United States v. Bowline

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 11, 2019

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-7080

IAN ALEXANDER BOWLINE,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:17-CR-00003-JHP-1)
_________________________________

Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant.

Shannon L. Henson, Assistant United States Attorney (Brian J. Kuester, United States
Attorney, Linda A. Epperley, Assistant United States Attorney and John David Luton,
Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for
Plaintiff-Appellee.
_________________________________

Before HARTZ, HOLMES, and CARSON, Circuit Judges.
_________________________________

HARTZ, Circuit Judge.
_________________________________

Defendant Ian Alexander Bowline was convicted by a jury in the United States

District Court for the Eastern District of Oklahoma on a number of charges involving

unlawful prescriptions for oxycodone. He appeals his conviction, raising only one issue:
whether the district court properly denied his untimely pretrial motion to dismiss his

indictment on the ground of vindictive prosecution. The district court ruled (1) that he

was procedurally barred because he had not shown good cause under Fed. R. Crim. P.

12(c)(3) to excuse his untimeliness and (2) that on the merits he had not demonstrated

that he was being subjected to a vindictive prosecution. Defendant appeals. He does not

argue that he had good cause for his untimely motion but contends that he can

nevertheless raise his vindictive-prosecution claim on appeal under a plain-error standard

of review, which he claims he satisfied. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm because Defendant is not entitled to relief on appeal absent a showing of good

cause to excuse the untimeliness of his motion. We therefore need not reach the merits of

his vindictive-prosecution claim.

I. BACKGROUND

Defendant’s trial was his second on charges arising out of the oxycodone

prescriptions. We reversed his convictions after the first trial. See United States v.

Bowline, 674 F. App’x 781 (10th Cir. 2016). Although, as we will describe more fully

later, the charges at the second trial were different, the evidence concerned the same

scheme. Defendant, who was not a doctor, was able to write false prescriptions for

oxycodone by obtaining watermarked prescription pads online and then using Drug

Enforcement Administration physician identifiers and license numbers that he purchased

online. “[H]is confederates—acting individually or in small groups—passed those

prescriptions at various pharmacies. In exchange for their time and trouble, his

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confederates kept either a share of the pills they acquired, cash in lieu of their share, or

some combination of the two. The rest of the pills went to [Defendant].” Id. at 782–83.

At his first trial in March 2015, Defendant was convicted of conspiracy to

distribute, and possess with intent to distribute, oxycodone, see 21 U.S.C. §§ 841, 846,

and interstate travel in aid of a racketeering enterprise (which was based on the drug

conspiracy), see 18 U.S.C. § 1952(a)(3). On appeal we held that the government had

failed to prove that Defendant and his confederates conspired to distribute oxycodone.

We explained that “the circumstances in this case don’t lend themselves to an inference

that [Defendant] and his confederates shared a common purpose to distribute Oxycodone.

Instead, . . . they shared only a common goal to obtain that drug.” Bowline, 674 F.

App’x. at 786 (brackets and internal quotation marks omitted). And “to the extent that

[Defendant] entered into agreements with his various confederates under which they

agreed to distribute Oxycodone to [Defendant], . . . those agreements are insufficient to

support [Defendant’s] conviction for conspiracy to distribute.” Id. at 784–85. Were it

otherwise, we said, every drug sale would amount to a conspiracy to distribute between

the transferor and transferee. See id. at 784. We reversed the convictions and remanded

to the district court with instructions to vacate its judgment and 108-month sentence.

In January 2017 the government filed a new indictment against Defendant. Rather

than again pursuing conspiracy-based charges, the government obtained an indictment on

a number of previously uncharged substantive offenses: 11 counts of passing fraudulent

prescriptions, see 21 U.S.C. 843(a)(3), and 11 counts of using a registration number of

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another in creating those prescriptions, see 21 U.S.C. 843(a)(2). Two counts were later

dismissed on the government’s motion.

