XII. Appeal
A. Preserving Error
B. Standard of Review
C. Reasonableness of Sentence
D. Miscellaneous Appeal
Preserving Error
Supreme Court
• Cross AppealsGreenlaw v. U.S., (6/23/08)
> Defendant was convicted after trial of drug trafficking and two violations of 18 USC § 924(c). The district court committed error at the sentencing hearing by failing to sentence defendant to the mandatory, consecutive 25 year sentence for the second § 924(c) conviction, instead sentencing defendant to only a 10 year consecutive sentence for such conviction. Defendant appealed his sentence, claiming that it was unreasonably long, and the government did not cross appeal. The Eight Circuit ruled against defendant on his appellate arguments, but the court, sua sponte, increased defendant’s sentence by 15 years based on the district court’s error regarding the second § 924(c) charge. The Supreme Court granted certiorari.
* Holding: The Court held that a court of appeals may not increase a defendant’s sentence based upon a perceived error, plain or otherwise, if no cross appeal has been filed by the government. Accordingly, the Eighth Circuit’s ruling increasing defendant’s sentence was reversed.
• Issue First Raised on Appeal
Puckett v. U.S., 07-9712 (3/25/09)
> Defendant was charged with bank robbery and using a firearm in relation to the bank robbery. Defendant negotiated a plea agreement whereby the government agreed defendant would receive a three-level reduction for acceptance of responsibility. Prior to sentencing, defendant engaged in additional criminal conduct, and as a result, the government recommended to the district court that defendant not receive the acceptance of responsibility reduction. The district court agreed and refused to award the reduction. Defendant appealed, and argued for the first time on appeal that the government breached the plea agreement. The Fifth Circuit held that defendant waived the issue by failing to raise it in the district court and applied plain error review, affirming defendant’s conviction and sentence. Defendant appealed to the Supreme Court and argued that waiver/plain error review should not apply to violations by the government of a plea agreement.
* Holding: The Court held that the standard rule that an issue not raised in the district court was forfeited on appeal applied to an allegation that the government breached the plea agreement. Thus, the plain error rule of Fed. R. Crim. P. 52(b) was applicable. Accordingly, the Fifth Circuit ruling was affirmed.
Sixth Circuit
• Rule 52(b) - Plain Error
U.S. v. Pugh, 03-3241 (5/3/05)
> Defendant and his father were both charged in a bank robbery. At trial, the district court committed reversible error by admitting evidence against both defendants in violation of the Confrontation Clause (see supra, VI. Sixth Amendment). Defendant’s father raised the confrontation issue on appeal, but defendant failed to raise the issue in his appeal.
* Holding: Pursuant to Fed. R. Crim. P. 52(b), the court held that it has discretion to raise an issue sua sponte for a defendant on appeal in order to correct a plain error. The court held that an obvious error had occurred in the admission of evidence in violation of the Confrontation Clause and to decline to correct the error would deny defendant clear rights guaranteed by the Constitution. Accordingly, the court sua sponte raised the issue for defendant and reversed the bank robbery conviction.
• Issue First Raised on Appeal
U.S. v. Poole, 04-5016 (5/10/05)
> Defendant filed a motion to suppress evidence in the district court challenging police officers’ entry into his home to arrest him. The entry was based, in part, upon the officers’ observation of a gun in defendant’s waistband as he entered the house. On appeal, Defendant raised for the first time that the officers had violated his rights by entering the curtilage of his home unlawfully, and that it was from this vantage point that the officers saw the gun.
* Holding: The court will not address suppression issues not raised and ruled upon in the district court except in exceptional circumstances or where a plain miscarriage of justice would result. Under the circumstances, the court found no exceptional circumstance or plain miscarriage of justice.
• Issue First Raised on Appeal
U.S. v. Henry, 04-6382 (11/22/05)
> Defendant was convicted of being a felon in possession of a firearm (18 U.S.C. § 922(g)) and, during his appeal, a case was decided that arguably raised questions as to the constitutionality of § 922(g). Defendant then argued the issue on appeal.
* Holding: As a general rule, appeals courts will not consider an issue not raised in the district court. The circuit court has the discretion, however, to address such an issue in “an exceptional case or particular circumstance” or when declining to do so would create a “plain miscarriage of justice.” The court found exceptional circumstances in the case because the issue was not decided until after the district court judgment, the issue was purely legal, and the parties had fully briefed the issue. Thus, the court exercised its discretion to consider the issue. The court ultimately ruled against defendant on the merits. (See supra, VII. Other Constitutional Rulings).
