Filed: Apr. 27, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4795 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT FITZGERALD, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:13-cr-00605-GLR-1) Argued: March 22, 2016 Decided: April 27, 2016 Before TRAXLER, Chief Judge, and Wilkinson and Keenan, Circuit Judges. Vacated and remanded by published opinion. Chief Judge Traxler
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4795 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT FITZGERALD, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:13-cr-00605-GLR-1) Argued: March 22, 2016 Decided: April 27, 2016 Before TRAXLER, Chief Judge, and Wilkinson and Keenan, Circuit Judges. Vacated and remanded by published opinion. Chief Judge Traxler ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4795
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT FITZGERALD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:13-cr-00605-GLR-1)
Argued: March 22, 2016 Decided: April 27, 2016
Before TRAXLER, Chief Judge, and Wilkinson and Keenan, Circuit
Judges.
Vacated and remanded by published opinion. Chief Judge Traxler
wrote the opinion in which Judge Wilkinson and Judge Keenan
joined.
ARGUED: Michael Alan Wein, Greenbelt, Maryland, for Appellant.
Michael Clayton Hanlon, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Andrew R. Szekely,
LAW OFFICES OF ANDREW R. SZEKELY, LLC, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, H.
Brandis Marsh, Jr., Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
TRAXLER, Chief Judge:
With assurance from the district court that he was not
waiving his right to appeal the court’s earlier denial of a
suppression motion, Robert Fitzgerald pled guilty to one count
each of possessing a firearm as a felon, possessing heroin with
intent to distribute, and possessing marijuana with intent to
distribute. See 18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a). He
now appeals his convictions, arguing that the district court
erred in denying the suppression motion. He alternatively
contends that if he did not preserve his right to appeal the
denial of the motion, we should vacate his guilty plea. Because
we agree with Fitzgerald’s alternative position, we vacate his
convictions and remand for further proceedings.
I.
A Maryland grand jury returned an indictment against
Fitzgerald for one count each of possessing a firearm as a
felon, possessing heroin with intent to distribute, and
possessing marijuana with intent to distribute. During pretrial
proceedings, Fitzgerald moved to suppress certain evidence and
moved for a Franks hearing regarding what he alleged to be
knowing and material false statements in an application for a
warrant to search Fitzgerald’s residence. See Franks v.
Delaware, 438 U.S. 154 (1978). After taking testimony and
hearing argument, the district court denied his motions.
2
Fitzgerald later rejected a plea offer made by the
government but nonetheless indicated his willingness to enter an
“open plea” to the charges in the indictment. The parties
therefore moved forward without a written agreement, and no
writing addressed issues that would be preserved for appeal.
On April 15, 2014, Fitzgerald appeared before the district
court to plead guilty, and the district court began its Rule 11
plea colloquy. Of particular significance to this appeal was a
discussion between the court, defense counsel, and Fitzgerald
concerning what appellate rights Fitzgerald would retain after
pleading guilty. Defense counsel stated that he was sure that
Fitzgerald did not wish to waive his right to appeal his
sentence, and the court confirmed that he was not waiving that
right. The following exchange then took place:
[DEFENSE COUNSEL]: And it certainly is one of
the reasons the Court might guess that he wants to
appeal is to take up the issue of the suppression
hearing, and I think he’s hearing you say maybe he’s
waiving that by entering a plea of guilty, and that’s
not the case.
Do you understand?
THE COURT: Right. So, in other words, if I end
up accepting your plea of guilty in this case, and I’m
asking you all these questions, it could be that your
ability to argue that your plea was not entered into
both a knowing and voluntary manner would be to a
certain extent compromised, because you’re
acknowledging that you’re entering into it in a
knowing and voluntary manner right now.
3
Do you understand what I am saying?
S.S.A. 33. When Fitzgerald stated he did not understand,
defense counsel took a moment to confer with his client, after
which Fitzgerald initially stated that he had no further
questions regarding how his decision to plead guilty would
affect his ability to appeal. When Fitzgerald then stated that
he actually had one further question, the court again allowed
him to confer with his attorney, after which counsel stated that
he did not believe any further advice on the topic would be
needed.
Nevertheless, the district court briefly continued on that
subject:
THE COURT: Okay. Now, of course, you retain your
ability to be able to appeal any sentence that I would
impose, because you haven’t waived that.
You retain your right to challenge . . . any
sentence that I end up imposing. You certainly retain
your ability to appeal any decision the Court has made
with regard to a motion to suppress tangible or
derivative evidence to the extent that the Court ruled
against you.
[DEFENSE COUNSEL]: I just do want to put on the
record, it is sort of an appellate issue, that we have
pending in the state courts a petition for writ of
coram nobis, which would attack one of the predicate
convictions, and he would no longer be a career
offender.
