They’re Doing You a Favor by Agreeing to a Conditional Plea? Wait a Minute!

September 4, 2012
By Hanging Out with Carl Gunn


  • Government consent is required for a conditional guilty plea.
  • But the purpose of that requirement is to let the government preserve harmless error arguments.
  • The defendant is giving the government a benefit by entering a conditional plea, not the other way around, so don’t let the government make you sign a plea agreement you don’t want to sign.


What do you do when you have a great motion to suppress, but the case is hopeless and there’s no point in going to trial if the judge denies the motion? You of course want to appeal if that happens, but entering an ordinary guilty plea after the motion is denied waives the right to appeal the denial of the motion. So how preserve the right to appeal without going through a trial that’s a waste of time for everyone if your motion is denied and the evidence you’re trying to suppress (say, your client’s complete confession, the drugs in the waistband hidden under his shirt) is admitted?

In the old days, the only way to preserve the issue for appeal – at least in most circuits, including the Ninth – was to sit through a trial even though there was no chance of winning. It could be a bench trial without a jury, or what we called a “stipulated facts” trial where the facts were summarized in a stipulation and the judge found the defendant guilty based on that, but there had to be some sort of trial if you wanted to appeal the denial of the motion.

To solve this problem of needless trials that nobody wanted to have, the Supreme Court approved an amendment to Rule 11 of the Federal Rules of Criminal Procedure in 1983. It created – in Rule 11(a)(2) – what we call a “conditional plea.” This rule allows a defendant to enter a plea of guilty and reserve the right to appeal the denial of one or more pretrial motions, so long as (1) he reserves the right to appeal and specifies the motions to be appealed in writing and (2) the government and court agree to the conditional plea.

This last requirement sometimes makes the government think it has some additional leverage in plea negotiations, and I saw cases when I was at the Federal Public Defender where the government tried to get concessions from the defense in return for agreeing to a conditional plea, on the theory that they were actually giving the defense something. Especially where the defense wanted the conditional plea to be an open, straight-up plea (see my post of last week about considering this option – “Why Do We Sign Plea Agreements? Or Who Needs the Government Anyway?” – linked in the column at the right), the government would sometimes insist on having a written plea agreement with an agreement on some or all guidelines factors and the usual partial waiver of appeal they ask for in our district.

This completely confuses who’s doing who a favor when there’s a conditional plea. It’s the defendant who’s doing thegovernment a favor, like in any case where there’s a plea entered, by saving the government the work of having to try the case. The government’s not allowing an appeal that wouldn’t otherwise take place, because if the government won’t agree, the defendant can preserve his right to appeal by simply sitting through a trial and appealing after the trial. And the defendant doesn’t risk losing “acceptance of responsibility” credit for this, because the guideline application notes specifically state that a defendant may still receive credit for acceptance of responsibility “where [he or she] goes to trial to assert and preserve issues that do not relate to factual guilt.” U.S.S.G. § 3E1.1, comment. (n.2). It’s actually the government that will draw the judge’s ire, when the judge finds out that the only reason he or she is sitting through the trial is that the government wouldn’t agree to a conditional plea. In all the cases in which I was involved where this issue came up, the government backed down when this was pointed out.

The government’s view also misapprehends the reason for requiring government consent to a conditional plea. The reason is clearly explained in the advisory committee notes to the rule, as follows:

The claim that the lack of a full trial record precludes effective appellate review may on occasion be relevant. However, most of the objections which would likely be raised by pretrial motion and preserved for appellate review by a conditional plea are subject to appellate resolution without a trial record. . . .

With respect to the objection that conditional pleas circumvent application of the harmless error doctrine, it must be acknowledged that “[a]bsent a full trial record, containing all the government’s evidence against the defendant, invocation of the harmless rule is arguably impossible.” But, the harmless error standard with respect to constitutional objections is sufficiently high that relatively few appellate decisions result in affirmance on that basis. Thus it will only rarely be true that the conditional plea device will cause an appellate court to consider constititutional questions which could otherwise have been avoided by invocation of the doctrine of harmless error.

To the extent that these or related objections would otherwise have some substance, they are overcome by the provision in Rule 11(a)(2) that the defendant may enter a conditional plea only “with the approval of the court and the consent of the government.” . . . [C]onsent by the government . . . will ensure that conditional pleas will be allowed only when the decision of the court of appeals will dispose of the case either by allowing the plea to stand or by such action as compelling dismissal of the indictment or suppressing essential evidence.

Fed. R. Crim. Pro. 11 advisory committee note (1983 Amendments) (citations omitted). This explanation makes clear that the main reason for the government consent requirement is to assure that the government isn’t prevented from making a record for arguments such as harmless error.

In sum, the conditional plea procedure is a way for thedefendant to provide the government – and the court – a benefit, not a benefit for the government to provide to the defendant. And the government will almost certainly back down if you stand firm and point out that it’s the government that’s going to have to explain to the court why a trial is taking place. If the government doesn’t back down in response to this for some reason, just waive jury, question no witnesses, and submit without closing argument and you’ll be in the same position you would have been with a conditional plea.