United States v. Robert Osborne ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10404
Plaintiff-Appellant, D.C. Nos.
4:14-cr-02058-RCC-DTF-1
v. 4:14-cr-02058-RCC-DTF-2
4:14-cr-02058-RCC-DTF
ROBERT C. OSBORNE,
Defendant-Appellee. MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted January 14, 2022
Pasadena, California
Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.
Dissent by Judge BUMATAY
The United States appeals the district court’s suppression of two patient files
that a federal agent allegedly obtained from the Arizona Medical Board. The district
court granted defendant Dr. Robert Osborne’s motion to suppress evidence, but the
court’s order focused on the government’s unlawful search of Dr. Osborne’s office
and did not address whether the two patient files were lawfully obtained from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Medical Board, which the government asserts was an independent source untainted
by the government’s search of Dr. Osborne’s office. The government does not
appeal the district court’s ruling as to the search of Dr. Osborne’s office (which
contained approximately 200 medical files, including the two at issue) but argues
that the district court erred in suppressing the two files allegedly obtained from the
Medical Board on an independent basis. We have jurisdiction under 18 U.S.C.
§ 3731. We affirm.
To begin, it is questionable whether the government sufficiently preserved its
independent source argument in the district court when it initially raised it. The only
place it argued this issue was in one paragraph of its 59-page brief in opposition to
Dr. Osborne’s motion to suppress, which the government filed in 2016. Even then,
the point was tucked within a broader argument section of the government’s brief
relating to the search of Dr. Osborne’s office. A passing reference to an issue is
insufficient to preserve it. See, e.g., George v. Morris, 736 F.3d 829, 837 (9th Cir.
2013) (issue not preserved because, while plaintiffs “made passing references to
th[e] defense, they did not develop it in their briefing below” or reference it at oral
argument); Handa v. Clark, 401 F.3d 1129, 1132 (9th Cir. 2005) (“[A] mere passing
reference to a [] claim is not sufficient to . . . preserve the claim for our review.”).
The government points out that Dr. Osborne’s reply brief in support of his motion
to suppress responded to the independent source argument and addressed the issue
2
in greater depth than the government did. But the government cites no authority for
the proposition that a party preserves an issue for appeal based merely on the briefing
of its opponent.
Even assuming the government sufficiently raised the independent source
argument in 2016, to preserve it, the government then abandoned that issue through
its actions and inaction over the next four years of litigation in the district court.
Following its 2016 reference to this argument, the government did not mention it
during the roughly four years of proceedings that followed. A party can abandon an
argument in the district court by failing to pursue it. See BankAmerica Pension Plan
v. McMath, 206 F.3d 821, 826 (9th Cir. 2000) (“A party abandons an issue when it
has a full and fair opportunity to ventilate its views with respect to an issue and
instead chooses a position that removes the issue from the case.”); United States v.
Lyman, 592 F.2d 496, 499 (9th Cir. 1978) (holding where there is “no court ruling
for us to review” on an issue because the party “failed to pursue the question and
obtain a decision,” that issue is abandoned).
That is what happened here. The district court conducted extensive
proceedings on Dr. Osborne’s motion to suppress, which were focused on the
government’s search of Dr. Osborne’s office. But the government never raised the
independent source issue during three evidentiary hearings, which took place on
December 12, 2017; July 10, 2018; and October 8, 2019. After the evidentiary
3
hearings were complete, both sides submitted post-hearing briefing. But the
government did not raise the independent source issue in its 27-page post-hearing
brief, nor is there any indication the government raised it during the January 7, 2020
oral argument before the district court.
Given that the government devoted its defense against Dr. Osborne’s motion
to suppress to the issue of the search of Dr. Osborne’s office, the government
provides no basis for us to conclude that the district court should have recalled an
argument that the government made in one paragraph of its original 59-page
opposition some four years earlier. That is especially the case because the
government never again reminded the district court that it had made an independent
source argument as to two files. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (“[J]udges are not like pigs, hunting for truffles buried in briefs.”) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)).
Moreover, although the government was not required to file a motion for
reconsideration after the district court’s adverse ruling, it in fact did do so, but it
again failed to raise the independent source issue. Nor did it inform the district court
that the government believed the district court had overlooked an issue that had been
properly raised. The government’s failure to raise the independent source issue in
its motion for reconsideration only confirms our conclusion that the government
abandoned this argument.
