Filed: Jun. 09, 2020
Latest Update: Jun. 09, 2020
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS June 9, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-5085 SCOTT FREDRICK ARTERBURY, Defendant - Appellant. _ Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:18-CR-00056-CVE-1) _ J. Lance Hopkins, Tahlequah, Oklahoma, for Defendant-Appellant. Jeffrey A. Gallant, Assistant United Stat
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS June 9, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-5085 SCOTT FREDRICK ARTERBURY, Defendant - Appellant. _ Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:18-CR-00056-CVE-1) _ J. Lance Hopkins, Tahlequah, Oklahoma, for Defendant-Appellant. Jeffrey A. Gallant, Assistant United State..
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 9, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-5085
SCOTT FREDRICK ARTERBURY,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:18-CR-00056-CVE-1)
_________________________________
J. Lance Hopkins, Tahlequah, Oklahoma, for Defendant-Appellant.
Jeffrey A. Gallant, Assistant United States Attorney (R. Trent Shores, United States
Attorney with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
The federal government twice charged Scott Fredrick Arterbury with the same
crime for the same possession of child pornography. In the original prosecution, the
district court suppressed the child-pornography evidence seized from Arterbury’s
personal computer. The government appealed the suppression order but withdrew its
appeal without filing a brief. Once back in district court, the government obtained an
order dismissing the case without prejudice. Eight months later, in a case involving a
defendant in a different state, this court reversed an order suppressing child-
pornography evidence obtained in reliance on the same FBI search warrant as at issue
in Arterbury’s case. Armed with this decision, the government re-indicted Arterbury
on the original child-pornography charge. Arterbury argued that the court was bound
by collateral estoppel1 to enforce its earlier order suppressing the evidence. But the
court disagreed and later denied the motion to suppress on the merits. We conclude
that the district court erred in its analysis of criminal collateral estoppel.
Accordingly, we vacate its order denying Arterbury’s motion to enforce the original
suppression order, and we remand for the court to enforce its earlier suppression
order.
BACKGROUND
I. Arterbury I
In 2015, the FBI seized an internet server used to operate a child-pornography
website known as PlayPen. The FBI loaded the PlayPen server’s contents onto the
FBI’s server located in the Eastern District of Virginia. The FBI planned to operate
the website to identify PlayPen’s visitors. But the FBI soon encountered an obstacle:
PlayPen ran on the Tor network, which blocked the Internet Protocol (IP) addresses
of its visitors.
1
Though the more modern term is “issue preclusion,” we use “collateral
estoppel” to be consistent with the usage of the district court and parties.
2
The FBI had its own software to overcome this difficulty. The FBI’s software
could surreptitiously install malware on the computer of any PlayPen visitor. The
malware would then obtain the visiting computer’s IP address and relay it back to the
FBI. But because this activity would amount to a search of the user’s computer, the
FBI needed a search warrant.
The FBI obtained the needed search warrant from a magistrate judge in the
Eastern District of Virginia. Backed by the search warrant, the FBI soon installed its
software and placed its malware on the computers of PlayPen-website visitors. After
doing so, the FBI retrieved the IP addresses of hundreds of PlayPen visitors,
including a visitor (later determined to be Arterbury) who had logged on to the
PlayPen site several times between February 20 and March 4, 2015. The FBI issued a
subpoena to this visitor’s internet provider to obtain the physical address associated
with the IP address. In this way, the FBI learned the account holder’s street address
in Broken Arrow, Oklahoma.
With the street address in hand, an FBI agent sought a second search warrant,
this time from a magistrate judge in the Northern District of Oklahoma. This warrant
authorized a search for child-pornography evidence at the Broken Arrow residence
located at that street address. In issuing the search warrant, the court relied on the
agent’s affidavit, which included key information obtained from execution of the
Virginia magistrate’s search warrant. For instance, the agent’s affidavit represented
that a person using an IP address associated with the Broken Arrow street address
had logged on to the PlayPen site several times during the FBI’s investigation. An
3
Oklahoma magistrate judge issued the search warrant. In executing the search
warrant, the FBI found 3,500 images and 270 videos of child pornography on
Arterbury’s computer.
