issue involves multiple avenues for relief, an argument is a single point of contention that cannot be distilled into separate lines of legal analysis. Once arguments have been identified, the second step is to determine whether they are the same argument. An argument may be considered on appeal if it depends on the same legal rule and the same facts as an argument presented in the District Court.

The Court of Appeals then applied its framework to Joseph’s contention that he had preserved his mens rea argument because he had asserted in the District Court that the officers lacked probable cause to arrest. The court first determined that probable cause was an issue, rather than an argument, because it could be distilled into more particular arguments. The court then compared Joseph’s actus reus probable cause argument with his mens rea probable cause argument to determine if they were the same argument. It concluded that they were not the same because, while the two arguments were both encompassed within the issue of probable cause, they depended on different legal rules and facts. The court thus held that Joseph failed to preserve his mens rea argument for appeal.

The Court of Appeals’ exacting waiver standard restricts a party’s ability to raise arguments on appeal. However, as the court emphasized, the standard enunciated in Joseph does not change parties’ ability to control how they present and support their preserved arguments. Parties are free, for example, to place greater emphasis on (and more fully explain) an argument on appeal than they did in the District Court. Parties may even reframe an argument within the bounds of reason as long as they do not alter its substance.

Because the waiver issue in Joseph involved suppression of evidence and was controlled by Federal Rule of Criminal Procedure 12, the court noted that it did not have the occasion to officially consider whether its newly clarified framework would apply in civil cases. However, nothing on the face of the court’s reasoning would render it inapplicable to civil appeals, and there is little to suggest that the court will not extend its new framework beyond suppression arguments. Therefore, familiarity with the new standard will benefit every Third Circuit practitioner.