The court set January 26 as the deadline for all pretrial motions. After that

deadline passed, the government filed an unopposed motion to continue the trial, and the

court issued an amended scheduling order postponing the trial date to April 4 and setting

March 9 as the new deadline to file all pretrial motions. On April 1, the Saturday before

the Tuesday trial and after both pretrial-motion deadlines had expired, Defendant filed a

motion to dismiss his indictment for vindictive prosecution. The district court denied the

motion as untimely under Fed. R. Crim. P. 12(c)(3). It found that “Defendant’s basis for

the motion to dismiss was known since the time the Indictment was returned” and

Defendant had not shown good cause that would excuse his delay. R., Vol. 1 at 142. The

court also rejected Defendant’s motion on the merits. Defendant was convicted on 16

counts and sentenced to concurrent terms of 16 months on each count with credit for time

served.

II. DISCUSSION

We hold that we cannot review an untimely motion claiming vindictive

prosecution absent a showing of good cause. This court so held before the 2014

amendments to Rule 12, see United States v. Burke, 633 F.3d 984, 988–91 (10th Cir.

2011) (considering untimely motion to suppress evidence), and we reject the view that

the amendments effect any relevant change.

Our conclusion follows from a straightforward reading of the Rule. The pertinent

parts of Rule 12 state:

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 (b) Pretrial Motions
...
(2) Motions That May Be Made at Any Time. A motion that the
court lacks jurisdiction may be made at any time while the case is
pending.
(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:
(i) improper venue;
(ii) preindictment delay;
(iii) a violation of the constitutional right to a speedy
trial;
(iv) selective or vindictive prosecution; and
(v) an error 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);
(ii) charging the same offense in more than one count
(multiplicity);
(iii) 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), (c) (emphasis added).

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 The Rule clearly provides only one circumstance in which an untimely motion can

be considered—when the movant “shows good cause.” Fed. R. Crim. P. 12(c)(3).

Defendant acknowledges that a district court has no authority to consider an untimely

motion absent good cause, but he contends that this court is not so bound. This makes

little sense. Correction of error is almost always better if done at the trial level rather

than on appeal. In United States v. Dieter, 429 U.S. 6, 7–8 (1976), the Supreme Court

held that the time for the government to appeal is tolled until disposition of a timely

government motion to reconsider. It explained: “[P]lenary consideration of an issue by

an appellate court ordinarily requires more time than is required for disposition by a trial

court of a petition for rehearing. [In light of] the wisdom of giving district courts the

opportunity promptly to correct their own alleged errors . . . , we must . . . be wary of

imposing added and unnecessary burdens on the courts of appeals.” Id. at 8 (citation

omitted). It would be contrary to that same wisdom to bar relief in the district court but

permit appellate review. We can see no reason why the rulemakers would countenance,

much less create, such a scheme.

The present language of the Rule supports this commonsense view. In all but one

of the 11 times that Rule 12 uses the word court, it speaks in terms of “the court”—

clearly referring to the court in which the trial is pending. Rule 12(c)(3), in contrast,

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

good cause.” (emphasis added). Why the change in locution if the Rule is still referring

to the trial court? We think it clear that in this paragraph the Rule is referring to an

appellate court (or perhaps a court hearing a postconviction challenge) as well as the trial

6
court. We note that the Rules of Criminal Procedure, although directed principally at the

trial courts, plainly state that the word court can refer to an appellate court as well. The

Rules “govern the procedure in all criminal proceedings in the United States district

courts, the United States courts of appeals, and the Supreme Court of the United States.”

Fed. R. Crim. Proc. 1(a)(1) (emphasis added). Also, they define Court as a “federal

judge performing functions authorized by law.” Fed. R. Crim. Proc. 1(b)(2). And the

definition of federal judge incorporates the definition of judge in 28 U.S.C. § 451, see

Fed. R. Crim. Proc. 1(b)(3)(A), which defines that term to include “judges of the courts

of appeals [and] district courts.” 28 U.S.C. § 451.

