Saturday, November 15, 2008

Case o' The Week: You Can't Always Get What You Want (Gallaher and Conditional Pleas)

For what is quite likely the first time in a federal appellate decision, the Ninth quotes the Stones in the first line of a published opinion. In re: James H. Gallaher, Jr., __ F.3d __, 2008 WL 4877454 (9th Cir. Nov. 13, 2008), decision available here. An apt quote, too: this decision on conditional pleas is likely to leave everyone grumbling, a little . . .

Players: Win – sort of – by ED Wa. & Idaho Ass’t Fed. Def. Stephen Hormel.

Facts: Gallaher was charged with first degree murder, and raised an (unsuccessful) statute of limitations challenge. Id. at *1 & n.1. He entered a conditional plea agreement, where he plead to involuntary manslaughter and retained the right to appeal the denial of the S.O.L. motion. Id. The agreement allowed him to withdraw his guilty plea if his appeal was successful. Id.

District Judge Whaley “conditionally approved” the plea, but said he wanted to wait and see the PSR before his final decision. Id. There followed a “whose on first?” dialogue where the court and defense counsel debated whether the court was “conditionally” accepting the plea, or the plea agreement. Id. at *1-*2. The court ultimately got the PSR, rejected the “conditional plea,” and set the case for trial. Id.

Gallaher filed a petition for a writ of mandamus, seeking an order directing the court to accept the guilty plea, and reassignment to a new judge. Id. at *2.

Issue(s): 1. Consent: “[W]hether the district court did in fact withhold its consent [to the conditional plea]?” Id. at *3.

2. Rule 32:
“Whether the district court erred by reviewing the PSR before rejecting Gallaher’s conditional plea.” Id. at *3.

Held: 1. Consent: “Because the district court exercised its discretion to reject the plea, the petition for writ of mandamus is denied.” Id. at *3. 2.

Rule 32:
“Because the district court did not consent to Gallaher’s attempt to plead guilty, it follows that Gallaher had not ‘pleaded guilty,” and thus the court’s review of the PSR was premature and in error.” Id. at *4. [Remanded to a different judge].

Of Note: How do conditional and unconditional pleas differ? “An unconditional plea may be deemed accepted once the court has conducted a Rule 11 colloquy and found that the defendant’s plea satisfies the requirements of Rule 11(b) . . . By contrast, a conditional plea is contingent on the defendant securing the consent of both the government and the court.” Id. at *2.

What limitations are there on the district court’s discretion to accept – or reject – a conditional plea? None, apparently: in a disappointing new rule, the Ninth refuses to articulate any limitations or guidance on the exercise of the district court’s discretion in the context of conditional pleas. Id. at *3.

How to Use: Authoring Judge McKeown’s first quote is the Rolling Stones,“You can’t always get what you want.” Id. at *1. A defendant can’t always get a court’s consent for a conditional plea, and a district court can’t get the PSR until a defendant has granted his consent or entered a plea. Id. at *1.

The Stones, however, are incompletely quoted: “ . . . But if you try sometimes, you just might find, you get what you need.” You Can’t Always Get What You Want, Let It Bleed (Decca Records 1969). How does the district court get what it needs? “Encourage” the parties to consent to a pre-plea presentence report, before the plea is taken. How does the defense get what it needs? Structure the plea as an 11(c)(1)(C) agreement: if the court busts it, the plea gets withdrawn.

How does the government get what it needs? Wise-cracks aside, the government gets these deals through by agreeing to pre-plea reports and the 11(c)(1)(C) agreements.

Gallaher needs a careful read before its rules are quoted too broadly. This deal was a classic, “hold your nose, and down it goes” – except, in this case, the district court couldn’t stomach it. It involved a plea to a crime that was outside of the statute of limitations, and a deal that allowed the district court to depart from the stat max that existed at the time of the offense. See id. at *1 & n.3. It’s a pity that this atypical fact pattern creates a new rule on broad district court discretion to reject conditional pleas: the Ninth could have easily resolved the issue on a narrower basis.

For Further Reading: Who gets conditional pleas? The N.D. USAO’s office never gives them – then denies it has a policy of withholding them. (Try a Westlaw search in the Ninth Circuit database for "conditional plea" and "Northern District of California" -- almost every case is before the year 2000.)

When the new tenant of the 11th Floor corner-office moves in on January 21st, the conditional plea policy will be a good place to start reform. For an interesting read on DOJ’s current policy on plea agreements, visit its manual here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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