U.S. v. Bundy

• Decision Date: 17 December 2004
• Docket Number: No. 03-4599.,03-4599.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen G. BUNDY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 641

392 F.3d 641

UNITED STATES of America, Plaintiff-Appellee, v. Stephen G. BUNDY, Defendant-Appellant.

No. 03-4599.

United States Court of Appeals, Fourth Circuit.

Argued: October 1, 2004.

Decided: December 17, 2004.

COPYRIGHT MATERIAL OMITTED

ARGUED: Stephen Porter Halbrook, Fairfax, Virginia, for Appellant. Robert Lucas Hobbs, Assistant United States Attorney, Office of the United States Attorney, Abingdon, Virginia, for Appellee. ON BRIEF: Robert M. Galumbeck, Michael L. Dennis, Dudley, Galumbeck, Dennis & Kegley, Tazewell, Virginia, for Appellant. John L. Brownlee, United States Attorney, Abingdon, Virginia, for Appellee.

Before WILLIAMS and SHEDD, Circuit Judges, and Henry E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Shedd wrote the opinion, in which Judge Williams and Judge Hudson joined.

SHEDD, Circuit Judge:

Stephen Bundy was indicted on three counts of possession of an unregistered firearm and one count of possession of a stolen firearm. Bundy filed a motion for production of certain documents, a motion to dismiss three counts of the indictment, and a motion to suppress all evidence seized from his house. After the district court denied these motions, Bundy entered a conditional guilty plea to one count of possession of an unregistered firearm, for which he was sentenced to thirty-seven months in prison. Pursuant to the plea agreement, Bundy now appeals the district court's rulings on his pretrial motions. We conclude that the district court erred in accepting Bundy's conditional guilty plea because Bundy attempted to preserve for appellate review a non-case-dispositive pretrial issue. Accordingly, we vacate the judgment of conviction and remand for further proceedings.

I.

Federal law requires that certain firearms be registered in the National Firearms Registration and Transfer Record (the "firearms registry"). 26 U.S.C. § 5841(a). In January 2003, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") observed Bundy firing a short-barreled Colt AR-15 rifle at a local firing range, placing the rifle in his car, and then taking the rifle into his house. The Colt AR-15 is subject to the statutory registration requirement. After learning that no firearms were registered to Bundy, ATF agents obtained a warrant to search Bundy's house for "any and all weapons not registered to [Bundy] in the National Firearms and Transaction Records and records related" to Bundy's possession of such weapons. During the course of the search, agents discovered, among other things, the Colt AR-15, a Streetsweeper shotgun, photographs of a USAS-12 shotgun, a High Standard .22 revolver believed to be stolen, and more than fifty other firearms.

The grand jury returned an indictment charging Bundy with possession of an unregistered USAS-12 shotgun (Count One); possession of an unregistered Streetsweeper shotgun (Count Two); possession of an unregistered Colt AR-15 with a 12-inch barrel (Count Three); and possession of a stolen .22 revolver (Count Four).

Bundy filed three pretrial motions in the district court. First, he filed a Motion for Production that sought to compel the Government to produce documents showing that the national firearms registry was inaccurate, incomplete, or both. Second, Bundy filed a motion to suppress all the evidence seized at his house on the ground that law enforcement officers exceeded the scope of the warrant and conducted an impermissible general search. Finally, Bundy filed a motion to dismiss two of the unregistered-firearms counts on the ground that the registration requirements violate his Fifth Amendment right against self-incrimination.

After the district court denied Bundy's pretrial motions, Bundy entered into a plea agreement with the Government. Pursuant to this agreement, Bundy pled guilty to Count Two of the indictment (possession of the Streetsweeper) and all other counts were dismissed. The written agreement specifically provided that Bundy would be permitted to appeal the district court's adverse rulings on all three of his pretrial motions. The district court accepted Bundy's conditional plea and sentenced him to thirty-seven months in prison. This appeal followed.

II.

