United States v. Crawford Bogle

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 5, 2023
• Docket: 21-3746
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0011n.06

No. 21-3746

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jan 05, 2023 DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) ON APPEAL FROM THE Plaintiff-Appellee, ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN v. ) DISTRICT OF OHIO ) CRAWFORD P. BOGLE, ) OPINION ) Defendant-Appellant. )

Before: KETHLEDGE, WHITE, BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Crawford Bogle pleaded guilty to knowing and intentional

possession with intent to distribute 40 grams or more of a mixture or substance containing a

detectable amount of fentanyl. Pursuant to his plea agreement, the district court sentenced him to

216 months imprisonment followed by 10 years of supervised release. On appeal, Bogle

challenges the district court’s denial of two motions to suppress evidence that he believes the

government obtained in violation of the Fourth Amendment. Because Bogle waived his right to

appeal these denied motions, we AFFIRM.

I.

In 2019, Bogle purchased, possessed, and distributed fentanyl, methamphetamine, and

cocaine in southern Ohio. This drug operation involved more than 40 grams of a mixture or

substance containing fentanyl and more than 500 grams of a mixture or substance containing a

detectable amount of methamphetamine. Using stash houses—including homes at 21 Valley View No. 21-3746, United States v. Bogle

Apartment A, 251 Marathon Avenue, 4492 Riverside, 4624 Laurel, and 22 Siebenthaler—Bogle

stored, processed, and then sold the drugs he obtained.

Those drug sales netted him thousands of dollars in cash. To pay for the drugs he sold,

Bogle delivered money to couriers who worked for his drug supply source. In an effort to protect

himself and his drug operation, Bogle kept a Glock firearm at the Valley View Apartment A stash

house. There, at one point, he had over 800 grams of methamphetamine and 300 grams of fentanyl

along with the Glock handgun.

But Bogle’s drug business eventually came to an end thanks to an undercover agent from

the Drug Enforcement Administration (DEA). That agent posed as a courier from Bogle’s drug

supply source to intercept one of his payments. The DEA then followed up with several

investigative techniques to detect and thwart Bogle’s drug operation, including: placing a court-

approved tracking device on Bogle’s truck; executing search warrants at the various stash houses;

and using a Title III cellular telephone intercept (wiretap). From these efforts, the DEA identified

more than a dozen people involved with this drug operation.

When the investigation concluded, a grand jury indicted Bogle, as well as eighteen other

people, for various drug crimes. Bogle then filed a motion to suppress evidence obtained from the

wiretap of his cell phone, arguing that the wiretap was unnecessary. He later amended this motion

to also challenge the probable cause supporting the installation of the tracking device on his truck

and the probable cause for the search warrants for the Riverside, Laurel, and Siebenthaler

residences. He filed a second motion to suppress evidence obtained from the search of the Valley

View Apartment A residence, challenging the particularity and scope of that warrant. The district

court denied both motions.

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Bogle then decided to enter a guilty plea, with a negotiated plea agreement, to Count 9 of

the indictment—the knowing and intentional possession with intent to distribute 40 grams or more

of a mixture or substance containing a detectable amount of fentanyl in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(B). As part of the change of plea hearing, the district court asked Bogle if he

understood his guilty plea waived his ability to appeal the earlier suppression rulings. The district

court specifically asked Bogle if he understood that he was “giving up [his] right to appeal anything

that has occurred in [his] case before [he] came to court” to enter his guilty plea. The district court

also clarified that the scope of the appeal waiver “would include [the court’s] opinion on the motion

to suppress.” In response, Bogle replied, “Yes, your Honor.”

Notably for this appeal, the plea agreement is silent about Bogle’s ability to appeal the

challenges related to the district court’s denial of the motions to suppress. Because of this

omission, the government characterizes the plea as unconditional, given that it lacks any reference

to Federal Rule of Criminal Procedure 11(a)(2). That rule states that a conditional plea reserves,

in writing, the right to appeal an adverse determination of a specified pretrial motion. In response,

Bogle contends that the district court confused the issue because there was no appeal waiver

provision in his plea agreement, and the district court cannot orally add to the plea agreement

during the plea colloquy.

