Unpublished Disposition, 855 F.2d 863 (9th Cir. 1984)

No. 87-1320.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and WIGGINS, Circuit Judges, and ROBERT J. KELLEHER,^**  District Judge.

MEMORANDUM^* 

The appellant asks us to reverse the district court's denial of his suppression motion or, in the alternative, to permit him to withdraw his conditional guilty plea. We grant the latter relief.

Appellant was indicted for possessing cocaine in 1985. The indictment was based on appellant's arrest July 7, 1984, the facts of which have been heavily disputed. According to the arresting officers, the officers had received complaints that drug transactions involving a Cadillac and a Corvette were taking place at a particular address. On the day of the arrest, the officers received a complaint that a drug transaction was in progress. The officers proceeded to the address and, as they approached, saw appellant and Lane in front of the suspect house and next to a yellow Cadillac. According to the officers, they saw appellant hand a white paper bindle, commonly used to package cocaine, to Gilky in return for a large wad of money. Appellant, Gilky, and a neighbor dispute that this transaction ever occurred.

According to the officers, Gilky drove off in his car when the officers pulled up. As the officers approached Lane and appellant, they smelled ether coming from the Cadillac; ether is a substance commonly used in free-basing. The officers testified that it was at this point that they arrested appellant and Lane and took both their car keys. The evidence sought to be suppressed came as a result of a search of automobiles using the seized keys. Appellant's position is that there was no probable cause for the arrest and seizure of the keys.

At appellant's first motion to suppress hearing, Gilky was not available to testify for the defense that no sale occurred. The district court denied a continuance to locate him. The district court stated that, whether it accepted the basis for probable cause as the disputed cocaine sale or the smell of ether, the officers had probable cause to arrest and, therefore, probable cause to seize the keys and search the cars. Although the government offered proposed findings of fact, appellant objected to them because they adopted the government's version of the facts despite the district court's indication that it was not prepared to adopt that version. Appellant conditionally pled guilty, specifically basing his agreement to the plea on the district court's refusal to sign the government's proposed findings. He then appealed pursuant to Fed. R. Crim. P. 11(a) (2). On appeal the government conceded that the district court had erred in finding probable cause based only on the smell of ether. Because the district court had not determined which version of the facts it accepted, we remanded the case for further evidentiary proceedings and factual findings.

The district court held a new evidentiary hearing at which Gilky testified that no drug transaction occurred. After further briefing, however, the district court signed, without substantive change, the government's proposed Findings of Fact and Conclusions of Law, finding that there was a drug transaction. These findings are substantially identical to the findings objected to by the appellant prior to his conditional guilty plea and earlier rejected by the district court. Although the appellant asked to withdraw his plea after the findings were entered, the district court refused to permit him to do so.

Appellant claims that the district court should at least have allowed him to withdraw his plea. Under Fed. R. Crim. P. 11(a) (2) " [a] defendant who prevails on appeal shall be allowed to withdraw the plea." Appellant points out that his plea was conditioned upon seeking review of the district court's original findings and conclusions. He contends that the remand by this court to the district court for further proceedings made him the prevailing party with the right to withdraw his plea pursuant to Rule 11(a) (2). See United States v. Nordling, 804 F.2d 1466, 1472 (9th Cir. 1986); United States v. DiCesare, 777 F.2d 543, 543 (9th Cir. 1985). The government distinguishes Nordling and DiCesare because in those cases this court vacated the district court's orders and remanded for further factual findings. The government points out that in this case, the prior panel did not vacate the district court order; it remanded for further proceedings.

We need not decide whether this distinction may be material in some contexts. In this context it is not. The appellant in this case explicitly conditioned his plea on the district court's refusal to sign the government's proposed findings. He made it clear that if the court signed those findings, he wanted to go to trial. When the district court signed substantially identical government proposed findings after the second evidentiary hearing, appellant should have been given the opportunity to withdraw his plea because one of the conditions for his voluntary plea had not been met.

The appellant also requests that this court reverse the district court because the court's factual findings are allegedly not supported by the record. However, the findings cannot be clearly erroneous because they are supported by the testimony of the officers at the first suppression hearing. In addition, there is no support in the record for appellant's contention that the district court improperly adopted the government's proposed findings. See UNT v. Aerospace Corp., 765 F.2d 1440, 1445 (9th Cir. 1985).

While the appellant is not entitled to a reversal of the order denying his motion to suppress, he is entitled to a trial. The order of the district court is REVERSED and REMANDED with instructions to allow appellant to withdraw his plea pursuant to 11(a) (2).