Despite this clear language, Defendant argues that the 2014 amendments to Rule

12 indicate that plain-error review of an untimely motion is permissible. Before the

amendments, Rule 12(e) (the counterpart of present Rule 12(c)(3)) read: “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.” Defendant interprets the removal of the words waive and

waiver from the Rule in 2014 as signaling a change in the operative standard of review.

Defendant’s argument appears to be as follows: First, the only time a party is

precluded from raising an issue on appeal is when the party has “waived” the issue in the

district court. Otherwise, the party may seek relief for plain error under Fed. R. Crim. P.

52(b) (which states, “A plain error that affects substantial rights may be considered even

though it was not brought to the court’s attention.”). Second, a party waives an issue

only if the failure to raise it is an intentional relinquishment of a known right. Otherwise

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(for example, when the failure to raise an issue was an oversight or mere negligence), the

failure amounts to only a forfeiture, and the issue is reviewable for plain error. Third,

elimination of the word waiver from the Rule indicates that a failure to raise a timely

motion subject to Rule 12 may be a forfeiture, rather than a waiver, and the issue is then

reviewable under plain error.

Defendant’s analysis rests on the false premise that there are only two alternatives

with respect to appellate review of an issue not properly raised by a party: One

alternative is that a party knowingly and intentionally relinquishes a known right, thereby

precluding appellate review. The other is that a party fails to raise an issue by some

action (or inaction) short of a knowing relinquishment of a right, in which case appellate

review for plain error is available. But there are common circumstances in which

appellate review of an issue is precluded even when a party’s failure to raise the issue

was not an intentional relinquishment of a known right. The failure to raise an issue in a

timely fashion may have institutional consequences that justify precluding review even if

the untimeliness was the result of mere oversight or negligence, even when barring

review would be of great consequence to the neglectful party.

For example, failure to file a timely notice of appeal in a criminal case is generally

dispositive whenever the failure is raised by the opposing party. See United States v.

Garduno, 506 F.3d 1287, 1290–91 (10th Cir. 2007) (untimely notice of appeal in

criminal case precludes appellate review if the government raises an untimeliness

objection); cf. Bowles v. Russell, 551 U.S. 205, 211–13 (2007) (untimely notice of appeal

in civil case creates jurisdictional bar to appellate review). Likewise, when a party omits

8
an argument from its opening brief, an appellate court has no obligation to consider that

argument. See United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) (“The

failure to raise an issue in an opening brief waives that issue.”); see also Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an

opening brief generally forfeits appellate consideration of that issue.”). We do not

consider whether the omission was intentional and, if not, review the issue under a plain-

error standard. The expiration of a statute of limitations can also preclude a cause of

action or a claim for postconviction relief even if the delay was not an intentional

relinquishment of that cause of action. See Robinson v. Golder, 443 F.3d 718, 722 (10th

Cir. 2006) (affirming dismissal of habeas application as untimely). And when a party

chooses to pursue litigation instead of arbitration, we have held that it may be barred

from later raising the right to arbitrate if the court litigation has progressed too far, even if

the party has not “intentionally relinquishe[d] or abandon[ed] [its] right” to arbitrate. In

re Cox Enters. Set-top Cable Television Box Antitrust Litig., 835 F.3d 1195, 1205 (10th

Cir. 2016).

To be sure, the Supreme Court has used the two-alternative framework advanced

by Defendant when describing in general the consequences for appeal of a failure to

timely raise an issue. In United States v. Olano, 507 U.S. 725, 732–34 (1993), it held that

failure to timely assert a right ordinarily merely forfeits the issue and the issue can be

reviewed on appeal for plain error; but if the failure to raise the issue was a waiver—that

is, “the intentional relinquishment or abandonment of a known right,” id. at 733 (internal

quotation marks omitted)—appellate review is barred. But Olano does not address

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statutes or rules that preclude appellate review even absent an intentional relinquishment

of a known right.

In particular, Olano did not overrule, or even cite, Davis v. United States, 411 U.S.

