Gallaher v. United States District Court for the District of Washington , 548 F.3d 713 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: JAMES H. GALLAHER, Jr., 
JAMES H. GALLAHER, Jr.,
Petitioner, No. 07-74593
v.
UNITED STATES DISTRICT  D.C. No.
CR-05-00224-RHW
COURT FOR THE DISTRICT OF OPINION
WASHINGTON,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
June 2, 2008—Seattle, Washington
Filed November 13, 2008
Before: M. Margaret McKeown and Consuelo M. Callahan,
Circuit Judges, and Otis D. Wright,* District Judge.**
Opinion by Judge McKeown
*The Honorable Otis D. Wright, United States District Court for the
Central District of California, sitting by designation.
**This case was argued before Judges Ferguson, Callahan, and Wright.
Following Judge Ferguson’s death, Judge McKeown was substituted for
Judge Ferguson.
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15370 IN RE: GALLAHER
COUNSEL
Stephen R. Hormel (argued), Federal Defenders of Eastern
Washington and Idaho, Spokane, Washington, for the peti-
tioner.
Joseph H. Harrington (argued), Assistant United States Attor-
ney; James A. McDevitt, United States Attorney, Spokane,
Washington, for the real party in interest.
OPINION
McKEOWN, Circuit Judge:
In the classic words of the Rolling Stones, “You can’t
always get what you want.” The Rolling Stones, You Can’t
Always Get What You Want, on Let It Bleed (Decca Records
IN RE: GALLAHER 15371
1969). A defendant who chooses to take a conditional plea
cannot always assume the court will grant its consent. And, a
district court that wants to review a defendant’s Presentence
Report (PSR) cannot do so until the defendant has granted his
consent or entered a plea. Consequently, we are forced to dis-
appoint both the district court and the petitioner in this appeal.
Because the district court exercised its discretion to deny its
consent to Gallaher’s conditional plea, the petition for a writ
of mandamus must be denied. However, because the district
court erred by prematurely reviewing Gallaher’s PSR, we
remand for further proceedings, and reassign this case to a
new judge to consider de novo whether to accept Gallaher’s
conditional plea.
I. BACKGROUND
After James H. Gallaher, Jr. was charged with first degree
murder, he entered into a conditional plea agreement. Under
the agreement, he pleaded guilty to involuntary manslaughter,
but reserved the right to appeal the district court’s earlier
denial of his motion to dismiss the indictment.1 The agree-
ment also stipulated that Gallaher could withdraw his guilty
plea if his appeal was successful.2
At the change of plea hearing, the district court expressed
reservations about certain terms in the plea agreement.3 The
1
Gallaher’s motion to dismiss alleged that the indictment violated the
applicable statute of limitations. The district court denied the motion, con-
cluding that first degree murder is not subject to a statute of limitations.
We rejected Gallaher’s petition for a writ of mandamus on that issue. Gal-
laher v. U.S. Dist. Court, No. 06-73909 (9th Cir. Dec. 6, 2006), cert.
denied, 127 S. Ct. 1869 (2007).
2
Gallaher also agreed to waive any ex post facto or statute of limitations
claims related to his involuntary manslaughter plea and to accept a sen-
tence in accordance with the then-current statutory penalties — four to six
years — as opposed to the three-year maximum penalty in effect on the
date he committed the offense.
3
Specifically, the district court questioned the propriety of (1) accepting
a plea to a lesser included offense without first securing a new indictment;
15372 IN RE: GALLAHER
court then reviewed the agreement with Gallaher and engaged
in a plea colloquy consistent with the requirements of Rule
11(b) of the Federal Rules of Criminal Procedure. The district
court found that Gallaher’s plea was knowing, voluntary,
intelligent, and supported by a sufficient factual basis. The
judge then stated that he would “conditionally approve” the
plea, but that he wanted “to review the pre-sentence report
and then accept it or not.” The following exchange occurred:
Court: What I’m going to do is — this plea binds
me. I’m going to — I want to review the pre-
sentence report before I’m sure that I want to accept
this plea. So I’m going to conditionally approve it.
And when I get the pre-sentence report, if there’s a
problem, then I’ll notify the parties; and then we can
come back here. Do you understand that?
Defense Counsel: Your Honor, are you condition-
ally accepting the plea agreement or the plea?
There’s two — there’s two layers there, so I’m con-
fused.
Court: Do I have to accept the plea agreement?
What’s that mean? I’ve never accepted a plea —
Defense Counsel: You can defer the acceptance of
the plea agreement until the time of sentencing. The
acceptance of the plea, I’m not sure. There’s two
steps in a —
Court: What I’m saying is that I can come out and
say I’m not going to accept this plea, and you’d be
(2) accepting a plea to involuntary manslaughter which, because of its five
year statute of limitations, could not have been lawfully charged; and (3)
accepting a sentence that allowed the district court to depart from the stat-
utory maximum that existed at the time of the offense.
