April 9, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 17-CR-111 - William C. Griesbach,
Kanne, Barrett, and Brennan, Circuit Judges.
Desotell had an unexpected encounter with police officers one
evening in Green Bay, Wisconsin. While he was trying to
borrow a car from a friend, police arrived and informed him
that the vehicle was suspected of use in a retail theft. But
after being told that he was not a suspect and was free to
leave, Desotell stuck around. He tried to remove bags from
the car as police were about to search it, arousing the
officers' suspicion. As it turned out, the bags contained
a firearm and drugs. After unsuccessfully trying to suppress
the evidence, he agreed to plead. Despite tensions during
negotiations, Desotell eventually signed a plea deal
expressly waiving his right to appeal the motion to suppress.
After an extensive colloquy in the district court hammering
home the waiver, Desotell now appeals the precise issue he
may not appeal. We therefore dismiss it as waived.
Bay police arrested Desotell on May 30, 2017 while
investigating a retail theft. He admitted to owning two bags
containing methamphetamine and a handgun, which police
discovered while searching a vehicle that had been involved
in the theft earlier that day. Desotell was not a suspect in
the theft; he just happened to be in the wrong place, at the
wrong time, with the wrong stuff.
jury indicted Desotell on two counts: 1) conspiracy to
distribute, and to possess with intent to distribute, 500
grams or more of methamphetamine, 21 U.S.C. §§ 846,
841(b)(1)(A); and 2) knowingly using or carrying a firearm
during and in relation to a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A). The district court appointed a Federal
Defender to represent Desotell immediately after his arrest.
Desotell agreed to plead guilty and cooperate with
investigators, giving useful information about his drug
contacts. In return, the government agreed not to file a
prosecutor's information detailing Desotell's prior
convictions, thereby avoiding a higher mandatory-minimum
December 2017, Desotell retained private attorney John Miller
Carroll and discharged his Federal Defender. Shortly after
obtaining new counsel, Desotell moved to suppress the
evidence found in his bags, arguing that his detention at the
scene and the search violated the Fourth Amendment.
the motion was pending, the government informed Desotell that
he had to sign the plea agreement by March 9, 2018.
Presumably, signing the agreement would have meant
withdrawing the motion to suppress, so Desotell delayed. The
deadline came and went without a ruling on the motion, and
Desotell did not sign the agreement. The government, assuming
that Desotell intended to litigate his motion rather than
plead guilty, acted as if the agreement were no longer on the
table. It filed the information and continued to prepare for
trial. Desotell objected and moved to enforce the unsigned
plea agreement. The court denied the motion to suppress on
April 19. Desotell then came back to the table. He signed a
plea agreement and the government withdrew the information.
district court held a change-of-plea hearing on May 8. The
court first confirmed the parties' understanding that the
agreement was a general plea, not a conditional plea. In
other words, the document contained "no reservations of
any right to appeal from the denial of the Motion to
Suppress." Desotell, through his counsel (Carroll),
agreed that the document "contain[ed] a general clause
about waiving any pretrial motions." But then defense
counsel emphasized that he did not believe the waiver was
effective because, at the time Desotell initially agreed to
the wording, he had not contemplated filing his motion to
suppress. In counsel's view, the general waiver did not
bar an appeal of that motion.
district court expressed its confusion with this argument. It
iterated several times that, in the federal system, a
defendant must expressly reserve his right to appeal in the
text of the plea agreement. Counsel acknowledged the
court's admonishment, but he refused to accept it:
MR. CARROLL: Right. I fully understand that, Your Honor, and
I think that it's - It's just that I don't think
it's correct, and it should be - The Government
shouldn't be - control the ability of a defendant to
appeal in a criminal case.
THE COURT: You may be - Maybe, you're right. You can
disagree with the way the law is. But if you're advising
your client that he has the right to appeal the denial of his
Motion to Suppress, there's a problem. Your client is
entering a plea with a false ...