233 (1973), which considered the original 1944 version of Rule 12. That version

provided:

Defenses and objections based on defects in the institution of the
prosecution or in the indictment or information other than that it fails to
show jurisdiction in the court or to charge an offense may be raised only by
motion before trial. The motion shall include all such defenses and
objections then available to the defendant. Failure to present any such
defense or objection as herein provided constitutes a waiver thereof, but the
court for cause shown may grant relief from the waiver. . . .

Fed. R. Crim. P. 12(b)(2) (1944), as quoted in 1A Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 190 n.2 (4th ed. 2018) (emphasis added), and 24

Moore’s Federal Practice, § 612.100 (3d ed. 2018) (emphasis added). One might have

questioned whether the term waiver as used in the original Rule required an intentional

relinquishment of a known right and whether the rule had any consequences for appellate

review. But Davis answered those questions: waiver under Rule 12 did not require an

intentional relinquishment of a known right, and a waiver barred appellate (or collateral)

review absent a showing of cause and prejudice.

In Davis the defendant raised a constitutional challenge to the composition of his

grand jury for the first time in a 28 U.S.C. § 2255 postconviction motion. See 411 U.S. at

234. He urged the Court to review his motion because he had not “deliberately bypassed

or understandingly and knowingly waived his claim of unconstitutional grand jury

composition.” Id. at 236 (internal quotation marks omitted). The meaning the defendant

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sought to give waiver matched that later set forth in Olano. See Pet. Br., Davis v. United

States, No. 71-6481, at 23 (Jan. 8, 1973) (arguing that the defendant waived his claim

“only if his failure to comply with Rule 12 is found to be the result of an understanding

and knowing waiver, or a deliberate by-pass”); cf. Davis, 411 U.S. at 245 (Marshall, J.,

dissenting) (contending that failure to timely raise a Rule 12 issue “does not bar” the

claim when the failure was “not an intentional relinquishment or abandonment of a

known right or privilege” (internal quotation marks omitted)).

But the Court rejected that argument, explaining that when a rule “promulgated by

this Court and . . . adopted by Congress, governs by its terms the manner in which the

claims of defects in the institution of criminal proceedings may be waived,” the standard

specified in the rule controls. Davis, 411 U.S. at 241 (internal quotation marks omitted).

The Court thus held that the “cause” standard expressly set forth in Rule 12—not the

Olano-like standard proposed by the defendant—governed. See id. at 242. The Court’s

holding was not confined to the postconviction context; it stemmed directly from the

plain language of Rule 12. See id. at 239–40 (distinguishing Kaufman v. United States,

394 U.S. 217 (1969), a § 2255 case permitting review of an untimely argument raised in

postconviction proceeding, because “the Court in Kaufman was not dealing with the sort

of express waiver provision contained in Rule 12 . . . which specifically provides for the

waiver of a particular kind of constitutional claim if it be not timely asserted”).

Interpreting Rule 12 in this manner, the Court explained, accords with both the

Rule’s origins and good policy. Rule 12 was intended to codify the long-recognized

notion that “defendants who pleaded to an indictment and went to trial without making

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any nonjurisdictional objection to the grand jury, even one unconstitutionally composed,

waived any right of subsequent complaint on account thereof.” Id. at 237 (citing United

States v. Gale, 109 U.S. 65 (1883)). The Rule reflects the view that certain alleged

defects are best raised early in the proceedings when “inquiry into an alleged defect may

be concluded and, if necessary, cured before the court, the witnesses, and the parties have

gone to the burden and expense of a trial.” Id. at 241. Adopting the Olano-like standard

proposed by the defendant, the Court observed, would “perversely negate the Rule’s

purpose by permitting an entirely different but much more liberal requirement of waiver.”