4
In its reply brief on appeal, the government states that Dr. Osborne’s position
would “promote inefficient repetition that would neither be helpful nor appreciated
by the district court.” But we cannot accept this argument on the facts of this case.
As we have made clear, “a party cannot treat the district court as a mere ill-placed
bunker to be circumvented on his way to this court where he will actually engage his
opponents.” Handa, 401 F.3d at 1132.1
The government argues that even if it abandoned the independent source
argument, we should still exercise our discretion to address the issue. Under our
precedents,
[w]e will exercise our discretion to reach waived issues only in three
circumstances: [1] in the exceptional case in which review is necessary
to prevent a miscarriage of justice or to preserve the integrity of the
judicial process, [2] when a new issue arises while appeal is pending
because of a change in the law, and [3] when the issue presented is
purely one of law and either does not depend on the factual record
developed below, or the pertinent record has been fully developed.
1
Our fine dissenting colleague maintains that “we’ve not found abandonment under
the circumstances here.” But abandonment is a fact-bound inquiry, and the cases
the dissent cites are far afield of this one. In Walker v. Beard, 789 F.3d 1125 (9th
Cir. 2015), we found that a plaintiff’s argument on appeal was merely “an
elaboration of his initial argument” in his pro se complaint, which was to be liberally
construed. Id. at 1133. Here, by contrast, the government does not attempt to add
more specifics to an overarching legal theory; it attempts to resurrect an entirely
different legal theory that it ignored for four years. Our decision in California River
Watch v. City of Vacaville, 14 F.4th 1076 (9th Cir. 2021), is also inapposite. That
case merely reiterated that “[a]ppealing only one of several alternative theories
argued to the district court is hardly an uncommon practice and is not a basis to find
forfeiture.” Id. at 1079. That basic point says nothing about whether the
government’s particular actions and inactions here over a period of years led to
abandonment of the independent source issue in the court below.
5
Mercury Interactive Corp. Sec. Litig. v. Mercury Interactive Corp., 618 F.3d 988,
992 (9th Cir. 2010) (quotations omitted).
None of these grounds is available here. The first ground is largely foreclosed
by the district court’s finding that the government engaged in substantial misconduct
in searching Dr. Osborne’s office, a ruling that the government does not challenge
on appeal. The government also has not explained why the two medical files are
critical to its case against Dr. Osborne or what these medical files would show. From
Dr. Osborne’s perspective, moreover, there is obvious prejudice associated with
conducting further proceedings on a wholly different Fourth Amendment issue than
the one the parties had been litigating in a case in which Dr. Osborne was indicted
in 2014.
The remaining grounds for reaching an abandoned issue are not applicable
either. There is no intervening change in the law here. Nor is the issue purely one
of law based on a developed factual record. In large part because the government
abandoned the argument, there is a limited record on the independent source issue
and the circumstances by which the government obtained the medical files from the
Medical Board.2 And given the district court’s broader concerns about the
government’s conduct in this case—which the government did not challenge on
2
The dissent’s contention that the district court in 2016 “had everything it needed to
rule on the independent source doctrine” issue is therefore not accurate.
6
appeal—addressing the independent source issue outright on appeal is neither
appropriate nor justified.
AFFIRMED.
7
FILED
United States v. Robert Osborne, No. 20-10404 JAN 28 2022
BUMATAY, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I disagree with the majority that the government failed to preserve its
independent source argument.
The government’s briefing papers adequately raised the independent source
argument. In its response to Robert Osborne’s motion to suppress, the government
maintained that the patient files for Julia Barnett and Shirhea Miller should not be
suppressed based on the independent source doctrine. In its briefing to the district
court, the government asserted:
Regardless of probable cause, this Court should not suppress the
evidence contained in the patient files for Julia “Brandy” Barnett or
Shirhea Miller. As explained above, the agents in this case obtained
complete copies of those files from an independent source, the Arizona
Medical Board. See Segura [v. United States], 468 U.S. [796,] 804
[(1984)]. Indeed, they obtained Barnett’s patient file a few months
before obtaining the warrant to search Robert Osborne’s medical office.
These patient files should not be suppressed because agents also
received them from a third party source untainted by any illegality with
respect to the search warrant. See Wong Sun [v. United States], 371
U.S. [471,] 488 [(1963)].
