United States Court of Appeals For the Seventh Circuit
Criminal Procedure — waiver
Where the defendant was recharged after a case against him was dismissed without prejudice, and he filed a motion to suppress in the first case, he did not waivet the issue by not filing an identical motion in the second case.
“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 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 dismissal 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).”
Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Kanne, J.