The district court ultimately accepted the guilty plea, finding that Bogle entered it

knowingly, intelligently, and voluntarily. As a result of his plea, the district court sentenced Bogle

to 216 months of imprisonment, pursuant to his plea agreement, followed by 10 years of supervised

release. Bogle timely appealed.

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II.

As explained below, we need not reach the merits of Bogle’s arguments about the

suppression motions because he did not preserve any right to appeal the district court’s rulings.

We reach this decision based on our de novo review of whether the defendant’s plea agreement

waived his right to appeal. See United States v. Swanberg, 370 F.3d 622, 626 (6th Cir. 2004)

(citing United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003)).

Bogle would have us interpret the lack of an appeal waiver in the plea agreement in favor

of allowing his appeal. But Bogle’s position contradicts binding circuit precedent. In United

States v. Abdulmutallab, we held that a defendant waived his ability to appeal the ruling of a

suppression motion when pleading guilty. 739 F.3d 891, 904 (6th Cir. 2014). Like Bogle’s plea

agreement, Abdulmutallab’s plea contained no provision addressing an appeal waiver.

Nonetheless, we held that the guilty plea necessarily implied such a waiver. To reach our holding,

we explained that “[w]hen a criminal defendant pleads guilty, ‘he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred prior to the

entry of the guilty plea.’” Id. at 904 (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)).

The import of this reasoning, applied here, is that Bogle cannot appeal the alleged deprivation of

his constitutional rights during the government’s investigation. He may only attack the voluntary

and intelligent character of the guilty plea, id., an argument not raised by Bogle in this appeal. Id.

The Supreme Court has explained that a “valid guilty plea also renders irrelevant—and

thereby prevents the defendant from appealing—the constitutionality of case-related government

conduct that takes place before the plea is entered.” Class v. United States, 138 S.Ct. 798, 805

(2018). As the Court stated in Tollett v. Henderson, the entry of “a guilty plea represents a break

in the chain of events which has preceded it in the criminal process. When a criminal defendant

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has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged,

he may not thereafter raise independent claims relating to the deprivation of constitutional rights

that occurred prior to the entry of the guilty plea.” 411 U.S. 258, 267 (1973). Because Bogle’s

suppression rulings only challenge the government’s conduct before the guilty plea, his guilty plea

prevents his appeal related to that conduct. Given that Bogle’s suppression motions are based on

the Fourth Amendment, the Supreme Court’s decision in Haring v. Prosise is particularly relevant.

In that case the Court explained that “a guilty plea results in the defendant’s loss of any meaningful

opportunity he might otherwise have had to challenge the admissibility of evidence obtained in

violation of the Fourth Amendment.” 462 U.S. 306, 320 (1983). Thus, Bogle’s suppression

motions can no longer be granted because, by pleading guilty, he forfeited his Fourth Amendment

grounds to appeal the admissibility of the evidence.

Even more, the Class opinion explains that a plea agreement that lacks an appeal waiver

still bars the appeal of most constitutional claims. 138 S.Ct. at 806–07. Like the district court’s

plea colloquy with Bogle, the district court told Class that he was “giving up [his] right to appeal

[his] conviction.” Id. at 807. The only constitutional claims preserved for appeal following this

exchange with the district court are those that fall within the Supreme Court’s recent articulation

of the Menna-Blackledge doctrine in Class. Id. at 806; see Menna v. New York, 423 U.S. 61, 62

(1975) (holding that an appeal claiming double jeopardy is not precluded by a guilty plea); see

Blackledge v. Perry, 417 U.S. 21, 28–31 (1974) (holding that vindictive prosecution is a due

process violation which may be appealed even after a guilty plea)

Under that doctrine, defendants can always appeal the government’s abuse of its

constitutional power to prosecute, and a direct appeal for those claims is not barred by a guilty

plea. Class, 138 S.Ct. at 803–05. But those claims must stem from either (1) a challenge to the

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constitutionality of the underlying criminal statute or (2) a due process violation in the

government’s prosecution. Id. Bogle’s claims do not challenge the applicable underlying criminal

statute, nor does he allege a due process violation during the government’s prosecution. Therefore,

with no claims falling within the Menna-Blackledge doctrine, Bogle has no constitutional claims

that survive the implicit appellate waiver created by his guilty plea.