IN RE: GALLAHER 15373
back to what he’s charged with. I think that’s that
[sic] I’m not accepting — I’m conditionally accept-
ing the plea, waiting to see the pre-sentence report.
Does that make sense?
Defense Counsel: I think so.
Court: Well, I’m not expecting you to like it. But,
I mean, do you understand what I’m saying?
Defense Counsel: I understand what you’re —
you’re —
Court: What I’m trying to say is that I — most of
the time, I accept the plea or don’t accept it; or I
accept it conditioned upon getting the pre-sentence
report. What I want to do is I want to review the pre-
sentence report and then accept it or not.
The district court scheduled sentencing and ordered the
Probation Office to prepare a PSR. The court filed an “Order
Accepting Guilty Plea,” which stated that the plea was “con-
ditionally accepted.” The minutes of the change of plea hear-
ing also noted that the district court “[c]onditionally
accept[ed] plea but will not accept plea until the presentence
report is reviewed.”
At the sentencing hearing, the district judge noted that the
“plea is conditional and requires the court’s consent.” The dis-
trict judge then announced that he was “not accepting the con-
ditional plea” and was setting the case for trial:
[I]f the plea was unconditional, I would have no
choice. I would have to accept it. But I’m not accept-
ing the conditional plea. . . . I’m not ruling on the
plea agreement. I’m basing it on the conditional plea.
I’ve got a first-degree murder charge that alleges
facts that are far different than is ultimately required
15374 IN RE: GALLAHER
for me to consider under the conditional plea, and so
I’m not going to accept that. We’ll have to set this
back down for trial. And if you have some other dis-
position in the meantime, you can let me know.
Gallaher filed this petition for a writ of mandamus seeking
an order directing the district court to accept his guilty plea,
and the reassignment of his case to a new judge. Although we
review the district court decision for clear error, see In re
Morris, 363 F.3d 891, 891 (9th Cir. 2004) (per curiam), we
consider de novo whether the elements of the mandamus test
are satisfied. Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir.
2003).
II. ANALYSIS
A. JUDICIAL DISCRETION TO WITHHOLD CONSENT
A conditional guilty plea differs in important respects from
an unconditional guilty plea. An unconditional plea may be
deemed accepted once the court has conducted a Rule 11 col-
loquy and found that the defendant’s plea satisfies the require-
ments of Rule 11(b). In re Vasquez-Ramirez, 443 F.3d 692,
696 (9th Cir. 2006) (“[T]he act of ‘accepting’ a tendered
guilty plea is non-discretionary once the Rule 11(b) require-
ments are met.”).
[1] By contrast, a conditional plea is contingent on the
defendant securing the consent of both the government and
the court. Fed. R. Crim. P. 11(a)(2) (“With the consent of the
court and the government, a defendant may enter a condi-
tional plea of guilty . . . .”). The language of Rule 11(a)(2) is
entirely permissive and “create[s] no enforceable ‘right’ to
enter a conditional plea.” United States v. Fisher, 772 F.2d
371, 374 (7th Cir. 1985).4
4
Gallaher advances a plausible argument based on the Advisory Com-
mittee Notes to Rule 11(a)(2). The Advisory Committee Notes suggest
IN RE: GALLAHER 15375
[2] The other circuits that have examined the text of Rule
11(a)(2) have concluded that Rule 11(a)(2) does not place any
per se restrictions on how a court may exercise its discretion.
United States v. Bundy, 392 F.3d 641, 647 (4th Cir. 2004)
(stating that a district judge is free to withhold consent from
a conditional plea “for any reason or no reason at all”); United
States v. Bell, 966 F.2d 914, 916 (5th Cir. 1992) (concluding
that the court is “free to reject a conditional plea for any rea-
son or no reason at all”); United States v. Davis, 900 F.2d
1524, 1527 (10th Cir. 1990) (stating that a district court “has
absolute discretion with regard to accepting or rejecting the
conditional plea” and “can refuse to accept a conditional plea
for any reason or for no reason”); Fisher, 772 F.2d at 374(concluding that the government was free to refuse its consent
“for any reason or for no reason at all”). We decline Gal-
laher’s invitation to step off the path followed by our sister
circuits. Under Rule 11(a)(2), the district court’s discretion to
reject the conditional plea was not limited in the ways Gal-
laher suggests.