• Issue First Raised on Appeal
U.S. v. Savoires, 04-2140 (11/30/05)
> Defendant was convicted of drug trafficking and possessing a firearm in relation to drug trafficking. Defendant did not object to the indictment before or during trial, and agreed to the provision of erroneous instructions to the jury. On appeal, defendant challenged for the first time that the indictment was duplicitous.
* Holding: The failure to raise an error in the district court ordinarily waives the issue on appeal, particularly where the defendant invites the error by agreeing with the government to submit erroneous jury instructions. In the case, however, the court held that, because the defendant’s “substantial rights” were affected by the duplicitous indictment, and because the government was as much at fault as defendant for the jury instructions, the “interests of justice” were not served by strictly applying the waiver rule. Accordingly, the court entertained the appeal and reversed the firearm conviction. (See supra, I. Specific Offenses).
• Issue First Raised on Appeal
U.S. v. Martin, 04-6428 (2/21/06)
> Defendant was convicted in a meth case and attempted to challenge, for the first time on appeal, that the Sentencing Commission acted beyond its statutory authority in promulgating the meth guidelines.
* Holding: The court held that the general rule that courts of appeals should not address an issue not raised in the district court is prudential, not jurisdictional. The court ruled that it may address such an issue if it raises a purely legal issue, i.e, constitutional or statutory, and has been briefed by the parties. In the case, the court found that the issue regarding the meth guideline had been briefed by the parties, was purely legal, and was likely to recur. Accordingly, the court decided to address the issue. (See supra, II. Sentencing Guidelines).
• Issue First Raised on Appeal
U.S. v. Ellison, 04-1925 (9/5/06)
> Officers ran the license plate on defendant’s van and determined that he had an open warrant. As a result, officers stopped defendant’s van, arrested defendant, and found two firearms. Defendant was charged with being a felon in possession of a firearm and moved to suppress the evidence. The government did not argue in the district court that defendant had no reasonable expectation of privacy in his license plate, but instead tried to justify the stop of defendant’s van based upon an alleged parking violation. The district court granted defendant’s motion and suppressed the evidence. The government appealed.
* Holding: Generally, the court of appeals will not consider an issue that was not first raised in the district court except in “exceptional cases” or if a “plain miscarriage of justice” would otherwise occur. In the case, because the issue of whether defendant had a reasonable expectation of privacy in the license plate was purely a legal one, the parties had fully briefed the issue, and the district court was clearly in error, the court held that a plain miscarriage of justice would occur if it did not address the issue. Accordingly, the court proceeded to the merits of the government’s argument. (See supra, IV. Fourth Amendment).
• Issue First Raised on Appeal
U.S. v. Brown, 06-1556 (8/16/07)
> Defendant was charged with kidnaping and transportation of a minor to engage in sexual activity. After defendant’s conviction, he raised for the first time on appeal that (1) pre-indictment delay violated his Fifth Amendment right to due process, and (2) his rights under the Speedy Trial Act were violated based upon post-indictment delay.
* Holding: Fed. R. Crim. P.12(b)(3)(A) and (B) require that any motions alleging a defect in instituting a prosecution or in filing an indictment be raised before trial, and Rule 12(e) indicates that a failure to do so constitutes a waiver. The court held that a Fifth Amendment claim regarding pre-indictment delay falls under the mandate of Rule 12, and accordingly, defendant waived his right to make such a challenge by failing to raise it pretrial. Nonetheless, the court also ruled that defendant’s claim had no merit. (See supra, V. Fifth Amendment).
Second, the court held that a motion to dismiss based upon the Speedy Trial Act must be made prior to trial. The failure to make such a motion pre-trial waives the issue. Thus, defendant’s conviction was affirmed.
• Issue First Raised on Appeal
U.S. v. Simmons, 06-6173 (8/29/07)
> Defendant was convicted of health care fraud. Defendant was sentenced to 23 months in prison and claimed for the first time on appeal that the district court failed to take into consideration the disparity between his sentence and that of a codefendant, as required by 18 USC § 3553(a)(6).
