Criminal Procedure – Appellate review – jurisdiction

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Criminal Procedure
Appellate review; jurisdiction

Where a defendant fails to preserve for appeal the denial of a suppression motion, the issue is waived, even if the government fails to raise waiver in response.

“Rule 11(a)(2) is unlike the timing rules addressed in Eberhart and its progeny because it requires the express consent of the government and the district court. If we accept the government’s position that its oversight or acquiescence can permit a defendant to challenge an adverse ruling on a pretrial motion, then we must also countenance that the government can usurp the district court’s independent right to accept or reject a conditional plea. In effect the government would read out of Rule 11(a)(2) its requirement that a plea agreement allowing for a conditional plea have the district court’s blessing.”

“We are unwilling to overrule our own decisions and embrace the Ninth Circuit’s view simply on the strength of an offhand, unbriefed reference to Eberhart made at oral argument. We cannot know whether the government even is aware of our contrary decisions. In the end, though, it wouldn’t matter to us whether our jurisdiction remains intact despite the unconditional nature of Combs’s guilty plea. The government can forego a defense—whether by design or neglect—but we are not obligated to accept the government’s waiver. See Rogers, 387 F.3d at 934; United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995). Neither party has offered a reason why we should overlook Combs’s unconditional plea even if we can, nor do we see a reason to do so.”

Dismissed.

11-1091 U.S. v. Combs

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Per Curiam.

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