United States v. Elizabeth Marie Morse Thompson

sum, Court of Supreme In based on the and our determinations opinion

Florida’s that the dis- opinion,

in this we conclude holding that the

trict court did err Agree-

indemnity provision Crossing and FMPA to indem- obligated

ment KUA Accordingly, Amtrak.

nify both CSX and grant partial

the district court’s sum-

mary on this in favor of judgment issue and Amtrak is affirmed.

CSX

III. CONCLUSION appeal, upon

In this we were called in light

review the district court’s orders responses questions to four we certi- previously Supreme

fied this case to the of Florida. Based on the Florida

Supreme determinations and our Court’s

analysis parties’ remaining argu-

ments, we have concluded that the district properly applied compar-

court the Florida statute, 768.81, fault eh.

ative Fla. Stat. recovery proven

limit AHA’s to 41% of its

damages, properly concluded that the

indemnity provision Crossing Agree- obligated

ment KUA FMPA indem-

nify Accordingly, CSX and Amtrak. disposition court’s of the certified

district AFFIRMED.

issues is America,

UNITED STATES

Plaintiff-Appellee, THOMPSON, Marie

Elizabeth Morse Stratton,

Joseph James Defendants-

Appellants.

No. 04-12218. Appeals,

United States Court of

Eleventh Circuit.

Sept. 2005. (Court-Appointed), M. Harris

Charles Law, FL, A. Myers, Atty. at Ft. Charles Law, FL, Naples, for Murray, Atty. at Defendants-Appellants. FL, for Hoppmann, Tampa,

Karin B. Plaintiff-Appellee. TJOFLAT, PRYOR and

Before *, Judges. ALARCÓN Circuit ALARCÓN, Judge: Circuit appeals Joseph James Stratton following his conviction judgment entered intent to possess with the conspiracy in and cocaine base vio- distribute cocaine § 846. He contends lation of U.S.C. sup- insufficient to that the evidence was maintains judgment. He also port revers- committed that the District Court for a denying in his motion ible error severance, refusing grant and motion for a new trial. seeks Morse

Elizabeth Marie following judgment entered reversal of the possess conspiracy to her conviction for base violation cocaine and cocaine possession § counts of and two U.S.C. base in intent to distribute cocaine § She contends of 21 U.S.C. 841. violation denying erred the District Court her confession suppress motion to her * Alarcon, designation. L. Honorable Arthur Circuit, sitting by Judge Ninth Circuit for the McNulty upon year. of the same a mistrial based

her motion in an at- provided in Bloom the information prosecutor misconduct alleged Ani- help paramour, their mutual right tempt that she had the to the arguing jail Choquette, who on unrelated testify. ta not to charges, to receive a lesser sentence. judgment of affirm Mr. Stratton’s We we conclude that conviction because tips, As a result of these Officer Nelson to sustain it. We evidence was sufficient investigation. initiated an Members the District did also determine that intermittently DEA Task Force surveilled its discretion abuse apartment the Bermuda Isle from October for a severance and his motion They of 2002 to March of 2003. observed trial. also affirm the motion for a new We entering apartment several individuals the against entered Ms. judgment conviction period— a leaving and after short we conclude that the Thompson because that, in activity experi- Officer Nelson’s not err in District Court did ence, was consistent with her informants’ confession, suppress motion to her and place reports drug taking sales were mistrial, or a rejecting her motion for apartment. at the Officers also observed curative instruction. vicinity in apart- of the vacate the District Court’s sentenc We ment on three occasions. ing regarding Appellant. decisions each 2003, early In the DEA Task Force correctly and forth The Government has purchases carried out controlled of cocaine decision rightly sentencing conceded Thompson using from Ms. Mr. Bloom as a subsequent error on the decision of based Mr. Mr. purchaser. telephoned Bloom in United States v. Supreme home several times but was un- Stratton’s —

Booker, U.S. -, February able to reach him. On (2005), deci L.Ed.2d 621 and Court’s successfully Mr. Bloom contacted Ms. Shelton, United States v. sion Thompson by telephone. He told her that 1325, 1332-33 day.” he had had a “hard Mr. Bloom day” testified that a “hard was a coded I request Thompson for crack cocaine. Ms. Thompson’s and Mr. Ms. Stratton’s apart- told Mr. Bloom to come over to her criminal activities came to the attention of day. ment later that through law enforcement call telephone Nelson, In- Margarita a Vice Narcotics The officers outfitted Mr. Bloom with County recording of the vestigator Collier Sheriffs two devices. He went electronic time, assigned Thompson’s apartment. Office. At that she was to a to Ms. William Drug Ingersoll, staying Enforcement Administration who was with Ms. (“DEA”) Thompson, Task Force. and Mr. during Sometime answered door let Inside, September Timothy McNulty apartment. told Bloom enter the Thompson Officer Nelson that Ms. and Bloom Ms. He Thompson. encountered distributing Mr. Stratton were told her that he needed worth of involved $400 cocaine and crack cocaine. He informed crack cocaine. Mr. Bloom waited while Thompson Officer Nelson that powder was Ms. cooked some co- selling drugs out of caine into crack. apartment Upon paying her for the cocaine, Bermuda Isle crack Mr. Bloom Naples, apart- subdivision Flori- left the in- given drugs da. Officer Nelson was similar ment and turned the over to Officer Gary formation from Bloom December Nelson. shipments of cocaine received two to three Mr. Bloom made February

On whom she identified as supplier, from her crack co- purchase controlled a second Mr. Stratton. at the Bermuda from Ms. caine wearing Bloom was apartment.

Isle 20, 2003, officers arrested Mr. On March device. Mr. monitoring an electronic officers searched Mr. Strat- Stratton. The of crack co- worth purchased Bloom $625 phone, pager, ton and found a cell two purchasing her.1 After caine from checks, pieces paper appeared two cocaine, apart- Mr. Bloom left crack of financial transac- to contain record controlled substance gave ment and tions, monthly statement from a self- Nelson. Officer storage facility in Ms. name.3 any drugs find The officers did not DEA Force exe- Task Members They or in car. also person Bermuda warrant on the cuted a search home. did not search Mr. Stratton’s on March 2003. When apartment Isle they apartment, entered the the officers Thompson and Mr. Stratton were Ingersoll encountered Mr. charged conspiracy possess with officers searched Thompson. The and crack co- intent to distribute cocaine a They small apartment. discovered charged was also caine. Ms. cocaine,2 digital three amount of crack possession with two counts of with intent scales, drug parapher- of and various items of crack co- to distribute and distribution several doc- nalia. The officers also seized Thompson and Mr. Stratton caine. Ms. uments, jewelry receipts, including jury. sales a jointly tried before were in name phone bills Mr. Stratton’s in his defense. Ms. cellular testified own Stratton a “caller id” Thompson, testify. Following in care of Ms. and Thompson did not trial, number. five-day jury Thomp- that included Mr. Stratton’s the found Ms. list all counts. guilty son and Mr. on Stratton search, of the officers At the conclusion sentenced Mr. Strat- charges of The District Court Ingersoll on state arrested Mr. prison in to be followed to 292 months and took ton possessing drug paraphernalia release. Ms. years supervised four of jail. The County him officers to Collier in to 360 months Thompson was sentenced DEA Thompson to the office took Ms. convictions, to on each of her three office, prison At DEA the officers Naples. given concurrently, and was be served her Miranda rights. read This eight years supervised of release. waiver of those signed written She timely appeal followed. Thompson told the officers rights. Ms. used cocaine since 1996. She