But Bogle argues his appeal about the suppression of the wiretap evidence is a statutory,

rather than a constitutional, claim. He contends that this appeal does not turn on the “judicially

fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights, but upon

the provision of Title III,” which governs the prohibited uses of wiretap evidence. United States

v. Giordano, 416 U.S. 505, 524 (1974); 18 U.S.C. § 2515. While true, Bogle waived his right to

appeal this statutory claim as well. Because this is not a constitutional claim, it cannot be preserved

through the Menna-Blackledge doctrine. Further, preserving the right to appeal any non-

jurisdictional pre-plea motion is difficult because a guilty plea generally waives that right unless

the plea is conditional. United States v. Bell, 350 F.3d 534, 535–36 (6th Cir. 2003) (citing United

States v. Herrera, 265 F.3d 349, 351 (6th Cir. 2001)). In order to retain the right to appeal a pre-

plea motion, “there must be: 1) a conditional guilty plea in writing; 2) that reserves the right to

appeal a specified pre-trial motion; and 3) that evidences the government’s consent.” Id. We have

squarely held that “a defendant who pleaded guilty may not appeal an adverse ruling on pre-plea

motion to suppress evidence ‘unless he has preserved the right to do so by entering a conditional

plea of guilty in compliance with’ Rule 11(a)(2).” Bell, 350 F.3d at 535 (quoting United States v.

Herrara, 265 F.3d 349, 351 (6th Cir. 2001)). Bogle’s plea agreement does not satisfy any of the

elements needed to preserve the right to appeal the district court’s denial of the motion to suppress

the wiretap evidence.

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Bogle makes a final argument that plea agreements should be interpreted like contracts,

and because his plea agreement includes a “narrow waiver” of appeal that “is only applicable to

forfeiture,” the general rule doesn’t apply to the remainder of the agreement. Appellant Br. at 16.

True, Bogle’s plea, although otherwise silent on appellate waiver, states that Bogle “[w]aives all

constitutional and statutory challenges (including direct appeal, collateral attack, or any other

means) to the forfeiture.” R.565, PID 3175-76. At best, Bogle’s argument is that the inclusion of

this limited waiver created an ambiguity with respect to the application of the general rule that a

guilty plea without an appellate waiver prevents the defendant from appealing “the

constitutionality of case-related government conduct that takes place before the plea is entered.”

Class, 138 S.Ct. at 805. But any such contractual ambiguity was resolved when the district court

asked Bogle if he understood that he was “giving up [his] right to appeal anything that has occurred

in [his] case before [he] came to court” and Bogle confirmed that he understood.1 R.680, PageID

3923. Regardless of the appeal waiver as to forfeiture, Bogle did not enter a conditional plea

reserving the right to challenge the motion-to-suppress ruling, and therefore, his appeal on that

issue cannot proceed.

Because Bogle waived his right to appeal the district court’s denial of the motions to

suppress the evidence obtained by the government when he entered a guilty plea, we do not reach

the merits of his arguments.

III.

For the foregoing reasons, we AFFIRM the district court’s denial of these motions.

1 Bogle argues the court’s oral statement regarding Bogle’s right to appeal constituted an improper attempt by the district court to “unilaterally amend [Bogle’s] plea agreement.” Appellant Br. at 16 (quoting United States v. Fleming, 239 F.3d 761, 765 (6th Cir. 2001). This is incorrect. The district court’s questioning did not conflict with or amend Bogle’s plea agreement with respect to appellate waiver because the plea agreement was silent as to Bogle’s appellate rights. -7-