United States v. Mizell

¶5BROWN, Chief Judge:

¶6Appellant appeals from a conviction on a plea of nolo contendere for passing a $20.00 bill (count I) and possessing 15 counterfeit $20.00 federal reserve notes (count II), 18 U.S.C.A. § 472. The sole error asserted is that the trial court erred in denying his motion to suppress, the theory apparently being that without the evidence sought to be suppressed the government could not have made out the requisite case.

¶7The sentencing Judge credited this theory to the extent that in response to a plea bargain struck1 between the government and defendant on the entry of the nolo plea and resulting conviction on it the defendant would nevertheless have a right to appeal the correctness of the Court’s ruling on suppression.

¶8We have held this case awaiting en banc decision in United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc),2 to determine whether an appeal properly lies after a plea of guilty — or its consequential equivalent, a plea of nolo contendere — to raise non-jurisdictional issues. Haynes v. United States, 5 Cir., 196., 372 F.2d 651, reversed on other grounds, 1968, 390 U.S. 85, 88 S. Ct. 722, 19 L.Ed.2d 923.

¶9In affirming the panel in Sepe the Court en banc has in strong terms indicated its disapproval of any such conditional pleas and implicity the mechanism by which an appeal is sought from a plea of guilty. United States v. Sepe, supra.The Court’s en banc opinion declares “. . .we now take advantage of an opportunity to say that as a matter of policy this court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on non jurisdictional grounds.”

¶10As in Sepe this case illustrates the soundness of this rule. The defendant’s theory was that the initial arrest was invalid and hence did not justify the warrantless search of his nearby parked vehicle made by the officers, so they asserted, under the predetermined policy of inventorying any vehicle upon being *99taken into police custody.3 The principal element of the theory was that simply passing a counterfeit bill is not enough since there must be proof of knowledge/intent — -an unquestioned truth in testing conviction, but not necessarily so in assaying arrest, search, or both.

¶11To east the whole thing into the highly simplified question of whether the motion to suppress should properly have been sustained assumes that what the trial court found was an adequate factual basis for the arrest/search is all the evidence the government has. Although that may be so in a large number of instances, neither the trial judge in his role as umpire — not advocate,! nor the appellate court from its restrictive position have the facilities for ascertaining what the true situation is.4 Indeed, on argument we are told with positiveness that had the case gone to trial the government had abundant other evidence to establish knowledge/intent and that the reason it did not offer it on the suppression hearing was that counsel felt that the District Judge would do as he did and deny the motion.5

¶12The wisdom of the rule — that seldom6 is a conviction reviewable after polo or guilty plea — is reflected in the nearly unanimous practice of the other Courts of Appeals. The Third,7 Fourth,8*100Sixth,9 Seventh,10 Tenth 11 and District of Columbia12Circuits decline to recognize appealability from nolo/guilty pleas to raise evidentiary non-jurisdictional issues. The First,13 Second,14 Eighth,15 and Ninth,16 while less stringent in their application of the waiver rule, nevertheless apply it allowing appeals on non-jurisdictional issues only under highly restrictive circumstances.

¶13But appealing after a nolo/guilty plea has at least two more disadvantages in addition to that of putting the appellate court in a speculation as to what might have happened had the Judge rejected such a conditional plea. The first is in delineating those matters which are reachable by such appeals. The constitutionality of the underlying statute or the failure of the indictment to state an offense are clearly at one end of the spectrum. But how far does it go? Would it include an attack upon the sufficiency of the evidence? A jury instruction? An evidentiary ruling? The second disadvantage is that it adds to the already substantial problems of the sentencing Judge inherent in the F. R.Crim.P. Rule 11 on guilty pleas. If the sentencing Judge accepts the proposed conditional plea he has first to predict17 what the Court of Appeals will *101decide as to appealability of that particular case. This means that if, as is true here, his prediction of appealability is faulty because of action of the Court of Appeals, the whole plea and sentencing procedure is infected by an assurance given which either was not, or could not have been, made good.

¶14That is what happened here. Since it is plain from the precision of the plea/sentencing procedure that it was all tied into the reservation of a right to appeal which the Judge expressly accorded, the conviction must be vacated so that defendant can withdraw the conditional plea and plead anew. Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Johnson v. Beto, 5 Cir., 1972, 466 F.2d 478; James v. Smith, 5 Cir., 1972, 455 F.2d 502; United States v. Anderson, 5 Cir., 1972, 468 F.2d 440.

¶15Vacated and remanded.