The two patient files also should not be suppressed based on the
doctrine of inevitable discovery. See [United States v.] Ruckes, 586
F.3d [713,] 718 [(9th Cir. 2009)]. The agents would have discovered
(an in fact did discover) the patient files absent a constitutional
violation. See id. There is no deterrent value in suppressing evidence
when it was available to and obtained by investigators though other
means, in this case, the Arizona Medical Board. Therefore, the patient
files for Barnett and Miller should not be suppressed.
In the background section of its reply, the government gave the factual predicates
1
for its independent source argument:
The agents in this case also obtained copies of the patient files for Miller
and Barnett from the Arizona Medical Board. On November 27, 2012,
the Arizona Medical Board provided a copy of Barnett’s patient file to
agents in response to a letter request from the United States Attorney’s
Office in Tucson. On September 25, 2014, the medical board provided
a copy of Miller’s patient file to agents pursuant to grand jury
subpoenas.
Osborne understood that the government was raising an independent source
exception to his motion to suppress since he devoted four pages to the argument in
his reply. In fact, Osborne gave the subject its own subsection, entitled “Evidence
Derived from Patient Files of Julia Barnett and Shirhea Miller.”
Given this procedural history, the government adequately raised and
preserved its independent source argument. The district court had the facts, the law,
and Osborne’s response to the claim. So it had everything it needed to rule on the
independent source doctrine.1 Under these facts, I see no reason for this court to
ignore the argument.
Contrary to the majority’s conclusion, this was no mere “passing reference”
to the independent source argument. Maj. at 2. The government gave a full-blown
argument and Osborne aptly responded to it. To be sure, the argument appeared on
two pages of the government’s 59-page opposition to suppression, but there’s no
1
The majority insists this assertion is “not accurate,” but fails to explain why.
Maj. at 6 n. 2. If the district court felt the record was insufficient to determine the
origin of the medical files, it could have ruled that way.
2
page-length requirement to preserve an argument on appeal. And I am aware of no
Ninth Circuit rule saying that arguments “tucked within a broader argument section”
may not be appealed to our court, as the majority suggests. Maj. at 2.
Indeed, our caselaw shows the opposite. In a recent opinion of the court, we
found that a party’s argument was properly preserved when it included a legal theory
as an alternate argument in briefing in the district court. See California River Watch
v. City of Vacaville, 14 F.4th 1076, 1079 (9th Cir. 2021). In that case,
environmentalists raised an alternate theory of liability in several sentences within
its summary judgement papers. Id. The theory wasn’t the group’s primary argument
before the district court and the district court never directly ruled on the precise
argument. Id. The environmental group appealed purely on that alternative
argument. The defendant argued waiver, but we concluded that “[a]ppealing only
one of several alternative theories argued to the district court is hardly an uncommon
practice and is not a basis to find forfeiture.” Id.And we’ve not found abandonment under the circumstances here. As we’ve
said, abandonment only occurs in “situations in which a litigant deliberately declined
to pursue an argument by taking a position that conceded the argument or removed
it from the case.” Walker v. Beard, 789 F.3d 1125, 1133 (9th Cir. 2015). In Walker,
we found that a party preserved an argument on appeal by not including a “set of
facts at odds with it” in the initial complaint, providing language that “suggests” the
3
theory, and then “elaborat[ing]” on the theory on appeal. Id. The bottomline in
Walker: if the party didn’t “‘choose a position’ removing [the argument] from the
case or conceding it,” then there was no abandonment. Id. The government here
never deliberately took a position removing the independent source doctrine from
the case or conceding it.2
I am unaware of a case, and the majority cites none, that says that a party must
re-raise an argument multiple times to stave off abandonment. See Maj. at 3. And
in my view, it was immaterial that the district court proceedings lasted four years.
As Osborne conceded at oral argument, some of that delay was at his request and to
his benefit. So we need not alter our rules for appellate review based on the length
of proceedings in the district court.
While “judges are not like pigs, hunting for truffles buried in briefs,” Maj. at
4 (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)), neither are we like
ostriches, burying our heads in the sand to ignore arguments squarely in front of us.
I would thus find that the government’s independent source argument was preserved
and properly before this court. And since the district court did not address it, I would
remand for it to consider in the first instance.
2
The majority suggests that Walker is inapplicable because the arguments of
pro se plaintiffs are to be liberally construed. Maj. at 5 n.1. But the abandonment
analysis in Walker did not hinge on the plaintiff’s pro se status, and this court’s
precedents do not imply a distinction.
4
For these reasons, I respectfully dissent.
5