United States of America v. Denzell Russell

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0083p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENZELL RUSSELL,
Defendant-Appellant.
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No. 20-3756
On Petition for Rehearing En Banc.
United States District Court for the Northern District of Ohio at Cleveland;
No. 1:19-cr-00786-2—James S. Gwin, District Judge.
Decided and Filed: April 26, 2022
Before: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges.
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COUNSEL
ON PETITION FOR REHEARING EN BANC: Catherine Adinaro Shusky, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.
The court issued an order. BUSH, J. (pp. 3–9), delivered a separate statement respecting
the denial of the petition for rehearing en banc.
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No. 20-3756 United States v. Russell Page 2
_________________
ORDER
_________________
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision of the case. The petition then was circulated to the full
court. No judge has requested a vote on the suggestion for rehearing en banc.
Therefore, the petition is denied.

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No. 20-3756 United States v. Russell Page 3
_________________
STATEMENT
_________________
BUSH, Circuit Judge, statement respecting the denial of rehearing en banc.
Some criminals “go free because the constable has blundered.” Mapp v. Ohio, 367 U.S.
643, 659 (1961) (quoting People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) (Cardozo, J.)). But
what happens when the constable’s lawyer blunders?
The panel was presented with that rare question here: Denzel Russell moved to suppress
evidence gathered in the search of a car in which he was a passenger. Because he did not own the
car or have a legitimate expectation of privacy in it as a passenger, caselaw is clear that he cannot
bring a Fourth Amendment challenge to the search—he lacked what courts call Fourth Amendment
standing. See Rakas v. Illinois, 439 U.S. 128, 133–34 (1978). But the government did not make
that argument below; instead, the district court raised it sua sponte as an alternative reason to deny
Russell’s motion.
The government then asked the panel here to affirm the denial of the suppression motion
solely on the district court’s standing theory—the very same ground the government had forfeited
below. That request is understandable. We have twice held in published decisions that we can
correct the government’s forfeited error on appeal under Federal Rule of Criminal Procedure 52(b),
which says that “[a] plain error that affects substantial rights may be considered even though it
was not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
We did so first in the sentencing context. See United States v. Barajas-Nunez, 91 F.3d 826
(6th Cir. 1996). In Barajas-Nunez, a district court relied on improper factors to support a
downward departure of 49 months, and the government failed to object. Id. at 830, 833. Instead,
the government raised its objection for the first time in its opening appellate brief. Id. at 829, 830.
We concluded that the objection was forfeited, but we reviewed for plain error under Rule 52(b),
citing United States v. Olano, 507 U.S. 725, 731 (1993). Id. at 830. And we reversed, finding that
the “extraordinary downward departure” affected the substantial rights of the government and

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people of the United States to have a defendant sentenced “in accordance with the legal principles
of the sentencing guidelines.” Id. at 833.
Judge Siler dissented from that holding. He noted the well-established definition of
“substantial rights” when Rule 52(b) was promulgated, which focused on preventing prejudice to
the defendant. That focus was in serious tension with the Barajas-Nunez majority’s finding of
plain error for the government’s benefit, which would ultimately cause prejudice to the defendant.
Id. at 835–36 (Siler, J., concurring in part and dissenting in part). As Judge Siler saw it, the
government’s forfeited objections should be resuscitated only when the law changes while an
appeal is pending. Id. Yet the majority declined to “assume that either the Olano Court or the
drafters of [Rule 52(b)] intended that only defendants and never the government should be able to
demonstrate that a plain error affected substantial rights.” Id. at 833; see also United States v.
Jackson, 207 F.3d 910, 923 (7th Cir. 2000) (Wood, J., concurring in part and dissenting in part)
(citing Barajas-Nunez as a possible rare case when a plain error “might” have “a serious effect on
the fairness, integrity, or public reputation of judicial proceedings”).
The Barajas-Nunez majority’s reasons for giving the government the benefit of Rule 52(b)
were twofold. First, the text itself makes “no distinction between the government and defendants.”
Barajas-Nunez, 91 F.3d at 833. But perhaps more importantly, the Barajas-Nunez majority
concluded that the government has a right to secure a correct sentence. Id. Or as a sister circuit
put it, the government has a “right to seek justice on behalf of the accuser, and society, in a criminal
case,” and that right could be substantially affected when a sentence is erroneously low. United
States v. Dickerson, 381 F.3d 251, 257 (3d Cir. 2004). So at least for plain sentencing errors, we
held that the government can raise objections for the first time on appeal. Barajas-Nunez, 91 F.3d
at 833. And it eventually became the “majority view” that the government can seek plain-error
review of a forfeited sentencing objection. See Dickerson, 381 F.3d at 257 (collecting cases).
We considered the issue next in United States v. Noble, 762 F.3d 509 (6th Cir. 2014), which
extended Barajas-Nunez beyond the sentencing context. That case also involved whether a
defendant had Fourth Amendment standing. Id. at 526. As here, he lacked standing to challenge
the search. Id. Also, as here, the government missed its chance to make that argument at the