that she had II selling that she started cocaine admitted sufficiency Mr. Stratton attacks up would sell to a 1999. She said she his support to the Government’s evidence daily of cocaine and she half ounce that the two Nelson testified at trial purchased $400 he 3.Officer 1. Mr. Bloom testified that re- pieces paper on Mr. Stratton seized provided by cocaine with cash offi- of crack drug Mr. Stratton testi- flected transactions. Thompson gave him additional an cers. paper figures piece of on one fied that payment work $250 crack as had re- the amounts of freon he recorded Thompson's performed on Ms. Bloom had replaced in automotive air condi- and moved brother’s house. that he tioning at work. He testified units piece pa- notations on another had made the weight the net 2. Officer Nelson testified that helping Prince calculate per when Deanna milligrams. was 88 of the crack figures job. payroll at her (5th Bell, B respects. 678 F.2d Cir. Unit two conviction conspiracy 1982)). that the First, protests presented the Government evidence record, reviewing we con After testimony of him of the against consisted presented at trial clude that the evidence dealers, addicts, drug drug “convicted support Mr. Stratton’s was sufficient cheats, liars, cooperat- thugs who were To sustain Mr. Stratton’s con conviction. personal interests.” Sec- ing for their own conspiracy possess cocaine viction that, ond, if Stratton contends even distribute, and crack cocaine with intent to testimony of the wit- Government’s required “prove the Government credited, the Government es- nesses were (1) beyond a that a con reasonable doubt that Mr. had a tablished at most Stratton (2) existed; spiracy the defendant relationship Thomp- buyer-seller with it; defendant, knew of others, insufficient to son and which is voluntarily joined it.” knowledge, conspiracy of a to dis- support finding Lopez-Ramirez, United States v. 68 F.3d drugs. tribute (11th Cir.1995). 438, 440 “The existence of challenge review a to the suf We conspiracy may be circum proved novo. ficiency of the evidence de may evidence and be inferred from stantial Majors,

States of action.” concert United States Guer verdict is chal “When (11th Cir.2002). ra, lenged ground sufficiency A parade of Government witnesses evidence, reviewing court must view testified Mr. Stratton’s involvement light the evidence most favorable to Gary cocaine distribution. Bloom testified government and determine whether 2000, beginning regularly pur that in he have found the defendant could quantities chased small of cocaine from guilty beyond a reasonable doubt.” Unit Thompson Mr. Stratton and Ms. for his Young, ed States v. personal Kahlmorgan, and (11th Cir.1994). use sale. Chris review, conducting In this dealer, drug an admitted testified that he we all and “accept[ ] reasonable inferences met Mr. Stratton about October of credibility govern choices made already in favor, point which Mr. Stratton was ment’s to determine whether a rea volved the distribution of cocaine. Ac of fact that sonable trier could find cording Kahlmorgan, to Mr. Mr. Stratton guilt beyond evidence establishes a reason Calhoon, reputation County sup had a Collier of able doubt.” United States v. plying high quality cocaine. From No “For the conviction, February support evidence to a it need vember of 2000 to of Mr. every hypothesis Kahlmorgan purchased not ‘exclude reasonable cocaine from Mr. basis, wholly of regular innocence or be inconsistent with Stratton on a which he con every except guilt, pro that to crack personal conclusion verted for his use or occasions, that a trier of fact several Mr. Kahlmor vided reasonable could sale.4 On guilt gan powder find that the converted cocaine to crack in evidence establishes be ” yond presence. Kahlmorgan a reasonable doubt.’ United States Mr. Stratton’s Mr. Perez-Tosta, 1556-57 further testified he twice delivered co (11th Cir.1994) (quoting Thompson caine to Ms. on behalf of either Kahlmorgan grams 4. Mr. testified his business of cocaine from Mr. Stratton from No- "very steady” with Mr. Stratton was and esti- February vember of 2000 to of 2002. purchased mated that he about seven kilo- light most favorable to the girl- live-in Viewed or Mr. Stratton’s Mr. Stratton Government, friend, supports this evidence Prince.5 Deanna that Mr. jury’s finding Stratton Benitez, girl- Kahlmorgan’s Mr. Rene Thompson conspired to distribute substan- friend, Kahlmorgan’s Mr. corroborated in the tial amounts of cocaine Collier Coun- starting testified that testimony. She ty area. The evidence demonstrates 2000, she and Mr. Thanksgiving around conspiracy role in the Mr. Stratton’s purchase would cocaine Kahlmorgan professional supply Thompson, nearly daily basis. She Mr. Stratton on dealer, drug steady high-quali- source of Kahlmorgan would that she and Mr. said cocaine, ty powder most of which she con- and convert the use some of this cocaine into crack cocaine and sold. Mr. verted to crack and sell it. rest a similar role with re- occupied Stratton Anthony Alphonse, drug dealer drug to several other dealers. spect Kahlmorgan, testified that he friend of Mr. contends that the Govern- Kahlmorgan Mr. to Mr. accompanied insufficient because it ment’s evidence was purchase house to cocaine testimony of a depended on the series occasions, though personal- he did not four unsavory characters. While acknowl- ly these transactions. witness edging credibility determination are pur- Ronald testified that he Watson generally province the exclusive grams one or two of cocaine chased about jury, argues that the testimo- Stratton and Ms. from both Stratton “un- ny of the Government’s witnesses was couple period “a of times a month” over a believable on its face and incredible as years. two disagree. matter of law.” We Timothy McNulty testified that he lived “The fact that has consistent [a witness] from about June to ly past, engaged lied in the various August During period, of 2002. activities, thought criminal that his [and] McNulty as Ms. “do served testimony benefit him ... does not boy,” McNulty explained meant which Mr. testimony make his incredible.” United Thomp- that he delivered cocaine on Ms. (5th Cravero, 666, v. 530 F.2d 670 States McNulty Mr. testified that son’s behalf. Cir.1976). testimony to be considered For cocaine from Mr. pick up powder he would law, “it must be incredible as a matter Stratton, cocaine to Ms. and deliver the face, i.e., testimony as unbelievable on its picked up cocaine from Thompson. He have facts that could not [the witness] average on six or seven times Mr. Stratton that could not possibly observed or events Thompson a He and Ms. week. laws of nature.” have occurred under the powder cocaine to crack. then convert the Rivera, 1559, 775 F.2d v. United States crack McNulty delivered most of this (11th Cir.1985) (quotation marks 1561 Thompson’s customers. He to Ms. omitted) (alteration in original). Thompson the rest. smoked cites instances which the McNulty that Ms. Mr. Stratton testified witnesses testimony active of certain Government drug “[e]v- distribution business was testimony of wit- day,” 24 a and that was inconsistent ery single day, hours As this running a tab nesses who testified behalf. Thompson maintained on an nothing more than argument represents with Mr. Stratton. cocaine, although in his view Ms. Prince's Kahlmorgan that Mr. Stratton 5. Mr. testified together distributing a one. worked role was minor and Ms. Prince 1292 sonville,” to his and he sometimes sold to revisit the credi- this Court

