Rule 12 Claims Now Reviewable for Plain Error

Failure to raise Rule 12 motions before appeal will result in a forfeiture (not a waiver) of the claim on appeal. In United States v. Soto (a multi-defendant appeal), one defendant failed to raise a severance claim until appeal. Under Circuit precedent, such a claim would have been waived. See, e.g., United States v. Walden, 625 F.3d 961, 967 (6th Cir. 2010). But that precedent relied on a previous version of the Federal Rules of Criminal Procedure. After analyzing the text of the 2014 Rule and the history of the Advisory Committee’s consideration of the new text, the Sixth Circuit held that the defendant had merely forfeited his severance motion, not waived it. The panel then decided to apply plain error review to the claim. Unfortunately, the defendant could not overcome the plain error standard. But the Soto case opens forfeited Rule 12 claims to appellate review.

The case above is United States v. Soto, 13-2300 (6th July 24, 2015).


Unknown said...

Congratulations to Kevin on winning this point.

Unknown said...

In United States v. Lanier, 13-5703 (6th Cir. Aug. 13, 2005), the Sixth Circuit reverted to its waiver position (inconsistent with the current version of Rule 12). But in Lanier, the argument may not have survived the waiver provision of the Speedy Trial Act.