On December 7, 2015, a grand jury sitting in the Northern District of
Oklahoma returned an indictment charging Arterbury with a single count of
possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B), (b)(2). Before the
trial date, Arterbury filed a motion to suppress, arguing that the “magistrate judge in
Virginia exceeded her authority under Fed. R. Crim. P. 41 by issuing a warrant for
property outside her jurisdiction.” R. Vol. I at 39. When the Virginia magistrate
judge issued the search warrant, Rule 41 permitted magistrate judges to issue “a
warrant to search for and seize a person or property located within the [magistrate’s]
district.” 2 Id. at 42 (quoting Fed. R. Crim. P. 41(b) (2015)). Arterbury noted that the
FBI had searched in Oklahoma when it installed malware on his computer and
obtained his IP address. Thus, Arterbury claimed, the Virginia magistrate judge’s
warrant was void ab initio for authorizing a search of property outside the Virginia
magistrate judge’s jurisdiction.
The federal district court assigned Arterbury’s motion to suppress to a
magistrate judge, who, after a hearing, recommended granting the motion. The
district court adopted the magistrate’s recommendation and suppressed the evidence.
2
Rule 41 has since been amended to permit a magistrate judge to issue a
search of electronic storage media outside the magistrate’s district if certain
conditions are met. See Fed. R. Crim. P. 41(b)(6) advisory committee’s note to 2016
amendment.
4
Relying on Rule 41, the district court ruled that the Virginia magistrate judge’s
search warrant was void ab initio. Additionally, the court ruled that the second search
warrant—that is, the Oklahoma search warrant for Arterbury’s home—was likewise
void, because it “would not have occurred had Rule 41(b) been followed.” See id. at
54. Finally, the court ruled that the Leon good-faith exception did not apply, because
the search warrant was void ab initio.
Id. at 55–58 (citing United States v. Leon,
468
U.S. 897 (1984) (holding that suppression is unwarranted when officers have acted in
“good faith” in relying on a defective search warrant)). In sum, the court suppressed
the evidence obtained under both the Virginia magistrate’s search warrant and the
later Oklahoma search warrant.
On July 27, 2016, the government filed a notice of interlocutory appeal. But
before any briefing, the government chose to dismiss its appeal. This court granted
the government’s motion and dismissed the appeal under 10th Cir. R. 46.3(C). The
government then moved the district court to dismiss the indictment without prejudice.
On November 11, 2016, the district court granted the government’s motion.
II. United States v. Workman
As Arterbury’s prosecution sputtered to a dismissal and then lay dormant for
months, the United States Attorney for the District of Colorado was prosecuting
another man, Andrew Workman, on a child-pornography-possession charge also
arising from the FBI’s PlayPen sting. United States v. Workman, 863 F.3d 1313,
1315–16 (10th Cir. 2017). In Arterbury’s wake, Workman filed a motion to suppress,
5
arguing that the search warrant issued by the Virginia magistrate judge had violated
Rule 41. Id. at 1316–17.
On September 6, 2016, the district court granted Mr. Workman’s motion and
suppressed the evidence. United States v. Workman, 205 F. Supp. 3d 1256, 1259 (D.
Colo. 2016), rev’d,
863 F.3d 1313 (10th Cir. 2017). Lacking any Tenth Circuit
precedent on this issue, and partly relying on the district court’s decision in Arterbury
I, the district court concluded that the Virginia magistrate’s warrant had violated Rule
41(b) of the Federal Rules of Criminal Procedure.
Id. at 1266–67. The court also
concluded that the Leon exception did not apply, after deeming the magistrate’s
warrant to be void ab initio.
Id. at 1267. The government appealed the district court’s
order, and this time it (the U.S. Attorney’s Office for the District of Colorado)
maintained the appeal to a final decision from this court.
Workman, 863 F.3d at 1321.
On appeal, this court reversed the district court’s order suppressing the
evidence. Id. We applied the Leon exception to the Virginia magistrate’s warrant.
Id.
at 1317–18.
We assumed without deciding that “the magistrate judge in the Eastern
District of Virginia lacked authority to issue the warrant” and that the “resulting
search was unconstitutional.”
Id. at 1317 (citing United States v. Potts,
586 F.3d 823,
832 (10th Cir. 2009)). Even so, we concluded that Supreme Court precedent
foreclosed Mr. Workman’s argument that the Leon exception did not apply to a
warrant that was void ab initio.
Id. at 1318. In support, we cited two Supreme Court
cases applying the Leon exception when officers, acting in good faith, had relied on
expired warrants mistakenly listed as active.
