USA v. Eddie Burrough

Filing

OPINION [1594913] filed (Pages: 14) for the Court by Judge Pillard. [13-3031]

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2015

Decided January 21, 2016
No. 13-3031

UNITED STATES OF AMERICA,
APPELLEE
v.
EDDIE P. BURROUGHS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00033-1)

Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender. Tony Axam Jr.,
Assistant Federal Public Defender, entered an appearance.
Lauren R. Bates, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Vincent H.
Cohen, Acting U.S. Attorney, and Elizabeth Trosman, George
Eliopoulos, and David B. Goodhand, Assistant U.S.
Attorneys.
Before: GRIFFITH, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.

Page 1 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

2
PILLARD, Circuit Judge: Eddie Burroughs appeals the
district court’s denial of his motion to suppress drug-related
evidence police discovered in his home. District of Columbia
police officers initially arrested Burroughs for carjacking.
They searched Burroughs incident to the carjacking arrest and
discovered evidence implicating him in a robbery. As part of
their investigation of the robbery, officers searched
Burroughs’s home pursuant to a warrant and found drugs.
The United States then prosecuted and convicted Burroughs
of three counts of possession of illegal drugs with intent to
distribute them.
Burroughs was never prosecuted for
carjacking; in a preliminary hearing after his warrantless
arrest, the Superior Court of the District of Columbia found
that the police lacked probable cause for that arrest.
Burroughs contends that because the police lacked probable
cause for the arrest that led to the search warrant, the district
court should have suppressed the drug evidence as the fruit of
an illegal arrest.
Burroughs makes two arguments in support of
suppression. First, he argues that the district court was bound
by the superior court’s no-probable-cause determination.
Because Burroughs did not raise that issue before the trial
court and did not demonstrate good cause for that failure, we
assume that plain-error review applies and find none. Second,
Burroughs argues that the district court clearly erred in
finding that Burroughs was one of four suspects who fled
from the stolen car. That finding was not clearly erroneous,
for it was supported by testimony from an officer whose
credibility Burroughs does not contest. The district court’s
finding supplied probable cause for Burroughs’s arrest.

Page 2 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

3
I.
Just after midnight on November 26, 2011, Officer James
Haskel of the Metropolitan Police Department flew in a police
helicopter in pursuit of a suspected stolen car. He tracked the
car to a parking lot (“the upper parking lot”) in a block in
southeast Washington.1 Officer Haskel watched from the air
as four men bailed out of and fled the car. He gave clothing
descriptions for three of the four fleeing suspects and directed
officers on the ground toward them. He reported over the
radio that all the men were running southeast toward a wood
line and that one of them made it to another parking lot within
the block (“the lower parking lot”), which lies southeast of
where the car had stopped. That man was attempting to walk
nonchalantly in the lower parking lot.
Police officers on the ground soon arrested three men
within the block: Burroughs, Cody Hartsfield, and a juvenile.
The juvenile was arrested in the woods between the upper and
lower parking lots. Burroughs was arrested in the lower
parking lot. Hartsfield was arrested east of the upper parking
lot in front of a building identified as either 3425 Sixth Street
or 3425 Fifth Street (the precise street is not relevant). Haskel
facilitated two of the three arrests—that of the juvenile and
one other—by shining light on the suspects from the
helicopter and directing officers on the ground to stop them.
The parties dispute whether the second person Officer Haskel
tracked was Burroughs or Hartsfield. The parties do not
dispute that if Haskel continuously observed Burroughs, the
police had probable cause to arrest Burroughs for carjacking.
1

We grant the government’s motion to take judicial notice of a
Google map. It is a “source[] whose accuracy cannot reasonably be
questioned,” at least for the purpose of identifying the area where
Burroughs was arrested and the general layout of the block. Fed. R.
Evid. 201(b).