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district court. Id. at 526–27. But it also failed to raise the argument in its opening brief on appeal,
so we held (and the government admitted) that it had “waived” the issue. Id. at 527, 528.
That holding first required us to determine that the government even could waive its
argument that the defendant lacks Fourth Amendment standing. Because “Fourth Amendment
standing is akin to an element of a claim and does not sound in Article III,” we held that waiver
was possible. Id. at 527 (citing Rakas, 439 U.S. at 139).
We next decided “how to treat” that waiver. Id. at 527–28. Rather than adopt a bright-line
rule—either that the standing issue is always waived when the government fails to raise it or that
it can always be raised on appeal because the defendant bears the burden to prove standing—we
looked to the plain-error rule. Id. (citing Barajas-Nunez, 91 F.3d at 830). Failure to raise this
standing argument at the district court was a forfeiture, so “we would allow the government to
raise” it on appeal if it could “show that the defendant plainly lacked standing and that our failure
to recognize it would seriously affect the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 528 (cleaned up). But because the government failed to raise the issue in its
opening brief on appeal, we held the objection waived. Id.
Now, “pick[ing] up where Noble left off[,]” we reaffirm here that the government’s
forfeited standing arguments are reviewable under the plain-error standard. Russell, 26 F.4th at
375. We have disclaimed concern that Russell cannot adequately respond to the government’s
new argument; for “he has the burden of proving standing in the first place.” Id. And as to the
plain-error inquiry, we conclude that Russell plainly lacks standing, that a suppression-induced
dismissal of the government’s case against Russell would affect the government’s substantial
rights, and that allowing Russell to benefit from the exclusionary rule would “lead to a rightfully
diminished view of the judicial proceeding.” Id. at 377–79. So we affirm the district court. Id. at
379.
The panel admits that “plain error is an odd fit here.” Id. at 376. Looking at how the
Supreme Court interpreted Rule 52(b) in Olano makes it easy to see why. That case spells out
four basic requirements for plain-error review. First, the appellate court must find error, which
occurs when “a legal rule was violated during the district court proceedings” and “the defendant

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did not waive the rule.” Olano, 507 U.S. at 733–34 (emphasis added). That error must be plain—
“clear under current law.” Id. at 734. Further, to prove that the error affected substantial rights,
“the defendant must make a specific showing of prejudice.” Id. at 735. Finally, “Rule 52(b) is
permissive, not mandatory,” because courts generally notice forfeited errors when “the life, or as
in this case the liberty, of the defendant is at stake[.]” Id. at 735–36 (citing Sykes v. United States,
204 F. 909, 913–14 (8th Cir. 1913)). That discretion can be exercised when an error “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)).
By applying Olano’s defendant-centric requirements to the government’s forfeited errors,
courts have forced a square peg into a round hole. Doing so required concluding that the drafters
of Rule 52(b) made no distinction between the government and defendants when it came to
substantial rights. See, e.g., Barajas-Nunez, 91 F.3d at 334; Russell, 26 F.4th at 378 (citing
Barajas-Nunez for the proposition that the government has a substantial right to Russell’s
punishment). But “‘substantial rights,’ as described in Olano, are those rights of the defendant at
bar[.]” Barajas-Nunez, 91 F.3d at 836 (Siler, J., concurring in part and dissenting in part); Jackson,
207 F.3d at 923 (Wood, J., concurring in part and dissenting in part) (“Assistant U.S. Attorneys
do not serve prison time as a result of error.”). So, in my view, we should reconsider our answer
to whether the drafters of Rule 52(b) intended for defendants and the government alike to invoke
the plain-error rule.
We could start by asking what the drafters thought they were doing. They called Rule
52(b) “a restatement of existing law.” Fed. R. Crim. P. 52, 1944 Advisory Committee on Rules
notes. Likewise, one member of the advisory committee contemporaneously said that the rule
simply “states the doctrine of plain error.” Wendell Berge, Proposed Federal Rules of Criminal
Procedure, 42 Mich. L. Rev. 353, 381 (1943). Outside observers agreed. Judge John B. Sanborn
of the Eighth Circuit—the author of the Sykes case cited in Olano, see 507 U.S. at 735–36—opined
in the public-comment period that the proposed rule was “substantially a correct statement of the

