Argued and Submitted July 15, 2008.
 Barry R. Levy and Andrea M. Gauthier, Horvitz & Levy LLP, Encino, CA; David S. Richman and Kenneth E. Johnson, Theodora Oringher Miller & Richman, P.C., Los Angeles, CA; and Matthew C. Wagner, Jess M. Collen, Thomas P. Gulick, Collen IP, Ossining, NY, for the plaintiff-appellant.
Aaron J. Moss and Norman H. Levine, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, CA, for the defendant-appellee.
W. Stephen Cannon and Seth D. Greenstein, Constantine Cannon LLP, Washington, D.C., for the amici curiae.
Before: BARRY G. SILVERMAN, JOHNNIE B. RAWLINSON, and MILAN D. SMITH, JR., Circuit Judges.
In this opinion, we address whether the Supreme Court's decision in Quality King Distributors, Inc. v. L'anza Research International, Inc., 523 U.S. 135, 118 S.Ct. 1125, 140 L.Ed.2d 254 (1998), requires us to overrule our precedents that allow a defendant in a copyright infringement action to claim the "first sale doctrine" of 17 U.S.C. § 109(a) as a defense only where the disputed copies of a copyrighted work were either made or previously sold in the United States with the authority of the copyright owner. Plaintiff-Appellant Omega S.A. (Omega) filed claims for infringing distribution and importation under 17 U.S.C. §§ 106(3) and 602(a) in response to Defendant-Appellee Costco Wholesale Corporation's (Costco) unauthorized sale of authentic, imported Omega watches bearing a design registered at the U.S. Copyright Office. The district court granted summary judgment to Costco on the basis of the first sale doctrine, and awarded attorney's fees. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
This circuit has construed 17 U.S.C. § 109(a) to provide no defense to an infringement action under §§ 106(3) and 602(a) that involves (1) foreign-made, nonpiratical copies of a U.S.-copyrighted work, (2) unless those same copies have already been sold in the United States with the copyright owner's authority. We hold that the first portion of this construction is not "clearly irreconcilable" with Quality King, and that it remains the law of this circuit. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). Because there is no genuine dispute that Omega made the copies of the disputed design in Switzerland, and that Costco sold them in the United States without Omega's authority, the first sale doctrine is unavailable as a defense to Omega's claims.
The facts are not disputed. Omega manufactures watches in Switzerland and sells them globally through a network of authorized distributors and retailers. Engraved on the underside of the watches is a U.S.-copyrighted "Omega Globe Design."
 Costco obtained watches bearing the copyrighted design from the "gray market" in the following manner: Omega first sold the watches to authorized distributors overseas. Unidentified third parties eventually purchased the watches and sold them to ENE Limited, a New York company, which in turn sold them to Costco. Costco then sold the watches to consumers in California. Although Omega authorized the initial foreign sale of the watches, it did not authorize their importation into the United States or the sales made by Costco.
Omega filed a lawsuit alleging that Costco's acquisition and sale of the watches constitute copyright infringement under 17 U.S.C. §§ 106(3) and 602(a), and subsequently moved for summary judgment. Costco filed a cross-motion on the basis of 17 U.S.C. § 109(a), arguing that, under the first sale doctrine, Omega's initial foreign sale of the watches precludes claims of infringing distribution and importation in connection with the subsequent, unauthorized sales. The district court ruled without explanation in favor of Costco on both motions. The court also awarded $373,003.80 in attorney's fees to Costco under 17 U.S.C. § 505. This appeal followed.
We review de novo a district court's grant of summary judgment under Federal Rule of Civil Procedure 56. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). Rule 56(c) provides that summary judgment is warranted when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." We review a district court's award of attorney's fees under 17 U.S.C. § 505 for an abuse of discretion. Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1197 (9th Cir.2001).
Importation into the United States, without the authority of the owner of copyright under this title, of copies ... of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies ... under section 106, actionable under section 501.
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights ... to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
This last section codifies the so-called "first sale doctrine," which holds that "[o]nce [a] copyright owner consents to the sale of particular copies of his work, he may not thereafter exercise the distribution right with respect to those copies." 2-8 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.12(B)(1), at 8-156 (1978 ed.).
The text of the Copyright Act establishes by syllogism that the first sale doctrine of § 109(a) limits § 602(a): First, given that § 106(3) is "subject to sections 107 through 122" and § 109 falls within the designated portion of the Code, § 109(a) limits the exclusive distribution right in § 106(3). Second, infringing importation under § 602(a) is merely a subcategory of "infringement of the exclusive right to distribute copies ... under section 106," so conduct that does not violate § 106(3) cannot constitute infringement under § 602(a). Finally, because conduct covered by § 109(a) does not violate § 106(3), and because absent a violation of § 106(3) there cannot be infringement under § 602(a), conduct covered by § 109(a) does not violate § 602(a). In short, infringement does not occur under § 106(3) or § 602(a) where "the owner of a particular copy ... lawfully made under this title" imports and sells that copy without the authority of the copyright owner. 17 U.S.C. § 109(a); see Quality King Distribs., Inc. v. L'anza Res. Int'l, Inc., 523 U.S. 135, 144-45, 118 S.Ct. 1125, 140 L.Ed.2d 254 (1998) (adopting this interpretation).