Page 3 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

4
II.
After Burroughs was arrested for carjacking but before he
was charged with federal drug offenses, he appeared with
fellow arrestee Hartsfield for a preliminary hearing before a
magistrate judge of the Superior Court of the District of
Columbia. The government’s only witness at that hearing
was Officer Karane Williams, one of the officers who
responded to the suspected carjacking. (She did not testify at
the later suppression hearing in district court.) Officer
Williams did not personally observe Burroughs’s arrest, but
she testified that the suspects’ clothing matched the
descriptions of the suspects Officer Haskel had given from the
helicopter, and that another officer had seen Hartsfield jump
over a fence just before he stopped him. The superior court
found that the police had probable cause to arrest Hartsfield,
but not Burroughs.
Burroughs contends that the federal district judge should
not have decided anew whether there was probable cause for
Burroughs’s arrest because the superior court judge’s finding
that the police lacked probable cause was binding on the
district court. He invokes collateral estoppel and law of the
case. The government argues that Burroughs failed to
preserve any such argument and that therefore we may not
consider it.
We agree that Burroughs did not preserve his preclusion
and law of the case arguments, but take no position on the
consequence of that failure. Whether we are wholly barred
from reviewing unpreserved suppression arguments absent a
showing of good cause or whether we may review them for
plain error is an open question. We need not resolve that
question here, however, because Burroughs has made no
attempt at showing good cause, and even assuming plain-error

Page 4 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

5
review is available, Burroughs has not established that
denying preclusive effect to the superior court’s determination
was plain error.
A.
Burroughs did not timely assert that the district court
was bound by the superior court’s decision. “We have held
that, ‘while a pretrial motion need not state explicitly the
grounds upon which a motion is made, it must contain facts
and arguments that make clear the basis of defendant’s
objections.’” United States v. Hewlett, 395 F.3d 458, 460
(D.C. Cir. 2005) (quoting United States v. Mitchell, 951 F.2d
1291, 1296 (D.C. Cir. 1991)). In the district court, Burroughs
did not argue, much less “make clear,” that the superior
court’s probable-cause determination should be accorded
binding effect. Burroughs characterized his disagreement
with the government as one based on facts, not law. As he
put it, “[t]he government does not disagree on the law
asserted by Mr. Burroughs to support his motion to suppress
based upon an illegal stop. Instead, the government asserts
facts in evidence to support probable cause.” See Reply to
Opposition to Motion to Suppress at 1, United States v.
Burroughs, No. 1:12-cr-00033-JEB-1 (D.D.C. Oct. 31, 2012),
ECF No. 52. Burroughs’s counsel contested the probable
cause for the carjacking arrest by re-canvassing the facts and
asserting that: Burroughs matched only a general suspect
description; at the time Burroughs moved to suppress, no
officer had seen him either in or exiting the stolen car; he did
not behave suspiciously; and he was not in close physical
proximity to the stolen car when he was arrested.
It is true that Burroughs and his counsel mentioned the
superior court’s probable-cause determination in each of their
three filings (including Burroughs’s supplemental, pro se

Page 5 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

6
reply), but never did they mention “collateral estoppel,”
“issue preclusion,” “law of the case,” or any of the elements
of those doctrines, or otherwise suggest that the superior
court’s probable-cause determination bound the federal
district court. The closest Burroughs came to asserting
preclusion was urging the district court to reach the same
conclusion as the superior court—that there was insufficient
evidence to support probable cause. He stated, for instance,
“[t]here was no more probable cause to arrest him on the day
he was arrested than there was on the day of his preliminary
hearing.” See Reply to Opposition to Motion to Suppress at
3. He also stated, “[t]here is no need to revisit the probable
cause determination and the government still have not m[et]
the standards for probable cause in their response.”
Supplemental Pro Se Reply Motion to Suppress at 8, United
States v. Burroughs, No. 1:12-cr-00033-JEB-1 (D.D.C. Oct.
31, 2012), ECF No. 53, ex. 1. Those statements make plain
that Burroughs pointed to the superior court’s conclusion as
potentially persuasive; he did not argue that it was preclusive.
B.
It is not settled whether Burroughs’s failure to raise the
preclusion argument in his suppression motion bars us
altogether (in the absence of good cause) from reviewing it on
appeal, or whether we may give it limited review for plain
error. We have not expressed a consistent position on the
standard of review of unpreserved claims, such as this one,
that come within the ambit of Federal Rule of Criminal
Procedure 12. Rule 12 requires parties to make certain
motions in advance of trial, including motions identifying
defects in an indictment (e.g., multiplicity) or instituting a
prosecution (e.g., venue, delay), or motions seeking to
suppress evidence. We have declined to review suppression
arguments that defendants had not raised before trial when

