*1 America, UNITED STATES
Plaintiff-Appellee, WILLIAMSON, a.k.a. Linda
Linda al.,
West, Dwight et
Defendants-Appellants. 02-12765.
No. Appeals, States Court
Eleventh Circuit. 30, 2003.
July *2 AL, Biggs, Gregory Montgomery, parties’ M. consideration briefs and oral Beck, Jr., P.C., Beck George Byrne, L. & as well argument independent as an review Jr., Howard, & Byrne, Capell B. David trial, of the entire record of we conclude AL, John D. Jack Montgomery, Floyd, legal there exists a sufficient basis for *3 Gadsden, Floyd & Floyd, Floyd, Floyd, jury a reasonable to have convicted the AL, Defendants-Appellants. for Appellants, and that the court did AL, admitting not err in Brian McKee’s state- Speirs, Montgomey, Verne H. for Plaintiff-Appellee. ments.
I. BACKGROUND
Disposal
The Etowah Solid
Au-
Waste
(“ESWDA”)
thority
by
was established
FAY,
the
Before
and
Circuit
DUBINA
*,
County
Etowah
in September
Commission
Judges,
Judge.
and
District
DOWD
purpose
operating
1993 for the
of
an inert
PER CURIAM:
landfill in Etowah County, Alabama. The
2001,
27,
grand
On June
federal
ESWDA consisted of a five-member Board
thirty-one
returned a
count
indictment
of
tasked
County
Directors
the Etowah
against Defendants-Appellants Dwight
with
responsibility
Commission
the
of
(‘Wil-
(“Faulk”),
Faulk
Linda Williamson
overseeing
operation
the
of
landfill.
liamson”), and Brian and Jennifer McKee
County
Because the Etowah
landfill did
conspiracy
for
commit mail
to
fraud
certain
guide-
meet
federal and state
(Count 1),
§ 371
mail
violation of 18 U.S.C.
lines,
only accepted disposal
it
of non-
of
§
fraud in violation
U.S.C.
putrescible waste such as construction and
(Counts 2-18), conspiracy
mon-
to commit
(“C&D”)
demolition
materials and other
ey laundering in violation of 18 U.S.C.
inert, non-hazardous
Putrescible
items.
1956(h) (Count 19),
money
§
and
launder-
waste
garbage
such
household
was di-
ing
violation
18 U.S.C.
landfill
County
verted from the Etowah
1956(a)(1)(A)® (Counts 20-31).
§
Follow-
where,
County
an
station
Etowah
transfer
trial, Faulk,
joint jury
Williamson
ESWDA,
expense
at considerable
it
Brian
on
guilty
and
McKee were found
all
adjacent
to an
county
was hauled
for dis-
charges.
Jennifer McKee was
found
posal
pertinent
in a landfill that
met
§
for
guilty
violation
guidelines.
conspiracy
Ap-
mail
commit
fraud. The
pellants timely
their
appealed
convictions.
out,
As it
turns
the Etowah County
an extremely profitable
landfill was
ven-
appeal,
Appellants challenge
ture
for
ESWDA.
sufficiency of
evidence against
losing significant
ESWDA was
revenue
them, and
the District
challenge
Court’s
as a
transfer station
result of
non-testifying
admission of
codefendant
separate
putrescible
having to
and haul
Brian
inculpatory
McKee’s
statements to
Accordingly,
sought
waste.
the ESWDA
personnel pursuant
law enforcement
States,
Bruton v.