Id. (citing Herring v. United States, 555
6
U.S. 135 (2009); Arizona v. Evans,
514 U.S. 1 (1995)). Because the Supreme Court
had applied the Leon exception in those circumstances, we concluded that its
precedent “require[d] us to apply the Leon exception even if we were to conclude that
the warrant had exceeded geographical constraints.”
Id. at 1319. We therefore
instructed the district court to deny Mr. Workman’s suppression motion and proceed
with the case.
Id. at 1321.
III. United States v. Arterbury (Arterbury II)
On March 7, 2018, almost nine months after our decision in Workman and
more than fifteen months after the district court dismissed Arterbury’s case, the
government obtained a second indictment from an Oklahoma grand jury, recharging
Arterbury with the original child-pornography offense. Arterbury filed a motion
requesting that the district court enforce its earlier suppression order. According to
Arterbury, the doctrine of criminal collateral estoppel barred the government from
relitigating the suppression issue.
The district court denied Arterbury’s motion. In doing so, the court noted that
the Supreme Court has ruled that the Fifth Amendment’s Double Jeopardy Clause
incorporates some collateral-estoppel principles. United States v. Arterbury
(Arterbury II), 322 F. Supp. 3d 1195, 1200 (N.D. Okla. 2018) (citing Ashe v.
Swenson,
397 U.S. 436, 442 (1970)). But because jeopardy had not attached in
Arterbury’s original prosecution, the court deemed the “operative question” as
“whether criminal collateral estoppel has a source other than the Double Jeopardy
Clause.”
Id. Relying on a string of four cases, the court ruled that it could apply a
7
“due process-oriented, federal rule of criminal collateral estoppel.” Id. at 1201 (citing
Ashe, 397 U.S. at 443; United States v. Oppenheimer,
242 U.S. 85 (1916); United
States ex rel. DiGiangiemo v. Regan,
528 F.2d 1262 (2d Cir. 1975); United States v.
Evans,
655 F. Supp. 243 (E.D. La. 1987)).
Having gotten that far, the court defined the issue before it as one “of first
impression, whether the due process-oriented, federal rule of criminal collateral
estoppel bars [the government] from reprosecuting Arterbury in spite of Workman—
i.e. a statement of controlling authority that overruled the legal basis upon which an
earlier motion to suppress was granted.” Id. at 1203 (some emphasis removed).
Generally, the court noted that collateral estoppel “bars relitigation between the same
parties of issues actually determined at a prior, separate proceeding.”
Id. at 1200
(citing
Ashe, 397 U.S. at 442).
Though the government apparently did not contest that Arterbury could show
that much, it argued that the court should apply an exception to collateral estoppel for
intervening changes in the law. Id. at 1199. The court rejected the proposed
exception, observing that the government had offered no authority that a criminal
collateral estoppel even has such an exception.
Id. at 1203
(pointing out that no such
exception applies to collateral estoppel when applied as part of a Double Jeopardy
Clause analysis). Nor has the government cited supporting authority on appeal. And
even if it had, it would not matter. After all, the pertinent law did not change here.
On that point, we are concerned with “whether . . . legal principles have changed
significantly.” Montana v. United States,
440 U.S. 147, 155 (1979) (emphasis added);
8
see also Klein v. Comm’r, 880 F.2d 260, 263 (10th Cir. 1989) (asking whether “legal
principles have changed significantly” (citing
Montana, 440 U.S. at 153–55)). In our
case, the legal principle at issue is good-faith reliance on a search warrant under
Leon. The same Leon rule applied to the original Arterbury prosecution as applied in
Workman. See Bryant v. Merit Sys. Prot. Bd.,
878 F.3d 1320, 1327–28 (Fed. Cir.
2017) (evaluating an asserted change in law based on whether “pursuing a certain
course of action was unavailable or otherwise futile under the then-controlling
precedent” (citing Blonder–Tongue Labs., Inc. v. Univ. of Ill. Found.,
402 U.S. 313,
350 (1971))).
Having disposed of the change-in-law argument, the court was left to decide
only whether Arterbury had satisfied the “due process-oriented, federal rule of
criminal collateral estoppel.” Arterbury II, 322 F. Supp. 3d at 1203. Here, the court
said that the question “boils down to this: is it fundamentally unfair to defendant, in
light of Workman, for the Court to allow [the government] to reprosecute
Arterbury?”
