Objecting to a Conditional Plea to Prejudice the Jury: Prosecutorial Bad Form (and Even Bad Faith?)

September 17, 2012
By Hanging Out with Carl Gunn


  • Don’t let prosecutors use their right to object to a conditional plea as a way of maintaining prejudicial joinder of a factually uncontested charge.
  • Ninth Circuit severance case law on felon in possession counts is actually somewhat helpful.
  • Seek a severance if the prosecutor won’t agree to a conditional plea just to maintain a prejudicial joinder.


Referring back to my post two weeks ago on prosecutors using their power to reject a conditional plea to try to wring concessions out of the defense (see “They’re Doing You a Favor by Agreeing to a Conditional Plea? Wait a Minute!” linked in the “Recent Posts” column at the right), I thought I’d share a case-specific experience on prosecutorial misuse – or attempted misuse – of this discretion in another way. The experience also involved one of the few areas in which severance case law is relatively good for the defense. So this post is about both severance and prosecutorial objection to a conditional plea, really how to use one – severance – to overcome the other – the prosecutorial objection.

My case presented a not uncommon prejudice scenario, in which my client was charged with one count of possession of cocaine with intent to distribute; one count of possessing a gun in furtherance of that crime, in violation of 18 U.S.C. § 924(c); and one count of being a felon in possession of a firearm. It’s the government’s perfect way to get your client’s prior conviction in front of the jury with an additional charge that they know darn well has no effect at all on the sentence. And often – though not always – it’s a charge which either has a different defense or no defense at all, even when there is a defense to the drug and/or § 924(c) charges.

This is where the relatively good severance law comes in. There’s a great case called United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986), in which the Ninth Circuit vacated a murder conviction on the ground that the district court should have severed the felon in possession of a firearm charge which had been joined with the murder charge. The court explained that “the danger that a jury will infer present guilt from prior convictions cannot be ignored by the court in deciding whether to sever a charge that necessitates the introduction of other crimes evidence.” Id. at 1321.

Post-Lewis cases have nonetheless found no abuse of discretion when district courts refused to sever felon in possession of a firearm charges in other circumstances. See, e.g., United States v. Lopez, 477 F.3d 1110, 1116-17 (9th Cir. 2007); United States v. Von Willie, 59 F.3d 922, 930 (9th Cir. 1995); United States v. Burgess, 791 F.2d 676, 678-79 (9th Cir. 1986). Still, in the case of United States v. Nguyen, 88 F.3d 812 (9th Cir. 1996), the court reemphasized the concerns underlying the reversal inLewis. The court indicated that it was publishing the opinion inNguyen “to alert trial judges and prosecutors that the practice of consolidating ‘felon in possession charges’ without properly safeguarding the defendant from the prejudicial effect of introducing evidence of the prior felony with other unrelated felony charges is not looked upon with favor by this Circuit, or, for that matter, by other Circuits.” Id. at 815. The court went on to point out that “trying a felon in possession count together with other felony charges creates a very dangerous situation because the jury might improperly consider the evidence of a prior conviction when deliberating about the other felony charges.” Id. The court concluded by stating that “severance or bifurcation is the preferred alternative,”and declined to reverse only because of the strength of the evidence in that case. Id. at 817-18.

In a case where the defendant doesn’t intend to contest the less serious felon in possession charge (assuming it is in fact less serious, as is usually the case in our district), the defendant always has the option of simply entering a plea to the felon in possession count and taking it out of the trial that way. But here’s where the prosecutor’s abuse of the conditional plea rejection authority in my case came in. I had a motion to suppress which had been denied and which would have applied to the gun as well as the drugs (yes, the client had both) if granted and so I wanted the plea to the felon in possession count to be a conditional plea. The prosecutor said he wouldn’t agree to a conditional plea even though there was no dispute that my client had in fact possessed the gun and also no question that prevailing on appeal would result in suppression of the gun, so the appeal of the denial of the motion was unquestionably dispositive.

I thought this was a rather outrageously transparent abuse of discretion on the prosecutor’s part, so I filed the motion attached here. It argued that the court should sever the felon in possession charge if the prosecutor wouldn’t agree to a conditional plea. I cited the cases discussed above and argued that the countervailing consideration the bad cases rely on – the “concern with judicial economy” – wasn’t implicated here because my client would waive jury in the separate felon in possession trial, we’d conduct no cross examination and make no closing argument, and we’d agree to whatever stipulated facts were necessary so there wouldn’t even have to be witnesses. Faced with this – and the judge’s pointed questions about why the prosecutor wouldn’t agree and pointed comment that he certainly wouldn’t deny my client acceptance of responsibility if the trial was taking place only because the prosecutor wouldn’t agree to a conditional plea – the prosecutor backed down and said he would accept our offer of a conditional plea to the felon in possession count.

So there you have it. Both one example of how a prosecutor tried to abuse his authority to reject a conditional plea and a summary of some good severance law in one small area. Keep it in mind if you have a felon in possession charge with no defense or an inconsistent defense that’s joined with more serious drug and 924(c) charges.