putrescible
the amount
United
reduce
waste
(1968).1
imize the waste entitled dumped.3 tons of C&D waste were County Etowah landfill. To meet this objective, March ESWDA days following passage Seven pre- passed two resolutions drafted resolutions, Faulk, Judge first two Probate McKee, sented Brian the Solid Waste County, of Crenshaw Alabama and Wil- liamson, County The first Administrator for Cren- Administrator for the ESWDA. County, company shaw Alabama formed a provided fifty percent for a re- resolution Big Recycling, Inc. called Wheel duction in the fee at Etowah (“BWRI”).4 by Faulk BWRI was formed recycling companies lo- County landfill to attempt in an to take ad- Williamson County.2 cated in Etowah The second res- *4 vantage dumping of the discounted rate allowed commercial haulers to take olution compa- recycling available to commercial municipal pro- rate advantage of the lower County.5 nies located in Etowah To this 2,750 vided that a minimum of tons of end, Faulk entered into contracts with four per month disposed waste were mobile home manufacturers located account with the was hauler’s ESWDA County, Marshall Alabama to haul their past August Brian due. C&D waste. Because of the discounted McKee introduced and the ESWDA dumping County rate at the Etowah land- passed a third resolution which altered the fill, Faulk could offer the mobile home 2,570 per requirement tons month for a significantly manufacturers reduced haul- municipal commercial hauler to receive ing rates for their C&D waste and still dumping The new dumping require- rate. profit earn a substantial for BWRI. ment for a commercial hauler to for qualify qualify dump- order to for the discounted municipal per day. rate was 100 tons rate, however, BWRI would have to Finally, in August 1997 a fourth resolution Yet, govern- meet certain criteria. as the passed by concerning was the ESWDA the ment alleges, knowing BWRI and fraudu- minimum required dumping amount en- lently per dumping received an ton $8.756 abling a commercial hauler qualify to for despite rate not meeting the criteria as municipal rate. The fourth resolution through established the various ESWDA provided that a commercial hauler was resolutions. passage 2. At outstanding the time of the of the first resolu- Williamson owned 998 of the tion, commercial haulers of waste were re- 1000 shares of BWRI's and served stock as quired pay dumping per to $20.00 fee of ton corporation. President of the Faulk was the County for use of the Etowah landfill. The Chief Executive Officer of BWRI and con- per $20.00 dumping ton commercial rate was day-to-day corpo- trolled the activities of the September in effect until at which time ration. per the rate $25.50 increased to ton. In addi- rate, tion to the commercial hauler there ex- government alleges 5. The that BWRI was special municipal per isted a $17.50 rate of part conspiracy formed as that existed municipal ton. The rate was also in effect at Appellants they sought between the wherein passage the time of the of the first resolution impermissibly dumping to receive discounted pertinent and at all times to this case. County through rates the Etowah landfill specify the assistance of Brian McKee. peri- The resolution did not the time dumping od over which minimum re- quirement qualify must be met in order to per fifty $8.75 6. The ton rate is the result of a municipal rate. witnesses testi- percent municipal discount from the rate of government fied and the all but conceded at $17.50. requirement trial that ton was month- ly- is an tain their convictions issue we decide
II. DISCUSSION Miles, de novo. States v. 290 F.3d the Evidence Sufficiency A. (11th Cir.2002). 1341, 1355 We review the Ap- contends that government whether evidence determine “a reason in an elaborate scheme pellants engaged jury, viewing able the evidence and all pattern defraud the ESWDA reasonable inferences therefrom in the money laundering in order mail fraud and light most favorable advantage of the impermissibly take guilty charged could find the defendants rate dumping ton discounted per $8.75 beyond a reasonable doubt.” United County the Etowah landfill. available at Navarro-Ordas, States v. 770 F.2d con- Simply explained, (11th Cir.1985) (internal citations omit employ- directed tends that Brian McKee ted). A jury’s verdict will be affirmed if give an ees of the ESWDA BWRI $8.75 “jury the court determines that a was ra knowing rate that BWRI per ton tionally every able to find that element of company recycling not a located charged crimes was established met the minimum County Etowah nor had government beyond a reasonable doubt.” payoff for dumping requirements. As McCarrick, knowingly impermissibly being given See United States 294 F.3d *5 rate, according per dumping (11th Cir.2002). ton 1286, 1289-90 the $8.75 funnel government, BWRI would profits from the four mobile home earned 1. Mail Fraud back to Brian McKee manufacturers Jennifer, employee an of through his wife presented The evi ran an for out of BWRI who office BWRI jury dence that could lead a to reasonable total, County home. her Etowah Appellants knowingly conclude that government contends that BWRI defraud- and willfully defrauded ESWDA mil- approximately ed the ESWDA $1.4 a receiving dumping discounted rate of lion. per ton which not to BWRI was $8.75 entitled. was entitled to Whether BWRI
