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The Always Confusing “nolo” Plea Comes Up in a Federal Criminal Case

Kish Law LLC

As a criminal defense lawyer I often get questions as to whether there is a difference between a “regular” guilty plea and a “nolo” plea.  Technically, the latter is from the Latin phrase, “nolo contendre”, more or less translating into “no contest.”  A few days ago the United States Court of Appeals for the Eleventh Circuit, where we handle lots of cases, issued an opinion discussing the “nolo” plea, its ramifications, and issued a ruling as to when a prosecutor can make use of an earlier “no contest” plea.  The case is United States v. Green.

Mr. Green has had some previous problems with law enforcement, and his problems got worse when he was charged with new crimes.  He got out on bail, but only with the condition that he wear a GPS-monitored ankle bracelet.  He apparently removed the ankle monitor, so the police went looking for him at a woman’s residence where they figured to find him.  Once inside the master bedroom, the police saw a large jacket (and the woman was not that size), men’s shoes on the floor, and most importantly, a firearm and ammunition scattered around. They subsequently discovered the unlucky Mr. Green hiding nearby in the closet. The feds charged him with being a previously (12 times!) convicted felon in possession of a firearm, and he went to trial represented by a very capable Federal Public Defender.

The Public Defender realized that he had something to work with in that no one ever saw Mr. Green with the gun, even if his presence under the laundry was kind of suspicious.  As a result, the prosecutors wanted to amp up their case, and they resorted to a tried-and-true method in federal court, introducing a “prior bad act” pursuant to Rule 404(b) from the Federal Rules of Evidence.   This “prior bad act” was a ten year old conviction under Florida state law for possession of a firearm by a convicted felon.  However, here’s where it got interesting, the prior Florida conviction was only obtained through a “nolo” plea.  In other words, back in 2006 Mr. Green did not admit he had a gun, he simply agreed to not contest the allegation that he had the firearm on that earlier occasion.  The prosecutors apparently had no witnesses to the 2006 incident, so they simply wanted to introduce the judgment, which is the paper setting out that Mr. Green was convicted of the felon-in-possession charge in 2006, with nothing more about the facts of that incident.

There are  three requirements for admitting a prior bad act under Rule 404(b), one of which is that the prosecutor needs to show that the prior bad act actually happened.  Mr. Green’s Public Defender pointed out that two other aspects of the Federal Rules of Evidence (Rules 410 and 803(22)(A)) restrict the use of previous “nolo” pleas in various contexts, and that this same principle should prevent a prosecutor from using a “nolo” plea when trying to prove a prior bad act really took place pursuant to Rule 404(b).  The Court of Appeals hemmed and hawed for many pages, finally agreeing that a prosecutor cannot be permitted to prove the facts of a prior bad act under Rule 404(b) simply by admitting a copy of the judgment obtained after a “nolo” plea.    However, as they do so many times, the appellate court said the error was “harmless”, so unlucky Mr. Green will serve the next 22 years in custody.  I applaud his legal team for their creativity and persistence, and figure they have a better than average chance of getting the U.S. Supreme Court to accept the matter for review.

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