Id. To aid in resolving this question, the court looked to six “basic aims
of the due-process oriented, federal rule of criminal collateral estoppel”: “(1)
reducing the chance that relitigation of an acquitted act could result in the conviction
of an innocent defendant; (2) promoting finality; (3) promoting judicial economy; (4)
denying the prosecution the opportunity to improve its case for a second trial; (5)
preventing prosecutorial harassment; and (6) preventing prosecutorial forum
shopping.”
Id. at 1203
–04 (citing
Evans, 655 F. Supp. at 245; Note, The Due Process
Roots of Criminal Collateral Estoppel, 109 Harv. L. Rev. 1729, 1732–33 (1996)).
9
After considering these aims, the court ruled “that allowing [the government] to
reprosecute Arterbury is not fundamentally unfair to defendant.” Id. at 1204. For that
reason, the court declined to enforce its earlier suppression order.
On May 9, 2018, Arterbury entered a conditional plea agreement, reserving his
ability to appeal the district court’s order denying his motion to suppress. The district
court accepted Arterbury’s guilty plea and imposed a sentence of thirty-seven months
of imprisonment, to be followed by five years of supervised release. Free on bond,
Arterbury has timely appealed.
DISCUSSION
The district court erred in denying Arterbury’s second motion to suppress and
not enforcing its original order suppressing evidence. Arterbury established the
elements of federal criminal collateral estoppel under the common law. That showing
sufficed, without any need to consider due process, to bar the government from
relitigating the district court’s original suppression ruling.
I. Collateral Estoppel in Criminal Cases
A. Federal Common-Law Collateral Estoppel
In Ashe v. Swenson, 397 U.S. 436, 443 (1970), the Court observed that
“[a]lthough first developed in civil litigation, collateral estoppel has been an
established rule of federal criminal law at least since this Court’s decision more than
50 years ago in United States v. Oppenheimer,
242 U.S. 85 [(1916)].” In
Oppenheimer, the Court applied collateral estoppel without relying on any
constitutional
provision. 242 U.S. at 87–88. Because jeopardy had not attached
10
before dismissal of the first prosecution, the Double Jeopardy Clause did not apply.
Id. at 86–87. And because the Court did not rule on due-process grounds,
id. at 87–
88, the Court must have dismissed the second prosecution based on federal common-
law collateral estoppel. See Loera v. United States,
714 F.3d 1025, 1029 (7th Cir.
2013) (noting that collateral estoppel applies outside of double jeopardy as a
common-law principle—as “very much a common law subject” (internal quotation
marks omitted) (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure § 4403, p. 35 (2d ed. 2002))); see also
Note,
supra, at 1729 (noting that “criminal collateral estoppel has deep roots in British
common law that survived in federal common law”). Though the Double Jeopardy
Clause incorporates collateral-estoppel principles, its doing so does not abrogate
federal common-law collateral estoppel.
B. Collateral Estoppel and the Fifth Amendment’s Double Jeopardy
Clause
In reviewing state convictions in federal court, it matters greatly whether
collateral estoppel is incorporated into a federal constitutional provision. For
instance, in Ashe, the Court reviewed a Missouri conviction of a man first prosecuted
and acquitted in state court of robbing certain players in a poker game, but later
reprosecuted and convicted of robbing a different player at the same game. 397 U.S.
at 437–40. The Court struck down the state conviction under the Double Jeopardy
Clause, ruling that collateral estoppel barred the state from relitigating whether the
defendant had participated in the armed robbery.
Id. at 445–46. Over the years, the
11
Court has continued to shape the double-jeopardy doctrine in cases involving counts
for which juries convicted, acquitted, and hung.3 But these cases are not in play for
Arterbury’s case—everyone agrees that jeopardy never attached during his original
prosecution.