Appellants contend that there is rate, at the per dumping an ton most $8.75 to sustain their con insufficient evidence hotly litigated basic level as was at and conspiracy for mail fraud and victions trial, recy BWRI a concerns whether was Appellants’ commit mail fraud. contention County.7 in Etowah cling company is insufficient evidence to sus- located there up-to-date ESW- Appellants met that had account with the concede that BWRI never an dump- dumping requirements per needed DA and met the minimum month the minimum we qualify municipal requirement. The evi- While need not resolve for the rate. issue, say, jury, that BWRI’s ac- this suffice it to a reasonable dence further demonstrates evidence, paid up- could conclude that with the ESWDAwas not and based on all the count however, dumping Appellants argue, meeting the minimum re- that the absent to-date. having up-to-date independent quirements an account first resolution is of the other and ESWDA, best, and, recy- although point, a commercial silent with the resolutions oh County give percent cling company Etowah fifty a discount located in is intended to qualify fifty percent from municipal recycling rate would for a discount from the to those County. op- the commercial rate rather than from the companies located in Etowah Furthermore, government argues municipal rate. BWRI's re- position, the that the first despite simply grants fifty percent peated failure to meet such criteria resolution reduc- per ordinarily receiving ton rate is $8.75 rate would tion from whichever Appellants’ in- apply qualify evidence of and that in order to for the circumstantial rate, provides fur- defraud the ESWDA and per $8.75 BWRI would have to be a tent to ton jury’s company County support ther for the verdict. recycling located in Etowah County landfill where it was covered argue that BWRI was Appellants The Thus, dirt.8 as the contends engaged it recycling company because demonstrates, the non- and as the evidence which, they separation” term “source what putrescible waste hauled BWRI was Appellants, entails by the as described part recycling process of the because it not separation for providing the means recycling facility for a was destined waste from non- segregation putrescible being recycled by nor was it BWRI. We presented Appellants putrescible waste. conclude, therefore, although “source experts lay evidence at trial from both separation” may begin recycling pro- proves that they argue witnesses which instances, cess in some a reasonable separation engaged in source BWRI recy- could conclude that BWRI was not part separation is of the and that source transported cling simply it because point, the evi- recycling process. On this non-putrescible waste from mobile provided at trial shows that dence BWRI home manufacturers to the Etowah Coun- pans large trash containers known ty dumped hope landfill to be without home manufacturers so the various mobile being recycled ever for further use.9 putrescible waste of the manufac- support position, Ap- In further of their disposed separately turers could be presented pellants argue that the evidence non-putrescible from the waste. Thereaf- upon dumping at trial shows that ter, pick up pans of non- BWRI would non-putrescible waste at the Etowah putrescible waste and haul them landfill, County employees BWRI would County dumping. landfill Etowah sift the rubble and remove would putrescible garbage household would also wood, carpet, useable items such as sal- BWRI, however, picked up by be such appliances, copper vageable wire for proper dump waste was directed to site. *6 personal and simply both use resale. We Thus, Appellants argue, separa- as source jury conclude that a reasonable could have certainly beginning recy- tion the is activity concluded that not quali- such does cling process. fy company. as a recycling BWRI The government presented The evidence at activity, evidence shows that such if it trial that showing outside of the limited occurred, Further, sporadic was at best. in recycling cardboard that occurred credibility employee the of the main BWRI recycling company. BWRI act as a did not engaged practice, in this Bill was government argued at trial and now significantly govern- undermined as the is, argues appeal reality, on that in BWRI ment elicited from the that witness than a nothing regular more commercial haul, personally dump, would and look support hauler of waste. Evidence of per day four to five loads of waste non-putresci- position this shows that the weighing anywhere from four to six tons ble waste removed from the mobile home and, thereafter, any salvage- would remove simply manufacturer facilities was trans- transport able items from the rubble and ported dumped storage.10 to and the Etowah those items to his house for Nichols, recycling expert, separated 8. Walter a was not defense manufacturers from the Thus, simply hauling non-putres- non-putrescible even testified