invitation credit). jury, reject purchasers we bility determinations argument that the testimo- Mr. Stratton’s Ill in- witnesses ny of the Government’s law. “It is well- a matter of credible as argues that the Dis Mr. Stratton ‘[credibility determina- established erred in his motion to trict Court province of the are the exclusive tions Thompson’s. trial from Ms. sever his ” Calderon, v. 127 jury.’ “[Bjecause United States principled of the ‘well-settled Cir.1997) (11th (quoting F.3d 1325 are preferred persons that it is who Parrado, 911 F.2d States v. United to together should also be tried charged (11th Cir.1990)) (alteration in origi- cases, conspiracy gether,’ particularly nal). a motion for severance will be the denial of only for of discretion.” reversed abuse that, if contends even Smith, v. 918 F.2d testimony of the Government’s witnesses (11th Cir.1990) (quoting United credited, the evidence establishes were Morales, 868 F.2d States buyer-seller a rela most the existence of (11th Cir.1989)). that the To demonstrate tionship Thomp himself and Ms. between its discretion in de District Court abused disagree. While “the existence son. We motion, Mr. nying his severance Stratton relationship alone simple buyer-seller of a prej must establish “that he was somehow requisite does not furnish the evidence of joint udiced trial” and that severance conspiratorial agreement,” States “remedy appropriate prej was the for that (11th Bascaro, Cir. Blankenship, udice.” United States v. 1984), agreement drugs an to distribute (11th Cir.2004). 1110, 1122 Sever “may be inferred when the evidence shows (1) mandatory only if “there is a ance is continuing relationship that results joint serious risk that a trial would com repeated illegal drugs transfer of to [a] trial promise specific right of one of the Johnson, purchaser.” United States v. defendants,” joint if a trial would 1032, 1035-6 jury making a rehable “prevent the at trial The Government established judgment guilt about or innocence.” Zafi continuing relationship existence of a be- States, ro v. United and Ms. tween Stratton (1993). 933, 122 L.Ed.2d 317 supply which Mr. Stratton would mandatory “The first scenario for sever- cocaine, the bulk of which she (or mistrial) ance described the [Su- would distribute customers Collier joint where a preme] Court exists evidence, County. could From trial leads to denial of a constitutional beyond find a reasonable doubt that Mr. right.” F.3d at 1123. Blankenship, 382 agreed Thompson with Ms. to Stratton scenario, As for the this has second Court See, e.g., cocaine and crack. distribute joint may prevent that a trial explained Burroughs, 830 F.2d jury reliably assessing guilt from where (11th Cir.1987) (rejecting the “compelling evidence that is not admissible argument defendant’s that he was “mere against one or more of the co-defendants is supplier” of cocaine where evidence against to be introduced another co-defen- pur- showed that the defendant knew his dant.” Id. Jacksonville, chasers were couriers from argues that the District he maintained “continued interest Mr. Stratton drugs up beyond to and their sale in Jack- Court abused its discretion his not violated the admission of a nontesti- for two reasons. severance motion for prop- with a First, fying maintains sever- codefendant’s confession Mr. Stratton the District ... required limiting because instruction when the con- ance was er Thompson’s post-ar- only Ms. to eliminate not Court admitted fession redacted him implicating name, as her any rest statements the defendant’s but reference Because Ms. existence”); of narcotics. See United States supplier his or her Williamson, testify, Mr. Stratton Thompson did not Richardson, Cir.2003) (“In the admission of this evidence argues Supreme right of con- his Sixth Amendment violated clearly authorized the admission of a in Bruton v. Unit- frontation as construed nontestifying codefendant’s confession States, 1620, 20 ed 88 S.Ct. U.S. where such confession omitted reference to (1968). L.Ed.2d 476 coupled the defendant and was with a lim- instruction.”). iting reject argument because We post-arrest Thompson’s admission of Ms. argument second for sev- Stratton’s in a Bruton vio- statements did not result there was erance is while overwhelm- arrest, Thomp- Ms. Following lation. her Thompson in- ing evidence that Ms. to officers that she had been son admitted in drug trafficking, volved the evidence to cocaine since 1996. She told addicted him against consisted of the self-serv- gradually in- officers that her addiction addicts, “criminals, ing testimony drug began selling that in 1999 she creased and liars, thugs.” cheats and cocaine. Ms. identified Mr. probable maintains that “it is supplier. cocaine Stratton as her overwhelming produced against evidence Thompson’s introduced Ms. Government Thompson spilled over to” him. through testimony trial confession at conclusory assertion that Mr. Stratton’s Nelson. Officer Nelson’s testi- Officer prejudiced by “spillover effect” he was any contain to Mr. mony did not reference against Ms. of the evidence admitted Thompson’s or to “source of Stratton satisfying falls well short of gave The district court also supply.”6 “spe- that he suffered burden establish instruction, appropriate limiting an to the con- compelling prejudice cific and admonishing testimony concerning it that joint duct of his defense” as a result post-arrest defendant’s statement Liss, trial. United States v. any way not be “should considered (11th Cir.2001). Evidence any respect whatever as evidence with buys drugs the controlled Accordingly, trial.”7 other defendant on drugs drug as the post- Thompson as well the admission of Ms. apartment seized at her paraphernalia arrest statements did not violate separate at a of confrontation. See would have been admissible right Marsh, Richardson v. prove that Mr. trial of Stratton buyer-seller than a re- 95 L.Ed.2d 176 Stratton had more lationship Thompson. (holding that “the Confrontation Clause is While individually. separately and The fact 6. While Mr. Stratton asserts that Officer Nel- ered indirectly Stratton re- you may any son referred to Mr. the defendants that find one of ferring Thompson's supply, to Ms. source of guilty any guilty or not of the offenses support the record. this assertion finds no in your charged verdict as [sic] should not effect any to the other offense or other defendant.” charged jury that 7. The District Court "the of each defendant should be consid- case Al- Anthony from Mr. post-arrest that he obtained of Ms. evidence supply, source of phonse. Alphonse’s not been admissible Mr. would have statement Stratton, father, turn, Mr. Alphonse. “[t]he trial of in was his Ron separate in a may be an ‘enormous Mr. alleged that there that she was told mere fact Ms. Cure admissible in the evidence disparity Kahlmorgan, and Anthony Alphonse, Mr. compared against defendant] they [one in were Mr. the event Osceola basis is not a sufficient other defendants’ arrested, they police tell the would Schlei, 122 v. United States reversal.” supplier. Mr. was their cocaine Stratton (11th F.3d party that she recalled a She asserted Anthony Mr. Al- she overheard which has failed to dem- Because Mr. Stratton discussing Kahlmorgan and Mr. phonse prejudice from that he suffered onstrate up Mr. also over- setting Stratton. She Thompson, we con- joint trial with Ms. his Anthony Alphonse state that his heard Mr. that the District Court did not abuse clude going “go not down” and that father was denying Mr. Stratton’s its discretion going to “take Joe they were Stratton motion for severance. down.” IV new “When a defendant discovers third claim of error is evidence after trial that was unknown District abused its discre-