C. Collateral Estoppel and the Fifth Amendment’s Due Process Clause
In cases not implicating the Double Jeopardy Clause, some courts have
considered the possibility of incorporating collateral-estoppel principles into the Due
Process Clause. Any such analysis begins with Oppenheimer. As noted, that case,
with Justice Holmes writing, relied on common-law collateral estoppel, but the Court
hinted that the Due Process Clause might reach collateral-estoppel questions. See 242
U.S. at 87. In response to the government’s position that collateral estoppel extended
no further than the Double Jeopardy Clause, the Court said this: “It cannot be that the
3
See, e.g., Bravo-Fernandez v. United States, 137 S. Ct. 352, 356–57 (2016)
(addressing the preclusive effect of acquitted counts when inconsistent convicted
counts were later vacated on appeal on grounds unrelated to the inconsistency);
Yeager v. United States,
557 U.S. 110, 122 (2009) (addressing the preclusive effect
of acquitted fraud counts on hung insider-trading counts with interrelated facts);
Dowling v. United States,
493 U.S. 342, 348–50 (1990) (addressing the preclusive
effect of facts involved in acquittal of an earlier prosecution for a different offense,
when used under Federal Rule of Evidence 404(b), and whether the defendant
demonstrated that the jury earlier acquitting him necessarily resolved the Rule 404(b)
evidence in his favor, that is, that he was not one of the men who entered the victim’s
home.); United States v. Powell,
469 U.S. 57, 68 (1984) (declining to apply collateral
estoppel from acquitted counts when guilty counts are rationally irreconcilable);
Richardson v. United States,
468 U.S. 317, 318–19, 324–25 (1984) (addressing the
preclusive effect of two drug counts on which the jury hung in combination with an
acquittal on a third drug count); Harris v. Washington,
404 U.S. 55, 55–57 (1971)
(per curiam) (addressing the preclusive effect of an acquittal in a deadly bombing
against family members in a second prosecution for the death of another family
member not included in the first prosecution).
12
safeguards of the person, so often and so rightly mentioned with solemn reverence,
are less than those that protect from a liability in debt.” Id. Because the first
prosecution had ended with a judgment of acquittal (based on an application of the
statute of limitations later rejected in a different case), the Court barred the second
prosecution.
Id. The Court concluded its opinion with these words: “But the 5th
Amendment was not intended to do away with what in the civil law is a fundamental
principle of justice [citation omitted] in order, when a man once has been acquitted
on the merits, to enable the government to prosecute him a second time.”
Id. at 88.
The next significant decision concerning due process and collateral estoppel
was DiGiangiemo, 528 F.2d 1262. This decision, written by Judge Friendly,
concerned a first state prosecution for which jeopardy had not attached (as here, the
government dismissed its case after losing a suppression ruling), followed by a
second prosecution and conviction.
Id. at 1265
, 1271. In this circumstance, the court
remarked that it was “back to the question which the Court left unanswered in Hoag
[v. New Jersey,
356 U.S. 464 (1958)], namely, how far due process, unaided by the
double jeopardy clause, requires a state to apply collateral estoppel in favor of a
criminal defendant.”
Id. at 1265 (emphasis added). Turning to Oppenheimer for help,
the court noted that though there “it was unnecessary to determine . . . whether
application of collateral estoppel on behalf of a criminal defendant was
constitutionally required, overly sensitive ears are not needed to detect due process
overtones in Mr. Justice Holmes’ statement.”
Id. at 1265–66. Even so, because the
13
defendant had not preserved the collateral-estoppel issue in state court, the court
deemed it waived and did not decide the due-process question. Id. at 1266–67, 1270.
A third opinion often cited on the due-process effect on criminal collateral
estoppel is United States v. Evans, 655 F. Supp. 243 (E.D. La. 1987). In that case, a
woman was first prosecuted in federal court in Connecticut and prevailed in
suppressing certain evidence.
Id. at 243. She later was charged with a different crime
in federal court in Louisiana, in which the government sought admission of the
earlier suppressed evidence.
Id. at 243–44. Even though that case involved two
federal prosecutions, the court analyzed the collateral-estoppel issue on due-process
grounds, not simply as a matter of federal common law.
Id. at 244 (reasoning that
“collateral estoppel is doctrinally involved with notions of due process, as well as
double jeopardy”). Relying on DiGiangiemo, the court held that the government was
collaterally estopped on due-process grounds from relitigating the suppression ruling
in the Louisiana court.4
Id. at 244–45.
II. Arterbury’s Case
In Ashe, the Court noted that collateral estoppel “stands for an extremely
important principle in our adversary system of justice. It means simply that when an
issue of ultimate fact has once been determined by a valid and final judgment, that
4
The government contends that Evans is not good law even in its circuit. It
cites Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir. 1987), for the proposition
that “[w]e are unpersuaded, however, by [the defendant’s] attempts to erect a due
process basis, independent of the double jeopardy clause, for the application of
collateral estoppel.” Appellee’s Br. at 24 (internal quotation marks omitted).
14
issue cannot again be litigated between the same parties in any future lawsuit.”5 397
U.S. at 443. The Court further stated that “the rule of collateral estoppel in criminal
cases is not to be applied with the hypertechnical and archaic approach of a 19th
century pleading book, but with realism and rationality.”