that waste. on those occa- sions, dumped dumping illegally putresci- cible waste to be with no further BWRI was expectation being County waste converted and ble waste at the Etowah landfill. put recycling. to use is not This conclusion testimony 10.To describe this as incredulous supported by government’s recycling was the would be an understatement. As one witness experts. described, during practice, the trial if it occurred, many nothing 9. The showed that on occa- amounted to more than putrescible "pilfering.” sions waste from the mobile home We conclude that a reasonable Finally, government presented their insufficient sustain convictions for Nobel, testimony Larry a driver money laundering conspiracy to com- BWRI, who indicated BWRI was money mit laundering. To obtain a convic- in any recycling. not engaged This testi on tion substantive Section mony is consistent with statements Faulk 1956(a)(1)(A)© promotional money laun- himself made law enforcement officials charge, dering bears the and introduced into evidence wherein he of proving beyond burden a reasonable engaged indicated that BWRI was (1) doubt that: the defendant conducted or Furthermore, recycling activities.11 state attempted to conduct financial transac- ments Brian to law from McKee enforce (2) tion; the defendant knew property ment officials were introduced into evi represented involved the transaction dence wherein he indicated that he knew (3) proceeds activity; prop- unlawful Thus, illegal.12 what doing he was erty involved was in fact the proceeds of we jury conclude a reasonable could (4) specified activity; unlawful conclude not a recycling that BWRI was defendant conducted the financial transac- Therefore, company.13 affirm Appel we promote tion “with the carry- intent lants’ mail fraud convictions.14. specified on of activity.” [the] unlawful 2. Money Laundering 1956(a)(1)(A)®. § We find that all these Faulk, Williamson, required
Appellants elements have been Brian contend that the is McKee evidence satisfied.15
jury practice could that this have determined ton rate for which BWRI did not recycling. does not legitimately constitute qualify. possible 11. Out of concern for a Bruton viola- codefendants, 14. Unlike her Jennifer McKee tion, jury court on instructed Thus, per testified in her defense. own our separate two occasions that Faulk’s state- precedent, jury circuit was free disbe solely against ments were to be considered testimony lieve her and use her as substantive him. guilt. proving evidence her See United States Cotton, (11th Cir.1985) 770 F.2d Faulk, Williamson, Appellants and Jennifer ("When a defendant takes the stand in crim appeal McKee the introduction of Brian ... inal case is free to disbelieve him McKee's statements to law enforcement *7 reject explanation complete as a fabri being into in admitted evidence violation of cation."); Goggin, United v. F.2d States 853 jury Bruton. The district court instructed the also, (11th 1988) (same); 843 Cir. see United separate on two that occasions Brian McKee's Allison, (11th v. F.2d States 908 1531 Cir. solely statements were to be considered ("The 1990) jury may view the defendant’s below, against As him. discussed we affirm explanatory false statement as evi substantive the court’s admission of Brian guilt.”). proving dence McKee's statements into evidence. briefs, 13. we a Appellants argue Because conclude that that reasonable In their jury could a conclude that BWRI was not evidence is insufficient constitute conceal- legitimate recycling company, we need not and that the ment books records BWRI clean, concerning including address in detail open, the evidence all bank accounts were whether BWRI was located within Etowah and clear. concealment or an in- however, County. summary, In we conclude conceal tent to the nature or sources of the conclude, jury that proceeds bearing a reasonable could as the has no in this as it case is government argues, attempt required that BWRI’s not a element of the for offense out Appellants charged. run an office McKee's Jennifer Etowah which were Section sham, 1956(a)(1) County part separate money house was a was of the defines two laun- ESWDA, conspiracy dering to defraud is offenses: those committed with the Appellants' knowing promote further carrying speci- evidence of the "intent on of attempt per activity,” $8.75 and willful to receive an fied unlawful 1302 demonstrates, Waste at the Etowah Solid dumping debris amply
The evidence
contends,
Authority.” Faulk and William-
Disposal
that bank
government
as the
fraudulent ac
Brian McKee’s statement
deposits
proceeds
argue
of the
son
that
necessarily
and that
by Appellants
made
thus
tivity
facially implicates
were
BWRI
of Bruton.
to convert
deposits
designed
were
in
implicating
such
them
violation
home
from the mobile
checks received
testified
Special Agent Baker
Additionally,
capi
in order to
manufacturers into cash
“money
that
that
Brian McKee stated
that
upon the
perpetrated
fraud
talize on the
through Jennifer was his.” Jennifer
came
Thus,
depositing
and cash
ESWDA.
facially implicates
that this
argues
McKee
pro
represented
that
ing of checks
in violation of Bruton.