Page 6 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

7
defendants failed to show good cause for their failure to do so.
See Hewlett, 395 F.3d at 460-61; see also United States v.
Peyton, 745 F.3d 546, 551-52 (D.C. Cir. 2014) (describing
this practice).
But we have also considered whether
unpreserved claims involve any plain error. See, e.g., United
States v. Eiland, 738 F.3d 338, 350 (D.C. Cir. 2013). Our
treatment of other issues under Rule 12 has also been
inconsistent. For instance, sometimes we have reviewed for
plain error claims, not raised before trial, that a defendant was
impermissibly charged more than once for the same offense,
see, e.g., United States v. Kelly, 552 F.3d 824, 829 (D.C. Cir.
2009) (reviewing unpreserved double jeopardy challenge for
plain error), but at other times we have refused to do so, see
e.g., United States v. Weathers, 186 F.3d 948, 952-58 (D.C.
Cir. 1999) (reading Rule 12’s reference to “waiver” as
effectuating waiver rather than forfeiture of an unpreserved
multiplicity challenge). We are not the only circuit to have
struggled with Rule 12 in this way. See United States v. Soto,
794 F.3d 635, 649 & n.8 (6th Cir. 2015) (citing cases) (“Rule
12(e) caused great confusion among circuit courts about how
the rule restricts appellate review. Prior to the 2014 rule
revision, we were inconsistent as well.”).
Rule 12 was recently amended in a manner that may
affect appellate review. Until 2014, Rule 12 stated that “[a]
party waives” pretrial motions covered by the rule by not
raising them before the court’s deadline for those motions.
Fed. R. Crim. P. 12(e) (effective until Dec. 1, 2014). In such
a situation, “the court” was permitted to “grant relief from the
waiver” only for “good cause.” Id. The current version of
Rule 12, which governs this appeal,2 no longer uses the term
2

The new version of Rule 12 applies to Burroughs’s case because
his case was pending when the new rule took effect. See Supreme
Court Order Amending Fed. R. Crim. P. 12 (Apr. 25, 2014) (“[T]he
foregoing amendments to the Federal Rules of Criminal Procedure

Page 7 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

8
“waiver.” It states instead: “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(c)(3).
Some circuit courts have read the newly amended version
of Rule 12—in particular, the deletion of the reference to
“waiver”—to permit plain-error review when a defendant did
not intentionally relinquish a claim within Rule 12’s ambit,
even if the defendant has not offered good cause for his or her
failure to timely raise it. See United States v. Sperrazza, 804
F.3d 1113, 1118-21 (11th Cir. 2015); Soto, 794 F.3d at 64756. Other circuits review unpreserved Rule 12 issues only
when the defendant has made a showing of good cause,
regardless of whether the defendant intentionally declined to
raise those issues. See United States v. Daniels, 803 F.3d 335,
351-52 (7th Cir. 2015); United States v. Anderson, 783 F.3d
727, 741 (8th Cir. 2015). Here, we need not decide which
standard applies.
Under the waiver-absent-good-cause
standard, Burroughs has made no showing of good cause that
would allow us to reach his argument. See United States v.
Williams, 773 F.3d 98, 105 n.3 (D.C. Cir. 2014). And even if
Rule 12 does permit us, absent good cause, to review
Burroughs’s unpreserved preclusion argument for plain error,
Burroughs would have to show that the error was plain.
C.
Burroughs has not carried his burden to establish that the
district judge plainly erred in finding probable cause for the
same arrest after the superior court found that there was none.
shall take effect on December 1, 2014, and shall govern in all
proceedings in criminal cases thereafter commenced and, insofar as
just and practicable, all proceedings then pending.”).

