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

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

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.

583 F. Supp. 291

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

583 F. Supp. 292

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

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