United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Decided January 21, 2016
`
`
`
`Argued October 6, 2015
`
`
`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.
`
`
`
`

`
`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.
`
`in support of
`two arguments
`Burroughs makes
`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.
`
`
`
`
`
`
`
`

`
`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).
`
`
`
`

`
`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
`
`
`
`

`
`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
`
`
`
`

`
`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
`
`
`
`

`
`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
`
`
`
`

`
`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 647-
`56. 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.”).
`
`
`
`

`
`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
`
`
`
`

`
`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.
`
`
`
`

`
`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.
`
`
`
`

`
`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….
`
`
`
`

`
`Id. at 152-53.
`
`13
`
`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).
`
`
`
`
`
`
`
`

`
`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 probable-
`cause 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.