Page 8 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

9
It is not “clear” or “obvious,” United States v. Olano, 507
U.S. 725, 734 (1993), that the district court was precluded by
either law of the case or collateral estoppel from evaluating
anew whether the police had probable cause to arrest
Burroughs for carjacking.
Indeed, quite the opposite is true when it comes to law of
the case. That doctrine holds that a “legal decision made at
one stage of litigation, unchallenged in a subsequent appeal
when the opportunity to do so existed, [governs] future stages
of the same litigation, and the parties are deemed to have
waived the right to challenge that decision at a later time.”
United States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009)
(quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739
(D.C. Cir. 1995)) (alterations in original). As the government
correctly notes, Burroughs is seeking to bind the courts across
different cases. Thomas makes clear that the law of the case
doctrine only applies within the same case. See id.
The question whether collateral estoppel applies to the
superior court’s probable-cause determination is more
difficult. Burroughs cites no case from this court or the
Supreme Court confirming that a probable-cause
determination in a preliminary hearing is entitled to preclusive
effect in an ensuing criminal prosecution. That does not
doom Burroughs’s effort, for errors can be plain even in the
absence of binding case law. See In re Sealed Case, 573 F.3d
844, 851 (D.C. Cir. 2009). But Burroughs does not succeed
here because there is no “absolutely clear legal norm,” id.
(quotation marks omitted), establishing his claim. Neither the
District of Columbia’s rule nor the federal rule expressly
gives preclusive effect to probable-cause determinations. See
D.C. Sup. Ct. Crim. R. 5(d); Fed. R. Crim. P. 5.1(f). Criminal
collateral estoppel is generally “an integral part of the
protection against double jeopardy guaranteed by the Fifth

Page 9 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

10
and Fourteenth Amendments.” Harris v. Washington, 404
U.S. 55, 56 (1971) (per curiam). Given that jeopardy had not
yet attached when Burroughs was before the superior court
for a determination of probable cause, see Martinez v. Illinois,
134 S. Ct. 2070, 2074 (2014) (per curiam), it is unclear
whether any estoppel effect would have yet materialized. We
need not and do not say for sure whether it had; it suffices that
it is not plain that a probable-cause determination made in a
preliminary hearing binds a judge in a subsequent criminal
proceeding.
III.
Burroughs also contends that, in any event, the district
court erred in finding that the police had probable cause to
arrest him. “We review the district court’s ‘findings of
historical fact only for clear error and . . . give due weight to
inferences drawn from those facts,’ as well as to the district
court’s determination of witness credibility.” United States v.
Bookhardt, 277 F.3d 558, 564 (D.C. Cir. 2002) (quoting
Ornelas v. United States, 517 U.S. 690, 699 (1996)). We
review de novo the district court’s legal determination that
there was probable cause. Ornelas, 517 U.S. at 697, 699.
The district judge denied Burroughs’s motion to suppress
the evidence found in the search of his home, because the
police had probable cause to arrest Burroughs for carjacking.
The court made a factual finding that Burroughs was one of
the men who had fled the stolen car. Key to that finding was
the district judge’s determination that Officer Haskel
“testified very credibly” that he never lost sight of a man who
exited the stolen car and ran from the upper parking lot
through the woods to the lower parking lot where Burroughs
was arrested. Hr’g Tr. 153.

Page 10 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

11
At the hearing, Officer Haskel traced on a map the path
he observed one suspect take from the upper parking lot to the
lower parking lot. He testified that he shined his light on the
suspect, “directed the officers to stop that guy,” and saw the
officers “put their hands on him.” Hr’g Tr. 37. When Officer
Haskel was asked, “did you ever lose sight of [the man
stopped in the lower parking lot] between the bailout and the
time he was stopped,” he answered, “[n]o.” Hr’g Tr. 65. A
different officer, Jeffrey Wade, testified that Burroughs was
detained in the lower parking lot, right where Officer Haskel
had indicated he saw the suspect stopped. Officer Wade
testified that he had learned from other officers that
Burroughs had been stopped as he was walking away from the
woods shortly after the bailout. The district judge found that
Officer Haskel’s testimony was further corroborated by the
helicopter radio recording, in which Haskel described seeing a
suspect run southeast through the woods to a parking lot and
then walk nonchalantly into the parking lot.
Burroughs contends that Officer Haskel’s testimony does
not support the district court’s factual finding that Burroughs
was one of the men in the stolen car because that finding is
contradicted by other evidence suggesting that Officer Haskel
facilitated Hartsfield’s arrest rather than Burroughs’s.
Burroughs points to the fact that Officer Haskel can be heard
in a recording of the helicopter’s radio telling someone to
“[s]top that guy right there,” seconds before an officer on the
ground known only as “Officer 750” stated, “3425, I got one
stopped.” J.A. 116. It is not disputed that Hartsfield was
arrested near a building numbered 3425.
The only
permissible conclusion that follows from that excerpt of the
recording, says Burroughs, is that the man Haskel testified he
was watching was not him, but Hartsfield.