B. ACCEPTANCE OF A CONDITIONAL GUILTY PLEA
[3] Having determined that the district court had discretion
to withhold its consent to the conditional guilty plea, we next
consider whether the district court did in fact withhold its con-
sent. At the initial change of plea hearing, the district court
“conditionally approve[d]” the plea, explaining that it “wan-
t[ed] to review the presentence report and then accept it or
not.” Both the change of plea order and the minutes stated that
the plea was “conditionally accepted.” The district court later
emphasized that this conditional acceptance was not an
that the consent requirement helps ensure that the issue the defendant
wishes to reserve for appeal is dispositive and sufficiently developed to
allow for an appellate court’s review. However, nothing in the rule itself
or our case law dictates that this is the singular basis on which a court may
refuse its consent.
15376 IN RE: GALLAHER
expression of consent and explicitly refused to consent to the
conditional plea.5
[4] We do not express an opinion on whether, under differ-
ent circumstances, a court’s consent to a conditional plea may
be inferred from its actions alone. Here, the district court’s
explicit and repeated rejection of the plea precludes such an
inference. Because the district court exercised its discretion to
reject the plea, the petition for writ of mandamus is denied.
C. RULE 32
[5] Though we deny the petition for mandamus, our review
of the district court proceedings is not yet complete. We must
also decide whether the district court erred by reviewing the
PSR before rejecting Gallaher’s conditional plea. Under Fed-
eral Rule of Criminal Procedure 32(e)(1), “Unless the defen-
dant has consented in writing, the probation officer must not
submit a presentence report to the court or disclose its con-
tents to anyone until the defendant has pleaded guilty or nolo
contendere, or has been found guilty.” Fed. R. Crim. P.
32(e)(1) (emphasis added).6
The Supreme Court explained in Gregg v. United States
that Rule 32’s non-disclosure provision is “explicit” and that
5
The district court stated: “I expressed from the earliest time that I . . .
reserved the acceptance of the plea. I didn’t not accept it on [Rule 11(b)
grounds]; but I didn’t accept it because my consent’s required, and I
reserved that.” The district judge later reiterated that “when I was going
through the litany about whether I accepted the plea or not, I concluded
that I was not ready to consent to the plea; and so I didn’t.”
6
The district judge expressed concern that the court “is the least
informed about the factors that may be relevant to consent” and that “[t]o
deny the district court complete information would result in a less-
informed exercise of discretion.” Nonetheless, Rule 32 only prevents the
district court from reviewing a document which may contain prejudicial
information that “is irrelevant to the determination of guilt or innocence,
and is only relevant to sentencing.” Vasquez-Ramirez, 443 F.3d at 698.
IN RE: GALLAHER 15377
a court’s premature review of the PSR “constitutes error of
the clearest kind.” 394 U.S. 489, 491, 492 (1969). The Court
admonished that this rule “must not be taken lightly” because
PSRs contain “no formal limitations on their contents, and
they may rest on hearsay and contain information bearing no
relation whatever to the crime with which the defendant is
charged.” Id. at 492. Indeed, allowing “ex parte introduction
of this sort of material to the judge who will pronounce the
defendant’s guilt or innocence or who will preside over a jury
trial would seriously contravene the rule’s purpose of prevent-
ing possible prejudice from premature submission of the pre-
sentence report.” Id.; see also Vasquez-Ramirez, 443 F.3d at
698 (“The obvious reason for this rule is that the information
in a presentence report, such as criminal history and related
conduct, is irrelevant to the determination of guilt or inno-
cence, and is only relevant to sentencing.”).
[6] 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.7 As in Vasquez-Ramirez, “[t]he district
judge wants to have it both ways — he wants to have access
to information to which he is only entitled once the defendant
is guilty, and then use it retrospectively to decide whether to
accept the defendant’s guilty plea. This is not allowed under
the Rules.” 443 F.3d at 699.
[7] Both parties agree that if the review of the PSR was in
error, reassignment to a new judge is the appropriate remedy.
This reassignment is not a reflection on the district judge. We
7
In United States v. Cordova-Perez, we upheld a district court’s rejec-
tion of a guilty plea even though the district court had reviewed the defen-
dant’s PSR. 65 F.3d 1552, 1556 (9th Cir. 1995). However, the Supreme
Court overturned this holding in United States v. Hyde. 520 U.S. 670, 677
(1997). We decline to mine Cordova-Perez for any aspects that may
remain applicable post-Hyde and reiterate our conclusion that “Cordova-
Perez is no longer good law.” In re Ellis, 356 F.3d 1198, 1205 (9th Cir.
2004) (en banc).
15378 IN RE: GALLAHER
have explained that “[g]iven the preliminary nature of the plea
proceedings, the minimal potential for waste or duplication of
judicial resources is outweighed by the need to proceed in a
manner that preserves the appearance of justice.” Ellis, 356
F.3d at 1211. Accordingly, we remand this case for reassign-
ment to a new judge to consider whether to accept Gallaher’s
conditional plea.
Petition for a writ of mandamus is DENIED; REMANDED
for REASSIGNMENT to a new judge for further proceedings.