Opinion
Case No. 6:05-CR-30-ORL-31KRS.
April 8, 2005
ORDER
On March 29, 2005, an evidentiary hearing was held on Defendant's Motion to Suppress (Doc. 22). At the conclusion of the hearing, the Court ruled from the bench and denied the motion. Following the Court's ruling, defense counsel indicated that Defendant would like to enter a conditional guilty plea. In response, Assistant U.S. Attorney assigned to this case stated unequivocally, "we don't do that. My office won't accept a conditional plea."
Defendant followed up with a Motion to Enter Condition Plea or Alternatively Proceed by Bench Trial (Doc. 37). This Motion was heard at a status conference on April 6, 2005. At that time, the government indicated that it was agreeable to a bench trial but maintained its objection to a conditional plea. The Court then inquired as to the basis for the government's objection. In response, the Assistant U.S. Attorney was unable to articulate any rationale except that "as a matter of policy, we don't do it." When questioned about the substance of the government's "policy," the Assistant U.S. Attorney declined to comment without first speaking with the United States Attorney for the Middle District of Florida. The Court, therefore, continued the hearing until the following day to give the government time to formulate a response.
At the hearing on April 7, 2005, the Assistant U.S. Attorney refused to divulge the government's policy concerning its consideration of conditional guilty pleas, citing executive privilege. She did intimate, however, that her objection was based on her belief that an appeal of the constitutional issues raised in the Motion to Suppress would be frivolous.
The Court disagrees and notes, as will be further discussed, that such a consideration has little, if anything, to do with the reason for requiring government consent to conditional pleas.
Federal Rule of Criminal Procedure ("Rule") 11 provides that a criminal defendant may enter a conditional guilty plea, "with the consent of the court and the government, . . . reserving in writing the right to have an appellate court review an adverse determination of a specified pre-trial motion." FED. R. CRIM. P. 11(a)(2). If successful on appeal, the defendant may then withdraw the guilty plea.
Rule 11 was amended in 1983 specifically to permit conditional guilty pleas, in order to "conserve prosecutorial and judicial resources and advance speedy trial objectives." See id. advisory committee's note on 1983 Amendments. As noted by the Rule's Advisory Committee, "the obvious advantages of the conditional plea procedure . . . are not outweighed by any significant or compelling disadvantages." Id. To guard against the improvident appeal of an issue that can only be fully developed by proceeding to trial, court approval of conditional plea is required. Id. And, in a related vein, the government's consent to a conditional plea is meant "to ensure that conditional pleas 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. The government is entrusted with this veto power because it "is in a unique position to determine whether the matter at issue would be case-dispositive . . ." and, as a party, it should be able to object to the potential prejudicial delay of an intervening appeal that may require a subsequent trial to develop a proper appellate record. Id. An implicit assumption, in this regard, is that the government will act in good faith.
Courts, on occasion, have had cause to remind the government that it is not some ordinary litigant, who may be expected to exploit every strategic advantage regardless of its legitimacy. See, e.g., Berger v. United States, 295 U.S. 78, 88 (1935); United States v. Lyons, 352 F. Supp. 2d 1231 (M.D. Fla. 2004). The aspiration (sometimes enforced by legal requirement) is that the government, as an agent of justice and servant of the law, will not act vexatiously or otherwise breed contempt for the law or the system of justice. Where a rule of law has a clear purpose, it is assumed (perhaps naively) that the government will be conscientious (not arbitrary) in its approach to the rule, and that the government will not see fit to use the rule as a convenient (and illegitimate) means to an end it considers just.
Here, it seems clear that the constitutional claims which Defendant seeks to preserve would be case-dispositive if he is successful on appeal, and the government has articulated no basis to conclude that a conditional guilty plea would result in any prejudice to the government. Rather, the government's objection appears to be founded on an arbitrary policy by which it refuses to even consider the merits of a conditional plea.
The Court notes that the Department of Justice has promulgated policies in other contexts which recognize the efficacy of conditional guilty pleas. U.S. DEP'T OF JUSTICE, ANTITRUST DIVISION, GRAND JURYMANUAL, ch. IX.E.4 (1991).
Nevertheless, the rule, as written, requires government approval, and a conditional guilty plea cannot be taken by the Court even if the government expresses no rational basis for withholding its consent. Accordingly, the Court will, in lieu of a plea colloquy, engage in the charade of a bench trial before finding Defendant guilty of the offense charged.
Accordingly, it isORDERED that Defendant's Motion is GRANTED in part and DENIED in part. The request for entry of a conditional guilty plea is DENIED; the request for a bench trial is GRANTED. The "trial" will commence at 9:00 a.m. on Monday, April 11, 2005.
Defendant has agreed to stipulate to all facts alleged by the government which are essential elements of the violation charged.