That’s a good rule of thumb for every trial attorney — whatever the issue is — because, as a general rule, an issue must be raised in the trial court to be preserved for appeal. Virtually every lawyer knows this. Sadly, however, it is not uncommon for me to meet a prospective client who claims to have a great issue for appeal . . . that his attorney never raised. It is no doubt a sinking feeling for the client to learn that his “can’t lose” issue (as if there were such a thing!) won’t see the light of day.
That sinking feeling has to be exponentially worse when (1) you’ve been sentenced to life imprisonment and (2) you managed to waive two issues. Such is the case in United States v. Mausali, case no. 08-50062 (9th Cir. Jan 11, 2010). Mausali was arrested on various conspiracy charges after planning a crime with a robbery crew that included a government agent, then was tried with a co-defendant after the district court denied the co-defendant’s motion to sever the trials.
On appeal, Mausali asserted that the government had engaged in outrageous conduct because it had essentially masterminded the planned robbery and provided meeting places and equipment for planning it and carrying it out. As the Court of Appeals put it: “Defendant claims that the Government violated his right to due process by supposedly directing the entire criminal enterprise from start to finish and by promoting a crime of violence.”
Mausali claimed that the trial court had an independent duty to dismiss the case, regardless of his failure to raise the issue of outrageous conduct, because the outrageous conduct was disclosed on the face of the indictment. The court cites the policy behind the waiver rule, already adopted by three other circuits with respect to coaims of outrageous government conduct:
The policy behind the rule is sound. Outrageous government conduct claims involve alleged “ ‘defects in the institution of the prosecution’ itself,” questions of law that the court should decide before trial. [United States v.] Nunez-Rios, 622 F.2d [1093] at 1098 (quoting what is now Fed. R. Crim. P. 12(b)(3)(A)); accord [United States v.] Pitt, 193 F.3d [751] at 760. Furthermore, pretrial assertion of the claim permits the trial court to “conduct a hearing with respect to any disputed issues of fact.” Nunez-Rios, 622 F.2d at 1098. Indeed, the Federal Rules of Criminal Procedure require a defendant to “alleg[e] a defect in instituting the prosecution” before trial, Fed. R. Crim. P. 12(b)(3)(A), or else waive the objection on appeal, Fed. R. Crim P. 12(e)[.]
Applying that rationale, the court finds the issue waived because Mausali failed to raise the issue despite having knowledge of the facts for many months before trial.
Secondly, Mausali claimed the trial court erred in refusing the sever the trials, even though he never moved for severance. This time he asserted that moving to sever would have been an “unnecessary formality” in light of the court’s denial of his co-defendant’s motion to sever. That doesn’t get him very far. A failure to renew a motion has been deemed an unnecessary formality, but not a failure to make one in the first instance.
None of this is to say, of course, that Mausali would have prevailed on either argument had the court considered them on the merits. Unfortunately, he’s got a lifetime of wondering ahead of him.
