United States v. Robert Fitzgerald
2016 U.S. App. LEXIS 7635
| 4th Cir. | 2016Background
- Fitzgerald was indicted on one count each of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), possession with intent to distribute heroin, and possession with intent to distribute marijuana.
- He moved to suppress evidence and for a Franks hearing; the district court denied both motions after a hearing.
- Fitzgerald rejected a government plea offer and proceeded with an open plea; no written conditional plea agreement was executed.
- During the Rule 11 colloquy the district court and defense counsel discussed that Fitzgerald would not waive his right to appeal the suppression ruling; the prosecutor was largely silent but later said “that’s perfect” after the court completed the colloquy.
- The district court accepted Fitzgerald’s guilty plea and sentenced him to 130 months. Fitzgerald appealed the denial of suppression and Franks motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fitzgerald entered a valid conditional plea under Fed. R. Crim. P. 11(a)(2) | Fitzgerald contends his plea reserved the right to appeal the suppression denial because the court stated he retained that right and the prosecutor did not object | Government contends the record (including prosecutor’s later comment) shows assent to the colloquy and thus to the reservation | No valid conditional plea: Rule 11(a)(2) requires affirmative government consent; silence and “that’s perfect” were insufficient |
| Whether Rule 11(a)(2)’s writing requirement can be satisfied by a clear oral record | Fitzgerald argues the colloquy itself can constitute the requisite “writing” under precedent treating transcript as a writing | Government accepts that an oral record can sometimes suffice but stresses need for affirmative consent | Writing requirement may be relaxed if record unmistakably shows conditional plea, but here the record lacked clarity; writing requirement not effectively met |
| Whether a prosecutor’s silence or ambiguous remark constitutes the government’s consent | Fitzgerald/defense point to prosecutor’s silence during discussion and later “that’s perfect” as consent | Government argues the later comment equated to acceptance of the plea colloquy including reservation | Court holds silence or ambiguous remark is not affirmative consent; Rule 11(a)(2) demands unequivocal governmental assent |
| Whether the plea can be treated as an unconditional, knowing, voluntary plea if conditional plea invalid | Fitzgerald argues he entered plea relying on assurance he could appeal suppression, so plea was not knowingly unconditional | Government urges acceptance of plea as valid unconditional plea | Court finds plea cannot be treated as knowing, voluntary unconditional plea given assurances; judgment vacated and remanded |
Key Cases Cited
- United States v. Smith, 640 F.3d 580 (4th Cir. 2011) (general rule that guilty plea waives nonjurisdictional pre-plea defects)
- United States v. Bundy, 392 F.3d 641 (4th Cir. 2004) (Rule 11(a)(2) requires writing, government consent, and court approval; government consent and court approval are mandatory)
- Franks v. Delaware, 438 U.S. 154 (1978) (standard for challenging warrant affidavits and obtaining a Franks hearing)
- United States v. Ruiz, 536 U.S. 622 (2002) (standards for knowing and voluntary guilty pleas)
- United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997) (government silence is not consent to a conditional plea)
- United States v. Abramski, 706 F.3d 307 (4th Cir. 2013) (oral record can satisfy Rule 11(a)(2) writing requirement when reservation is clear on the record)
- United States v. Yasak, 884 F.2d 996 (7th Cir. 1989) (transcript may serve as a writing for Rule 11(a)(2))
- United States v. Bell, 966 F.2d 914 (5th Cir. 1992) (suggests circumstances where government silence could be sufficient)