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law and the prevailing practice.” 2 Drafting History of the Federal Rules of Criminal Procedure
274 (Madeline J. Wilken & Nicholas Triffin eds., 1991).1
So what was that established law and practice?
The plain-error doctrine was meant to “relieve the harshness” of the default rule that when
a party fails to raise an issue before a district court, an appeals court will not consider it. Advisory
Committee on Rules of Criminal Procedure, Federal Rules of Criminal Procedure: Preliminary
Draft with Notes and Forms 198 (1943) (citing Robinson & Co. v. Belt, 187 U.S. 41, 50 (1902));
accord Olano, 507 U.S. at 731 (noting that although “[n]o procedural principle is more familiar to
this Court than that a constitutional right, or a right of any other sort, may be forfeited” when not
raised to a district court, Rule 52(b) grants “a limited power to correct errors that were forfeited”
(cleaned up)). If a plain error was “committed in a manner so absolutely vital to defendants,” the
Supreme Court found itself “at liberty to correct it.” Wiborg v. United States, 163 U.S. 632, 658
(1896); accord Clyatt v. United States, 197 U.S. 207, 221–22 (1905). A 1909 decision explained
the basics of the doctrine:
In criminal cases courts are not inclined to be as exacting with reference to the
specific character of the objection made as in civil cases. They will, in the exercise
of a sound discretion, sometimes notice error in the trial of a criminal case, although
the question was not properly raised at the trial by objection and exception.
Crawford v. United States, 212 U.S. 183, 194 (1909);2 see also Weems v. United States, 217 U.S.
349, 362 (1910) (holding that the forfeiture rule “is not a rigid one” and expressing “less reluctance
1One contemporary did argue that the rule “enlarge[d] the power of the prosecutor”—but not because it let
the government invoke the plain-error doctrine itself. William Scott Stewart, Federal Rules of Criminal Procedure,
372–73 (1945). Rather, he thought that the rule made it harder for defendants to invoke the doctrine by codifying a
narrow reading of the current law and practice. In his view, “an appeal will be futile, unless the upper court is
convinced, by such record as a defendant is permitted to make, that” the defendant is innocent, he has not waived his
right to complain, and the error is the only reason for his conviction. Id.
2Writing fifteen years after the Crawford decision, one commentator stated that the plain-error rule “is
predicated upon the doctrine that where life or liberty of citizens is at stake and gross errors are made which are
seriously prejudicial and result in the miscarriage of justice, the appellate court will consider questions vital to the
defendant not raised and properly preserved by objection, exception, request or assignment of error.” Elijah N. Zoline,
Federal Appellate Jurisdiction and Procedure, with Forms, § 124 at 75–76 (2d ed. 1924).

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to act under it when rights are asserted which are of such high character as to find expression and
sanction in the Constitution or Bill of Rights”).3
Maybe the most oft-cited description of the plain-error doctrine was United States v.
Atkinson, which held that “[i]n exceptional circumstances, especially in criminal cases, appellate
courts, in the public interest, may, of their own motion, notice errors to which no exception has
been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” 297 U.S. at 160 (citing N.Y. Cent. R.R. Co. v. Johnson,
279 U.S. 310, 318 (1929) (correcting plain error where “paramount considerations are involved”);
Brasfield v. United States, 272 U.S. 448, 450 (1926) (“The failure of petitioners’ counsel to
particularize an exception to the court’s inquiry does not preclude this court from correcting the
error. This is especially the case where the error . . . affects the proper relations of the court to the
jury, and cannot be effectively remedied by modification of the judge’s charge after the harm has
been done.” (citations omitted)).
Conspicuously absent from this summary of “existing law” is any case in which an
appellate court stepped in to protect the government from the consequences of its errors. Likely
because, as the above sources reveal, “[i]t is the special deprivation of liberty resulting from a
criminal sentence that justifies relieving a defendant of the consequences of a forfeited objection.”
Jackson, 207 F.3d at 923 (Wood, J., concurring in part and dissenting in part); accord Olano, 507
U.S. at 735–36. But “no such deprivation occurs for the government,” id., so I resist how easily
our court and others have allowed the government to invoke its own substantial right to a successful
prosecution. Neither Rule 52(b) itself nor the Supreme Court opinions interpreting it seem to
embrace that conclusion.
Perhaps a final comment in closing most clearly evokes how far our interpretation of Rule
52(b) has strayed from what was apparently its original meaning. While the proposed federal
3Defining the “rights” protected by the plain-error rule as tantamount to those protected by the Constitution
or Bill of Rights is revealing. Those rights are held by individuals and asserted against the government—not held by
the government to be asserted against individuals. When courts developed the plain-error doctrine, it seems clear that
individual rights were front of mind. So it seems equally clear that, as Judge Siler put it, the substantial rights protected
by the plain-error rule belong to individual defendants in individual cases. Barajas-Nunez, 91 F.3d at 836 (Siler, J.,
concurring in part and dissenting in part).

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criminal rules were being considered in 1943, U.S. Attorney for Colorado Thomas J. Morrissey
defined a “plain error” as “those errors which the appellate court laboriously digs out of the record
when the appellate court thinks the case should be reversed, even though the attorney for the
appellant failed to find them.” 3 Drafting History of the Federal Rules of Criminal Procedure 540
(Madeline J. Wilken & Nicholas Triffin eds., 1991). Morrissey was frustrated, it seems, that the
Rule would advantage defendants by codifying a one-sided mechanism for the reversal of
convictions hard-won by the government. Yet that was the price Rule 52(b) accepted for
preventing defendants from languishing in prison for obvious errors their counsel failed to raise.
Eighty years later, we have reconfigured Rule 52(b) in a way that Morrissey might have
preferred, but that he recognized the Rule itself did not codify. In the appropriate case, we should
ask whether that reconfiguration was the right one and reconsider the Barajas-Nunez line of
authority.
ENTERED BY ORDER OF THE COURT
___________________________________
Deborah S. Hunt, Clerk

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