United States v. Russell

31 F.4th 1009 (Mem)

UNITED STATES of America, Plaintiff-Appellee,

v.Denzell RUSSELL, Defendant-Appellant.

No. 20-3756

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 26, 2022

ON PETITION FOR REHEARING EN BANC: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

Before: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges.

The court issued an order. BUSH, J. (pp. 1010–14), delivered a separate statement respecting the denial of the petition for rehearing en banc.

ORDER

On Petition for Rehearing En Banc.

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

STATEMENT

BUSH, Circuit Judge, statement respecting the denial of rehearing en banc.

Some criminals "go free because the constable has blundered." Mapp v. Ohio , 367 U.S. 643, 659, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (quoting People v. Defore , 242 N.Y. 13, 150 N.E. 585, 587 (1926) (Cardozo, J.)). But what happens when the constable's lawyer blunders?

The panel was presented with that rare question here: Denzell Russell moved to suppress evidence gathered in the search of a car in which he was a passenger. Because he did not own the car or have a legitimate expectation of privacy in it as a passenger, caselaw is clear that he cannot bring a Fourth Amendment challenge to the search—he lacked what courts call Fourth Amendment standing. See Rakas v. Illinois , 439 U.S. 128, 133–34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). But the government did not make that argument below; instead, the district court raised it sua sponte as an alternative reason to deny Russell's motion.

The government then asked the panel here to affirm the denial of the suppression motion solely on the district court's standing theory—the very same ground the government had forfeited below. That request is understandable. We have twice held in published decisions that we can correct the government's forfeited error on appeal under Federal Rule of Criminal Procedure 52(b), which says that "[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).

We did so first in the sentencing context. See United States v. Barajas-Nunez , 91 F.3d 826 (6th Cir. 1996). In Barajas-Nunez , a district court relied on improper factors to support a downward departure of 49 months, and the government failed to object. Id. at 830, 833. Instead, the government raised its objection for the first time in its opening appellate brief. Id. at 829, 830. We concluded that the objection was forfeited, but we reviewed for plain error under Rule 52(b), citing United States v. Olano , 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Id. at 830. And we reversed, finding that the "extraordinary downward departure" affected the substantial rights of the government and people of the United States to have a defendant sentenced "in accordance with the legal principles of the sentencing guidelines." Id. at 833.

Judge Siler dissented from that holding. He noted the well-established definition of "substantial rights" when Rule 52(b) was promulgated, which focused on preventing prejudice to the defendant. That focus was in serious tension with the Barajas-Nunez majority's finding of plain error for the government's benefit, which would ultimately cause prejudice to the defendant. Id. at 835–36 (Siler, J., concurring in part and dissenting in part). As Judge Siler saw it, the government's forfeited objections should be resuscitated only when the law changes while an appeal is pending. Id. Yet the majority declined to "assume that either the Olano Court or the drafters of [ Rule 52(b) ] intended that only defendants and never the government should be able to demonstrate that a plain error affected substantial rights." Id. at 833 ; see also United States v. Jackson , 207 F.3d 910, 923 (7th Cir. 2000) (Wood, J., concurring in part and dissenting in part) (citing Barajas-Nunez as a possible rare case when a plain error "might" have "a serious effect on the fairness, integrity, or public reputation of judicial proceedings").

The Barajas-Nunez majority's reasons for giving the government the benefit of Rule 52(b) were twofold. First, the text itself makes "no distinction between the government and defendants." Barajas-Nunez , 91 F.3d at 833. But perhaps more importantly, the Barajas-Nunez majority concluded that the government has a right to secure a correct sentence. Id. Or as a sister circuit put it, the government has a "right to seek justice on behalf of the accuser, and society, in a criminal case," and that right could be substantially affected when a sentence is erroneously low. United States v. Dickerson , 381 F.3d 251, 257 (3d Cir. 2004). So at least for plain sentencing errors, we held that the government can raise objections for the first time on appeal. Barajas-Nunez , 91 F.3d at 833. And it eventually became the "majority view" that the government can seek plain-error review of a forfeited sentencing objection. See Dickerson , 381 F.3d at 257 (collecting cases).

