U.S. v. Kingcade

• Decision Date: 06 April 2009
• Docket Number: No. 08-2447.,08-2447.
• Citation: 562 F.3d 794
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Telly KINGCADE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

562 F.3d 794

UNITED STATES of America, Plaintiff-Appellee, v. Telly KINGCADE, Defendant-Appellant.

No. 08-2447.

United States Court of Appeals, Seventh Circuit.

Argued January 22, 2009.

Decided April 6, 2009.

John W. Vaudreuil, Attorney, Peter M. Jarosz, Attorney (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Plaintiff-Appellee.

Daniel T. Cook, Attorney (argued), Office of the Federal Public Defender, Springfield, IL, Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before MANION and KANNE, Circuit Judges, and KENDALL, District Judge.^*

KANNE, Circuit Judge.

On December 5, 2007, a grand jury returned a two-count indictment against Telly Kingcade. Kingcade, whose appointed counsel filed several motions on his behalf, also filed two pro se suppression motions. The district court refused to consider the pro se motions and adopted in full the magistrate's report and recommendation to deny the counseled motions; this report had also noted that Kingcade's pro se motions were not properly before the court. Kingcade pled guilty, but he preserved the right to appeal adverse determinations on motions to suppress evidence seized during the execution of search warrants. Kingcade now argues that the district court erred in failing to consider de novo his pro se motion to suppress. We hold that Kingcade did not preserve the right to appeal an adverse determination regarding his pro se motions, and we therefore lack jurisdiction to review his claim.

I. BACKGROUND

During the week of October 1, 2007, law enforcement received confidential information that Telly Kingcade was selling cocaine from his apartment in Fitchburg, Wisconsin. On October 3, police received a warrant to search Kingcade's apartment. When officers arrived to execute the warrant, Detective Dorothy Rietzler was alerted to the possibility that a safe belonging to Kingcade was in a nearby apartment in which Theodore Robinson resided. Rietzler approached Robinson, who gave police permission to search the apartment. Officers found a safe in the second bedroom of Robinson's apartment. A drug detection dog alerted to the presence of drugs in the safe. Law enforcement seized the safe and received a warrant to search it the following day. The safe contained cocaine base, cash, and drug paraphernalia.

On December 5, 2007, a grand jury returned a two-count superseding indictment against Kingcade. Count two charged Kingcade with possession with the intent to distribute fifty grams or more of cocaine base.¹ Attorney David Mandell was appointed as defense counsel. On December 17, Mandell filed numerous motions on Kingcade's behalf, including motions to suppress evidence obtained pursuant to the search warrants for the safe and Kingcade's apartment. Mandell later withdrew as Kingcade's counsel, and Attorney Robert Ruth was appointed. On February 22, 2008, Ruth filed additional motions on Kingcade's behalf, including a motion to suppress evidence obtained as a result of the warrantless seizure of the safe.

On March 10, 2008, Kingcade filed two pro se motions. The first, entitled "Motion to Suppress Consent to Search," argued that Robinson had not knowingly and intelligently consented to the search of his apartment. The second, entitled "Motion to Suppress the Seizures [sic] of the Safe," argued that the warrantless search of Robinson's apartment and seizure of the safe during that search violated the Fourth Amendment of the United States Constitution because the police could have obtained a warrant prior to searching the premises. On March 17, Kingcade requested a new attorney.

On March 21, the magistrate judge conducted an ex parte hearing to discuss Kingcade's dissatisfaction with Ruth's representation. The judge informed Kingcade that even if he were to represent himself, the court would not allow him to pursue his pro se motions because they were untimely. He told Kingcade that if he felt his attorneys had failed to raise viable Fourth Amendment issues, he could later raise an ineffective assistance of counsel claim. He then made clear to Kingcade that he was not considering the pro se motions because Kingcade was represented and they were therefore not properly before the court. The magistrate judge went on to say that even if he were to make a recommendation, he would recommend that the court deny them.

On March 21, 2008, the magistrate judge entered a report and recommendation in which he recommended that the court deny the motions to suppress filed by Kingcade's attorneys. This report noted that Kingcade had been "rebuffed by the court" in his requests to file pro se motions because he was represented by counsel. In a footnote, the magistrate judge stressed that the issues presented in the pro se motions were not properly before the court, and that he had informed Kingcade that, in his opinion, his attorneys' failure to raise those issues was not ineffective assistance of counsel.

On March 25, Kingcade pled guilty to Count 2 of the indictment. Paragraph twelve of the plea agreement read:

The defendant has filed motions to suppress evidence seized during the execution of search warrants in October 2007. Pursuant to Rule 11(a)(2), Federal Rules of Criminal Procedure, the government consents to the defendant entering a conditional plea of guilty, reserving by this plea agreement letter his right to have an Appellate Court review an adverse determination of his motions to suppress. If the defendant prevails at the district court, or on appeal, he may then withdraw his guilty plea.

On April 8, the district court adopted in full the magistrate's report and recommendation regarding the motions to suppress. On June 3, Kingcade was sentenced to 135 months' imprisonment.

II. ANALYSIS

Kingcade argues that because the magistrate judge discussed his pro se suppression motions at the hearing on March 21, the district court judge erred in failing to address the motions de novo. Before we may reach Kingcade's argument, however, we must determine whether he has preserved the right to appeal the issues raised in his pro se motions. For the reasons that follow, we conclude that he has not.

With the consent of the government and approval of the court, 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." Fed.R.Crim.P. 11(a)(2); see also United States v. Cain, 155 F.3d 840, 842 (7th Cir.1998). This is a narrow exception to the ordinary rule that a defendant who pleads guilty cannot appeal his conviction. United States v. Dimitrov, 546 F.3d 409, 416 (7th Cir.2008). To preserve an issue for appeal, a conditional plea must "precisely identify which pretrial issues the defendant wishes to preserve for review." United States v. Markling, 7 F.3d 1309, 1313 (7th Cir.1993). All non-jurisdictional issues not specifically preserved in the conditional plea agreement are waived. See, e.g., Dimitrov, 546 F.3d at 416 (holding that although the defendant had preserved his objection to the constitutionality of a "mental state" requirement, he had not preserved another constitutional objection); United States v. Doherty, 17 F.3d 1056, 1058-59 (...