* Holding: Ordinarily, where a defendant does not raise an objection to error in the district court, the issue is reviewed on appeal only for plain error. In the Sixth Circuit, however, a district judge is required, after imposing sentence, to ask if there are any objections to the sentence that have not been previously raised. This rule applies only to “objections” to “error” in the district court, and does not apply to requests that could have been made for the district court to exercise discretion. In the case, the district court failed to ask whether defendant had any objections to the sentence. The court found, however, that the defendant’s request for consideration of the disparity with a codefendant’s sentence was not an “objection,” but instead a request for the district court to exercise discretion. (See infra, Reasonableness of Sentence). Accordingly, the court held that defendant’s failure to raise the request in the district court constituted a waiver of the issue.
• Issue First Raised on Appeal
U.S. v. Lalonde, 06-4536 (12/12/07)
> Defendant was indicted for wire fraud and tax evasion. At the arraignment, the magistrate judge failed to read or summarize the indictment or to obtain defendant’s waiver of the reading. Defendant did not object to the procedure and ultimately pled guilty and was sentenced. Defendant then argued for the first time on appeal that the district court violated Fed. R. Crim. P. 10 by failing to read the indictment.
* Holding: The court held that a defendant waives his right to appeal a constitutional violation occurring prior to a plea of guilty once the defendant enters the plea. Further, a challenge regarding improper arraignment is waived if the defendant fails to object prior to appeal. In the case, the court held that defendant’s failure to object to the improper procedure, followed by defendant’s guilty plea, waived the issue for appeal purposes.
• Issue Not Raised in First Appeal
U.S. v. Sedore, 06-2259 (1/16/08)
> Defendant was convicted of identity theft and making false claims to the IRS. During his sentencing, he agreed to the factual statement that there were 31 victims of the offense. As a result, defendant received an enhancement for the number of victims. Defendant subsequently appealed, and his sentence was vacated on appeal. Defendant did not raise any issue regarding the number of victims in his first appeal. Prior to his resentencing, defendant filed a sentencing memorandum and argued that the number of victims should only be one, the IRS. Defendant did not raise, and the district court did not assess, the issue at sentencing. Defendant appealed.
* Holding: A defendant is foreclosed from making a sentencing argument in a second appeal where the defendant did not raise the issue in the first. Accordingly, the court deemed the issue waived.
• Issue First Raised on Appeal
U.S. v. Martin, 06-5002 (5/23/08)
> Defendant was charged with being a felon in possession of a firearm, pursuant to 18 USC § 922(g), and he entered a conditional plea of guilty, reserving his right to appeal the district court’s ruling on his motion to suppress. On appeal, defendant argued that the government did not have sufficient evidence to prove that the gun that defendant possessed traveled in interstate commerce.
* Holding: Pursuant to Fed. R. Crim. P. 11 (a)(2), a defendant must specifically reserve any non-jurisdictional issue for appeal when entering a plea of guilty. Because defendant’s challenge really dealt with the sufficiency of an element of the offense, it was waived by defendant’s guilty plea. Further, the court held that the interstate nexus requirement of § 922(g) is not jurisdictional in the sense that it affects the district court’s subject matter jurisdiction to hear the case. The court ruled that in order to successfully challenge the district court’s jurisdiction, defendant would have to show that the indictment did not charge a federal offense. Accordingly, the court held that defendant waived the issue for appeal.
• Issue First Raised on Appeal
U.S. v. Ali, 07-6446 (2/27/09)
> Defendant was charged with making a false statement on his citizenship application and he moved to dismiss the indictment. The district court denied the motion and defendant appealed. The government argued for the first time on appeal that defendant’s pretrial motion was a claim of “actual innocence” which could not be raised in a pretrial motion.
* Holding: Where a party fails to raise an issue before the district court, the issue is ordinarily waived on appeal except in “exceptional cases or particular circumstances, or when the rule would produce a plain miscarriage of justice.” The court ruled that no exceptional circumstances were present in the case, and accordingly, the government waived the issue.
• Issue First Raised on Appeal
U.S. v. Studabaker, 08-1614 (8/24/09)
> Defendant pled guilty and was sentenced for possession of child pornography. Defendant argued for the first time on appeal that the factual basis for his plea did not establish the interstate nexus for the offense and that the district court accordingly lacked jurisdiction to sentence him for such offense.
* Holding: The court held that defendant’s guilty plea waived any argument that the evidence was insufficient to support the conviction. Further, the court held that the interstate nexus element of the offense was not jurisdictional in the sense that it did not affect the district court’s power to adjudicate the case. Accordingly, the court affirmed defendant’s conviction and sentence.