Omega concedes that § 109(a) generally limits §§ 106(3) and 602(a), but contends that § 109(a) does not apply in this case. Specifically, Omega argues that § 109(a) provides no defense to the infringement claims because, although the Omega Globe Design was copyrighted in the United States, the watches bearing the design were manufactured and first sold overseas. Omega claims that the copies of the design were not "lawfully made under [Title 17]" in these circumstances. 17 U.S.C. § 109(a). Costco responds that although Omega's position is correct under BMG Music v. Perez, 952 F.2d 318 (9th Cir.1991), Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477 (9th Cir. 1994), and Denbicare U.S.A. Inc. v. Toys "R" Us, Inc., 84 F.3d 1143 (9th Cir.1996), the Supreme Court effectively overruled those cases in Quality King, 523 U.S. 135, 118 S.Ct. 1125. For the reasons set forth below, we hold that Quality King did not invalidate our general rule that § 109(a) can provide a defense against §§ 106(3) and 602(a) claims only insofar as the claims involve domestically made copies of U.S.-copyrighted works. Because we also conclude that the exception to that rule does not apply, § 109(a) provides no defense in this case.
Omega's position was clearly correct under pre-Quality King Ninth Circuit precedent. This court has twice held on indistinguishable facts that § 109(a) provides no defense against a claim under § 602(a). In BMG Music, the defendant purchased copies of the plaintiffs' U.S.-copyrighted, foreign-manufactured sound recordings, imported them into the United States without the plaintiffs' authorization, and  then sold them to the public. 952 F.2d at 319. Following CBS v. Scorpio Music Distributors, 569 F.Supp. 47, 49 (E.D.Pa. 1983), aff'd without opinion, 738 F.2d 424 (3d Cir.1984), we held that § 109(a) provided no defense against a claim under § 602(a) in the circumstances because the phrase "lawfully made under this title" in § 109(a) "grants first sale protection only to copies legally made and sold in the United States," and the copies at issue were made and first sold abroad. 952 F.2d at 319. The rationale for this interpretation was twofold: First, a contrary interpretation would impermissibly extend the Copyright Act extraterritorially. Id. (citing Scorpio, 569 F.Supp. at 49). Second, the application of § 109(a) after foreign sales would "`render § 602 virtually meaningless'" as a tool against the unauthorized importation of nonpiratical copies because importation is almost always preceded by at least one lawful foreign sale that will have exhausted the distribution right on which § 602(a) is premised. Id. at 319-20 (quoting Scorpio, 569 F.Supp. at 49).
Drug Emporium, 38 F.3d 477, followed BMG Music by holding on similar material facts that § 109(a) provided no defense. However, we criticized the prior interpretation of § 109(a)'s key phrase—"lawfully made under this title." By permitting the first sale defense only against claims involving copies that are "legally made and sold in the United States," BMG Music appeared to give greater copyright protection to foreign-made copies than to their domestically made counterparts. See 38 F.3d at 482 n. 8. We found that "such a result would be untenable, and that nothing in the legislative history or text of § 602 supports such an interpretation." Id.; see also 2 Paul Goldstein, Goldstein on Copyright § 7.6.1, at 142 (3d ed.2007) (criticizing the approach in BMG Music and Scorpio). We therefore created an exception to BMG Music, concluding that § 109(a) can apply to copies not made in the United States so long as an authorized first sale occurs here. Drug Emporium, 38 F.3d at 481.
Denbicare, which involved copies made in Hong Kong and voluntarily sold by the U.S. copyright owner within the United States, applied the exception created by Drug Emporium. Denbicare, 84 F.3d at 1145-46. The copyright owner sued under §§ 106(3) and 602(a) after the defendant purchased the copies and resold them without permission, but we rejected the claims: The defendant was not liable for infringing importation under § 602(a) because the disputed copies were imported by third parties prior to the defendant's purchase and resale. Id. at 1149. The defendant also was not liable under § 106(3) because, in light of § 109(a) and Drug Emporium, the copyright owner's voluntary sale of the copies within the United States exhausted the exclusive right of distribution. Id. at 1149-50.
Under these cases, Costco would not be entitled to summary judgment on the basis of § 109(a). The statute would not apply because Omega made copies of the Omega Globe Design in Switzerland and Costco sold the copies without Omega's authority in the United States. The district court's unexplained grant of summary judgment on the basis of § 109(a) was at odds with BMG Music, Drug Emporium, and Denbicare.
We next address the degree to which the Supreme Court's decision in Quality King invalidates this circuit's construction of § 109(a). This panel may overrule BMG Music, Drug Emporium, and Denbicare if Quality King "undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Miller, 335 F.3d at 900.
It is clear that Quality King did not directly overrule BMG Music, Drug Emporium, and Denbicare. Quality King involved "round trip" importation: a product with a U.S.-copyrighted label was manufactured inside the United States, exported to an authorized foreign distributor, sold to unidentified third parties overseas, shipped back into the United States without the copyright owner's permission, and then sold in California by unauthorized retailers. 523 U.S. at 138-39, 118 S.Ct. 1125. The Court held that § 109(a) can provide a defense to an action under § 602(a) in this context. Id. at 144-52, 118 S.Ct. 1125. However, because the facts involved only domestically manufactured copies, the Court did not address the effect of § 109(a) on claims involving unauthorized importation of copies made abroad. See id. at 154, 118 S.Ct. 1125 (Ginsburg, J., concurring) ("[W]e do not today resolve cases in which the allegedly infringing imports were manufactured abroad."). Moreover, the Court never discussed the scope of § 109(a) or defined what "lawfully made under this title" means.
We next consider whether the reasoning of Quality King is clearly irreconcilable with our general rule that § 109(a) is limited to copies "legally made ... in the United States." BMG Music, 952 F.2d at 319; see also Denbicare, 84 F.3d at 1150. The basis for that rule was our concern that applying § 109(a) to foreign-made copies would violate the presumption against the extraterritorial application of U.S. law. BMG Music, 952 F.2d at 319 (citing Scorpio, 569 F.Supp. at 49); cf. Subafilms, Ltd. v. MGM-Pathe Commc'ns Co., 24 F.3d 1088, 1093-98 (9th Cir.1994) (en banc) (describing the "undisputed axiom" that United States copyright law has no extraterritorial application). Quality King dismissed a similar concern that the triggering of § 109(a) by foreign sales would require an invalid extraterritorial application of the Copyright Act, explaining that merely recognizing the occurrence of such sales "does not require the extraterritorial application of the Act any more than § 602(a)'s `acquired abroad' language does." 523 U.S. at 145 n. 14, 118 S.Ct. 1125. Costco contends that this explanation is irreconcilable with our interpretation of § 109(a) in BMG Music.