Id. at 242. As the Court explained:

If defendants were allowed to flout [the] time limitations [in Rule
12], . . . there would be little incentive to comply with its terms when a
successful attack might simply result in a new indictment prior to trial.
Strong tactical considerations would militate in favor of delaying the
raising of the claim in hopes of an acquittal, with the thought that if those
hopes did not materialize, the claim could be used to upset an otherwise
valid conviction at a time when reprosecution might well be difficult.

Id. at 241. The Court thought it “inconceivable” that “Congress, having in the criminal

proceeding foreclosed the raising of a claim such as [that raised by the defendant] after

the commencement of trial in the absence of a showing of ‘cause’ for relief from waiver,

nonetheless intended [to permit later review].” Id. at 242. Accordingly, the Court held

that “the necessary effect of the congressional adoption of Rule 12(b)(2) [was] to provide

that a claim once waived pursuant to that Rule [could] not later be resurrected, either in

the criminal proceedings or in federal habeas, in the absence of the showing of ‘cause’

which that Rule requires.” Id. (emphasis added); see Wainwright v. Sykes, 433 U.S. 72,

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84 (1977) (stating that the Court in Davis held that an untimely claim is barred absent

cause “on habeas, as on direct appeal” (emphasis added)).

Davis on its own might be read as permitting review of an untimely claim if either

“cause” or “prejudice” is shown. See 411 U.S. at 244–45. But later decisions make clear

that to excuse a waiver under Rule 12, a defendant must show both cause for his

untimeliness and prejudice suffered as a result of the error. See Sykes, 433 U.S. at 84

(“[W]e concluded [in Davis] that review of the claim should be barred on habeas, as on

direct appeal, absent a showing of cause for the noncompliance and some showing of

actual prejudice resulting from the alleged constitutional violation.” (emphasis added)).

In sum, relevant to this decision Davis establishes that (1) waiver as used in Rule

12 did not require an intentional relinquishment of a known right, and (2) an untimely

argument subject to Rule 12 is not reviewable either in district court or in any subsequent

proceedings absent a showing of an excuse for being untimely.1

As previously noted, Olano did not overrule Davis. It did not even mention Davis.

Nor did it purport to address the meaning or consequence of the term waiver in any

specific rule or statute.2 As the D.C. Circuit nicely explained the point:

1
We need not address what, if any, requirement of prejudice must be satisfied before a
court can consider an excusably tardy Rule 12 motion.
2
Even absent such a rule or statute, Olano recognized that “[w]hether a particular right is
waivable; whether the defendant must participate personally in the waiver; whether
certain procedures are required for waiver; and whether the defendant’s choice must be
particularly informed or voluntary, all depend on the right at stake.” 507 U.S. at 733;
accord Gonzalez v. United States, 553 U.S. 242, 248 (2008) (“What suffices for waiver
depends on the nature of the right at issue.” (internal quotation marks omitted).).

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 Olano and Davis . . . are not inconsistent with each other. Although Olano
indicates that untimely objections are generally regarded as forfeitures
subject to [plain-error review under] Rule 52(b), Davis dictates that
untimely objections that come within the ambit of Rule 12(b)(2) must be
considered waivers and may not be revived on appeal. We cannot conclude
that the Court intended Olano, a case which mentioned neither Rule 12 nor
Davis, to overrule Davis by redefining sub silentio the meaning of the word
“waiver” in Rule 12.

United States v. Weathers, 186 F.3d 948, 957 (D.C. Cir. 1999); accord United States v.

Green, 691 F.3d 960, 964–65 (8th Cir. 2012). Our decision in Burke, 633 F.3d at 990–

91, although it did not cite Davis, likewise held that an untimely argument could be

waived under Rule 12 even if the Olano standard for waiver was not met.

Unfortunately, some appellate decisions concluded that the Olano standard must

be pasted into Rule 12, at least for purposes of appellate review, so that a “waiver” under

Rule 12 did not preclude appellate review unless the waiver was knowing and intelligent.

See, e.g., United States v. Clarke, 227 F.3d 874, 880–81 (7th Cir. 2000); United States v.