that the trial, government at the time of a new motion for a new trial. tion ‘(1) conviction, trial is if: the evidence warranted Following his (2) trial; pursuant trial to Rule 33 was fact discovered after moved for new Proce- of the Federal Rules Criminal defendant exercised due care discover (3) newly evidence; dure8 on the basis of discovered not the evidence was (4) argued that he evidence. Stratton merely impeaching; cumulative or (5) Osceola material; had unearthed evidence Jason evidence was the evi witnesses, Kahl- and Government Chris was of such a nature that a new trial dence morgan Anthony Alphonse, had con- a different probably produce re ” to frame Mr. in order to spired Stratton Starrett, sult.’ United States father, Anthony Alphonse’s Ron protect Cir.1995) (11th (quoting actual Alphonse, who was the source of Garcia, States v.

their cocaine. Cir.1994)). satisfy any “The failure to one of these elements is fatal to a motion for a newly alleged

Mr. Stratton’s discovered Lee, trial.” new of an affidavit from evidence consisted (11th Cir.1995). The District Tracy Cure who attested that she Court denied Mr. Stratton’s motion for living Naples, boy- Florida with her was trial, friend, ruling new that Mr. Stratton failed to Osceola. Ms. Cure stated selling in 2002 Mr. was cocaine establish the last four elements. We re- Osceola (b) Rules of Criminal Time to File 8. Rule 33 the Federal provides part: Newly Any Procedure in relevant Evidence. Discovered (a) grounded newly Upon trial Defendant’s Motion. the defen- motion for new motion, may any dant's the court vacate discovered evidence must be filed within 3 grant judgment and trial if the inter- new years finding guilty. after the verdict of justice requires. case est of so If the appeal pending, may If an the court jury, may tried the court take without grant a motion for a new trial until the testimony judg- and enter a new additional appellate court remands the case. ment. in drug County supply- dealers Collier for an abuse of discretion. ruling for view this ing excellent cocaine. Starrett, at 1554. 55 F.3d Because Mr. Stratton has not demon- did not abuse its The District Court requirements strated two of the five mo denying Mr. Stratton’s discretion in newly new trial based on discovered evi- The record shows a new trial. tion for dence, that the District we conclude was aware of Ms. Cure’s that Mr. Stratton its discretion in did abuse in drugs involvement and of her existence motion for a new trial. Indeed, Ms. Cure began. his trial before V in her affidavit that Mr. Stratton states get drugs off “encouraged [her] asserts that her confes- away Naples so that [she] relocate involuntary sion was because the officers people that were would not be around interrogated her her request who denied only reasons Mr. Strat using drugs.” The Lorcet, prescription drug narcotic failure to interview Ms. ton offers for the home, that was removed from her until trial was that she lived before his Cure inculpatory after made an statement. she that no one knew that North Carolina and This Court reviews a district court’s factu- to his case. she had information relevant findings al the denial of a mo- supporting error, suppress tion to for clear and in the that a agree with the Government We light most favorable to the Government. does not demonstrate due dili- defendant of the law the facts is application The by showing that he failed to inter- gence v. Hollo- reviewed de novo. United States witness because he or she potential view (11th Cir.2002). 1331, 1334 way, 290 F.3d lived another state. While prohibits Fifth that he was not aware that Ms. Amendment asserts information, involuntary of an confession he was aware the use Cure had useful in a criminal trial. drug against activities. The a defendant of her involvement States, its discretion Bram v. United 168 U.S. District Court did not abuse (1897); Mr. L.Ed. 568 United determining that the new evidence S.Ct. (11th Vera, v. presented was not of such nature States Stratton in focus our voluntariness probably produce that it a different We would “on whether the defendant was McNulty’s quiry at a trial. Mr. testi- result new making government into mony provided compelling coerced evidence relinquishment and Ms. the statement: ‘The conspiracy between Stratton voluntary in the right cocaine. Mr. must have been Thompson to distribute product of a free and subjected to cross- sense that it was McNulty was extensive intimidation, than his mo- deliberate choice rather examination at trial which revealed ” deception.’ States v. with authorities. coercion or cooperating tivation for Mendoza-Cecelia, 1467, 1475 Testimony Kahlmorgan that Mr. and Mr. Cir.1992) (quoting Colorado Con Anthony Alphonse conspired had to frame 157, 170, 107 nelly, impeach would not Stratton (1986)). Further, district court it L.Ed.2d 473 “The McNulty’s testimony. we find totality of the circum accept Mr. must consider the implausible that a con assessing police whether Kahlmorgan that Mr. stances Stratton’s contention to the confes ‘causally was related’ covering Alphonse for Ron when Mr. duct Dugger, (quoting An- Id. Miller Kahlmorgan testified at trial that Mr. sion.” (11th Cir.1988)). 1530, 1536 “Suffi- thony reputation among had a Alphonse attempted also to reach normally questions. She conduct involves eiently coercive a con- by phone up to set exhaustingly to an subjecting the accused Nel- phys- purchase of cocaine. Officer application trolled long interrogation, so, Thompson or the gave threat to do son said that officers Ms. ical force or the a confes- of the interview making promise that some Lorcet at the end induces is a nec- Id. coercion was about to be taken Thompson sion.” Government when Ms. finding Thomp- to a of involun- essary predicate jail. why gave Asked she Ms. to medication, Fifth Amendment. under testified tariness Officer Nelson son the to causally conduct related police “Absent that she had Thompson that Ms. “stated confession, ... no basis for there is for her pain, past it was due back any actor has de- concluding that state Nelson denied medication.” Officer process of due prived a criminal defendant was withheld from Ms. the medication Connelly, of law.” Colorado or Thompson cooperation, to coerce her n 157, 164, L.Ed.2d given to Ms. that. the medication was (1986). for her statements. Thompson as reward Thompson testified that she was Ms. suppression hearing, Offi