I just want to put on the record that nothing we
say in this plea agreement is going to disallow us
from pursuing that if we succeed and bring it back
under Section 2255.
4
S.S.A. 34-35 (emphasis added). The district judge asked the
prosecutor if the government agreed that Fitzgerald would not be
so barred if his attack on his predicate conviction was
successful. The prosecutor, who had previously been silent
throughout the entire discussion of appellate rights, answered
affirmatively.
As the plea colloquy continued, the district court
eventually asked the prosecutor to review the essential elements
of each of the charged offenses and the facts supporting those
elements. At the end of the colloquy, the court asked both
counsel if they believed Fitzgerald had been properly advised.
Defense counsel stated that he did. However, the prosecutor
stated that he believed there needed to be a record made of the
fact that Fitzgerald reviewed and rejected a plea offer from the
government. The court proceeded to question Fitzgerald about
the plea offer, and Fitzgerald stated that he reviewed it with
his attorney, understood it, discussed it with his attorney, and
rejected it. The court then asked the prosecutor, “Anything
else?” S.S.A. The prosecutor responded, “No, Your Honor,
that’s perfect.” S.S.A. 49.
The district court then accepted Fitzgerald’s plea. The
court eventually sentenced Fitzgerald to an aggregate term of
130 months’ imprisonment.
5
Fitzgerald now appeals his convictions, challenging the
denial of his suppression motion and his motion for a Franks
hearing. In their initial briefs to us, both parties assumed
that Fitzgerald’s plea was a valid conditional plea that
reserved his right to appeal these issues. See Fed. R. Crim. P.
11(a)(2). Nevertheless, we ordered the parties to file
supplemental briefs on this question.
II.
A.
The parties both argue that Fitzgerald entered a valid
conditional guilty plea and urge us to address the merits of his
appeal. We conclude, however, that no valid conditional guilty
plea was entered.
It is the general rule that “[w]hen a defendant pleads
guilty, he waives all nonjurisdictional defects in the
proceedings conducted prior to entry of the plea, and thus has
no non-jurisdictional ground upon which to attack that judgment
except the inadequacy of the plea.” United States v. Smith, 640
F.3d 580, 591 (4th Cir. 2011) (internal quotation marks
omitted). However, Federal Rule of Criminal Procedure 11(a)(2)
provides an exception:
With the consent of the court and the government, a
defendant may enter a conditional plea of guilty or
nolo contendere, reserving in writing the right to
have an appellate court review an adverse
determination of a specified pretrial motion. A
6
defendant who prevails on appeal may then withdraw the
plea.
We have explained that the writing requirement “‘ensure[s]
careful attention to any conditional plea’ and [makes] plain to
the parties and the court ‘that a particular plea was in fact
conditional’ as well as ‘precisely what pretrial issues have
been preserved for appellate review.’” United States v. Bundy,
392 F.3d 641, 645 (4th Cir. 2004) (quoting Fed. R. Crim. P. 11
advisory note). The government-consent requirement “‘ensure[s]
that a conditional plea will be allowed only when the decision
of the court of appeals will dispose of the case either by
allowing the plea to stand or by such action as compelling
dismissal of the indictment or suppressing essential evidence.’”
Id. (quoting Fed. R. Crim. P. 11 advisory note (alteration in
original)). And the court-approval requirement similarly
“ensure[s] that ‘the defendant is not allowed to take an appeal
on a matter which can only be fully developed by proceeding to
trial.’”
Id. (quoting Fed. R. Crim. P. 11 advisory note). 1
1 In addition to the rule’s explicit requirements, we
have held that a conditional plea must “be limited to case-
dispositive issues.” United States v. Bundy, 392 F.3d 641, 645
(4th Cir. 2004). This additional requirement serves the
expressed purposes of conditional pleas “to limit the use of
conditional pleas based on two separate, but related, concerns:
first, that the conditional plea promote judicial economy, and
second, that the conditional plea not be employed in a manner
that renders appellate review difficult or impossible.”
Id. at
646.
7
Although Rule 11(a)(2) purports to require that the
reservation of rights to appeal the issues in question be in
writing, we have deemed the writing requirement satisfied when
the reservation is “so clearly shown on the record that there is
no doubt that a conditional plea was agreed to.” United States
v. Abramski, 706 F.3d 307, 314 (4th Cir. 2013) (internal
quotation marks omitted); see also United States v. Yasak,
884
F.2d 996, 1000 (7th Cir. 1989) (“The transcript of the plea
hearing provides a writing of sorts.”). This approach is
consistent with the notion that “an appellate court can pardon
the informalities of a conditional plea so long as the record
demonstrates that the spirit of Rule 11(a)(2) has been
fulfilled.” United States v. Bell,
966 F.2d 914, 916 (5th Cir.
1992). Yet it also “comports with the general rule that
conditions to a plea are not to be implied.”
