United States v. Moskow, Sigmund

STERN, District Judge *

(dissenting).

I disagree with the majority that there is no principled difference between the conditional guilty pleas utilized in United States v. Zudick, 523 F.2d 848 (3rd Cir. 1975) and United States v. D’Amato, 436 F.2d 52 (3rd Cir. 1970) and that utilized below. I further find that the procedure authorized by the majority here is contrary to a recent decision of the Supreme Court. I, therefore, respectfully dissent from the majority’s holding that the order appealed from is final within the meaning of 28 U.S.C. § 1291 .

The pleas in Zudick and in DAmato, although conditional were nevertheless final in that no matter what the disposition on appeal, there could be no trial. In Zudick , the defendant conditioned his plea upon the right to appeal the statute of limitations question; in DAmato, the plea was conditioned upon defendant’s right to test the constitutionality of the statute on appeal. In both cases, the government consented to the procedure and agreed that irrespective of whether this Court affirmed or reversed, there could be no further proceedings in the district court. Either the district court’s disposition of the pre-trial motion was affirmed, in which case the defendant was bound by his plea of guilty, or the district court’s ruling was reversed, in which case there could be no trial. Both appeals, then, were from orders that were final as to the parties.

By contrast, the defendant here challenges six different pre-trial rulings, all of them relating to the admissibility of certain evidence. If we disagree with any one of the district court’s six rulings, then the defendant may, at his option, withdraw his plea and proceed to trial. Thus, by using the conditional guilty plea under these circumstances, a defendant is permitted to test the sufficiency and the admissibility of the government’s evidence prior to trial. If this Court agrees with the district court that the evidence is admissible, the defendant has lost nothing; in fact, he has received all the benefits of a guilty plea. If this Court disagrees with some or all of the evidentiary issues, then the defendant may proceed to trial, unscathed by his previous admission of guilt. Even if we disagree with all of the pretrial orders and suppress all of the challenged evidence, the government has reserved its right to press the prosecution with whatever other evidence it has. This, then, is a bare interlocutory appeal testing the admissibility of various items of evidence in the government’s hands, and nothing more. If the government is permitted to use all of its evidence, then the defendant is willing to plead. If the government is to be denied any piece of it, then the defendant’s plea is void. 1

Apart from the jurisdictional question of finality, the use of the conditional guilty plea here flies in the face of the Supreme Court’s policy judgment that the exclusionary rule operates not to free the guilty but to remedy violation of a defendant’s fourth amendment rights. We defeat this policy when we permit a defendant who admits his guilt to test the government’s ability to prove his guilt. We should not forget that *894 it is the purpose of the guilty plea — indeed, the purpose of a trial which the plea of guilt supplants — to determine the guilt or innocence of an accused. I cannot endorse the use of a conditional guilty plea to test the government’s ability to prove that which has already been admitted.

The majority apparently finds insubstantial the government’s argument that it is prejudiced by the delay of an interlocutory appeal. Yet, a unanimous Supreme Court has very recently relied on this exact consideration in holding there is no right to an interlocutory appeal from a pre-trial order denying a motion to dismiss an indictment on speedy trial grounds. United States v. MacDonald, 435 U.S. 850 , 98 S.Ct. 1547 , 56 L.Ed.2d 18 (1978). There, the Court noted that an interlocutory appeal from a pre-trial refusal to suppress evidence would also be improper:

Admittedly, there is value — to all but the most unusual litigant — in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial. ...

. Dismissal of the indictment is the proper sanction when a defendant has been granted immunity from prosecution, when his indictment is defective, or, usually, when the only evidence against him was seized in violation of the Fourth Amendment. Obviously, however, this has not led the Court to conclude that such defendants can pursue interlocutory appeals. Abney v. United States, 431 U.S. (651), at 663 [ 97 S.Ct. 2034 , 52 L.Ed.2d 651 ]; Cogen v. United States, 278 U.S. 221, 227 , 49 S.Ct. 118 , 73 L.Ed. 275 (1929); Heike v. United States, 217 U.S. 423, 430 , 30 S.Ct. 539 , 54 L.Ed. 821 (1910).

At 860, n.7. 98 S.Ct. at 1552 (Emphasis supplied).

In explaining the values which led it to find prejudice in permitting interlocutory appeals, the Supreme Court stated:

Many defendants, of course, would be willing to tolerate the delay in a trial that is attendant upon a pretrial appeal in the hope of winning that appeal. Among other things, delay may prejudice the prosecution’s ability to prove its case, increase the cost to society of maintaining those defendants subject to pre-trial detention, and prolong the period during which defendants released on bail may commit other crimes.

At 862, 98 S.Ct. at 1553 .

However, these considerations are the precise ones rejected by the majority in authorizing that which the Supreme Court has prohibited:

But the government argues further that it may be prejudiced by the delay of a possible trial should appellant prevail on the merits. It raises the usual difficulties associated with trial delay, such as memories dimming and disappearance of witnesses. If this be considered a truly serious and valid argument, one that could be successful for the government in this case, then a like argument should be available to a defendant when the government appeals pre-trial suppression under § 3731. So to state this argument is to answer it.

Majority Op., ante at 890.

While it may be true, as the majority points out, that a like argument should be available to a defendant when the government exercises its right to appeal an adverse pretrial suppression order, I do not agree with the majority that “[s]o to state this argument is to answer it.” Ante at 890. The simple fact is that Congress has authorized such an appeal.

In sum, then, I find significant jurisprudential and policy impediments to the conditional guilty plea as utilized here, and I align myself with the vast majority of circuits which have refused to entertain such appeals. See, United States v. Benson, 579 F.2d 508 (9th Cir. 1978); United States v. Brown, 499 F.2d 829 (7th Cir.), cert. denied, 419 U.S. 1047 , 95 S.Ct. 619 , 42 L.Ed.2d 640 (1974); United States v. Matthews, 472 *895 F.2d 1173 (4th Cir. 1973); United States v. Sepe, 486 F.2d 1044 (5th Cir. 1973); United States v. Cox, 464 F.2d 937 (6th Cir. 1972). While I agree that a trial may often be no more than a mere “charade” if done only to provide finality, the remedy for that is not the conditional guilty plea, but rather a trial on stipulated facts, which simultaneously dispenses with the need for a full-blown trial while preserving the right to obtain a reversal of the conviction if the Court of Appeals disagrees with the district court’s disposition of the pre-trial motions and the error, if any, is not harmless.

In sum, while I applaud the plaudits the majority has bestowed upon the District Judges of this Circuit, 2 the usual soundness with which district judges exercise their discretion cannot itself, I respectfully suggest, confer jurisdiction upon this Court where none otherwise exists.

Herbert J. Stern, United States District Judge for the District of New Jersey sitting by designation.

. In the case of a bank robbery, for example, evidence may have been seized from the defendant’s home, photographs taken, a confession obtained and the defendant identified in a lineup; each resulting item of evidence may be challenged by the defendant prior to trial. If all of the defendant’s pre-trial suppression motions are denied, the defendant may take a Zudick plea — which undoubtedly, will come to be known as a Moskow plea — conditioned upon the affirmance of each of the pre-trial rulings.

. Particularly heartening were the accolades awarded by Judge Aldisert in Zudick to my own colleague, Judge Biunno of the District Court of New Jersey, who first created the Zudick-type plea.