We reject Costco's contention and hold that the Supreme Court's brief discussion on extraterritoriality is not "clearly irreconcilable" with our general limitation of § 109(a) to copies that are lawfully made in the United States. Miller, 335 F.3d at 900. The common understanding of the presumption against extraterritoriality is that a U.S. statute "appl[ies] only to conduct occurring within, or having effect  within, the territory of the United States, unless the contrary is clearly indicated by the statute." Restatement (Second) of Foreign Relations Law of the United States § 38 (1965); see also EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). Recognizing the importance of avoiding international conflicts of law in the area of intellectual property, however, we have applied a more robust version of this presumption to the Copyright Act, holding that the Act presumptively does not apply to conduct that occurs abroad even when that conduct produces harmful effects within the United States. See Subafilms, Ltd., 24 F.3d at 1096-98; see also William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int'l L. 85, 101 (1998) (characterizing this circuit's approach under the Copyright Act as consistent with American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826 (1909), overruled on other grounds, Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 704-05, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962), which described the presumption as a "general and almost universal rule ... that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done").
Given this understanding of the presumption, the application of § 109(a) to foreign-made copies would impermissibly apply the Copyright Act extraterritorially in a way that the application of the statute after foreign sales does not. Under the latter application, the statute merely acknowledges the occurrence of a foreign event as a relevant fact. The former application would go much further. To characterize the making of copies overseas as "lawful[ ] ... under [Title 17]" would be to ascribe legality under the Copyright Act to conduct that occurs entirely outside the United States, notwithstanding the absence of a clear expression of congressional intent in favor of extraterritoriality. See 17 U.S.C. § 109(a); see also Subafilms, Ltd., 24 F.3d at 1096 ("There is no clear expression of congressional intent in either the 1976 Act or other relevant enactments to alter the preexisting extraterritoriality doctrine."). Specifically, it would mean that a copyright owner's foreign manufacturing constitutes lawful reproduction under 17 U.S.C. § 106(1) even though that statute does not clearly provide for extraterritorial application. This is precisely what we proscribed in Subafilms, see 24 F.3d at 1098, and Quality King provides no basis for rejecting our approach.
Other significant parts of Quality King's analysis are also consistent with BMG Music's limitation of § 109(a) to domestically made copies. The Court found that copies of a work copyrighted under Title 17 are not necessarily "lawfully made under [Title 17]" even when made by the owner of the copyright: The category of copies covered by § 602(a), it was explained, encompasses "copies that were `lawfully made' not under the United States Copyright Act, but instead, under the law of some other country." 523 U.S. at 147, 118 S.Ct. 1125. Because § 602(a) extends to such copies, but on its terms permits an infringement action only by the "owner of copyright under [Title 17]," copies of a work can be lawfully made "under the law of some other country," rather than "under[Title 17]," even when the copies are protected by a U.S. copyright. In short, copies covered by the phrase "lawfully made under [Title 17]" in § 109(a) are not simply those which are lawfully made by the owner of a U.S. copyright. Something more is required. To us, that "something" is the making of the copies within the United States, where the Copyright Act applies. See 2-8 Nimmer  on Copyright § 8.12(B)(6)(c), at 8-178.4(6)-(7).
a publisher of [a] U.S. edition [of a work] and a publisher of [a] British edition of the same work, each such publisher could make lawful copies. If the author of the work gave the exclusive United States distribution rights—enforceable under the Act—to the publisher of the United States edition and the exclusive British distribution rights to the publisher of the British edition, however, presumably only those made by the publisher of the United States edition would be `lawfully made under this title' within the meaning of § 109(a). The first sale doctrine would not provide the publisher of the British edition who decided to sell in the American market with a defense to an action under § 602(a).
523 U.S. at 148, 118 S.Ct. 1125 (emphasis added and footnote omitted). Assuming the British edition was made outside the United States, this illustration suggests that "lawfully made under this title" refers exclusively to copies of U.S.-copyrighted works that are made domestically. Were it otherwise, the copies made by the British publisher would also fall within the scope of § 109(a). See 2-8 Nimmer on Copyright § 8.12(B)(6)(c), at 8-178.4(7).
Finally, in the decision's only direct language on the issue, Justice Ginsburg's concurrence cited a copyright treatise for the proposition that "lawfully made under this title" means "lawfully made in the United States." 523 U.S. at 154, 118 S.Ct. 1125 (citing W. Patry, Copyright Law and Practice 166-70 (1997 Supp.)). The majority opinion did not dispute this interpretation, which aligns closely with the one adopted by our circuit. See BMG Music, 952 F.2d at 319.
