US v. Robert Fitzgerald

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cr-00605-GLR-1. [999805496]--[Edited 04/27/2016 by PSC--opinion pagination corrected]. [14-4795]

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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.

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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

Fitzgerald
felon,

for

grand
one

possessing

jury

count

returned

each

heroin

of

with

an

indictment

possessing
intent

to

a

against

firearm

as

distribute,

possessing marijuana with intent to distribute.

a

and

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
Delaware,

to

search

438

U.S.

Fitzgerald’s
154

(1978).

residence.
After

taking

See

Franks

testimony

hearing argument, the district court denied his motions.
2

v.
and

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Fitzgerald

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later

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rejected

a

plea

offer

made

by

the

government but nonetheless indicated his willingness to enter an
“open

plea”

therefore

to

moved

the

charges

forward

in

without

the
a

indictment.
written

The

agreement,

parties
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.
Fitzgerald

did

Defense counsel stated that he was sure that
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

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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

questions

initially

regarding

how

his

affect his ability to appeal.

stated

that

decision

to

he

had

plead

no

further

guilty

would

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

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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

successful.

his
The

attack

on

prosecutor,

his
who

predicate
had

conviction

previously

been

was

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.
else?”

The court then asked the prosecutor, “Anything

S.S.A.

that’s perfect.”

The

prosecutor

responded,

“No,

Your

Honor,

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

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Fitzgerald

now

appeals

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his

convictions,

challenging

the

denial of his suppression motion and his motion for a Franks
hearing.
that

In their initial briefs to us, both parties assumed

Fitzgerald’s

plea

was

a

valid

conditional

reserved his right to appeal these issues.
11(a)(2).

Nevertheless,

we

ordered

plea

that

See Fed. R. Crim. P.

the

parties

to

file

a

valid

supplemental briefs on this question.
II.
A.
The

parties

both

argue

that

Fitzgerald

entered

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
guilty,

is
he

the

general

waives

rule

all

that

“[w]hen

a

nonjurisdictional

defendant
defects

pleads
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

(internal

580,

591

(4th

Cir.

2011)

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
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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 casedispositive 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

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Although

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Rule

11(a)(2)

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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.”
v.

Abramski,

706

F.3d

307,

314

(4th

Cir.

United States

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
fulfilled.”
1992).

Yet

that

the

spirit

of

Rule

11(a)(2)

has

been

United States v. Bell, 966 F.2d 914, 916 (5th Cir.
it

also

“comports

with

the

conditions to a plea are not to be implied.”
645 (internal quotation marks omitted). 2

general

rule

that

Bundy, 392 F.3d at
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

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second

and

consent

third

and

avoided.”

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requirements

court

approval

under

–

are

the

Rule

mandatory

–

Government

and

cannot

be

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.
valid

For its part, the government concedes that a

conditional

plea

was

entered

only

if

the

record

demonstrates its affirmative assent to the conditional nature of
the plea.
demonstrates

But the government argues that the record in fact
its

affirmative

assent.

We

disagree

while

Rule

11(a)(2)

with

both

parties.
Initially,

we

note

that

does

not

explicitly define what amounts to the “consent of . . . the
government,” the rule’s advisory notes are informative.
time

the

rule

addressing

conditional
9

guilty

At the

pleas

was

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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

government acquiescence.”
Yasak, 884 F.2d at 999.
requirement

to

be

and

an

insistence

on

unequivocal

Carrasco, 786 F.2d at 1454 n.3; see
Accordingly, for the government-consent

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

(“[C]onditions

to

Cir.
a

1997).

plea

are

See
not
10

to

Bundy,
be

392

F.3d

implied.”

at

645

(internal

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quotation

Filed: 04/27/2016

marks

omitted)).

government is not consent.”
Bell,

966

F.2d

at

916

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“[S]ilence

or

inaction

Pierre, 120 F.3d at 1156.

(suggesting

that

by

the

But see

government’s

silence

could be sufficient under certain circumstances).
The

record

unequivocal

here

government

falls

well

acquiescence

short
to

a

of

demonstrating

conditional

plea.

Nowhere in the plea colloquy transcript does the court or either
party

make

11(a)(2). 3

reference

to

a

conditional

guilty

plea

or

Rule

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

Fitzgerald

to
was

the

district

waiving

the

court’s
right

3

to

possible
appeal

suggestion
that

issue.

that
No

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.
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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

needed.

any

further

discussion

of

appellate

rights

was

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

evidence
S.S.A.

to

to
the

35.

a

motion

extent

to

that

Immediately

suppress
the

tangible

Court

following

ruled

or

derivative
[him].”

statement,

that

against

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

affirmative

conditional
assent

to

plea,

the

the

record

conditional

must

plea.

reflect

The

its

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
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he believed there needed to be a record made of the fact that
Fitzgerald

reviewed

government.

and

rejected

a

plea

offer

from

the

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.
court

that

Since the colloquy included a statement by the
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
We disagree. 4

reservation of rights.
from

clear

refer

to

concerning

that
the

the

“that’s

record

the

Fitzgerald’s

government’s plea offer.

perfect”

First of all, it is far
comment

did

not

court

had

just

finished

knowledge

and

consideration

simply
making
of

the

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

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his

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“that’s

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perfect”

comment

Pg: 14 of 16

to

refer

to

the

entire

plea

colloquy, we have already explained that nothing in the record
affirmatively
11(a)(2).
inference

indicates

the

Accordingly,
for

us

even

to

specificity

it

would

conclude

contemplated

require
that

the

by

inference
“that’s

Rule
upon

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.
therefore
requirement

conclude
was

never

that

the

satisfied,

mandatory
and

the

We

government-consent
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 nonjurisdictional issue.”).

Nevertheless, we still must consider

whether “an unconditional plea has been entered or” whether “no
valid

plea

has

been

entered.”

internal quotation marks omitted).
14

Id.

at

649

(alteration

and

We may treat Fitzgerald’s

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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
district

unconditional
court

plea

apparently

in

light

understood

of

the

facts

Fitzgerald’s

that

plea

to

the
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.
parties

on

this

point.

See

Pierre,

We agree with the

120

F.3d

at

1156.

Accordingly, since we have neither a valid conditional plea nor
a valid unconditional plea, we must vacate the judgment.
Bundy,

392

F.3d

at

649.

On

remand,

Fitzgerald

can

See

decide

whether to plead guilty again or whether to proceed to trial.
See id. at 650.
III.

15

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For

the

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foregoing

Pg: 16 of 16

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
Fitzgerald’s substantive arguments.
16

regarding

the

merits

of