At the by a to treat prescribed podiatrist Lorcet Thompson testified Nelson and Ms. cer back, leg, in her and ankle. She said pain Thompson’s apart on about the' raid Ms. agents get pills that she asked her as ment, arrest, subsequent and her her they leaving apartment. were She Officer Nelson testi police. statements to agents placed pills that the her also stated officers executed the war fied that when directly during the interro- front of her Thompson and rant on March Ms. made several gation. She stated she apart in the Ingersoll present were medication while at the pfficers requests her detained ment. Both were while case, in each the officers DEA office but search, which lasted about two conducted told her to wait. She further testified that her Thompson hours. Officers read Ms. deny- give the officers did not a reason for Thompson rights. Miranda Neither Ms. Thompson stated ing pills. her the Ms. Ingersoll rights. invoked- these nor that, although express- the officers did not search, Thomp Toward the end of the Ms. ly receipt condition her of her medication having pain. son stated that she was back statement, inferred providing she Thompson took Ms. to the Officers then from the officers’ actions that she questioning. DEA Officers office if wanted her medi- cooperate need to she pills Lorcet brought Ms. cation. they DEA office because them jail thought that the would want know that she Thompson Ms. also testified was tak Thompson

what medication Ms. shortly Lorcet offi- had taken some before ing. the search warrant but that cers executed Nelson, office, at time of her interview she was no again At the DEA Officer longer drug. under the influence of the Thompson rights. read Ms. her Miranda that, depending dosage, stated on the Thompson signed a written waiver She comprehension rights. Nelson testified that Lorcet could diminish her these Officer interview, going of what was on around her. Ms. beginning visibly upset nervous also said that she was under the during be the influ- influence of cocaine the interview. appear but did under however, Thompson Upon questioning, further she drugs ence of alcohol. specifically could not re- answers to the officers’ testified she gave coherent ing right testify her not to violated she was under the influence her call whether interview and that during of cocaine the right Fifth Amendment to remain silent at not under the influence. probably she was trial. This Court review’s a district court’s denial of a motion for a mistrial based on a Recommendation, the Report In his and prosecutor’s during closing statements ar- judge agents found that did not magistrate gument abuse of discretion. United Thompson to make a statement induce Ms. (11th Brooks, v. by withholding pain her medication. This States 670 F.2d 152 the finding supported by is record. The To prosecutor determine Ms. only evidence that officers withheld argu- committed misconduct his or her in an effort Thompson’s medication “(1) ment to a the remarks must be her consists of coerce statement (2) improper, preju- the remarks must Thompson’s vague testimony that the Ms. dicially affect rights the substantial of the namely, alleged their officers’ behavior— Gonzalez, defendant.” United States v. gestures” laughter response “rude (11th Cir.1997) 122 (quota- 1389 request implied to her for her medicine— omitted). tion marks quid pro quo arrangement. such a Ms. testified in his Stratton defense. Thompson’s testimony by was contradicted Nelson, Thompson chose to remain silent. that of Officer who denied that the During argument jury, his given Lorcet was to Ms. ex- the change cooperation. lawyer for her commented as follows: adopted magis- The district court the By way, the Mr. Stratton testified under credibility trate judge’s determination re- you, just every oath before like other testimony on the garding conflicting the subjected witness and himself to cross- question. voluntariness just every like other examination wit- (5th Kreczmer, 110 Cir. Unit ness. 1981). Raddatz, B See United States v. 667, 680-81, U.S. (holding L.Ed.2d district took and told Joseph Stratton the stand may adopt credibility findings court as the you of. he did not do what he is accused in magistrate judge’s report contained personal Does he have a interest the regarding and recommendation the volun- Absolutely. case? outcome the rehearing tariness of a confession without government you to tell that he going testimony of the witnesses who testi- has a reason not to tell the truth. But if suppression hearing fied at a before innocent, works, truth telling he’s magistrate judge). any “Absent evidence too. psychological physical coercion on the part agents, there is no basis for declaring statements and [a defendant’s] in his He took the stand and testified involuntary.” consent to search own defense that he didn’t do this. It’s Barbour,

States They you all can do in a trial. don’t do Cir.1995). The did not err District Court by anymore. trial combat took the [H]e sup- motion to stand, subjected himself to cross-exami- press post-arrest her statements. his, side of you nation and told what story is.

VI argument, prosecutor In his rebuttal contends comments as follows: jury regard- responded comments to the to these prosecutor’s 336-38, Re- 98 S.Ct. 1091. testify. Id. at the defendant for reward don’t And explained argument, the Court jecting he has a in this case. While testifying “concerned with ad- testify or not right she has right, Griffin comment, prosecutor be no reward verse whether testify. There should prose- judge does take trial fact that someone or the —‘comment credibility instruc- assess the the accused’s silence or You’re to cution on stand. to as- just you as are that such silence is by the defendant the court tions ” any 338-39, other wit- credibility of at 98 S.Ct. guilt.’ sess the Id. evidence 615, they’re willing to The fact that at 85 Griffin, nesses. 380 U.S. (quoting 1091 cross-examination, 1229). subject to had themselves the trial court Because S.Ct. that. no reward for jury to draw an adverse not asked the failure to the defendant’s inference from immediately counsel ob- Thompson’s Ms. stand, the Court conclud- take the witness prosecutor’s the jected. argued that He against privilege ed that the defendant’s impermissible an argument represented not vio- self-incrimination was compulsory testify. not to on her decision comment 339-341, 1229 Id. at 85 S.Ct. lated. or, in moved for a mistrial Ms. alternative, jury an instruction to the the to Supreme again declined The Court remarks. disregard prosecutor’s to the broadly in v. United States read Griffin denied both motions. The District Court Robinson, 31-32, 25, 108 S.Ct. 485 U.S. argument renews (1988). Robinson, 864, In 99 L.Ed.2d 23 prosecutor’s that the conclude appeal. We complained counsel to the the defendant’s remarks did not violate that the Gov jury closing argument in his against self-in- right Fifth Amendment oppor client an given ernment had not his crimination. 28, 108 at tunity explain to his actions. Id. rebuttal, prosecutor the 609, S.Ct. 864. On California, 85 In 380 U.S. Griffin that the defendant “could have responded 1229, (1965), 14 the Su- L.Ed.2d 106 S.Ct. you, explained the stand and it to taken that the Fifth preme Court declared anything he wanted to. The United States “forbids either comment Amendment him, given throughout, the of America has prosecution on the accused’s silence 29, opportunity explain.” Id. at 108 by the court that such silence instructions Concluding prosecu that the 615, S.Ct. 864. guilt.” Id. at 85 S.Ct. is evidence of “was a clear violation of the argument tor’s can read to “Although 1229. be Griffin right constitutional not to tes defendant’s to a defen- prohibit any direct reference tify,” the Sixth reversed the defen Circuit testify,” subsequent dant’s failure dant’s conviction. United States v. Robin “declined to Supreme decisions the Court (6th Cir.1986). son, 1132, 1134-37 reading of adopt such a broad Griffin.” Wing, reversed, holding Supreme The did not prosecutor’s that comments Robinson, violate the Fifth Amendment. Oregon, In Lakeside v. 31-32, (1978), the de- 485 U.S. at 108 S.Ct. 864. S.Ct. 55 L.Ed.2d 319 rejected argument “any that that Fifth Amendment Court argued fendant prosecutor reference to the right against compulsory self-incrimination ‘direct’ testify violates failure of the defendant to violated when the trial court instruct- objec- Fifth as construed jury, counsel’s Amendment ed the over defense Grif- Rather, tion, 864. it draw an adverse Id. could not fin.” rule instructed that the defendant’s refusal to Court inference from the Griffin inviting impermissible from marks as such an judge prosecutor “prohibits inference. jury may it treat suggesting to the substantive evi