Costco contends that BMG Music's limitation of § 109(a) to domestically made copies is inconsistent with the plain language of the statute and its legislative history. This criticism has been made before, including by this court. See, e.g., Parfums Givenchy, Inc. v. C & C Beauty Sales, Inc., 832 F.Supp. 1378, 1386-87 (C.D.Cal.1993), aff'd sub nom. Drug Emporium, 38 F.3d at 482 n. 8. Perhaps most compelling is the objection that BMG Music would provide substantially greater copyright protection to foreign-made copies of U.S.-copyrighted works. A U.S. copyright owner, for example, would be unable to exercise distribution rights after one lawful, domestic sale of a watch lawfully made in South Dakota, but, without the limits imposed by § 109(a), the same owner could seemingly exercise distribution rights after even the tenth sale in the United States of a watch lawfully made in Switzerland. The difference would likely encourage U.S. copyright owners to outsource the manufacturing of copies of their work overseas. Drug Emporium and Denbicare, however, resolved this problem by clarifying that parties can raise § 109(a) as a defense in cases involving foreign-made copies so long as a lawful domestic sale has occurred. See Drug Emporium, 38 F.3d at 481; Denbicare, 84 F.3d at 1150. Insofar as Costco contends that § 109(a) should apply to foreign-made copies even in the absence of a lawful domestic sale, the surviving rule from  BMG Music requires otherwise. See 952 F.2d at 319.
In summary, our general rule that § 109(a) refers "only to copies legally made ... in the United States," id., is not clearly irreconcilable with Quality King, and, therefore, remains binding precedent. Under this rule, the first sale doctrine is unavailable as a defense to the claims under §§ 106(3) and 602(a) because there is no genuine dispute that Omega manufactured the watches bearing the Omega Globe Design in Switzerland. Id.; Fed. R.Civ.P. 56(c); see also Swatch S.A. v. New City, Inc., 454 F.Supp.2d 1245, 1253-54 (S.D.Fla.2006) (concluding that Quality King is consistent with the interpretation that "lawfully made under this title" means "legally made ... in the United States"); 2 Goldstein on Copyright § 7.6.1, at 143-44 (concluding that Quality King "indicates an intention not to disturb lower court holdings that the first sale defense is unavailable to importers who acquire ownership of gray market goods made abroad").
We need not decide whether Drug Emporium's and Denbicare's exception to the rule in BMG Music also survives Quality King. There is no genuine dispute that the copies of the Omega Globe Design were sold in the United States without Omega's authority. The exception, therefore, does not apply in this case. See Denbicare, 84 F.3d at 1145-46 ("[Section] 109 applies to copies made abroad only if the copies have been sold in the United States by the copyright owner or with its authority."). Because the exception does not apply, the question of its continuing viability cannot affect our conclusion that § 109(a) provides no defense to Omega's claims.
The final issue is whether the district court abused its discretion in awarding attorney's fees to Costco. The Copyright Act provides for an "award [of] a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505. In deciding whether to award fees under this statute, a district court should consider "the degree of success obtained; frivolousness; motivation; objective unreasonableness (both in the factual and legal arguments in the case); and the need in particular circumstances to advance considerations of compensation and deterrence." Columbia Pictures Television, Inc., 259 F.3d at 1197.
The district court's award of $373,003.80 in attorney's fees to Costco was an abuse of discretion because neither party has prevailed in this litigation to this point.
 "`Gray-market' goods, or `parallel imports,' are genuine products possessing a brand name protected by a trademark or copyright. They are typically manufactured abroad, and purchased and imported into the United States by third parties, thereby bypassing the authorized U.S. distribution channels." Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477, 481 n. 6 (9th Cir.1994). Retailers are able to sell these products at a discount because the gray market arbitrages international discrepancies in manufacturers' pricing systems.
 Section 501(a) provides: "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122, ... or who imports copies . . . into the United States in violation of section 602, is an infringer of the copyright...."
 Other parts of § 109 qualify the first sale doctrine of § 109(a), see generally 17 U.S.C. § 109, but the parties do not argue that any of those limiting provisions apply.
 Denbicare's rejection of a § 602(a) claim due to the defendant's lack of involvement in importation suggests that Omega's claim under § 602(a) is similarly unmeritorious because, like the defendant in Denbicare, Costco did not import the disputed copies. See 84 F.3d at 1149. However, Costco waived this argument by not raising it in its opening brief. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief."). In any event, we must still decide whether § 109(a) provides a defense against Omega's claim under § 106(3).
 "[L]ower courts [are] bound not only by the holdings of higher courts' decisions but also by their `mode of analysis.' " Miller, 335 F.3d at 900 (quoting Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L.Rev. 1175, 1177 (1989)).
 The illustration offers no specific justification for making this assumption over any other regarding the site of manufacture, but Quality King cannot be "clearly irreconcilable" with our precedent even if the decision merely permits assumptions that are consistent with that precedent. Miller, 335 F.3d at 900.
Original Item: "Omega S.A. v. Costco Wholesale Corp."
Lineage of: Omega S.A. v. Costco Wholesale Corp.


July 5, 2001. Rehearing Denied July 30, 2001.
Defendant was convicted by jury in the District Court, Polk County, Robert J. Blink, J., of terrorism with intent and going armed with intent. Defendant appealed. The Supreme Court, Cady, J., held that failure to timely tender guilty plea was insufficient reason for trial court to reject plea.
Neuman, J., filed dissenting opinion, in which Ternus, J., joined.
Dean Stowers of the Rosenberg Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Roxann M. Ryan, Assistant Attorney General, John P. Sarcone, County Attorney, and Michelle Chenowith and Jeff Noble, Assistant County Attorneys, for appellee.
In this appeal, we must decide if the district court may reject a plea agreement in a criminal case for the sole reason that it was tendered after a court-imposed deadline for the submission of plea agreements. We conclude the district court abused its discretion in refusing to accept the plea. We reverse the judgment and sentence imposed by the district court and remand the case for further proceedings.
The facts giving rise to this criminal proceeding are both frightening and bizarre. They can best be described as a product of the common human inclination to jump to conclusions based on the perceptions of an event. They began when Mary Hager learned that her son, Rob, was a suspect in a bank robbery with an accomplice named Michael Weckman. Hager was well acquainted with Weckman. He had been Rob's friend since junior high school. It was not a friendship Hager encouraged. In Hager's words, Weckman was "evil." On more than one occasion he had threatened Hager or her family with violence.
