In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2690
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ONALD L. JOHNSON, also known as
JOSHUA M C G HEE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-CR-121—Rudolph T. Randa, Judge.
A RGUED JANUARY 9, 2012—D ECIDED F EBRUARY 9, 2012
Before FLAUM and K ANNE, Circuit Judges, and C HANG ,
District Judge.
K ANNE, Circuit Judge. Ronald L. Johnson was arrested
on the morning of January 29, 2009, while officers
executed a search warrant at the apartment he shared
The Honorable Edmond E. Chang, United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 11-2690
with his fiancée. Relying upon items found within the
apartment and Johnson’s statements to police officers,
a federal grand jury charged Johnson with possession
of cocaine base with intent to distribute, possession of
MDMA (Ecstasy) with intent to distribute, and posses-
sion of a firearm by a convicted felon. His case was dock-
eted as 09-CR-83 and assigned to the Honorable J.P.
Stadtmueller. Johnson filed a motion to suppress his
statements and the evidence obtained from his apart-
ment based on an alleged Miranda violation. See Miranda
v. Arizona, 384 U.S. 436 (1966). Following an eviden-
tiary hearing, the magistrate judge recommended that
the motion be denied. After Johnson filed his motion
to suppress but before the magistrate judge made
his recommendation, Judge Stadtmueller recused him-
self and the case was reassigned to the Honorable
Rudolph T. Randa. Judge Randa adopted the magistrate
judge’s recommendation denying the motion to sup-
press. On May 27, 2010, Johnson moved for dismissal of
his case, arguing that his trial had not been conducted
within the time requirements of the Speedy Trial Act,
18 U.S.C. § 3162(a)(2). Judge Randa agreed and dismissed
the case without prejudice on June 10, 2010.
On June 22, 2010, a federal grand jury returned another
three-count indictment against Johnson based upon the
same circumstances as Johnson’s first case. This second
case, docketed as 10-CR-121, was again assigned to Judge
Stadtmueller, who presided over the trial but recused
himself prior to sentencing. Although a new motions
deadline was set, Johnson did not file a suppression
motion based on the alleged Miranda violation. Following
No. 11-2690 3
a two-day jury trial, Johnson was convicted of posses-
sion with intent to distribute 50 grams or more of crack
cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and possession of a firearm by a convicted felon in viola-
tion of 18 U.S.C. § 922(g)(1).1 At trial, the government
sought and obtained an aiding and abetting jury instruc-
tion based upon Johnson’s testimony that a man named
“Simon” lived in the apartment and sold crack cocaine
from that address.
On July 21, 2011, Judge Randa sentenced Johnson to
300 months’ imprisonment. In calculating his sentence,
Judge Randa applied an obstruction of justice enhance-
ment pursuant to § 3C1.1 of the Sentencing Guidelines
and determined that Johnson was a “career offender”
based on his prior convictions.
On appeal, Johnson challenges several aspects of his
conviction and sentence, including (1) the denial of his
motion to suppress in the first case, 09-CR-83; (2) Judge
Stadtmueller’s failure to recuse himself sua sponte in
the second case, 10-CR-121; (3) the aiding and abetting
instruction given at trial; (4) application of the obstruc-
tion of justice enhancement; and (5) the finding that
Johnson is a career offender.
First, Johnson argues that the district court should
have granted his motion to suppress in 09-CR-83.
Although case number 09-CR-83 is not before us on
appeal, Johnson asserts that it is proper for us to con-
1
Count Two, possession with intent to distribute MDMA,
was dismissed prior to trial.
4 No. 11-2690
sider the denial of his Miranda argument because the
two cases are essentially one and the same. We disagree
with Johnson’s interpretation. Although the first and
second cases concern the same offenses, there are two
separate indictments and case numbers. Further, the
second case did not proceed as a continuation of the
first. Instead, Johnson had a new arraignment hearing
and new pretrial motion deadlines were set. Thus, we
hold that 09-CR-83 and 10-CR-121 represent two distin-
guishable cases, not one.
