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U.S. v. FITZGERALD, No. 14-4795

Decided: April 27, 2016

The Fourth Circuit vacated the defendant’s convictions and remanded for further proceedings.

A Maryland grand jury returned an indictment against Robert 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, the defendant moved to suppress certain evidence and moved for a Franks v. Delaware hearing regarding what he alleged to be knowing and material false statements in application for a warrant to search the defendant’s residence. The district court denied Fitzgerald’s motion. The defendant rejected an initial plea offer from the prosecutor. In 2014, defendant had a discussion with the court and his defense counsel concerning what appellate rights Fitzgerald would retain after pleading guilty. The parties all agreed that defendant’s guilty plea would not waive the defendant’s right to appeal his sentence particularly as it related to an appellate issue for a petition for writ of coram nobis, which would attack one of Fitzgerald’s predicate convictions and make him no longer a career offender.  The district court accepted Fitzgerald’s plea and Fitzgerald was eventually sentenced to 130 months’ imprisonment. Fitzgerald appealed his convictions.

The Fourth Circuit determined that Fitzgerald did not enter a valid conditional guilty plea and the court did not address the merits of Fitzgerald’s appeal. The general rule is that when a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to the entry of the plea, and thus the defendant has no nonjurisdictional ground to attack the judgment except the inadequacy of the plea. The Federal Rules of Criminal Procedure 11(a)(2) provides an exception that with the consent of the court and the government, a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. If the defendant prevails on appeal, he is able to withdraw the plea. The writing requirement is met if the record clearly shows no doubt that a conditional plea was agreed to. While the writing requirement is flexible, the consent of the court and government are mandatory and cannot be avoided. The Fourth Circuit determined that the government-consent requirement was not satisfied. Fitzgerald and the government both argued that the prosecutor consented to the conditional plea when he was silent during the discussion. The court looked at Rule 11’s Advisory Committee notes to determine that the government consent needed for 11(a)(2) had to be direct and could not come from an inference or implication. The record did now show clear government consent to Fitzgerald’s conditional plea, as the “that’s perfect” comment by the prosecutor after the plea colloquy was not clear to if it referred to the entire conditional plea discussion or not so an inference would have to be used and Rule 11 was written to avoid any inference being applied. Since Fitzgerald entered the conditional guilty plea on the assurance that he had appellate rights, the defendant’s conditional plea could not be treated as a voluntary unconditional plea and therefore, the court vacated and remanded the judgment so that Fitzgerald could decide to plead guilty again or whether to proceed to trial.

Full Opinion

Ryan Jones