Television newscasts reported that local officials and FBI agents were searching for the two men. Rob, meanwhile, left messages on Hager's answering machine, pleading for her help and claiming that Weckman had a gun to his head. He also called his girlfriend, Charity, who told Hager that Rob wanted to surrender. Charity planned to meet Rob under a bridge crossing the Des Moines River at SE 14th Street. Hager agreed to join her.
Hager drove to Charity's apartment in her husband's truck. She left a phone message with a Des Moines police detective about their plans. While waiting for the detective to return her call, Hager retrieved a loaded gun from the truck. She thought she might need it for protection. The detective never returned her call.
Hager and Charity, along with Charity's fifteen-year-old sister, headed for the Harriett Street boat ramp on the Des Moines River in Charity's Ford Bronco. It was about 2:30 a.m. When they reached the top of the hill leading down to the ramp, they observed a car facing the river with its trunk lid open. The women speculated that Rob's body was in the trunk. Hager, who was in the open back seat of the Bronco, yelled for her son but received no response.
There were two individuals near the car next to the river. They were Jason Howell and Lynett Bradwell. However, they had no connection to the events up to this point in time. Instead, they were at the river fishing. Howell and Bradwell began to feel increasingly uneasy about the presence of the Bronco at the top of the hill and decided to leave. They thought perhaps the Bronco was stalled and the occupants needed help. They put their fishing gear in the trunk of their car and headed up the ramp toward where the Bronco was stopped.
As Bradwell and Howell approached the Bronco, they saw Hager lean over the back seat of the Bronco with her arms pointed toward them. Suddenly a shot rang out, and a bullet hit their vehicle. They quickly drove around the Bronco, saw another flash and heard another gun shot. Frightened that someone was out to kill them, they sped onto SE 14th Street.
Hager and Charity, still thinking Rob was in the trunk, gave chase at sixty miles per hour. Hager dialed 911 on her cell phone to summon help. Bradwell and Howell, meanwhile, pulled into a convenience store parking lot to call the police. As they ran from their car, Hager and Charity saw them and realized their mistake. They so advised the 911 dispatcher and met police at a nearby gas station where they were immediately arrested.
The State charged Mary Hager with terrorism with intent, a class "C" forcible felony, and going armed with intent, a class "D" felony. See Iowa Code §§ 708.6, .8 (1997). Hager's counsel filed defenses of diminished capacity and self-defense or defense of others. See Iowa Code §§ 701.5 (intoxicants or drugs), 704.3 (defense of self or others). While preparing for depositions, defense counsel became concerned about Hager's mental state. The trial date was continued, first to permit consultation with Hager's psychiatrist and, later, to enable the psychiatrist to complete a formal forensic psychiatric evaluation. The examination resulted in a diagnosis of post-traumatic stress disorder and recurrent depression. At no time was Hager judged incompetent to stand trial or assist in her defense.
Plea negotiations between the State and Hager were ongoing. Hager, believing her actions were justified by fear for her son's life, repeatedly expressed reluctance to plead guilty, even to substantially reduced charges with a recommendation by the State for probation.
Hager refused to budge in response to the admonition by the district court. The court then concluded the proceeding by saying, "The plea offer is not accepted and the case will simply go to trial."
On the morning of April 19, 1999 prior to the commencement of jury selection, the court was advised by counsel for the State and the Defendant that the parties were interested in disposing of the charges against the Defendant pursuant to a plea agreement whereby the county attorney would reduce the charges against the Defendant and Defendant would enter Alford pleas to the reduced charges. The court explained to both counsel, as it had on the record on April 15, that such a disposition on the morning of trial was contrary to the court's policy and was therefore unacceptable.
The case then proceeded to trial. The jury eventually returned verdicts of guilty to both charges of the trial information following a five-day trial. After the district court denied a motion for new trial and a motion in arrest of judgment, Hager was sentenced to a term of incarceration.
[T]he record is clear as to what transpired [on the morning of trial].... The Court indicated to counsel on the morning of trial a plea deadline had been set, the plea deadline had expired and as a consequence, the case would go to trial.
This is not form over substance. This is concern not about Mary Jane Hager but about every other Mary Jane Hager that may need access to our courts and [e]nsuring that there are ample judges, jurors, witnesses, counsel available to deal with all of them.
Hager appeals. She raises numerous issues. However, our review is confined to the single issue of whether the district court abused its discretion by refusing to entertain the plea agreement based solely on the court's policy of refusing pleas on the morning of trial.
We review a decision of the district court to reject a guilty plea for an abuse of discretion. See State v. Wenzel,306 N.W.2d 769, 771 (Iowa 1981). To the extent the issue also raises due process concerns, our review is de novo. State v. Griffin, 564 N.W.2d 370, 372 (Iowa 1997).
Plea bargaining has long been recognized as "an essential component of the administration of justice." Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 498, 30 L.Ed. 2d 427, 432 (1971). Foremost, "[i]t leads to the prompt and ... final disposition of most criminal cases...." Id. at 261, 92 S. Ct. at 498, 30 L.Ed. 2d at 432. This affords the prosecutor additional leverage in prosecuting other crimes, and allows defendants who acknowledge guilt to spare themselves and the public an expensive trial. See United States v. Jackson, 390 U.S. 570, 584, 88 S. Ct. 1209, 1217-18, 20 L.Ed. 2d 138, 148 (1968). Yet, as common as plea agreements are in our criminal justice system, a defendant has no constitutional right to have a court accept a guilty plea. Wenzel, 306 N.W. 2d at 771. Instead, "courts have discretion to refuse to accept [a] guilty plea[ ]." Farley v. Glanton, 280 N.W. 2d 411, 415 (Iowa 1979); see Iowa R. Crim. P. 8(2)(b) ( "court may refuse to accept a plea of guilty"). This discretion is necessary in light of the variety of considerations inherent in the process.