the defendant’s silence as Thompson argues guilt.” Id. at 108 S.Ct. dence prosecutor indirectly jury invited the omitted). marks The Court (quotation of guilt draw an inference from her silence prosecutor’s that whether a com stressed when he advised the that Mr. Stratton testify ment on a defendant’s refusal should not be rewarded for testifying. Fifth violates the defendant’s Amendment offering claims that in She such direction right against compulsory self-incrimination jury, prosecutor implied to the only by examining can determined be there would be cases which a defendant in which the statement was made. context testifying should be rewarded for 31-33, 108 Id. at 864.9 S.Ct. thereby encouraged jury punish the to her testifying. for not following applies Circuit the This disagree. prosecutor We The that a this reviewing prose standard claims directly indirectly case did not or a encour- cutor’s comments violated defendant’s age jury Thompson’s the to consider Ms. right against compulso Fifth Amendment decision to remain silent as evidence of her ry self-incrimination: Rather, guilt. in response argu- to the A prosecutor’s statement violates the de- counsel, ment of Stratton’s defense the if right fendant’s to remain silent either prosecutor correctly jury informed the (1) manifestly statement was intend- the that a defendant should not be rewarded ed a comment on the to be defendant’s simply because he testifies and that a testi- testify; or the failure statement fying special defendant is not entitled to jury a that a was of such character credence as a simply witness because he necessarily naturally would take it subjected himself to cross-examination. to be a comment on the failure of the prosecutor’s argument clearly re- The testify. accused to sponsive argument to the of Mr. Stratton’s Knowles, United States v. any counsel and was not intended in re- (11th Cir.1995) (quotation marks 1162-63 adversely on spect to comment omitted). Although and citations this Thompson’s to remain silent. decision adopted this test in Court (11th Stuart-Caballero, prosecutor Nor the violate did Cir.1982), decided, by Thompson’s rights point before Robinson was constitutional appropriate, ing jury the is if read in out to the that Ms. had standard still testify. the limitation in a The light right prosecutor’s Robinson on the Thus, Supreme holding in made in of re Court’s comment was the context Griffin. test, argument of Mr. applying butting the Stuart-Caballero we the prosecutor’s attorney given must determine whether a re- that his client should be manifestly urge testifying. were intended to credit for Viewed in this con marks text, jury it plain the to draw an inference from the we think that the an guilty, prosecutor defendant’s silence that he or she is did not intend to draw ad jury naturally or whether a and verse inference from Ms. si Rather, necessarily prosecutor’s prosecutor construe re- lence. the was dis- Frazier, placed upon prosecutor's 9. In United States v. 944 F.2d 820 tions use of (11th Cir.1991), recognized at Id. this Court defendant's silence trial" Robinson. Supreme prohibi- "the Court limited the at 826. has conviction) prior than a which is jury drawing positive neces- couraging simply sary support exceeding Stratton’s favor a sentence in Mr. inference by the facts testified. maximum authorized estab- because or plea guilty jury lished prosecutor’s note that Finally, we verdict must be admitted the defen- closing argument were both in his remarks beyond proved jury to a a rea- dant Dis- with the correct and consistent legally doubt.” sonable The jury instructions. trict Court’s a right that a has defendant was instructed Gallegos-Aguero, States v. that it could not draw an testify and not to Cir.2005) (quotation fail- from a defendant’s inference adverse omitted) (alteration in original). marks testify. The Court also admonished ure to Supreme in Booker redressed testify, if it jury that a defendant does Sentencing constitutional Guidelines’ credibility his or her should assess infirmity by portions excising those way any that it did other witness. same Sentencing making the Reform Act Guide- informed Counsel for both defendants Booker, mandatory. lines objections they any did not have court that 764-68. instruction. Because did not appellants raise closing argu- prosecutor’s Because below, objection re Sixth Amendment we directly indirectly encour- ment did not or plain v. view error. United States age Thompson’s jury to consider Ms. Rodriguez, 398 1298 F.3d Cir. guilt, silence as evidence of her Ms. 2005); Booker, 769; at Fed. 125 S.Ct. right against self- Thompson’s compulsory 52(b). appellate may R.Crim.P. “An court as in incrimination construed and Griffin an not correct error the defendant failed to Accordingly, was not Robinson violated. raise the district court unless is: there did abuse its discre- the District Court not (2) (1) error, (3) plain, and that Thompson’s tion in Ms. motion for rights.” Rodriguez, affects substantial 398 a mistrial or a curative instruction. omitted). at (quotation F.3d 1298 marks met, “If all three an appel conditions are VII may late court its then exercise discretion argued Ms. (4) error, to notice a forfeited but if that, opening their to this Court briefs fairness, seriously the error affects Blakely 542 light Washington, of U.S. public judicial or of integrity, reputation L.Ed.2d S.Ct. 403 proceedings.” marks (quotation Id. omit (2004), re the District committed Court ted). concedes, The Government and we by imposing versible constitutional error agree, Appellants plain both can show that had sentences been enhanced on the error this case. they basis of facts which did not admit and jury’s which not in the ver were reflected jury The convicted Ms. appellants After the their dicts. submitted conspiracy with possess intent briefs, Supreme Court decided United grams distribute 500 or more of cocaine , —U.S.-, States v. 125 S.Ct. grams or Booker and 5 more of cocaine base (2005). Booker, 160 L.Ed.2d 621 In two counts with possession intent Supreme distribute detectable amount cocaine Blakely objection,

held that to the federal Ms. applies Thompson’s base. Over Sentencing Guidelines and reaffirmed its District Court that Ms. Thompson found (other holding that, “[a]ny fact Apprendi responsible grams was for 500 of crack cocaine, gave which her a base offense discussed regard to Ms. Thompson’s 201.1(c)(2). sentence, § level of 36. U.S.S.G. The Mr. Stratton’s sentence violated applied upward district court a two-level his Sixth rights, Amendment and the error adjustment finding again, after plain. over Ms. was — Thompson’s objection Thomp- Ms. —that We also conclude Appellants that both leader, organizer, manager, son was an heavy have met their burden of demon- 3Bl.l(c). supervisor § under U.S.S.G. strating that sentencing these errors af- Thompson’s history

With Ms. criminal cat- rights fected their substantial in the sense V, egory guideline this resulted the errors “affected the outcome of range of 360 months to life. Absent the the district proceedings.” court District Court’s extra-verdict enhance- Cotton, States U.S. ments, guideline range Thomp- for Ms. 152 L.Ed.2d (quota- son’s offenses would have been 110-137 omitted). tion marks At points several months. expressed District Court its dissatisfaction