Id. at 444. To that end,
collateral estoppel requires two showings before barring re-litigation of an issue: “(1)
the issue to be precluded must have been actually and necessarily decided in the prior
case, and (2) the party against whom collateral estoppel is invoked must have had a
full and fair opportunity in the earlier case to litigate the issue to be precluded.”
Willner v. Budig,
848 F.2d 1032, 1034 (10th Cir. 1988) (per curiam) (citing Ten Mile
Indus. Park v. W. Plains Serv. Corp.,
810 F.2d 1518, 1523 (10th Cir. 1987)). A “full
and fair opportunity” to litigate the issue includes: (1) “that the parties were fully
heard,” (2) “that the court supported its decision with a reasoned opinion,” and (3)
“that the decision was subject to appeal or was in fact reviewed on appeal.”
DiGiangiemo, 528 F.2d at 1265 (internal quotation marks and citation omitted). We
look to these factors to determine if the government is precluded from relitigating the
suppression motion.
Arterbury has satisfied all these requirements. In 2016, the district court
decided the suppression issue after full briefing and argument by the parties. And
after the court suppressed the evidence, the government not only had an opportunity
5
See also Willner v. Budig, 848 F.2d 1032, 1034 (10th Cir. 1988) (per curiam)
(noting that collateral estoppel bars “the relitigation of factual or legal issues that
were decided in a previous case”).
15
to appeal, it did so. For its own reasons, it chose to dismiss its appeal without
briefing it. Having failed to obtain a ruling on appeal, the government now argues
that Arterbury has not shown that his earlier prosecution was finally adjudicated—
because the district court dismissed the case without prejudice.6
Regarding the finality requirement, we turn to Loera, 714 F.3d at 1029. In that
case, Judge Posner noted that in DiGiangiemo “Judge Friendly had pointed out the
paradoxical effects of being picky about the finality of the judgment sought to be
used as collateral estoppel.”
Id. (citing 528 F.2d at 1265–66). Contrasting two
situations in which the trial court had granted a suppression motion—one before trial,
the other after it had begun—Judge Posner declared that “[t]he difference in the stage
of the proceeding at which the judge ruled shouldn’t affect whether the issue can be
revisited in the second proceeding.”
Id. at 1030. He concluded by noting that “[f]or
these purposes, then, the dismissal of the first indictment should be treated as if it
were a final judgment and the evidentiary ruling that the judge made in that first
proceeding should be given collateral estoppel effect.”
Id. We agree with this
reasoning.7
6
The district court mixed the suppression issue with whether the government
could re-prosecute Arterbury. Arterbury II, 322 F. Supp. 3d at 1204.
7
See also B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1301 (10th
Cir. 2008) (“To invoke issue preclusion, there need not be a prior adjudication on the
merits (as is often the case with res judicata) but only a final determination of a
material issue common to both cases.” (internal quotation marks and citation
quotation omitted)); 18A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure § 4434 (3d ed., Apr. 2020 update) (noting
“[r]ecent decisions have relaxed traditional views of the finality requirement by
16
For collateral-estoppel purposes, we note that the government had every
reason to appeal the unfavorable suppression ruling in Mr. Arterbury’s case. The
suppression order sounded the death knell for the government’s case—simply put, no
child-pornography evidence, no prosecution. And as a leading commentator puts it,
“[i]n those jurisdictions where the prosecution may take an interlocutory appeal, it is
quite proper to view the failure to appeal as rendering the pretrial order a final
determination . . . so that the order would be binding even in the event of a dismissal
and reinstitution of the charges.” 6 Wayne R. LaFave, Search and Seizure § 11.2(f)
(5th ed., Oct. 2018 update) (internal quotation marks and citations omitted). Along
the same line, this commentator notes that “if interlocutory appeal is available to the
prosecution but not exercised in a particular case, then surely the prosecution should
not be able to raise with the trial judge those objections to the pretrial ruling he could
have raised by appeal.” Id. (footnote omitted).
Because Arterbury was prosecuted in federal court, he can rely on collateral
estoppel under the federal common law. The district court erred in limiting
Arterbury’s collateral-estoppel claim to a “due process-oriented, federal rule of
criminal collateral estoppel.” Arterbury II, 322 F. Supp. 3d at 1203. Though the Fifth
Amendment’s Double Jeopardy Clause incorporates collateral-estoppel principles, it
does not do so at the expense of federal common-law collateral estoppel. Instead, it
applying issue preclusion to . . . determinations of liability that have not yet been
completed by an award of damages or other relief,” particularly when the issue has
been resolved “by appeal prior to final judgment”).