For the follow-
her
only
promoted
mail fraud
ceeds of the
and affirm the
disagree
reasons we
activity, but
Appellants’ prior unlawful
district court.
unlawful ac
ongoing
their
and future
also
Supreme Court held in Bruton
to sus
tivity.
evidence is sufficient
Such
by nontestify-
made
post-arrest statements
money
promotional
tain a conviction
facially
incriminate
ing codefendants
See,
v.
e.g., United States
laundering.
into evi-
are inadmissible
other defendants
Haun,
(6th
1096, 1100-01
Cir.
90 F.3d
violate the
dence because such statements
1996). Further,
object
since the ultimate
rights
Sixth Amendment
other defendants’
to transfer the un
conspiracy
of the
wit-
to confront and cross-examine adverse
cash, the finan
earned
rate into
Supreme
concluded
nesses. The
Court
cial transactions were
furtherance
powerfully incriminating
that “where the
and are suffi
ongoing conspiracy offense
codefendant,
extra-judicial statements of a
Appellants’ convictions.
cient
to sustain
side-by-side
accused
with the
who stands
Careione,
See United States
272 F.3d
defendant,
deliberately spread before
are
(11th Cir.2001).
trial,”
instruc-
joint
limiting
in a
court will not suffice to elimi-
tions
B. Bruton
prejudicial effect of the introduc-
nate the
counsel,
Despite the efforts of defense
Bruton,
tion of such statements.
391 U.S.
counsel,
court,
and the district
Richardson v.
135-36,
88 S.Ct.
Williamson,
and Jennifer McKee
Marsh,
that the admission of statements
contend
(1987), however,
Supreme
L.Ed.2d 176
McKee,
redacted
of Brian
even
their
had occasion to consider whether
Court
States,
form, violate Bruton v.
codefend-
nontestifying
the confession of
88 S.Ct.
1303 ... when the confes item introduced at trial.” Id. In limiting reaching instruction conclusion, the only sion to eliminate not this Court distinguished is redacted the its name, any but reference to in defendant’s decision Richardson where the redacted Richardson,
or her
existence.”
incriminating ‘only
confession “became
211, 107
The Court
at
conclud
S.Ct.
when linked with evidence introduced later
”
situation, the
ed that in
confession
such
196, 118
at trial.’
Id. at
(quot
S.Ct. 1151
incriminating”
“powerfully
is not so
that
Richardson,
208,
U.S. at
107
481
S.Ct.
by the
limiting
given
instruction
1702).
effectively
any
court could not
eliminate
question
We find that the Bruton
prejudicial
Id.
effect to the codefendants.
raised in this
case is covered
Richard
with a or neutral Id. at coupled defendant and was limiting with a 211 an n. S.Ct. 1702. That was 107 instruction. We fail to see how the state issue the Su subsequently addressed implicates, directly ment of Brian McKee preme in Gray Maryland, Court otherwise, or or Faulk Williamson. 1151, 140 U.S. 118 S.Ct. L.Ed.2d to arguments Faulk’s Williamson’s (1998). contrary unavailing. are Brian McKee’s In Gray, a confession a code- written only paid statement reflects he was explicitly fendant that referred to the de pass the recycling give resolution and any fendant was redacted to eliminate ref BWRI a discounted rate. The erence to the defendant. statement, above, quoted does not fa replaced name defendant’s with cially implicate or Faulk Williamson as was word simply “deleted” or was left as a Supreme with case the confession the space. Gray, blank U.S. at Bruton, Court addressed in nor was the law government’s 1151. When the “obviously statement redacted” as was the enforcement witness read codefend- Gray. case The statement itself is silent evidence, ant’s into “de confession said paid as to who Brian McKee. Further leted” wherever the defendant’s had name more, assuming even that it is self-evident been redacted. The then witness testified paying BWRI was Brian McKee for receipt following codefend- passing giving resolution and dis confession, ant’s he arrested the defen rate, BWRI naming counted does fa Supreme dant. The Court concluded that implicate Faulk cially either or Williamson. the “obviously redacted confession” violat link, ad order make that inferential ed “pointed directly Bruton because it ditional, independent evidence needed. 194, 118 is the defendant.” Id. at S.Ct. 1151. Thus, Simply provided because the that the Court concluded redact jurors independent with the evidence ed “facially confession incriminated” the link needed make that does not create a defendant and “involved inferences that a jury ordinarily immediately, could Bruton violation.16 What the make even very were the confession the first case accomplished is what Su- *9 Richardson, conclusion, By simply do to our we not mean decision in we conclude suggest limiting that Brian McKee's statement did not that could follow the court's potentially inculpate or Faulk Williamson. instructions and limit the use of such state- Rather, Supreme proper consistent with the to the Court’s ments defendant.