Because the District Court enhanced with the sentence it imposing on Ms. Thompson’s Thompson, noting sentence under a manda- the sentence was tory guideline system on the basis of factu- “severe” and asking really “whether this is al findings not made or admitted the kind of Congress defendant intended by Ms. Thompson, Thompson’s Sixth to be look at 360 months as a minimum.” rights Amendment were violated. Rodri- At the conclusion of sen- guez, 398 tencing hearing, 1298. The error was the District Court stated: plain because apply we the law as it exists I going sentence am to impose is “at appellate the time of consideration.” my fair sentence in view. The States, Johnson v. United sentence that I have imposed already 117 S.Ct. 137 L.Ed.2d 718 government’s and will reduce on motion (1997). will make it even less fair. I think Ms. prison. deserves to be in I conspiracy Mr. Stratton was convicted of don’t think impris- she deserves to be grams to distribute 500 or more cocaine oned for 360 months. That’s a choice grams and five or more of cocaine base. Congress government and the has taken (“PSR”) Report The Presentence charged away from the Court. that Mr. responsible Stratton was for at kilograms base, 1.5 Stratton, least of cocaine which sentencing When the District give sentiments, would expressed Stratton a base offense Court similar an- 2Dl.l(c)(l). § level of 38. nouncing U.S.S.G Over that it to have “continue[d] [the] objection, Mr. Stratton’s the District Court same concerns or similar concerns with accepted drug quantity the PSR’s determi- regard length to the of a sentence for a applying nation. After upward two-level first offender.” The District Court also adjustment justice, although obstruction of stated that it sentence would substantial, District impose Court determined that Mr. Strat- would be it had “decid- adjusted ton’s level long ago fudge guide- offense was 40. Since ed not to with the just Mr. Stratton did not have a criminal histo- lines to find a result that I find more Further, ry, guideline range palatable.” was 292-365 the District months. If Appellants the District Court had not sentenced both to the low end enhancements, made extra-verdict respective guideline ranges. of their We guideline range would have been are satisfied that a reason- “there is thus probability” 63-78 months. For the same reasons we able Appellants both ” Rodri- (quoting at 1301 case.’ Ante sentence a different have received 1301). words, In other guez, in an applied had been guidelines “if the appellants have court is satisfied binding fashion of a advisory instead plain- third element of in this case.” Rodri- satisfied sentencing judge test; preju- they established have error at 1301. guez, 398 F.3d sub- “affects [their] the error dice'—that sentencing also conclude We (quoting Ante at 1300 rights.” stantial “seriously affected in this case errors 1298) (internal quo- F.3d at Rodriguez, 398 fairness, public reputation integrity omitted). tation marks States judicial proceedings.” United Shelton, 1325, 1333 Cir. re- having court for I do not fault the omitted). 2005) As the marks (quotation prejudice such appellants to show quired clear, the Dis quoted above make excerpts cir- the law of this Rodriguez is because impose expressed its desire trict Court wrong Rodriguez cuit. I submit Appellants on both a more lenient sentence law. and continues to be bad when decided mandatory permitted it under than was Rodriguez, 406 F.3d See United States Accordingly, the fourth regime. guideline (11th Cir.2005) J., (Tjoflat, dis- standard is satis plain error prong banc). rehearing en senting from denial of Id. at 1334. fied in this case. constitutional explained, I have “Booker As at 1291.1 error.” Id. error is structural CONCLUSION such, subject to it is “not substantial- As ” judgment of convic- AFFIRM each We analysis .... Id. at 1292. rights and REMAND both tion. VACATE We vacate a defen- deciding whether to In and remand to Appellants’ sentences of constitutional sentence a case dant’s resentencing. District Court here, error, Rodriguez and its as we have TJOFLAT, Judge, specially Circuit the record require us to examine progeny concurring: (created, course, pre-Booker under model) indication that sentencing for some

I. imposed would have the district court it to permitted had the law I lesser sentence judgment. I in the court’s concur advisory rather guidelines the as disagree I with treat separately because write to what the mandatory. than We look vacating appel- for the court’s rationale to or in the course of prior the court said The court vacates lants’ sentences. for what I because, sentence. We look language imposing in the of Rod- sentences “ case, In this the court “magic call words.” probability’ is a reasonable riguez, ‘there It that sever- “[a]t received a finds them. discovered Appellants would have both [during sentencing hearing] the points ‘if had al guidelines sentence the different expressed its dissatis- advisory of the District Court in an instead applied been imposing it the sentence was sentencing judge faction with binding fashion the model, banc). rehearing Because the Booker sentencing en a new 1. Booker established materially previ- different from the markedly structurally model is different from model, error "are appellants ous the effects of Booker pre-Booker under which model necessarily unquantifiable and indetermi- explained the difference sentenced. I were (quoting Sullivan v. Loui- detail nate.” Id. at 1298 the two models in considerable between siana, 275, 281-82, S.Ct. 508 U.S. 113 dissenting refusal to re- from court’s (internal (1993)) quo- Rodriguez, 124 L.Ed.2d 182 Rodriguez en banc. hear omitted). J., (Tjoflat, dissenting denial tation marks at 1286-91 A Thompson, noting judge that the sentence district who such on Ms. makes com asking may ‘severe’ and ‘whether this is ments do so belief sincere really Congress she, the kind defendant in- along over time he or other like- looking] to be at 360 months as a tended judges, persuade minded will the Sentenc ” at minimum.’ Ante 1301. The District ing Congress Commission or to revise se continued, think “I don’t she de- mandatory vere The judge sentences. imprisoned to be for 360 months.” serves may simply also think he or giving she is (internal quotation Ante marks the defendant his family a bit of encour omitted). sentenc- Subsequently, “[w]hen See, e.g., agement. States Ame Stratton, ing Mr. the District Court ex- line, (9th Cir.2005) (en sentiments, pressed announcing similar banc) (“District judges court often make that it to have con- same ‘continue[d] [the] sentencing remarks at for purposes other regard cerns or similar concerns with to fact-finding. than A court judge district length of a sentence of first offender.’ may say choose to encouraging some that, District The Court also stated al- words the benefit of the defendant’s though the it would impose sentence ”). family.... Or judge may simply substantial, long ago it had be ‘decided not hope that the defendant will hold a fudge guidelines just with the to find a lengthy against judge sentence person ” more palatable.’ result find it Ante ally. view, however, The least charitable so, finding at 1301. And magic these judge just shooting is is words, appellants’ the court vacates sen- and, process, doing in the breeze the de tences and remands the case for resen- society fendant and a great disservice. tencing under the new Booker model. When a tells a judge defendant that his