We considered the issue next in United States v. Noble , 762 F.3d 509 (6th Cir. 2014), which extended Barajas-Nunez beyond the sentencing context. That case also involved whether a defendant had Fourth Amendment standing. Id. at 526. As here, he lacked standing to challenge the search. Id. Also, as here, the government missed its chance to make that argument at the district court. Id. at 526–27. But it also failed to raise the argument in its opening brief on appeal, so we held (and the government admitted) that it had "waived" the issue. Id. at 527, 528.

That holding first required us to determine that the government even could waive its argument that the defendant lacks Fourth Amendment standing. Because "Fourth Amendment standing is akin to an element of a claim and does not sound in Article III," we held that waiver was possible. Id. at 527 (citing Rakas , 439 U.S. at 139, 99 S.Ct. 421 ).

We next decided "how to treat" that waiver. Id. at 527–28. Rather than adopt a bright-line rule—either that the standing issue is always waived when the government fails to raise it or that it can always be raised on appeal because the defendant bears the burden to prove standing—we looked to the plain-error rule. Id. (citing Barajas-Nunez , 91 F.3d at 830 ). Failure to raise this standing argument at the district court was a forfeiture, so "we would allow the government to raise" it on appeal if it could "show that the defendant plainly lacked standing and that our failure to recognize it would seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. at 528 (cleaned up). But because the government failed to raise the issue in its opening brief on appeal, we held the objection waived. Id.

Now, "pick[ing] up where Noble left off[,]" we reaffirm here that the government's forfeited standing arguments are reviewable under the plain-error standard. United States v. Russell , 26 F.4th 371, 375 (6th Cir. 2022). We have disclaimed concern that Russell cannot adequately respond to the government's new argument; for "he has the burden of proving standing in the first place." Id. And as to the plain-error inquiry, we conclude that Russell plainly lacks standing, that a suppression-induced dismissal of the government's case against Russell would affect the government's substantial rights, and that allowing Russell to benefit from the exclusionary rule would "lead to a rightfully diminished view of the judicial proceeding." Id. at 377–79. So we affirm the district court. Id. at 379.

The panel admits that "plain error is an odd fit here." Id. at 376. Looking at how the Supreme Court interpreted Rule 52(b) in Olano makes it easy to see why. That case spells out four basic requirements for plain-error review. First, the appellate court must find error, which occurs when "a legal rule was violated during the district court proceedings" and "the defendant did not waive the rule." Olano , 507 U.S. at 733–34, 113 S.Ct. 1770 (emphasis added). That error must be plain—"clear under current law." Id. at 734, 113 S.Ct. 1770. Further, to prove that the error affected substantial rights, "the defendant must make a specific showing of prejudice." Id. at 735, 113 S.Ct. 1770. Finally, " Rule 52(b) is permissive, not mandatory," because courts generally notice forfeited errors when "the life, or as in this case the liberty, of the defendant is at stake[.]" Id. at 735–36, 113 S.Ct. 1770 (citing Sykes v. United States , 204 F. 909, 913–14 (8th Cir. 1913) ). That discretion can be exercised when an error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson , 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936) ).

By applying Olano 's defendant-centric requirements to the government's forfeited errors, courts have forced a square peg into a round hole. Doing so required concluding that the drafters of Rule 52(b) made no distinction between the government and defendants when it came to substantial rights. See, e.g. , Barajas-Nunez , 91 F.3d at 834 ; Russell , 26 F.4th at 378 (citing Barajas-Nunez for the proposition that the government has a substantial right to Russell's punishment). But " ‘substantial rights,’ as described in Olano , are those rights of the defendant at bar[.]" Barajas-Nunez , 91 F.3d at 836 (Siler, J., concurring in part and dissenting in part); Jackson , 207 F.3d at 923 (Wood, J., concurring in part and dissenting in part) ("Assistant U.S. Attorneys do not serve prison time as a...