Forfeiting Your Best Arguments on Appeal

Timothy Kowal, Esq.
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December 14, 2020

You have a deep bag of tricks as a respondent on appeal to win affirmance of your judgment. One of those tricks is forfeiture: if appellant did not raise an argument below, it is forfeit on appeal. Done. Dead. Your judgment is affirmed. But in United States v. Ngumezi, No. 19-10243 (9th Cir. Nov. 20, 2020), respondent did not argue forfeiture on appeal, and so forfeited its forfeiture argument, and lost its judgment.

In Ngumezi, officer pulled over defendant for not having any plates on his new car, which had a bill of sale in the windshield. Defendant parked next to a gas pump, obstructing approach from the driver's side. So officer leaned into the vehicle from the passenger side to question defendant. Defendant revealed he had a suspended license, which required police to inventory and tow the vehicle. During the inventory, the officers found a loaded .45 handgun, which defendant was prohibited from carrying due to a prior felony.

At trial, defendant moved to suppress the firearm as the fruit of an illegal search. Defendant argued the officer's reasonable suspicion dissipated when he came in view of the bill of sale in the windshield. The district court rejected that argument.

Defendant also argued that the officer's leaning in the window was an illegal search. That was a better argument. But, defendant did not make that argument in his suppression motion. Instead, defendant made it in his reply brief, buried in a footnote. Defendant having made his argument inconspicuous, the district court apparently did not even reach it.

Defendant was convicted and sentenced to 18 months' prison.

But the 9th Circuit reversed, based on defendant's inconspicuous argument buried in a footnote in its reply brief to its suppression motion. The 9th agreed with defendant that the officer's leaning in the window was an illegal search in violation of the Fourth Amendment. Normally, the Court noted, "a perfunctory request, buried amongst the footnotes, does not preserve an argument on appeal." Coalition for a Healthy Cal. v. FCC, 87 F.3d 383, 384 n.2 (9th Cir. 1996). Given the obscurity of defendant's argument, the Court went on, "had the government argued that the issue was forfeited, we would have been compelled to agree."

But, the Court was forced to acknowledge, appellate counsel did not argue the issue was forfeited. So the Court reached the argument, and, on the merits, reversed.

Takeaway: Before addressing any argument on the merits on appeal, ask yourself if it was properly raised before the trial judge. Forfeiture and waiver issues are common in trial practice, and posttrial practice as well, particularly in Rule 50 motions. Keep a waiver/forfeiture template handy, and routinely note all issues your adversary has waived or forfeited by not timely raising. This will help keep you from forfeiting any forfeiture issues, or waiving any waiver issues.