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01-1058 U.S. v. Elizalde-Adame

By: dmc-admin//August 20, 2001//

01-1058 U.S. v. Elizalde-Adame

By: dmc-admin//August 20, 2001//

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“Elizalde-Adame notes that at one point during the plea hearing the district court asked the Assistant United States Attorney (‘AUSA’), ‘is there a waiver of appellate rights?,’ and the AUSA responded, ‘[t]here is not, Your Honor.’ However, when read in context, it is clear that the district court was asking whether the plea agreement provided for a waiver of Elizalde-Adame’s right to appeal her sentence, and nothing in the above exchange even remotely suggests that either the court or the government thought that Elizalde-Adame was preserving her right to appeal the suppression motion, or that the government was waiving any of the requirements of sec. 11(a)(2). Thus, we find that Elizalde-Adame’s plea was unequivocally unconditional, and that we therefore lack jurisdiction to hear this appeal.

“Elizalde-Adame moved under Fed. R. App. P. 10(e) to supplement the record with letters exchanged between her attorney and the attorney for the government during plea negotiations which discussed the preservation of her right to appeal the suppression motion. The district court denied the motion, correctly noting that Rule 10(e) does not allow a party to add materials to the record on appeal which were not before the district court. See United States v. Alcantar, 83 F.3d 185, 191 (7th Cir. 1996); United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir. 1987). Elizalde-Adame then made the same motion to this Court, and met with the same result. The purpose of rule 10(e) is to ensure that the record on appeal accurately reflects the proceedings in the trial court (thereby allowing us to review the decision that the trial court made in light of the information that was actually before it), not to enable the losing party to add new material to the record in order to collaterally attack the trial court’s judgment. Therefore, because they rely on undocketed material, we cannot consider Elizalde-Adame’s due process and estoppel claims.”

Dismissed.

Appeal from the United States District Court for the Northern District of Illinois, Coar, J., Bauer, J.

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