United States v. McHugh, Cr. No. 83-045 P.

• Decision Date: 22 March 1984
• Docket Number: Cr. No. 83-045 P.
• Citation: 583 F. Supp. 290
• Parties: UNITED STATES of America v. James McHUGH.
• Court: U.S. District Court — District of Rhode Island

583 F. Supp. 290

UNITED STATES of America v. James McHUGH.

Cr. No. 83-045 P.

United States District Court, D. Rhode Island.

March 22, 1984.

James O'Neil, Asst. U.S. Atty., D.R.I., Providence, R.I., for plaintiff.

James Merberg, Boston, Mass., for defendant.

OPINION AND ORDER

PETTINE, Senior District Judge.

The defendant James McHugh and his brother Lawrence were charged in a two-count indictment with conspiracy to distribute marijuana, in violation of 21 U.S.C. § 846, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(6). Before trial, James moved to suppress certain evidence emanating from the search and seizure of a pickup truck, while Lawrence filed a motion for the severance of his trial from that of James. The Court held a hearing on James' suppression motion and denied it in a published opinion on November 8, 1983. United States v. McHugh, 575 F.Supp. 111 (D.R.I.1983). On December 15, 1983, Lawrence's request for a separate hearing was granted. The case against Lawrence McHugh was assigned to commence on December 19, 1983, to be followed immediately by that of James.

On the morning of December 19, the Court was advised that James McHugh wished to enter a guilty plea under Federal Rule of Criminal Procedure 11(a)(2), which allows conditional pleas.¹ Following an exhaustive interrogation of the defendant as required by Federal Rule of Criminal Procedure 11(c), the plea was entered on the condition that James be allowed to appeal the denial of his suppression motion. The trial of Lawrence went forward and the jury returned a verdict of not guilty. James then fired the attorney who represented him when he pleaded guilty, retained the counsel who successfully defended his brother, and now moves to vacate his guilty plea.

In the memorandum accompanying his motion to vacate, the defendant contended that: (1) on the morning of December 19, 1983, "he did not intend to enter pleas of guilty"; (2) he "pled guilty in an equivocal manner ... following a brief conference with his then counsel"; (3) "at the time of the taking of the plea the Court inquired of the Defendant specifically as to whether or not he was guilty of Title 21 violations involving a Schedule II controlled substance";² (4) "the `last minute' nature of the change of plea coupled with the Defendant James McHugh's confusion surrounding the classification of marijuana as a Schedule II controlled substance rather than a Schedule I controlled substance has placed the Defendant in the position of being unclear as to what crime and the potential penalties he has pled to"; and (5) on the day he pleaded he "did not clearly understand the crimes to which he has admitted guilt or the penalties and, in fact, his replies to the Court in several instances were equivocal." At oral argument the defendant further contended that Fed.R. Crim.P. 11(a)(2) requires that the right to appeal an adverse ruling on a pre-trial motion be reserved in writing. Since that was not done in this case, James argued that the guilty plea is defective and must be vacated.

The threshold question to be determined is whether the defendant must be allowed to withdraw his guilty plea because the issue to be argued on appeal was not reserved in writing. Research seems to indicate that this is a novel issue. The legislative history is clear as to the intent of the rule but silent as to the rigors of the application of its terms.

The advisory committee note on Rule 11(a) tells us that,

the requirement that the conditional plea be made by the defendant "reserving in writing the right to appeal from the adverse determination of any specified pretrial motion," though extending beyond the Second Circuit practice, will ensure careful attention to any conditional plea. It will document that a particular plea was in fact conditional, and will identify precisely what pretrial issues have been preserved for appellate review. By requiring this added step, it will be possible to avoid entry of a conditional plea without the considered acquiesence of the government ... and post-plea claims by the defendant that his plea should be deemed conditional merely because it occurred after denial of his pretrial motions....

Fed.R.Crim.P. 11(a) Advisory Committee Note, reprinted in 8 Moore's Federal Practice, Special Alert, at 17-18 (2d ed. 1983).

In the context of this case it is clear that the intent of Rule 11(a) was fulfilled. The plea was, indeed, conditional and did identify clearly the pretrial issues preserved for appellate review. At the plea hearing, defendant's counsel stated "The plea, your Honor, is a conditional plea as agreed in order to—for the defendant to have his right to reserve the appellate issue concerning the search.... It is a legal issue and not a fact issue and he wishes to preserve it for appeal." Subsequently, in the course of the hearing, I stated to the defendant, "Now, in this case, this plea is being accepted preserving to you the right to argue the merits of the ruling I made on the motion to suppress. That, of course, would remain. You could have—the right before the Supreme Court—I mean, before the First Circuit Court of Appeals. But outside of that, all these other rights are given up. You understand that?" The defendant replied he did. At another point, the United States Attorney stated, "... this is to be a plea entered into with the court's consent, of course, pursuant to Rule 11(a)(2) as amended by the Federal Rules of Procedure whereby the defendant will be filing this plea on a conditional basis in order to preserve his appellate right."

Although the issue preserved was definite and, arguably, the conditions of the plea were adequately documented by the transcript of the proceedings, the issue for appellate review was not "reserved in writing." I can see no justification for chipping away at the clear mandate of the rule. Because I take these quoted words to mean a document emanating from the defendant,³ reviewable by the court and the prosecutor prior to the Rule 11(c) inquiry, I must allow McHugh to withdraw his plea for the reasons explained below.

In analyzing the meaning of Rule 11(a), the place to start is with its language.

It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms. Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.

Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1916) (citations omitted).

The Rule specifically states that the reservation of the appellate argument must be "in writing." I find no ambiguity in this language. Since nothing to the contrary appears, the words must be "presumed ... to be used in their ordinary and usual sense, and with the meaning commonly attributed to them." Id. McHugh's plea was, therefore, faulty.

This conclusion is buttressed by analogy to other principles of criminal law. It is elementary that criminal statutes are to...