17
permits a state defendant a federal constitutional challenge in a federal court. See
Smith v. Dinwiddie, 510 F.3d 1180, 1187 (10th Cir. 2007) (noting that “state courts
are constitutionally required to apply principles of collateral estoppel in criminal
cases if and only if the protections of the Double Jeopardy Clause have been
triggered”). Whether this court or the Supreme Court ever holds that the Due Process
Clause incorporates collateral-estoppel principles—an issue we need not and do not
reach today—collateral estoppel under federal common-law collateral estoppel will
remain available to federal defendants.
We conclude that the district court erred by imposing due-process conditions
on Arterbury’s common-law collateral-estoppel defense. When Arterbury established
the elements of collateral estoppel (and asserted it defensively, of course), the district
court was obliged to enforce its earlier suppression order. See Bravo-Fernandez v.
United States, 137 S. Ct. 352, 356 (2016) (“In criminal prosecutions, as in civil
litigation, the issue-preclusion principle means that ‘when an issue of ultimate fact
has once been determined by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.’” (quoting
Ashe, 397 U.S. at
443)). Though a due-process right may affect future cases involving convicted state
defendants unable to rely on federal common-law criminal collateral estoppel,
Arterbury may rely on this defense as a convicted federal defendant.
For these reasons, we conclude that the district court abused its discretion in
not enforcing its earlier suppression order.
18
III. The change-in-law exception to collateral estoppel does not apply here.
In arguing for affirmance, the government asserts that we can resolve this case
by applying a change-in-law exception—even if collateral estoppel applies here. In
short, it argues that “Workman changed the relevant law.” Appellee’s Br. at 19. But
as in the district court, the government has supplied no authority applying the
change-in-law exception to criminal collateral estoppel. And even assuming for
argument’s sake that the change-in-law exception does apply to criminal collateral
estoppel, the exception would not apply here.
Under the civil-law variant of the issue-preclusion doctrine, the change-in-law
exception allows a party to relitigate a previously decided issue when the “controlling
facts or legal principles have changed significantly since” the judgment was issued.
Montana, 440 U.S. at 155; see also Comm’r v. Sunnen,
333 U.S. 591, 600 (1948)
(collateral estoppel applies only when “the controlling facts and applicable legal rules
remain unchanged”). The government claims that Workman changed the law and thus
it is permitted to relitigate the suppression issue.
Any discussion of a change-in-law exception to criminal collateral estoppel
requires an answer to a preliminary question—what suffices as the “law” later
changed? At oral argument, the government asserted that the “law” is the district
court’s 2016 ruling that the Leon good-faith exception does not apply here. As the
“changed law,” the government relies on Workman. This argument fails for two
independent reasons.
19
First, the district court’s 2016 ruling did not establish Tenth Circuit law. The
government provides no authority supporting its position that a district court can set
the “law” for change-of-law purposes. Instead, Workman set the circuit law. To
present a viable change-of-law claim, the government would need a different
situation. For instance, again even assuming the exception applies in criminal cases,
the government might prevail if it had pursued its Arterbury interlocutory appeal to a
defeat, only to have a Workman en banc court go the other direction. The government
offers nothing of the sort.
Second, Workman did not change the law. As Workman itself noted, it
reached its result by applying principles from established Supreme Court cases. In
Workman, we concluded that “the Leon exception applies even if the magistrate
judge had exceeded geographic constraints in issuing the warrant,” rejecting Mr.
Workman’s competing argument as foreclosed by Supreme Court precedent. 863
F.3d at 1318 (citations omitted); see
id. at 1319 (relying on Supreme Court precedent
in
Herring, 555 U.S. at 137, where the Court applied the Leon good-faith exception
when a “third party stated that an outstanding warrant existed even though it had
been recalled,” and
Arizona, 514 U.S. at 4, where the Court similarly applied the
Leon exception when a “third party programmed information into a computer stating
that a warrant had remained even though it hadn’t”).
Workman did not change any governing legal principles—it applied long-
established ones.
20
CONCLUSION
For these reasons, we reverse and remand to the district court with instructions
that it enforce its previously decided suppression order and proceed with the case.
21