There may be a number of reasons for courts to refuse to accept a plea bargain. Those reasons, however, have normally centered on doubts with the defendant's guilt. See Farley, 280 N.W. 2d at 413-16 (trial court refused to accept plea when it believed defendant had possible entrapment defense); see also State v. Marsan, 221 N.W. 2d 278, 280 (Iowa 1974) (no requirement that court refuse plea when record supported defendant's guilt). This case presents the first time we have considered the court's ability to refuse a plea bargain because it was presented after deadlines for pleas established by the court.
The discretion possessed by trial courts to refuse to accept a guilty plea is broad but not unlimited. Farley, 280 N.W. 2d at 415. Yet, the parameters of this discretion have no clear lines, and there are no established criteria or standards to consider in the exercise of discretion. United States v. Robertson, 45 F. 3d 1423, 1437 (10th Cir. 1995) (citing Charles Alan Wright, Federal Practice and Procedure § 175.1 (1982)). Thus, we must examine the boundaries of this discretion by considering whether it is broad enough to permit a trial court to reject a plea offer for the sole reason that it is made after the expiration of a deadline for pleas.
A number of courts have held that a trial court acts within its discretion by refusing to accept a plea agreement tendered after a plea deadline. See United States v. Gamboa, 166 F. 3d 1327, 1331 (11th Cir. 1999); United States v. Ellis, 547 F. 2d 863, 868 (5th Cir. 1977); People v. Cobb, 139 Cal. App. 3d 578, 188 Cal. Rptr. 712, 716 (1983); People v. Jasper, 17 P. 3d 807, 813-14 (Colo. 2001); People v. Grove, 455 Mich. 439, 566 N.W. 2d 547, 558 (1997); State v. Brimage, 271 N.J.Super. 369, 638 A. 2d 904, 908-09 (App. Div. 1994). Other courts have determined that trial courts abuse their discretion by rejecting plea agreements because they did not meet a guilty plea deadline. See United States v. Shepherd, 102 F. 3d 558, 562-63 (D.C. Cir.1996); Robertson, 45 F.3d at 1438; United States v. Moore, 916 F. 2d 1131, 1135-36 (6th Cir. 1990); State v. Sears, 208 W.Va. 700, 542 S.E. 2d 863, 867-68 (2000); see also Hare v. Superior Ct., 133 Ariz. 540, 652 P. 2d 1387, 1388-90 (1982) (rule imposing deadlines on the acceptance of pleas exceeded court's jurisdiction). Although the factual circumstances in some of these cases may be responsible for producing the outcome, the pivotal dispute among the various courts centers on the balancing of the myriad of competing interests.
On one hand, there are many factors which weigh against the exercise of discretion to refuse to accept a guilty plea because it was presented after a guilty plea deadline. Plea agreements are not solely within the realm of courts. See Robertson, 45 F. 3d at 1437-38. The differing roles of the court and the prosecutor within our system of justice can either broaden or narrow the discretion of courts to reject pleas depending on the type of plea agreement presented. While plea agreements that impact sentencing powers of courts generally fall within the discretion of the court, plea bargains which involve charging decisions are primarily within the discretion of the prosecutor. See id. at 1437. Thus, the court's role becomes limited when the plea agreement presented to the court does not bind the sentencing powers of the court. See United States v. Miller, 722 F. 2d 562, 564 (9th Cir. 1983); United States v. Maggio, 514 F. 2d 80, 82 (5th Cir. 1975). The doctrine of separation of powers compels the judiciary to give respect to the independence of the executive branch. Miller, 722 F. 2d at 565. When a plea agreement does not directly impact the sentencing powers of the court, as in this case, the decision to reduce the charges primarily rests with the discretion of the prosecutor. See id. at 564-66. This discretion is impeded when the court exercises its discretion by refusing to accept the plea. See id. at 566.
Plea agreements also affect fundamental interests of the defendant. Although the defendant has no constitutional right to present a plea, the process nevertheless involves interests as fundamental as freedom and imprisonment. See id. at 565. In the context of sentencing, where these same interests are present, we demand independent consideration by the sentencing court in each case, and reject the use of fixed policies. See State v. Jackson, 204 N.W. 2d 915, 917 (Iowa 1973). Likewise, a fixed policy should not be followed in rejecting plea agreements. See Miller, 722 F. 2d at 564-65. The exercise of discretion in the area of imprisonment and freedom has been one of the hallmarks of our judicial system.
On the other hand, it is important for our legal system to be effectively and efficiently administered. Consequently, the efficient processing of a case has become an important element in the administration of our courts, and a plea deadline in criminal cases is one method commonly utilized by courts to help manage increasing demands on the criminal dockets. Deadlines are a way to help distinguish those cases that do not ultimately need a trial from those cases that require a trial, at a point in the process to help ensure that the time and resources involved in the preparation for trial are not devoted to those cases that will ultimately be resolved by a guilty plea. A plea deadline becomes a cutoff point for administrative purposes, and enables the court to direct its trial resources to those cases in which the parties do not reach a plea agreement by a certain date. This is not only important to the efficient operation of our criminal docket, but also to the overall operation of our court system. Criminal cases are given priority over most civil cases. Consequently, civil trials are delayed when criminal cases are scheduled for trial but ultimately settled on the morning of trial by a plea bargain. See Cobb, 188 Cal. Rptr. at 713-14.
Additionally, strict adherence to guilty plea deadlines is justified as a means of giving the deadline integrity. See Ellis, 547 F.2d at 868. If parties are allowed to submit plea agreements after the deadline has passed, it would render the deadline meaningless. Id. Thus, deadlines operate with uniformity to all litigants.