Bundy, 392 F.3d at
645 (internal quotation marks omitted). 2 In contrast to the
somewhat flexible approach we have taken regarding the writing
requirement, we have noted that “[t]here is no doubt that the
2 Notwithstanding our creation of this exception to the
writing requirement, we emphasize that clearly the better
practice is to set out the reservation of rights in writing.
See United States v. Yasak, 884 F.2d 996, 1000 (7th Cir. 1989)
(“District courts should follow Rule 11’s literal language and
insist on written pleas under Rule 11(a)(2). The parties
likewise should insist on them. This is especially so for
defendants, for they have the most to lose if a plea is held
invalid.”).
8
second and third requirements under the Rule – Government
consent and court approval – are mandatory and cannot be
avoided.” Id.; see also id. (“The Government must affirmatively
agree to the plea, and the district court must exercise its own
judgment in approving it.”).
In this case, even assuming that the rule’s other
requirements were satisfied, the government-consent requirement
was not.
Fitzgerald maintains that the requirement was satisfied
when the prosecutor remained silent during the colloquy in which
the district court stated that Fitzgerald would retain the right
to appeal the denial of his suppression motion. Fitzgerald also
attempts to draw support from the fact that the government takes
the position on appeal that the government-consent requirement
was satisfied. For its part, the government concedes that a
valid conditional plea was entered only if the record
demonstrates its affirmative assent to the conditional nature of
the plea. But the government argues that the record in fact
demonstrates its affirmative assent. We disagree with both
parties.
Initially, we note that while Rule 11(a)(2) does not
explicitly define what amounts to the “consent of . . . the
government,” the rule’s advisory notes are informative. At the
time the rule addressing conditional guilty pleas was
9
promulgated, conditional guilty pleas were already permitted in
a number of circuits, including the Second Circuit. See United
States v. Carrasco, 786 F.2d 1452, 1454 n.3 (9th Cir. 1986). In
United States v. Burke,
517 F.2d 377 (2d Cir. 1975), the Second
Circuit had held that “silence on [the government’s] part is
sufficient assent” to a conditional plea agreement.
Id. at 379.
Rule 11’s Advisory Committee notes explain, however, that Rule
11(a)(2)’s specific requirement that the reservation of the
right to appeal certain issues must be in writing would allow
courts “to avoid entry of a conditional plea without the
considered acquiescence of the government (see United States v.
Burke, supra, holding that failure of the government to object
to entry of a conditional plea constituted consent)”). Fed. R.
Crim. P. 11 advisory note.
This comment indicates that Rule 11(a)(2) was intended to
be “a departure from Burke and an insistence on unequivocal
government acquiescence.” Carrasco, 786 F.2d at 1454 n.3; see
Yasak, 884 F.2d at 999. Accordingly, for the government-consent
requirement to be satisfied, “[t]he Government must
affirmatively agree to the [conditional] plea,”
Bundy, 392 F.3d
at 645, meaning that there must be “direct assent requiring no
inference or implication,” United States v. Pierre,
120 F.3d
1153, 1156 (11th Cir. 1997). See
Bundy, 392 F.3d at 645
(“[C]onditions to a plea are not to be implied.” (internal
10
quotation marks omitted)). “[S]ilence or inaction by the
government is not consent.” Pierre, 120 F.3d at 1156. But see
Bell, 966 F.2d at 916 (suggesting that government’s silence
could be sufficient under certain circumstances).
The record here falls well short of demonstrating
unequivocal government acquiescence to a conditional plea.
Nowhere in the plea colloquy transcript does the court or either
party make reference to a conditional guilty plea or Rule
11(a)(2). 3 The only statement from defense counsel that even
arguably relates to the issue is murky at best. Defense counsel
stated, “[I]t certainly is one of the reasons the Court might
guess that [Fitzgerald] wants to appeal is to take up the issue
of the suppression hearing, and I think [Fitzgerald is] hearing
you say maybe he’s waiving that by entering a plea of guilty,
and that’s not the case.” S.S.A. 33 (emphasis added).
Especially given that the record contains no previous suggestion
that Fitzgerald would somehow reserve the right to appeal that
ruling, it is somewhat unclear whether “that’s not the case”
referred to a belief by Fitzgerald that he retained the right to
appeal or to the district court’s possible suggestion that
Fitzgerald was waiving the right to appeal that issue. No
3 Nor does the record even reflect any statements by
either side prior to the prior colloquy suggesting that
Fitzgerald’s guilty plea would be conditional.
11
clarification immediately followed that would have alerted the
prosecutor that defense counsel was taking the position that
Fitzgerald was retaining the right to appeal that ruling.