Buchanon, 72 F.3d 1217, 1227 (6th Cir. 1995). These courts decided that a Rule 12

“waiver” falling short of an intentional relinquishment of a known right permitted review

on appeal for plain error. But the opinions permitting plain-error review of issues waived

under Rule 12 did not analyze Davis or explain how Olano, which never cited Davis,

nevertheless overruled it.

This confusion about the meaning and consequences of the word waiver led to its

elimination from Rule 12. Under Davis there could be a waiver without satisfaction of

the Olano intentional-relinquishment standard. But the Olano standard had become

dominant in the case law in determining when there had been a waiver, rendering the use

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of that term in Rule 12 idiosyncratic. Consistent use of a legal term of art is good

practice, particularly when there is no need to retain a term with a meaning that differs

from its ordinary sense. The Advisory Committee on Criminal Rules thus decided to

remove the term waiver. As the Advisory Committee Notes explain:

Although the term waiver in the context of a criminal case ordinarily refers
to the intentional relinquishment of a known right, Rule 12(e) has never
required any determination that a party who failed to make a timely motion
intended to relinquish a defense, objection, or request that was not raised in
a timely fashion. Accordingly, to avoid possible confusion the Committee
decided not to employ the term “waiver” in new paragraph (c)(3).

Advisory Comm. Notes to Fed. R. Crim. Proc. 12 (2014); see also Advisory Comm. on

Crim. Rules Report (May 2011) (“May 2011 Report”) at 375 (“Because the ordinary

meaning of waiver is a knowing and intentional relinquishment of a right, the non-

standard use of that term in Rule 12 creates unnecessary confusion and difficulties. . . .

After discussion the Advisory Committee concluded that it would be feasible and

desirable to revise the rule to avoid [using the term waiver].”).

But elimination of the word waiver from the Rule did not change the operative

standard. The Advisory Committee Notes could not be clearer on this point. See

Advisory Comm. Notes to Fed. R. Crim. Proc. 12 (2014) (“New paragraph 12(c)(3)

retains the existing standard for untimely claims. The party seeking relief must show

“good cause” for failure to raise a claim by the deadline, a flexible standard that requires

consideration of all interests in the particular case.” (emphasis added)); see also 1A

Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 193 (4th ed.

2018) (“One immediate benefit of [removing ‘waiver’ from the Rule] is that it allows

15
courts to free themselves from the waiver/forfeiture distinction, and apply instead the

familiar ‘good cause’ standard.”). And the plain text of the Rule still states that review of

any untimely claim subject to Rule 12 is permissible only if the party shows “good

cause.” Fed. R. Crim. P. 12(c)(3). A term to describe that effect—whether it be waiver

or procedural bar or the equivalent—is hardly essential.

Finally, we recognize that the Advisory Committee considered, but ultimately

rejected, new language in Rule 12 expressly excluding plain-error review. But the

omission of that language from the Rule was not because the committee had endorsed

plain-error review. As mentioned above, in the wake of Olano some circuit authority

(misbegotten in our view because of the failure to consider Davis) would apply plain-

error review to untimely Rule 12 claims even in the absence of a showing of good cause.

See, e.g., Buchanon, 72 F.3d at 1227. The Advisory Committee—believing this

application of Rule 12 to be contrary to Davis—proposed amending the language of the

Rule to direct the appellate courts that “Rule 52 does not apply.” May 2011 Report at

376; see id. at 378–79 (explaining that several courts of appeals had interpreted the term

waiver as requiring an intentional relinquishment of a known right and had accordingly

reviewed untimely Rule 12 arguments for plain error, even though “none of the

[Supreme] Court’s cases discussing Rule 52—including Olano v. United States—even

mention Rule 12” (footnote omitted)); id. at 387 (“It would be odd indeed if the

waiver/good cause standard of Rule 12 applied in the district court . . . , but the more

generous plain error standard applied in the court of appeals.”). In later removing that

language from the proposed amendments to the Rule, the Advisory Committee merely

16
wished to avoid debate that threatened to delay or prevent adoption of the rule

amendments. See Advisory Comm. Notes to Fed. R. Crim. Proc. 12, Changes Made

After Publication and Comment (2014) (“[T]he cross reference to Rule 52 was omitted as

unnecessarily controversial.”); Reporters Memo to Advisory Comm. on Crim. Rules at

