The White Collar Appeal: Defendant Who Had Pleaded Guilty Not Permitted to Raise Claims of Prosecutorial Misconduct Before the Grand Jury

• In United States v. Maldonado, the First Circuit held that a defendant’s unconditional guilty plea waived any Fifth Amendment challenge to alleged prosecutorial misconduct before the grand jury.
• Applying longstanding Supreme Court precedent, the First Circuit held that an unconditional guilty plea effectively wipes the slate clean and waives nonjurisdictional defects predating the guilty plea, including due-process violations and prosecutorial misconduct before the grand jury.
• Defense counsel thus should seek to carve out potential claims—especially ones involving prosecutorial misconduct and other due-process violations—that a defendant can bring based on evidence that comes to light following the guilty plea.

Background

Maldonado was a child enticement case involving a defendant who entered into a plea agreement in which the government would drop one count in exchange for his pleading guilty to three others.  Although the agreement addressed the scope of permissible arguments at sentencing, it did not explicitly reserve any right for the defendant to appeal adverse determinations on pretrial matters.

After Maldonado pleaded guilty, he sought to argue that his conviction should be vacated because the government had engaged in misconduct before the grand jury that violated his Fifth Amendment due-process right. 

Holding

The First Circuit held that Maldonado’s guilty plea was “unconditional” and, as a result, that he had waived any claim that prosecutorial misconduct infected the grand jury.  Relying on Tollett v. Henderson, 411 U.S. 258 (1973), the First Circuit explained that when a defendant “solemnly admit[s] in open court that he is in fact guilty of the offense with which he is charged,” he may not later raise independent claims of constitutional deprivations that occurred before the plea.  One exception, the First Circuit acknowledged, is that a defendant retains the power to challenge the constitutionality of the statute of conviction, because such a challenge goes to the government’s power to criminalize the admitted conduct.  By contrast, the kind of grand-jury misconduct Maldonado raised is precisely the kind of “case-related constitutional defect” that Maldonado’s unconditional guilty plea waived.

Key Takeaways

The plea agreement may be the last chance to preserve pretrial issues.  Maldonado is a reminder that a plea agreement largely wipes the slate clean of prior procedural defects, even constitutional ones.  Defendants who wish to preserve search-and-seizure issues, grand-jury misconduct issues, speedy-trial arguments, or other nonjurisdictional pretrial issues should seek a conditional plea under Rule 11(a)(2) of the Federal Rules of Criminal Procedure.  Otherwise, a guilty plea will waive those issues.

Attack the operative indictment—if you can.  The First Circuit rejected Maldonado’s grand-jury challenge for the additional reason that his misconduct allegations related only to the grand jury that returned the original indictment, not the one that returned the superseding indictment.  A subsequent grand jury’s issuance of a superseding indictment can cure prosecutorial errors in an initial indictment’s grand jury proceedings.  With no evidence about the proceedings before the second grand jury, Maldonado had no basis to rebut the conclusion that the second grand jury proceedings cured the alleged errors in the first proceeding.  Of course, Maldonado had no opportunity to rebut the conclusion, because the second grand jury’s proceedings were under seal, as grand jury proceedings typically remain.  As a result, the First Circuit’s alternative basis for rejecting Maldonado’s argument creates a very difficult hurdle for defendants to clear in arguing grand-jury misconduct. 

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