The only clear statement concerning Fitzgerald’s right to
appeal the suppression issue came two pages later in the
transcript, after defense counsel had already stated that he did
not believe any further discussion of appellate rights was
needed. The court stated that Fitzgerald retained the right to
“[c]hallenge any sentence that I end up imposing” and “certainly
retain[ed the] ability to appeal any decision the Court has made
with regard to a motion to suppress tangible or derivative
evidence to the extent that the Court ruled against [him].”
S.S.A. 35. Immediately following that statement, defense
counsel raised a separate issue regarding appellate rights, and
the subject of the right to appeal the denial of the motion to
suppress was never revisited.
As we have noted, the government concedes that for there to
be a valid conditional plea, the record must reflect its
affirmative assent to the conditional plea. The government
contends that this affirmative assent came in the form of the
prosecutor’s response to a question asked by the district court
at the end of the plea colloquy. The court had asked the
prosecutor if he believed Fitzgerald had been properly advised
during the plea colloquy, to which the prosecutor responded that
12
he believed there needed to be a record made of the fact that
Fitzgerald reviewed and rejected a plea offer from the
government. The judge then asked Fitzgerald several questions
about the plea offer and Fitzgerald answered them. At that
point, the court asked the prosecutor, “Anything else?” and the
prosecutor answered, “No, Your Honor, that’s perfect.” S.S.A.
49.
The government maintains that the “that’s perfect” comment
represented an acceptance by the prosecutor of the entire Rule
11 colloquy. Since the colloquy included a statement by the
court that Fitzgerald had reserved his right to appeal the
denial of his suppression motion, the government contends the
“that’s perfect” comment constituted an assent to Fitzgerald’s
reservation of rights. We disagree. 4 First of all, it is far
from clear that the “that’s perfect” comment did not simply
refer to the record the court had just finished making
concerning Fitzgerald’s knowledge and consideration of the
government’s plea offer. And even if the prosecutor intended
4 We note that the fact that the government is taking
the position on appeal that the “that’s perfect” comment
satisfied the government-consent requirement is not a substitute
for its actual assent during the district court proceedings.
Rule 11(a)(2) makes clear that the government’s consent is a
precondition for a valid conditional guilty plea. See Fed. R.
Crim. P. 11(a)(2) (“With the consent of the court and the
government, a defendant may enter a conditional plea of guilty .
. . .”). In the absence of assent by the government in the
district court, no conditional guilty plea was validly entered.
13
his “that’s perfect” comment to refer to the entire plea
colloquy, we have already explained that nothing in the record
affirmatively indicates the specificity contemplated by Rule
11(a)(2). Accordingly, it would require inference upon
inference for us even to conclude that the “that’s perfect”
comment demonstrated the prosecutor’s agreement with the judge’s
earlier statement concerning Fitzgerald’s right to appeal the
suppression ruling. Suffice it to say that the “that’s perfect”
statement is far from the “unequivocal government acquiescence”
to a conditional guilty plea that Rule 11(a)(2) requires. We
therefore conclude that the mandatory government-consent
requirement was never satisfied, and the plea on which the
judgment appealed from is based is not a valid conditional plea.
See Bundy, 392 F.3d at 645.
B.
Insofar as Fitzgerald did not enter a valid conditional
guilty plea, the question of whether the district court erred in
denying his suppression motion is not properly before us. See
id. (“Absent a valid conditional guilty plea, we will dismiss a
defendant’s appeal from an adverse pretrial ruling on a non-
jurisdictional issue.”). Nevertheless, we still must consider
whether “an unconditional plea has been entered or” whether “no
valid plea has been entered.”
Id. at 649 (alteration and
internal quotation marks omitted). We may treat Fitzgerald’s
14
plea as unconditional only if he “entered such a plea, including
a waiver of appeal rights, ‘knowingly, intelligently, and with
sufficient awareness of the relevant circumstances and likely
consequences.’” Id. (quoting United States v. Ruiz,
536 U.S.
622, 629 (2002)).
The parties agree that if Fitzgerald’s plea was not a valid
conditional guilty plea, we cannot treat it as a knowing and
voluntary unconditional plea in light of the facts that the
district court apparently understood Fitzgerald’s plea to be
conditioned on his right to appeal the denial of his suppression
motion, and that Fitzgerald entered his plea in reliance on the
assurance that he had preserved that issue. We agree with the
parties on this point. See Pierre, 120 F.3d at 1156.
Accordingly, since we have neither a valid conditional plea nor
a valid unconditional plea, we must vacate the judgment. See
Bundy, 392 F.3d at 649. On remand, Fitzgerald can decide
whether to plead guilty again or whether to proceed to trial.
See
id. at 650.
III.
15
For the foregoing reasons, we vacate the judgment of
conviction and remand for further proceedings consistent with
this opinion. 5
VACATED AND REMANDED
5 We express no opinion regarding the merits of
Fitzgerald’s substantive arguments.
16
