Thursday, November 13, 2008

Gallagher v. U.S. District Court, No. 07-74593 (11-13-08). "[The Defendant] Can't Get No Satisfaction." Instead, the 9th (McKeown) begins the opinion with the Rolling Stones "classic" lyrics "You can't always get what you want." Okay, so what is this about? "A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent. And, a district court that wants to review a defendant's Presentence Report (PSR) cannot do so until the defendant has granted his consent or entered a plea. Here, the defendant was charged with first degree murder, but entered a conditional plea to involuntary with the ability to appeal the suppression issue. The court apparently did not accept the conditional plea, and was sunder no obligation to do so under Fed. R. Crim. P. 11(a)(2). The court could decline, which it apparently did, but the court cannot then read the PSR under Fed. R. Crim. P. 32. That has to wait until the plea has been accepted, or the defendant consents. Neither occurred here. The special action asking the 9th to force the conditional plea is denied, as is the argument that the court did in fact accept it; the case though is remanded and assigned to a new judge because of the reading of the PSR. Alas, no sympathy for the devil.


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