Those courts that have approved plea deadlines have generally determined that the traditional deference given to prosecutors to reduce charges and the interest of the defendant to plead guilty are outweighed by the needed judicial discretion to control the court schedule and effectively utilize court resources. See Gamboa, 166 F.3d at 1331; Ellis, 547 F.2d at 868; Grove, 566 N.W.2d at 558. Thus, they consider the discretion to refuse to accept a plea bargain to be broad enough for the court to reject plea bargains presented after a deadline. Id. Moreover, these courts recognize that court-imposed plea deadlines have good cause exceptions which permit some late pleas to be accepted and to overcome any claims of arbitrary action. See Jasper, 17 P.3d at 814.
The trial court in this case, in rejecting the late plea tendered by Hager, followed the rationale articulated by those courts which have approved plea deadlines. In particular, it observed that it was necessary to strictly adhere to the deadline in this particular case in order to achieve the greater overall goal of efficient management of our entire court system.
In our consideration of the competing interests at stake, we recognize the vital need to administer courts in an efficient manner. However, efficiency must always be compatible with fairness, and fairness must consider the fundamental principles which drive our system of justice and the rights and liberties of each individual. There are many procedures courts could employ that would quickly eliminate backlogs and enable our legal system to run with the efficiency of an assembly line, but they are not implemented because they would offend the principles fundamental to our system of justice.
Plea deadlines not only adversely impact prosecutorial discretion and individual interests, but strict adherence to deadlines impedes the very discretion of the court. Like the use of a fixed policy in sentencing, a fixed plea deadline is the very antithesis of discretionary decision-making. See Jackson, 204 N.W.2d at 916. It precludes the exercise of discretion. See Miller, 722 F.2d at 565. A court abuses its discretion when it fails to exercise any discretion.
The State argues the plea deadline in this case was not actually fixed because it included a good cause exception. Thus, the State asserts that the court did not strictly adhere to the deadline but necessarily considered any good cause ground that would have permitted a late plea. The State claims the good cause component to the deadline renders the decision-making process discretionary.
It is important to observe that the good cause exception to the deadline in the case was not broad enough to include a mere change of mind or a renegotiation of the plea bargain by the parties. Thus, the deadline is fixed for litigants, like Hager, who simply change their mind after the plea deadline. Moreover, the sole reason the court rejected the plea in this case was because it was late. The court strictly adhered to the deadline and refused to consider the individual pressures and indecision faced by Hager.
In balancing the need for deadlines against the fundamental principles which are impacted by deadlines, we further recognize that the underlying rationale supporting the deadlines is flawed. While deadlines are imposed as a means to eliminate the expense and time of assembling witnesses, jurors, and others for a trial that never occurs because the defendant pleads guilty on the morning of trial, the refusal to accept such a plea on the morning of trial only compounds the time and expense when the parties are forced to try the case. The trial may last several days or weeks, and the expense is actually increased exponentially. Moreover, the function of a jury and the other components of a trial can at times extend beyond those matters that ultimately result in a verdict. At times, the very presence of a jury on the morning of trial can engender a desire from the defendant to plead guilty that cannot be replicated at any prior time in the process. Thus, the jury's function to help resolve cases can be performed at times by its mere presence on the morning of trial. If the process results in a conclusion to a case on the morning of trial which was not possible the day before, the time and resources devoted to the case were not wasted. It is also important to consider that a criminal case that concludes by a trial often continues to burden the court system with the expense of an appeal, as in this case, or other postconviction proceedings. On the other hand, a plea of guilty results in the waiver of a variety of rights, and normally concludes the case without the expense of further proceedings. See State v. Hook, 623 N.W.2d 865, 867 (Iowa 2001).
In balancing administrative benefits of deadlines against those rudimentary principles which are impacted by the deadlines, we observe that our system of justice has some costs that cannot be necessarily eliminated or reduced by principles of efficiency recognized in private business or even in other aspects of government. Our system of justice must strive to be efficient, but efficiency in a justice system does not necessarily have the same meaning as it does in the operation of a business. The goals are different. Justice cannot be produced by an assembly line, and the principles of court administration must not become detached from those principles which lie at the heart of our system of justice. Instead, they must work in harmony with those basic principles inherent in our concept of a justice system.
We conclude the trial court in this case abused its discretion by refusing to consider the terms of the plea agreement solely because it was presented after the deadline for pleas set by the court. A missed plea deadline, alone, will not support the refusal to accept a plea agreement. There must be additional reasons. These additional reasons are broad and fall within the ambit of the court's power over the administration of justice. See United States v. Severino, 800 F.2d 42, 46 (2d Cir.1986) (court may reject plea if it has reasonable grounds to believe it would be contrary to the sound administration of justice). They may relate to the terms of the plea bargain, the proper disposition of the case, or even any underlying impunity by a defendant toward the efforts by the court to control its docket through deadlines. Thus, a court could act within its discretion to refuse to accept a guilty plea after a missed deadline if the defendant ignores the deadline by making no reasonable effort to reach a plea agreement prior to the deadline.
Courts are given discretion in this area of the law, and fail to exercise it by strictly adhering to a plea deadline. The benefits of strict adherence to plea deadlines do not outweigh the need for judges to exercise discretion, the deference to the discretion of prosecutors, and the rights of the defendant. Moreover, Hager clearly suffered prejudice by the abuse of discretion. See Shepherd, 102 F.3d at 563.
We reverse the conviction and remand the case to the district court with directions to consider the request by Hager to enter a plea of guilty pursuant to the terms of the plea bargain offered prior to trial. In exercising discretion to accept or reject the plea, the court may not refuse the plea for the sole reason that it was tendered after the plea deadline.