• Issue First Raised on Appeal
U.S. v. Archibald, 08-5703 (12/15/09)
> Officers arrested defendant at his front door based on an arrest warrant, and then entered the residence to conduct a “protective sweep.” In defendant’s subsequent prosecution, he moved to suppress evidence and claimed that the “protective sweep” was not authorized. The district court denied the motion and defendant appealed. The government argued for the first time on appeal that the “protective sweep” was authorized because the officers entered the apartment to arrest defendant and the additional evidence was discovered in plain view in an area adjoining where defendant was arrested.
* Holding: The court first noted that the district court made no factual findings concerning the government’s argument because the argument was not raised in the district court. Thus, the court relied on the long standing rule that issues not raised before the district court are waived on appeal. Further, the court ruled that the failure to raise the issue could not be faulted to defendant because the government bore the burden of proving the constitutionality of the warrantless search of defendant’s residence. Accordingly, the court held that the government’s argument was waived. The court nonetheless ruled alternatively that the government’s argument was lacking in merit. (See supra).
• Preserving Error
U.S. v. Buckingham, 05-5014 (1/11/06)
> Defendant was charged with being a felon in possession of a firearm and moved to suppress evidence obtained during a search of his car after a traffic stop. Defendant did not raise the invalidity of his consent argument in his written motion, but argued it orally several times during the suppression hearing. The district court found consent for the search, and denied defendant’s motion. Defendant appealed and the government argued that defendant had waived the consent issue by not sufficiently raising it in the district court.
* Holding: The court found that defendant had sufficiently contested the issue of consent by raising it orally during the hearing on the motion to suppress. Accordingly, the court considered the issue. (See supra, IV. Fourth Amendment).
• Preserving Error
U.S. v. Blood, 04-5101 (1/24/06)
> Defendant was charged with possessing counterfeit securities with intent to deceive another. At trial, the district court decided to provide an instruction to the jury on entrapment by estoppel. Defendant attempted to object to the substance of the instruction at the charge conference. The district judge stated that he felt that defendant’s objection was imprecise, and indicated that defendant would be required to state the objection succinctly after the instructions were provided to the jury. Defendant failed to make a specific objection to the entrapment by estoppel instruction after the instructions were provided to the jury, and did not incorporate the codefendant’s specific objection to the instruction. Defendant appealed.
* Holding: Although trial judges do not have unfettered discretion in determining what is required to preserve objections, they are permitted to require a defendant to articulate objections after a charge is given. The court held that the district court’s request of defendant in the case was reasonable. The district court gave defendant reasonable notice as to what was required to preserve his objection, and the request was reasonable to insure clarity. Because defendant failed to make a specific objection to the entrapment by estoppel instruction, and did not incorporate the codefendant’s specific objection, the court found that defendant had failed to preserve his objection and reviewed the case for plain error. (See supra, X. Jury Issues).
• Preserving Error
U.S. v. Baker, 05-3336 (8/15/06)
> Defendant was charged with conspiracy and mail fraud, and at trial the government introduced postal records under the business records exception of FRE 803(6). Defendant did not object to the proffered evidence, but a codefendant did. After defendant’s conviction, he raised the evidentiary issue on appeal.
* Holding: The court held that because the codefendant had raised an objection to the business records, the error was preserved for defendant’s appeal. The court then proceeded to address the merits of the claim. (See supra, III. Evidence).
• Preserving Error
U.S. v. Ganier, 05-6350 (11/15/06)
> On the first day of defendant’s trial for obstruction of justice, the district court entered an order excluding certain expert testimony for the government because the government had not provided sufficient advance notice of the expert testimony to the defense. The government filed an interlocutory appeal and defendant argued on appeal that the plain error standard should apply because the government did not make an “offer of proof” to the district court as to what the expert testimony would have been.
* Holding: Pursuant to FRE 103(a), a formal offer of proof, while the preferred method, is not required in order to preserve error. The court held that the rule simply requires that the substance of the evidence be made known to the district court. The court ruled that discussions of counsel, the motion that was filed, and the reports that were provided to the district court sufficiently informed the court of the substance of the proposed expert testimony. Accordingly, the court held that the government had sufficiently preserved the error for appellate review, and declined to apply only plain error review.