16–17 (Mar. 2013) (“The Subcommittee weighed the benefits of including this language,

and explicitly mandating a uniform approach in the appellate courts, against the

possibility that objections to this one aspect of the rule might be sufficient to prevent

adoption of the proposal. The Subcommittee concluded that it would be prudent to delete

this language . . . .”) The Committee thus permitted the appellate courts to independently

interpret Rule 12 and determine which standard to apply.

At a minimum, the 2014 amendments did not purport to reject Davis and authorize

plain-error review under the Olano standard even when there was no good cause for the

failure to raise a timely Rule 12 motion. Given the discretion granted the appellate

courts, we would, as a matter of first impression, adhere to the Davis standard. But there

is an even more compelling reason to do so: circuit precedent. In Burke, 633 F.3d at

988–91, we held that the term waiver as used in the Rule before the 2014 amendments

included defaults beyond an intentional relinquishment of a known right. We said that

when an untimely argument subject to Rule 12 is raised for the first time on appeal the

“Rule 12 [good-cause standard], and not Rule 52, applies.” Id. at 988. Because the 2014

amendments did not change the standard for appellate review, Burke remains good law.

See United States v. Vance, 893 F.3d 763, 769 n.5 (10th Cir. 2018) (noting in dictum the

continued vitality of Burke).

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 Several other circuit courts to consider this issue have reached the same

conclusion. See, e.g., United States v. Sweeney, 887 F.3d 529, 534 (1st Cir. 2018)

(refusing to address merits of defendant’s suppression argument subject to Rule 12 when

defendant did not “argue that his delay in filing the motion to suppress was excused by

good cause”); United States v. Martinez, 862 F.3d 223, 234 (2d Cir. 2017) (untimely

argument is excused only where “there is a showing of cause” (internal quotation marks

omitted)); United States v. Fattah, 858 F.3d 801, 807–08 & n.4 (3d Cir. 2017); United

States v. Wheeler, 742 F. App’x 646, 662 (3d. Cir. 2018) (“In this Circuit, suppression

issues raised for the first time on appeal are waived absent good cause under Rule of

Criminal Procedure 12, and Rule 52’s plain error rule does not apply.” (internal quotation

marks omitted)); United States v. Fry, 792 F.3d 884, 888 (8th Cir. 2015) (denying review

of untimely multiplicity challenge when defendant did not show good cause); United

States v. Garcia-Lopez, 903 F.3d 887, 895 (9th Cir. 2018); United States v. Robinson,

724 F. App’x 606, 607 (9th Cir. 2018) (review of defendant’s suppression argument was

precluded when he failed to timely raise it before trial and “further failed to make the

requisite showing of good cause to excuse that failure”); see also United States v.

McMillian, 786 F.3d 630, 635–36 (7th Cir. 2015) (if defendant raises untimely motion to

suppress, court will review for plain error if defendant shows good cause). But cf. United

States v. Burroughs, 810 F.3d 833, 836 (D.C. Cir. 2016) (declining to decide what

standard of appellate review applies after the 2014 amendments).

