U.S. v. White

Decision Date04 May 2004
Docket NumberNo. 03-6739.,03-6739.
Citation366 F.3d 291
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gavin Roderick WHITE, a/k/a Joe White, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Neal Goldberg, Hale & Dorr, L.L.P., Washington, D.C., for Appellant. Ray B. Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for Appellee.


James L. Quarles, III, Hale & Dorr, L.L.P., Washington, D.C., for Appellant. John L. Brownlee, United States Attorney, Charlottesville, Virginia, for Appellee.

Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.

Vacated and remanded by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge SHEDD joined. Judge WILLIAMS wrote a separate dissenting opinion.



In this case, a habeas petitioner contends that the Government made an oral promise, never incorporated into his written plea agreement, that he could conditionally plead guilty, retaining the right to appeal the denial of his suppression motion. It is undisputed that the petitioner's lawyer erroneously informed him that the guilty plea was conditional and that the petitioner would not have pleaded guilty absent this representation; moreover, the Government conceded, and the district court found, that in making this representation, the petitioner's lawyer provided constitutionally ineffective assistance of counsel, which rendered the petitioner's guilty plea involuntary. Nevertheless, without holding an evidentiary hearing, the court found the petitioner had not proved by a preponderance of the evidence that the Government had made the asserted oral promise (that the petitioner could conditionally plead) and so summarily denied the petitioner's request to reform his plea agreement. Because we believe that material factual disputes require an evidentiary hearing in this case, we vacate and remand for further proceedings.


A grand jury charged Gavin Roderick White with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1994). Apparently, the police uncovered the cocaine during a traffic stop of White's car; White moved to suppress the cocaine, asserting that the search of his car proceeded without his consent. The district court denied the motion to suppress.

Thereafter, pursuant to a written plea agreement, White pleaded guilty to the charged offense. Neither that plea agreement nor the district court's plea colloquy expressly informed White that by pleading guilty he waived his right to appeal the suppression motion. But the plea agreement, which contained an integration clause, also did not state that White's guilty plea was conditional. Thus, when White appealed the denial of his suppression motion to this court, we dismissed the appeal because his plea agreement did not include the express provision, described in Fed.R.Crim.P. 11(a)(2), that would have made it conditional. United States v. White, No. 98-4371, 1999 WL 371610 (4th Cir. June 8, 1999)(per curiam).1

Represented by new counsel, White then moved, under 28 U.S.C. § 2255 (2000), that his conviction and sentence be vacated and he be granted "all relief to which he may be entitled." First, White asserted that his guilty plea was not voluntary and knowing because, when he entered into the plea agreement, he believed "that he was making a conditional plea, subject to the appeal of the denial of his suppression motion." Second, White asserted that the "United States Attorney made an oral agreement" that White's "guilty plea would be conditional, subject to the appeal of his suppression motion," and that this "fraudulent oral agreement" induced White to enter the plea. Finally, White asserted that he had been denied effective assistance of counsel because his counsel during plea negotiations, David Heilberg, erroneously "assured him that he could appeal the denial of his suppression motion after he pled guilty." White declared "under penalty of perjury" that all three of these assertions were "true and correct."

In response, the Government moved for partial summary judgment, agreeing that White's allegations amounted to ineffective assistance of counsel and urging the court to grant White's "initial request" to vacate and then reinstate judgment, restarting the time period for filing a notice of appeal. White filed a response asserting that the Government mischaracterized the relief he requested, and clarifying that he in fact wished to have his conviction vacated. Nonetheless, the district court granted the relief advocated by the Government, vacating, then reinstating, the original conviction and sentence with a later date of entry, permitting an additional ten days for appeal.

Because this did not provide White any real relief — he would still be procedurally barred from challenging the search on appeal because his written plea agreement remained unconditional — White filed a motion for reconsideration asking the district court to either allow him to plead anew, or "[i]n the alternative" reform the plea agreement to reflect the assertedly agreed-upon conditional plea. The district court granted White's motion to reconsider and referred the case to a magistrate judge "to conduct any or all proceedings that may arise in this civil action, including an evidentiary hearing," and to submit all findings and recommendations to the district court.

Pursuant to this referral, the magistrate judge ordered discovery and scheduled an evidentiary hearing. Four days after entry of the discovery order and well prior to the scheduled evidentiary hearing, however, the Government moved that White be granted the relief "he sought," which the Government characterized as "vacat[ing] the conviction and sentence" and returning White for trial. In reply, White again disputed the Government's characterization of the requested relief, specifying that he was not merely seeking vacatur, but also asking the court to reform the plea agreement to reflect a conditional plea. Responding, the Government argued that reformation was not a proper remedy because it had never consented to a conditional plea.2 But neither at this point nor at any other time in these proceedings did the Government offer any affidavit or other direct evidence denying that it had entered into an oral agreement that White's plea would be conditional.

Nevertheless, no evidentiary hearing was ever held. Instead, the magistrate judge heard oral argument on whether the court should vacate White's conviction and sentence and set the case for trial (as the Government argued), or vacate the conviction and sentence only to reenter them under a reformed conditional plea agreement (as White argued). Concluding that the Government had indeed promised White he would be entitled to appeal his suppression motion, or at the very least acquiesced to a conditional plea by failing to challenge White's allegations through the greater part of the proceedings, the magistrate judge recommended granting White's motion to vacate his guilty plea, permitting him to plead anew conditionally.

The district court disagreed. Noting that neither party had produced "hard, objective evidence" supporting their respective assertions, the court found dispositive White's oral affirmation of the unconditional written plea agreement during his Rule 11 hearing. The court refused to order reformation of the plea agreement, concluding that White had failed to prove the existence of an oral agreement by a "preponderance of the evidence." The court concluded, however, as the parties had agreed, that White's plea was involuntary due to the ineffective assistance of counsel. Accordingly, the district court vacated White's conviction and sentence and set the case for trial. The court denied White's subsequent motion to reconsider, but did grant a certificate of appealability.

Before us, then, it is undisputed that White's counsel at the time of the plea negotiations, David Heilberg, erroneously informed White that he could appeal the denial of his suppression motion notwithstanding the failure of the written plea agreement to contain any provision permitting this. Similarly, it is uncontroverted that White relied on his lawyer's representation in pleading guilty, which he would not have done absent this representation. Moreover, the Government concedes, and the district court found, that these facts equate to ineffective assistance of counsel, rendering White's guilty plea involuntary and mandating vacatur of White's conviction and sentence. Thus, as the parties agree, the only question we face is a narrow one: did the district court err in refusing to grant White any relief on his claim that the Government actually promised that he could conditionally plead?


It is well-established "that when a plea rests in any significant degree on a promise ... of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Hence, as the Government properly conceded at oral argument, if a Government representative orally promised White that he could conditionally plead, White "would be entitled to the relief he's asking for" despite his attorney's failure to preserve this right in the written plea agreement. Proof of the Government's refusal to abide by such an oral promise would clearly constitute evidence of "government overreaching" or "fraud in the inducement," admissible without running afoul of the parol evidence rule. United States v. Garcia, 956 F.2d 41, 44 & n. 4 (4th Cir.1992); see also United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986).3

This is not to say that a defendant's solemn declarations in open court affirming that agreement do not "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74, 97...

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