Page 11 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

12
Burroughs does not, however, contest the district court’s
finding that Officer Haskel testified credibly that he aided in
Burroughs’s arrest. See Oral Arg. Tr. 11:16-11:38 (“[Judge
Griffith:] So you just have to disbelieve Haskel. Your version
of events, you just can’t believe Haskel. [Counsel for
Burroughs:] No, our argument, our version of events is that
the government failed to explain this discrepancy and it was
their burden to do so.”); see also id. at 6:20-6:43 (“[Judge
Pillard]: Do we have to, in order to find for your client, hold
that…the district judge was clearly erroneous to the extent
that he found that Haskel was watching Burroughs the whole
time? [Counsel for Burroughs]: No you don’t.”). The court’s
finding that Officer Haskel credibly and accurately testified
that he tracked Burroughs from bailout to arrest suffices to
support probable cause.
The district judge acknowledged that Officer Haskel’s
testimony that he facilitated Burroughs’s arrest was “difficult”
to “square” with the part of the radio recording that can be
understood to suggest that Officer Haskel instead assisted in
Hartsfield’s arrest. Hr’g Tr. 152. That recording, however,
was reconcilable with Officer Haskel’s testimony. Indeed, the
district judge offered examples of how. The district judge
observed, for example, that Officer Haskel and Officer 750
may not have been talking to each other about the same arrest.
He explained,
[Y]ou’ve got a number of people on the air with each
other, they’re not exactly speaking to each other, it’s
not a clear conversation. And therefore, maybe when
[Officer 750 says], “3425 I got one stopped,” [he] is
not responding to Haskel’s “Stop that guy right
there,” but [to] a different stop, [to] the stop of Mr.
Hartsfield….

Page 12 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

13
Id. at 152-53.
Burroughs contends that the evidence does not support
the district court’s explanation. According to Burroughs, the
government did not resolve “critical evidentiary
contradictions” about which arrest Officer Haskel aided—
contradictions he asserts the government could not resolve
without calling as witnesses the officers who arrested
Burroughs and Hartsfield. Appellant Br. 30-31.
We disagree. The government carried its burden to
establish probable cause by eliciting what was, in the district
court’s view, credible and persuasive testimony that Officer
Haskel facilitated the arrest of the suspect Officer Wade
identified as Burroughs. Officer Haskel’s testimony, coupled
with Officer Wade’s identification, furnished adequate
support for the district court’s ultimate factual finding that
Burroughs was one of the four men who fled the stolen car.
That finding is bolstered by the radio recording in which
Officer Haskel described the flight of a suspect toward the
lower parking lot where Burroughs was arrested.
Burroughs is right that it is possible to read other parts of
the radio recording and conclude that Officer Haskel could
have assisted only in either Burroughs’s or Hartsfield’s arrest,
but not both, and that the arrest he assisted was Hartsfield’s.
But it is also possible to conclude from the record—including
Officer Haskel’s testimony, which the district court
credited—that Officer Haskel facilitated Burroughs’s arrest.
“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564,
574 (1985).

Page 13 of 14

USCA Case #13-3031

Document #1594913

Filed: 01/21/2016

14
IV.
For the foregoing reasons, we hold that Burroughs did
not establish good cause for not raising his preclusion
argument before the district court and, assuming plain-error
review applies, the district court did not plainly err by failing
to give preclusive effect to the superior court’s probable-cause
determination. And because the district court’s probablecause determination rested on a factual finding that was not
clearly erroneous, we affirm the district court’s denial of
Burroughs’s motion to suppress.
So ordered.

Page 14 of 14