After Hunter Biden pled guilty to nine counts of tax crimes in federal district court in Los Angeles, California, this week, many people assume that the only remaining issue is what punishment he will receive at his sentencing, which is set for December 16, 2024.
There was some drama leading up to the plea, with Biden initially attempting to enter an Alford plea in which he would concede the sufficiency of the government’s evidence without admitting his guilt. Ultimately, however, he entered an unqualified plea in which he acknowledged his guilt of all the counts in the indictment.
Yet, promptly after entering this plea before Judge Mark C. Scarsi, Biden’s lawyer Abbe Lowell held a press conference and asserted that the case would now proceed to sentencing, “while keeping open the options to raise the many clear issues with this case on appeal.”
This statement caught many by surprise because of the commonly held belief that a guilty plea forecloses any appeal. But, while a plea forecloses most issues that might be raised on appeal, it does not foreclose all of them. Lowell, an experienced and able lawyer, understands this and clearly plans to pursue an appeal to overturn Biden’s tax convictions.
In federal court, the vast majority of guilty pleas are entered pursuant to plea agreements between the government and the defendant, in which the government makes certain concessions such as dropping some charges or agreeing to limits on the sentence. In return, the government usually demands that the defendant waive the right to all appeals, and to habeas corpus filings post-conviction.
The government strives to make the waiver as broad as possible, to prevent virtually all appeals, regardless of the legal ground that they are based upon. Defendants agree to these demands because they are getting other things that they value more in the plea deal, such as the reduction of charges or the dismissal of the case against a family member, or because they simply don’t have the leverage based on the facts and the law to negotiate a better deal on the appeal issue. Thus, in most cases, a guilty plea in federal court does mean that there will be no appeal.
Further, because a waiver of appeal rights is standard in most plea agreements, the federal rule of criminal procedure governing pleas requires the court to address this issue and ensure that the defendant understands that he or she is waiving the right to appeal – but only if there is a plea agreement that addresses waiving appellate rights.
Sometimes defendants can negotiate the right to appeal a particular issue or issues as part of the overall plea deal, under what the federal rules of criminal procedure call a “conditional plea.” With the consent of the court and the government, a defendant may enter a conditional plea of guilty and reserve in writing the right to appeal an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the guilty plea. This procedure lets the parties and the court avoid the time and expense of a trial in cases where the defendant would only insist on a trial in order to preserve the right to appeal a legal issue that has been litigated pre-trial.
In cases where there is no plea agreement with the government, however, and the defendant simply pleads guilty to the entire indictment in court, as Biden did, the determination of what appellate rights the defendant retains is based on the law, not on any deal. In such cases, the trial judge is not required to cover the defendant’s appellate rights during the plea procedure because there is no plea agreement that affects those rights.
The law provides that unqualified guilty pleas do constitute a waiver of the right to appeal the vast majority of claims that there were defects or errors in the case prior to the plea. Thus, defendants cannot appeal on any ground that challenges factual guilt, evidentiary errors, procedural errors, and even most constitutional errors.
Defendants can still appeal certain kinds of claims even with a guilty plea, however. These exceptions to the usual rule that the plea waives the right to appeal basically fall into three categories.
First, a defendant can almost always appeal on the grounds that the court itself lacked jurisdiction over the case. The general rule of law is that any argument that a tribunal does not have jurisdiction can be raised at any time in a proceeding. Courts take seriously the principle that they cannot render judgments in cases where they do not have the power to do so.
Secondly, the defendant can appeal based on claims that the government lacked the power to prosecute the person in the first place. These are usually constitutional claims, such as immunity, double jeopardy, selective prosecution, or an argument that the charged statute is unconstitutional in some way. These appeals are permitted because they question the legality of the prosecution itself, not whether the person engaged in the charged conduct.
Thirdly, the law provides that the right to appeal certain defects in a criminal case simply cannot be waived by a defendant, whether there is a plea agreement or not. These issues lie at the heart of the functioning of the criminal justice system. So, for example, a defendant cannot waive the right to appeal an illegal sentence (such as one that exceeds the statutory maximum), or the ineffective assistance of the defense lawyer, or misconduct by the prosecutor in the case or the plea bargaining process.
Biden’s lawyers have raised several issues pretrial that might qualify claims that are not or cannot be waived. First, they have made some motions, (although rather weak ones), concerning alleged prosecutorial misconduct. That argument would almost certainly at least permit an appeal to be lodged.
They have also claimed, as have former President Trump’s lawyers on a different basis, that the prosecutor (David Weiss) was not properly appointed as a Special Counsel. If that were true, the appellate courts might construe that as an argument raising an issue of the court’s jurisdiction or whether the government could even have brought the case and therefore it would be appealable despite Biden’s guilty plea. It’s not the most clear-cut of jurisdictional issues, but it could be viewed as undermining the court’s ability to adjudicate the case if the specific prosecutor bringing the case had no power to do so.
The federal district judge in Trump’s case ruled that this issue was jurisdictional. This argument might more comfortably fit into the category of cases where the state could not bring it in the first place, but as that would only be true of the specific prosecutor and not the government generally, the appellate courts might also say it is not the kind of claim that can be appealed at this point.
Finally, Biden’s lawyers litigated the question of whether the tax charges in California were barred by Biden’s earlier pre-trial diversion agreement in Delaware. Biden has a credible, although not slam-dunk, argument that the diversion agreement was valid and prevents his prosecution in any federal court for the tax offenses to which he has just pled guilty. The California judge ruled that the diversion agreement was in force, but never went into effect because the Delaware probation officer had not yet signed it, but that is an odd, and weak, rationale. This argument does appear to be the kind of claim that the Supreme Court has said is not waived by a guilty plea because it goes to the question of whether the case could be brought at all.
One difference from the other kinds of claims that fit into that category, however, is that this argument does not seem to be constitutional, but is instead contractual. That might give the appellate courts pause as to whether it can be appealed after a guilty plea, although conceptually it is still an argument that the government could not even bring the case. Biden will likely also argue that the diversion agreement divests the federal district courts of jurisdiction over his specific case.
In terms of strategy for the case, the defense's move to enter a guilty plea without a plea deal was the only one available that would both avoid trial and preserve Biden’s ability to appeal these issues. If he had tried to negotiate a plea deal with the government preserving the right to appeal his issues concerning the appointment of the Special Counsel and the diversion agreement, the government would almost certainly have refused to agree. Biden’s only other option for preserving the right to appeal those issues was to suffer through a trial at which he was highly likely to be found guilty and then be sentenced before he could appeal.
By entering a guilty plea to all of the charges, he avoided the trial, will get at least some credit for doing so on his sentence, expedited the date on which he could file an appeal, and may well still be able to raise his best issues with the Ninth Circuit Court of Appeals. Although the effort to enter an Alford plea and later a guilty plea on the first day of trial appeared to be a surprising and somewhat chaotic move by the defense, it actually seems clear that Biden’s counsel had carefully examined the question of his appellate rights and made the calculated decision that a guilty plea was by far the best of Biden’s available legal options.
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