Under Federal Rule of Criminal Procedure 11(a)(2), a defendant may enter a guilty plea conditioned on the right to appeal an adverse pretrial ruling. If the defendant "prevails" on appeal, he may then withdraw the plea. But Rule 52(a) states that appellate courts must disregard harmless errors. This case raises the question of how appellate courts should apply harmless error review in conditional plea appeals. This question has divided the federal courts of appeals. Most courts look to whether the error affected the defendant's choice to plead guilty. Other courts, as in this case, merely ask if the error affected a count of conviction.

In conditional plea appeals, is an error harmless when (1) the error did not affect the defendant's choice to plead guilty; or (2) the error did not affect a count of conviction?

In conditional plea appeals, is an error harmless when (1) the error did not affect the defendant's choice to plead guilty; or (2) the error did not affect a count of conviction?