• Preservation of Issue on Appeal
U.S. v. Grenier, 06-4473 (1/22/08)
> Defendant was charged with making false statements to the SEC and the district court dismissed the indictment on statute of limitation grounds. The government filed a motion to reconsider the district court’s ruling, and the district court denied the motion. The government then filed a notice of appeal which referenced only the district court’s ruling on the motion for reconsideration. Defendant argued on appeal that the only issue was whether the district court abused its discretion in denying the motion for reconsideration.
* Holding: The court held that a notice of appeal that names only a post-judgment order may extend to the judgment itself if it reasonably appears that the intent of appellant was to appeal the final judgment and the appellee has not been misled. The court may rely on briefs and other subsequent filings to infer the intent of the appellant. In the case, the court held that it was apparent from the filings that the government intended to appeal the district court’s dismissal of the indictment, and thus, the court proceeded to address the merits of that claim. (See supra, VIII. Defenses).
• Preserving Error - Magistrate Decisions
U.S. v. Sullivan, 03-6329 (12/20/05)
> During defendant’s prosecution for bank robberies, defendant challenged eyewitness identifications in a pretrial motion before a magistrate. The magistrate denied defendant’s motion, and defendant failed to object to the magistrate’s decision. After conviction in the district court, defendant appealed.
* Holding: Pursuant to 28 U.S.C. § 636(b), if a defendant fails to object to a magistrate’s decision regarding the admission of identification evidence, she has waived her right to appeal. The court of appeals may only excuse the default if the district court’s error is so egregious that the failure to permit appellate review would work a miscarriage of justice. In the case, the court found no such egregious error and affirmed the lower court’s decision admitting the eyewitness identifications.
• Preserving Error - Magistrate Decisions
U.S. v. Branch, 06-5393 (8/12/08)
> Defendant was charged with drug trafficking and moved to suppress cocaine found on his person. The suppression hearing was held before a magistrate, and the magistrate recommended denial of the motion. Defendant did not object to the magistrate’s decision. Defendant entered a conditional plea of guilty, and appealed.
* Holding: The court held that defendant forfeited his right to appeal the district court’s ruling on the motion to suppress by failing to object to the magistrate’s decision. Accordingly, his appeal on this issue was waived.
• Preserving Error - Conditional Pleas
U.S. v. Alexander, 07-3219 (8/18/08)
> During defendant’s prosecution for a drug conspiracy, defendant moved to compel discovery to try to uncover evidence of police misconduct. The district court denied the motion. Defendant entered a conditional plea reserving his right to appeal the district court’s ruling on his motion to suppress, but did not specifically reserve his right to appeal the court’s ruling on the motion to compel. Defendant appealed.
* Holding: The court held that Fed. R. Crim. P. 11(a)(2) provides that a plea waives any pretrial issues not specifically reserved in the plea. Accordingly, the court found that defendant’s motion to compel discovery was not preserved for appeal.
• Preserving Error - Conditional Pleas
U.S. v. Mastromatteo, 06-2349 (8/19/08)
> Defendant was charged with meth distribution and he moved to suppress evidence obtained pursuant to a search warrant. The district court denied the motion and defendant entered a plea without a written plea agreement. At the plea hearing, defendant stated that he was reserving his right to appeal the suppression issue, and the government agreed. The district court approved the arrangement and accepted the plea. Defendant appealed the suppression issue.
* Holding: Fed. R. Crim. P. 11(a)(2) requires that, in pleading guilty, a defendant must reserve the right to appeal an issue in writing. The court held that the requirement of preserving an appeal in writing was not jurisdictional, and thus may be waived by the government. Accordingly, the court proceeded to the merits of the suppression issue. (See supra).
• Preserving Error - Motion to Suppress
U.S. v. Young, 08-1394 (9/4/09)
> Defendant was charged with being a felon in possession of a firearm and he moved to suppress the evidence. The district court denied the motion, and defendant entered a plea without a plea agreement or preserving his right to appeal the adverse ruling on the motion. After being sentenced, defendant appealed and assigned error to the district court’s ruling on the motion to suppress.
* Holding: Pursuant to Fed. R.Crim.P. 11(a)(2), a defendant must specifically preserve the right to appeal an adverse ruling on a motion to suppress when entering a plea of guilty. Accordingly, defendant was barred from raising the issue on appeal.