Despite the existence of two distinct cases, we are not
necessarily barred from considering Johnson’s Miranda
argument. Because Johnson’s first case was dismissed
without prejudice, he did not have an opportunity
to appeal the district court’s ruling on his motion to
suppress. It is clear from the record, however, that he
could have raised the issue in his second case but failed
to do so. The government asserts that because Johnson
failed to file a second motion to suppress in 10-CR-121,
his Miranda argument is waived. Waiver involves the
intentional abandonment of a known right, United States
v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010), and pre-
cludes all appellate review on that issue, United States v.
Turner, 651 F.3d 743, 747 (7th Cir.), cert. denied, 132 S. Ct.
863 (2011). In contrast, if Johnson’s argument was
merely forfeited in the second case, we may consider the
previously raised suppression issue under plain error
review. “Forfeiture takes place when counsel or a defen-
dant negligently bypasses a valid argument.” Anderson,
604 F.3d at 1001. We assume forfeiture where the gov-
No. 11-2690 5
ernment fails to proffer a strategic justification for a de-
fendant’s decision to bypass an argument. Id. at 1001-02.
The government argues that Johnson intentionally
abandoned his right to renew his Miranda argument in
order to pursue a motion to suppress based on an
alleged Franks violation. See Franks v. Delaware, 438 U.S.
154, 155-56 (1978) (permitting a defendant to challenge
the constitutionality of a search if he can show inten-
tional or reckless misrepresentations in the warrant
affidavit). Although we acknowledge that Johnson
raised a Franks argument in the second case, we see
no strategic basis for choosing to forego a Miranda argu-
ment in order to assert a Franks violation. A defendant
is not forced to choose between asserting one or the
other. In addition, although Johnson’s Miranda argument
was unsuccessful in the first case, there is no strategic
justification for failing to raise the issue in the second
case in order to preserve it for appeal. Accordingly, we
find that Johnson merely forfeited his Miranda argu-
ment, and we may review for plain error.
The government also asserts that Johnson’s argument
is waived under Federal Rule of Criminal Procedure 12(e).
Under that rule, a party waives any motion to suppress
evidence not raised by the court’s motion deadline. But
the rule also provides that “[f]or good cause, the court
may grant relief from the waiver.” Fed. R. Crim. P. 12(e).
Here, although Johnson did not file a new motion to
suppress prior to the deadline set by the district court,
we find there was good cause for his failure to do so.
In the first case, Johnson received a full evidentiary
6 No. 11-2690
hearing on his motion to suppress, which ultimately was
denied. It was reasonable for Johnson to believe that
this denial was the law of the case and Judge Stadtmueller
would not consider an identical suppression motion in
the second case, which involved the same charges, facts,
and attorneys. See United States v. O’Neill, 52 F. Supp. 2d
954, 965-66 (E.D. Wis. 1999) (following the issuance of
a superseding indictment, Judge Stadtmueller held that
the doctrine of the law of the case prevented a defendant
from relitigating a motion to suppress); accord Smith v.
United States, 406 A.2d 1262, 1263-64 (D.C. 1979) (under
law of the case doctrine, the trial court’s ruling on a
pretrial motion to suppress survived a subsequent dis-
missal and applied to a later proceeding involving
identical parties, facts, and charges). Because Johnson
had good cause for not raising the issue, his argument
is not waived under Rule 12(e).
For us to review the denial of Johnson’s motion to
suppress, the record must be supplemented. After filing
his appeal, Johnson moved to modify the appellate
record to include the filings from 09-CR-83 so that he
could pursue his Miranda argument. The motions panel
denied Johnson’s motion on October 17, 2011. Upon
further consideration of the merits of Johnson’s case, we
have determined that this ruling was in error and John-
son’s motion to modify the appellate record should
have been granted.
Accordingly, Johnson’s motion to expand the record
on appeal is now G RANTED and the parties are ordered
to file supplemental briefs addressing the denial of John-
No. 11-2690 7
son’s motion to suppress. The government shall file its
supplemental brief within twenty-one (21) days of the
filing of this opinion. Johnson’s response is due four-
teen (14) days thereafter. We will consider Johnson’s
remaining arguments, if necessary, in our subsequent
opinion addressing the denial of Johnson’s motion to
suppress.
2-9-12