II. unfair, unjust and sentence is the defen- dant inclined believe him. The defen- opinion court’s illustrates one of is, therefore, unlikely accept dant many problems Rodriguez with the stan- “ justice of punishment and ‘enter the or, it, I “magic dard as coin words” system correctional in a frame mind approach plain-error Under review. hope that affords success in rehabilita- Rodriguez, generally we do not reverse a period tion over a shorter time than sentence unless the district court has stat- ” might be necessary.’ otherwise McKune guideline ed on the record that the sen- Lile, 24, 36-37, 536 U.S. 122 S.Ct. is too high and, implication, tence un- — (2002) (quoting 153 L.Ed.2d 47 Bra- unjust it fair would select a —that States, 742, 753, dy v. United it lower sentence if the law to do allowed (1970)); L.Ed.2d so, general and that it inis dissatisfied 3553(a)(2)(D) (“The § also see 18 U.S.C. punishment provided by with the dem- for court, determining particular the sen- ocratically empowered lawmakers. That imposed, to consider tence be shall the is, only vacate a we sentence where the provide for the to imposed need sentence judge spoken has some of combination the defendant with needed Thus, [rehabilitation] “magic argu- at these words.” oral manner....”). ment, in the if most effective The begins plain- defense counsel judge may unwittingly encourage also the argument, immediately error Booker I ask persist attacking to his sen- any “magic we will find words” in defendant whether record; “no,” appeal if tence on direct and collateral re- the the answer is then view, notwithstanding pursue there is no reason for to its substance counsel imposition further. the of its are legal- the issue manner 1304 doubt. See thought by some to be all, why the de- After should

ly correct. States, 545, 567- that even Harris v. United 536 U.S. appeal a sentence fendant not 2419-20, Final- 153 L.Ed.2d too the criticized as severe? S.Ct. judge mínimums) (5-4 (2002) de- (mandatory the disparaging defendant’s ly, openly cision); Almendarez-Torres sentence, disrespect for judge fosters the States, See 18 U.S.C. 224, 226-27, 118 S.Ct. the rule of law. (“The (5-4 court, 3553(a)(2)(A) in determining 1219, 1222, § 140 L.Ed.2d 350 imposed, decision).3 to particular the sentence be are Judges required who to the for the sentence they shall consider need to unfair or deem be impose what promote respect ... the imposed to unjust the result of such laws sentences as law....”). respect does not judge If the by Rodriguez to then- encouraged are state why then should applies, Moreover, the that he law the be- criticisms on record. society judge’s apply role is to large? A issues, will yond immediate there these written, his or law it is not to offer as always possibility that some unantic- be of wisdom or fairness. opinions her own its will, call ipated ruling post-sentencing, into office, sworn By judge has oath ground not ad- question a sentence on law, uphold including imposing laws to court, thereby trig- vanced in the district mandatory sentences.2 gering Rodriguez’s, “magic words” require- Thus, any judge required ment. time a is Rodriguez judges encourages rule “unjust” sentence, should, impose an he to to to on the record as opining continue Rodriguez, tell the defendant according they in indi- impose fairness of sentences injustice him being done to so all about the Post-Booker, course, vidual cases. can the benefit that the defendant receive judges there no reason for to continue is any subsequent Fi- appellate decisions. because doing precise so in context nally, im- putting Rodriguez’s even aside advisory the Guidelines are now —if I sentencing hearings, on future find pact unfair, guideline is judge thinks sentence troubling applying it our decisions its presumably exercise then he or she will appear give past comments of standard impose Supreme prerogative not to it. imprimatur this sort this court. upholding mandatory precedents logical implication of such cases is that judicial The on extra-verdict mínimums based such statements are at least harmless —if findings and enhancements extra-verdict we reward the de- prior based convictions ever are now desirable —because quintessential^ politi- ... has eroded 2. Such comments are been "Almendarez-Torres suggest ju- I cal statements. do not that there is subsequent Sixth Amendment [the] Court's place never a for them. The time and time risprudence, majority and a of the Court now them, however, judi- place is outside recognizes Almendarez-Torres role, testimony to the Sen- cial in letters or wrongly Shepard, decided.” 125 S.Ct. at Congress. tencing When a Commission or J., (Thomas, concurring) (citing, inter judge specific such statements in cases makes alia, Jersey, Apprendi v. U.S. New defendants, poten- specific judge’s and to 520-21, 147 L.Ed.2d positive greatly tial for is not influence J., (2000) (Thomas, concurring)). He fur- diminished, outweighed by far but in fact that, case, appropriate suggested ther “in an values, disservice done to rule-of-law should [the] Court consider Almendarez-Tor- justice system general, and the criminal ’ continuing viability” "[innumer- res because particular. the defendant in able defendants have been unconsti- criminal - tutionally under flawed [its] sentenced States, -, Shepard v. U.S. 3. In (Thom- Shepard, S.Ct. at (2005), rule....” 125 S.Ct. 161 L.Ed.2d 205 Jus- as, J., Thomas, concurring). majority a tice member decision, 5-4 wrote that Almendarez-Torres presence fendant based their America, UNITED

record. STATES Plaintiff-Appellee, thoughts on I additional add these listening after to a Rodriguez standard arguments of oral in which the series debate has consisted en-

Booker/Rodriguez ELSO, Elso, Juan Carlos a.k.a. J.C. tirely counsel that the arguing of defense Defendant-Appellant. “magic contain

record does indeed some 04-13043. No. Attorney Assistant

words” and the U.S. just aren’t responding mag- that the words United States Court of Appeals, process arbitrary ical as enough. This is Circuit. Eleventh it A as is absurd. defendant rewarded only if sentencing hearing with a new Sept. 2005. entirely took sentencing judge inappro- priate publicly criticizing the law step impose him to the sentence. required contrast,

In defendant a whose sentence gratuitous without imposed comment sentencing judge is denied new

hearing. “It infer from a mistake to [is]

district silence court’s district

court not have would made different sentencing

decision under a different Ameline,

scheme.” 409 F.3d at 1082. Si- nothing

lence often means more than that

an experienced judge understands his or justice

her proper sys- role the criminal Thus, judge’s

tem. comments or si- inevitably poor

lence cir- turns out to be judge

cumstantial evidence what

would do if freed from the constraints

imposed by the Guidelines.4 observed, discretionary sentencing

4. As the Ninth Circuit der a scheme. It would judges be a mistake for us to attribute fresh District court often make remarks sentencing purposes meaning entirely other than fact- an comments made in may finding. judge A district court choose It be a different context. would also mis- say encouraging some words for the ben- take to infer a district silence court’s family; efit of the defendant’s a district that the district court would not have made may judge court decide to lecture the defen- decision under a sen- different different warning. judges dant court District sum, tencing In unusual scheme. in this stray have known also been to make com- context, ability plain our to assess error during ments about Guidelines sentenc- significantly based on the cold record is ing, necessarily intending without for them impaired. interpreted meaning that to be as a differ- Ameline, at 1082. imposed ent sentence have been un-

Case Details

Case Name: United States v. Elizabeth Marie Morse Thompson

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 1, 2005

Citation: 422 F.3d 1285

Docket Number: 04-12218

Court Abbreviation: 11th Cir.