• Issue Not Raised in First Appeal - Waiver
U.S. v. Boudreau, 07-2143 (4/23/09)
> Defendant was convicted of participating in a drug conspiracy and prior to trial the government presented an enhancement under 21 USC § 851, thus increasing defendant’s mandatory minimum sentence to 20 years. Defendant was convicted and the district court determined that defendant was a career offender and sentenced him to 30 years. The Sixth Circuit remanded the case based on the intervening decision in Booker and on remand the district court determined that it had improperly categorized defendant as a career offender. Thus, the district court resentenced defendant to 20 years. For the first time at the resentencing, defendant raised the issue that the § 851 enhancement was not properly filed. The government did not argue that issue was waived in the district court, and the court proceeded to a full blown evidentiary hearing on the merits. The court ruled against defendant and sentenced him to 20 years. Defendant appealed and the government argued on appeal that defendant had waived the § 851 issue by not raising it in the first appeal.
* Holding: First, the court held that the government forfeited its waiver argument by not raising it in the district court. Second, the court held that, even if the government had not waived its waiver argument, defendant would not be precluded from arguing the § 851 issue because it was not “logically relevant” in defendant’s first appeal. At the time of defendant’s first appeal, the district court sentenced defendant to 30 years based on a mandatory guideline scheme. Thus, the issue of whether the 20 year mandatory minimum was proper was not “logically relevant” to the appeal. Accordingly, the court proceeded to the merits of defendant’s argument. (See supra).
• Issue First Raised in Reply Brief
U.S. v. Carson, 05-1812 (3/30/09)
> Defendant was convicted and sentenced for conspiracy and deprivation of civil rights and raised for the first time in his reply brief on appeal that the district court incorrectly applied an obstruction of justice enhancement.
* Holding: The court held that an appellant cannot raise new issues in a reply brief, but can only respond to arguments raised for the first time in the appellee’s brief. Accordingly, the court held that it was precluded from considering defendant’s argument.
• Issue First Raised in Petition for Rehearing
U.S. v. Shafer, 07-2574 (7/21/09)
> Defendant was convicted of enticing a minor to engage in sexually explicit conduct for purposes of producing visual depictions. At sentencing, the district court imposed a two-level enhancement under USSG § 2G2.1(b)(2)(A) because the court found that defendant had “sexual contact” with the minor, based on defendant’s act of enticing the minor to self-masturbate. Defendant appealed and the original panel remanded the case in order to determine whether the intent element (intent to “abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person”) was met in terms of the “sexual contact.” (See P.V. Issue #25). In the first appeal, the government argued that the victim’s intent was the only relevant consideration. In its petition for rehearing, however, the government argued that defendant’s intent could also be considered.
* Holding: Ordinarily, the court refuses to consider arguments raised for the first time in a petition for rehearing, unless “extraordinary circumstances” support the rehearing. In its amended decision, the court found that such “extraordinary circumstances” existed in the case because the government’s failure to raise the issue originally was not wilful, the issue was one of first impression in any circuit, and the government’s new argument went to the heart of the court’s original holding. Accordingly, the court proceeded to the merits of the government’s argument. (See supra).
• Issue Not Appealed
U.S. v. Dyer, 08-5671 (9/8/09)
> Defendant was charged with possession of meth with intent to distribute and moved to suppress the evidence found in a cabin that was rented by his girlfriend. A magistrate judge determined that defendant had no standing to challenge the search of the cabin, but the district court disagreed and ruled that defendant had standing. The district court overruled the motion to suppress on other grounds, however. Defendant appealed.
* Holding: The court held that the issue of whether defendant had standing to challenge the search was not preserved because “the government has not appealed the district court’s determination that standing existed.” Accordingly, the standing issue was waived by the government.
• Preserving Error - Bill of Particulars
U.S. v. Schaffer, 09-3053 (11/12/09)
> Defendant was charged with conspiracy to commit computer fraud and he moved for a bill of particulars and for dismissal of the indictment based on various grounds. The district court denied the motion to dismiss, but never ruled on the request for a bill of particulars before defendant entered his guilty plea. Defendant’s plea was conditional, and preserved his right to appeal the denial of his motion to dismiss. After sentencing, defendant appealed and argued that the bill of particulars should have been granted.
* Holding: Any non-jurisdictional issue concerning the indictment must be preserved in a plea agreement in order to raise the issue on appeal after a guilty plea. The court held that defendant failed to specifically preserve the bill of particulars issue in the plea agreement. Further, the court held that the issue was not preserved by defendant’s mention of the pending bill of particulars request in a footnote in the motion to dismiss. The court found that because the bill of particulars argument was not actually presented in the motion to dismiss, and not preserved in the plea agreement, the issue was waived on appeal.