All justices concur except NEUMAN and TERNUS, JJ., who dissent, and SNELL, J., who takes no part.
"There are some cases that in fairness are best resolved by a jury." With these words, the district court summed up the failed attempt to get Mary Hager to plead guilty to reduced charges at the pretrial conference held on Thursday preceding her Monday trial. Now convicted of terrorism and going armed with intent, Hager blames the court and her lawyer for preventing her from tendering a favorable-but belated-guilty plea on the morning of trial. It's an interesting tactic, but one we should not reward. I therefore respectfully dissent.
My quarrel with the majority's reasoning is two-fold. First it utterly disregards the State's principal argument supporting the district court's decision-that there was, in fact, no plea agreement reached on the morning of trial. Even assuming arguendo the court had a fixed and unwavering policy that permitted no accommodation for "good cause," no reversal based on abuse of discretion would be warranted. It is evident from the record that defense counsel was still cajoling Hager-unsuccessfully-on the morning of trial. No agreement was reduced to writing. Although Hager rests her due process argument on the fact that rule 9 requires "the disclosure of the agreement in open court," the rule's requirement presupposes that an agreement has been reached. See Iowa R. Crim. P. 9(2). But beyond a vague reference to "reduced charges," nothing before us reveals a firm charging concession by the State or, more importantly, a willingness by Hager to tender a guilty plea.
Second, the majority has joined the distinctly minority view concerning modern court administration. Those courts that recognize the value of plea deadlines as part of sound trial management protect against arbitrary rejection of belated pleas by tempering deadlines with exceptions to permit relief from the rule for good cause. Those same courts recognize, however, that good cause implicates "more than a mere change of mind or a renegotiation by the parties." State v. Jasper, 17 P.3d 807, 814 (Colo. 2001). By rejecting that sound caveat here, the majority permits a defendant's indecision to trump not only trial court discretion but sound administrative policy as well.
Despite my misgivings about the factual and legal bases for the majority's decision, I am perhaps most puzzled by the prospect of what will happen on remand. What plea is there for the court to entertain? No doubt Hager, having once been convicted, will now be much more amenable to plea negotiations. But, despite the majority's protestations to the contrary, that sounds to me more like manipulation than justice.
TERNUS, J., joins this dissent.


text:
Section 2. Purposes of the Corporation.
Section 3. Statement of Legislative Intent.
Section 5. Creation of the Corporation.
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days before the date of filing.
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period of time within which to establish a review able performance record.
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Every Director shall file annually with the Board a current financial statement which includes the information required under Section 20(d).
Comment: This provision is to ensure full and continuing disclosure so that the membership may at all times be aware of potential conflicts of interest.
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The Board shall require the Executive Director to file a current statement annually.
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change the registered agent and registered office of the Corporation.
supervision and control of all of the affairs of the Corporation in accordance with any policies and directives approved by the President.
Board may give authority to any Officer to affix the seal of the Corporation and to attest the affixing by his or her signature.
name of the Corporation in such depositories as shall be selected by the Board.
its regular meetings or when the Board so requires.
(3) A majority of the Delegates vote to place an issue before the membership for a vote.
schedule a date for a vote on the issue to be held within two months after receipt of the certification or petition.
ballot containing the issue for membership vote.
balloting pursuant to subsection (b) of this Section.
(4) The Board shall tally votes with all reasonable speed and shall inform the membership and Delegates promptly of the outcome of the vote.
equipment, except as otherwise provided in this Act.
enterprise or establishment that manufactures, distributes, sells, leases, or services broadcast equipment.
(d) The office of a Director or Delegate found in violation of subsection (a) or (b) shall be declared vacant.
or provision for payment of all liabilities of the Corporation shall be distributed to, and only to, one or more organizations described in Section 501 (c)(3) of the IRS Code.
4945 (d) of the IRS code).
The Corporation may dissolve or be dissolved under the Model nonprofit Corporation Act (19) to the extent consistent with this Act.
consumers of the United States.
or to affect its discretion, to permit intervention or participation of any person in any proceeding or action.
protect their interests as they are at present.
If any provision of this Act shall be declared unconstitutional or invalid, the other provisions shall remain in effect notwithstanding.
This Act shall become effective on the date of its adoption.
13 Harv. J. on Leg. 235 (1976).
2. . 5 American Landmark Legislation 440 (Sloan, ed. 1977).
3. 2 U.S.C. S431(f) (Supp. 1975).
4. 2 U.S.C. S431(e) (Supp. 1975).
5. DC Code Ann Sections 29-501 to 29-599.14.
6. 26 U.S.C.A. S501 et seq.
1971, 47 F.C.C. 2d 516, 516 n. 1 (1974). Advertising rates set by the radio stations could be used as a guide in defining the hours to be included in the “drive time” period.
airing of this issue will take place during Congressional hearings.
11. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390-91 (1969).
12. See Loyola University v. F.C.C., 670 F.2d 1222 (D.C. Cir. 1982); Great Lakes Broadcasting Co. v. Federal Radio Commission, 37 F.2d 993 (D.C. Cir. 1930).
See also Goodwill Stations Inc. v. F.C.C., 325 F.2d 637 (D.C. Cir. 1963).
defamatory statements made in such a speech.
violated this provision because science is an element of the offense. U.S. v. Smith, 467 F.2d 1126, 1129-30 (7th Cir. 1972). See also Tallman v. U.S. 465 F.2d 282 (7th Cir.
offensive language. The broadcast licensee would face no problems under state obscenity laws because state regulation of this area is pre-empted by S 1464. Allen B.
Dumont Laboratories v. Carroll, 86 F. Supp. 813 (E.D.Pa. 1949).
16. See 47 C.F.R. S73.1201 (1982).
19. DC Code Ann SS29-548 to 29-564.

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