We recognize that other circuits have said that they would apply plain-error review

to untimely Rule 12 claims raised for the first time on appeal without requiring good

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cause. See, e.g., United States v. Vasquez, 899 F.3d 363, 372–73 (5th Cir. 2018)

(interpreting the deletion of “waiver” from Rule 12 as signaling that an untimely

argument under the Rule may be forfeited rather than waived and would be reviewable

for plain error); United States v. Robinson, 855 F.3d 265, 270 (4th Cir. 2017) (court will

not review untimely duplicity challenge absent showing of good cause or plain error);

United States v. Sperrazza, 804 F.3d 1113, 1119 (11th Cir. 2015) (because amended Rule

12 makes no mention of “waiver,” a defendant merely forfeits his claim by raising it in an

untimely fashion, and it is subject to plain-error review); United States v. Soto, 794 F.3d

635, 652, 655 (6th Cir. 2015) (reasoning that the removal of “waiver” from the Rule

indicates that an untimely Rule 12 motion does not “waive” a defendant’s claim unless

defendant has intentionally relinquished a known right). But see United States v.

Williams, 544 F.2d 1215, 1217 (4th Cir. 1976) (requiring good cause). In our view,

however, those opinions either misinterpret waiver as requiring an intentional

relinquishment of a right (a result contrary to Davis), or misinterpret the removal of that

term from the Rule as changing the appellate standard of review (despite the statement in

the Advisory Committee Notes that untimely claims are still subjected to the same

standard).3 Moreover, they fail to rebut the compelling policy reasons set forth in Davis

for requiring a showing of good cause before permitting appellate review. See Davis, 411

3
Absent the language in the committee note, there would be a better argument that failure
to make a timely Rule 12 motion might sometimes be merely a forfeiture and the
appellate court could review for plain error. See Burke, 633 F.3d at 991 (supporting our
holding that good cause must always be shown by noting that the term waiver had not
been removed from Rule 12). But we believe that such an argument would still fail.

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U.S. at 241 (“If defendants were allowed to flout [Rule 12’s] time limitations, . . . there

would be little incentive to comply with its terms when a successful attack might simply

result in a new indictment prior to trial. Strong tactical considerations would militate in

favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if

those hopes did not materialize, the claim could be used to upset an otherwise valid

conviction at a time when prosecution might well be difficult.”); May 2011 Report at 388

(“[I]f the courts of appeal revert to Rule 52’s plain error standard when a Rule 12 claim is

raised for the first time on appeal, the effect is to give the defendant a more lenient

standard to satisfy than he would have faced if his motion were late but still made in the

district court. This is an illogical result if Rule 12’s policy of requiring certain motions to

be made before trial is to have any real meaning.”).4 Finally, we note that requiring good

cause to excuse an untimely claim subject to Rule 12 does not leave a defendant without

a remedy. There is always the possibility of a postconviction claim based on counsel’s

possible ineffectiveness in failing to timely raise an argument.

In sum, we will not review an untimely Rule 12 argument absent good cause.

Because Defendant raised his untimely argument before the district court, and the district

court ruled that Defendant failed to demonstrate good cause, we review that ruling for

4
One argument made against applying the good-cause standard on appellate review is
that it “may be difficult to apply on appeal if the issue was not first raised at the district
court because review for good cause often requires developing and analyzing facts to
determine whether a defendant has shown good cause for the late filing.” Soto, 794 F.3d
at 655. But the advisory committee noted that the appellate courts have found various
ways to apply the cause standard in that context. See May 2011 Report at 390–91.

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abuse of discretion. See Davis, 411 U.S. at 245 (district court did not abuse its discretion

in finding argument barred under Rule 12); see also 24 Moore’s Federal Practice, §

612.06 (3d ed. 2018) (“For good cause, the court may grant relief from the failure to

timely raise the [Rule 12] motion. The trial court’s decision to grant or deny relief will

not be overturned absent a showing of abuse of discretion.” (footnote omitted)); United

States v. Gonzales, 229 F. App’x 721, 725 (10th Cir. 2007) (“We review the district

court’s decision to decline to hear untimely pretrial motions for an abuse of discretion.”).

Defendant here concedes that he cannot show good cause for his delay. The district court

therefore did not abuse its discretion in denying Defendant’s motion to dismiss.

III. CONCLUSION

We AFFIRM the district court’s denial of Defendant’s motion to dismiss. We

grant Defendant’s unopposed motion to take judicial notice of the record in his prior

appeal.

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