A criminal defendant must raise certain defenses by way of pretrial motion, see Fed.R.Crim.P. 12(b), and an adverse ruling on such a motion ordinarily is not appealable by way of interlocutory appeal, see 28 U.S.C. § 1291 (conferring appellate jurisdiction over "final decisions of the district courts").¹ When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to entry of the plea. See United States v. White, 366 F.3d 291, 298-99 (4th Cir.2004); United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993). Because "[a] plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence," United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), the defendant has no non-jurisdictional ground upon which to attack that judgment except the inadequacy of the plea. Thus, "when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." Id. Under these circumstances, a defendant might rationally choose to proceed to trial for the sole purpose of preserving a pretrial issue for appellate review.

To avoid the "waste of prosecutorial and judicial resources" and the "delay in the trial of other cases" occasioned by such a litigation strategy, the 1983 Amendments to Fed.R.Crim.P. 11 formally approved the use of conditional guilty pleas. Under the current Rule, a defendant may enter a plea of guilty — thereby admitting all the material allegations against him — while preserving certain pretrial issues for appeal. Fed.R.Crim.P. 11(a)(2). We have noted that "direct review of an adverse ruling on a pretrial motion is available only if the defendant expressly preserves that right by entering a conditional guilty plea" pursuant to Rule 11(a)(2). United States v. Wiggins, 905 F.2d 51, 52 (4th Cir.1990). Absent a valid conditional guilty plea, we will dismiss a defendant's appeal from an adverse pretrial ruling on a non-jurisdictional issue. See id.

A.

Rule 11(a)(2) imposes certain requirements for conditional guilty pleas. The first requirement is that the plea must be offered in writing and must specify the adverse pretrial rulings that the defendant seeks to appeal. This requirement "will ensure careful attention to any conditional plea" and will make 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." Fed.R.Crim.P. 11 advisory committee note. Although some courts have concluded that this writing requirement is not necessarily mandatory, even these courts decline to recognize a conditional plea unless the intent of the parties to enter a conditional plea and to preserve specific issues for appeal is otherwise clear from the record. See, e.g., United States v. Bell, 966 F.2d 914, 916-17 (5th Cir.1992); United States v. Yasak, 884 F.2d 996, 1000 (7th Cir.1989). This approach comports with the general rule that "conditions to a plea are not to be implied." United States v. Wise, 179 F.3d 184, 186 (5th Cir.1999).

There is no doubt that the second and third requirements under the Rule — Government consent and court approval — are mandatory and cannot be avoided. The requirement of Government consent "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." Fed.R.Crim.P. 11 advisory committee note. Likewise, the requirement of court approval should ensure that "the defendant is not allowed to take an appeal on a matter which can only be fully developed by proceeding to trial." Id.

All three requirements limit the use of conditional guilty pleas. Conditional pleas are the exception, not the rule. Thus, conditions must be expressly described in writing, or at least so clearly shown on the record that there is no doubt that a conditional plea was agreed to. The Government must affirmatively agree to the plea, and the district court must exercise its own judgment in approving it.

1.

Other courts of appeals have imposed one additional requirement — that any conditional guilty plea be limited to case-dispositive issues. See, e.g., Wise, 179 F.3d at 186 (describing the conditional guilty plea as "the usual procedural avenue for preserving the defendant's objection to a dispositive pretrial ruling and obviating the need for a full trial"); United States v. Bentz, 21 F.3d 37, 42 (3d Cir.1994) (stating that "a conditional guilty plea is only appropriate when the matter preserved for appeal is case-dispositive and requires no further factual development"); Yasak, 884 F.2d at 999 (noting that "the rule ensures that conditional pleas will be allowed only when the appellate court's decision will completely dispose of the case"); United States v. Wong Ching Hing, 867 F.2d 754, 758 (2d Cir.1989) (concluding that "entry of a conditional guilty plea is inappropriate unless the issue preserved for appeal would be dispositive of the case").

This additional requirement vindicates the expressed purposes of the conditional plea device. At least with respect to the requirements of Government consent and court approval, the Advisory Committee intended to limit the use of conditional pleas based on two separate, but related, concerns: first, that the conditional plea promote...