1304
”
judicial proceedings.’
(quot-
Id.
in tation of
specifically authorized
preme Court
Atkinson,
v.
297 U.S.
States
Richardson.
United
157, 160,
part dissenting part: giving Big Wheel the discounted Initially, I concur in the affirmance of rate of a ton for $8.75 appel- the convictions and sentences of the debris at the Etowah Solid Waste Dwight lants Linda Williamson and Disposal Authority? respectfully McKee. I dissent as Jennifer Yes, he did. <! respect appellant to the affirmance with When he was if asked the board & Brian McKee. members knew of the a ton $8.75 centerpiece government’s rate, did he you tell that he was against Brian case McKee was the recita- never questioned by any about it of his oral tion admission as offered them? FBI Special Agent Simply Keith Baker. A. He did. put, Agent Baker stated that Brian McKee Q. you Did he tell that he left the him doing told “that he knew what he was per weight ton rate on the $17.50 illegal” in the following testimony: scale bills so the manufactured Sir,
Q. you opportunity did have an housing companies would not know conduct an of Brian interview about the a ton rate? $8.75 McKee? -A. He did. Yes, I
A. did. Q. you Did he tell Q. you got Did Mr. McKee CEI also tell rate, Chapel they address is 400 Bachelor ton were $8.75 Road, Gadsden, Alabama? not entitled to it?
A. He did. A. That is correct. Q. you Big Did he tell Re- Wheel Q. you Rogers Did he tell that Sue did cycling was formed in 1995 and it is Big not know about the Re- Wheel corporation? cycling Big not know about . —did year you say,
A. did What sir? Recycling per- Wheel when the 50 Q. Formed cent discount resolution was A. That’s correct. passed? opinion,
18. The dissent would find violation of due did. In our this is in accord with Raddatz, process respectfully as to Brian McKee. We United States v. (1980). disagree. very experienced judge This 65 L.Ed.2d We do 4, 2002, January any meaningful stated in his order of that he not believe that there is differ- had considered the recommendation of the ence between the words “de novo determina- Magistrate Judge objec- independent United States and the tion” and "an review of the file.” tions filed the defendant Brian McKee. The ultimate decision was made the dis- independent judge reviewing He also stated that he made an trict after the entire file. rulings. process requirements review of the file ac- and then made his This meets the due exactly says cording We believe that he did what he to'Raddatz. *11 charges against bring tions to That is correct.
A.
defen-
and the wife of this
defendant
that he
Q.
you
tell
Did Mr. McKee
in-
the statements were
dant. That
doing
illegal?
was
knew what he was
voluntary
government
in that
Yes,
A.
he did.1
promises
up
not live
to their
did
Tr.,
of 29 at 154-55.
20Vol.
coerced
defendant
therefore
3, 2001,
trial,
August
of
on
advance
in
making these statements
into
suppress
filed a motion to
Brian McKee
the reward which
hopes
gaining
of
...
any nature obtained
statements “of
his
promised.
he was
investigative
and all
officers.”
by any
added).
claim,2
(emphasis
Bri-
a Miranda
R.E. at 6
raising
addition to
alleged
an
the statements
McKee
response on Au-
filed a
government
The
(1)
reasons:
involuntary” for several
“were
24,
replied to McKee’s con-
2001 and
gust
by
made
the investi-
because statements
teachings of Miranda had
tention that the
were in-
to the defendant
gating officers
demonstrating
by
been violated
(2)
misleading;
be-
tentionally false and
any
custody during
of
McKee was never
was exhausted due to
cause the defendant
questioning sessions conducted
the three
fact that the interro-
the late hour and the
17, 2000,
25, 2000,
February
February
on
duration, causing him
long in
gation was so
14,
Additionally,
and March
2001.
trauma
from shock and emotional
to suffer
pointed out that Brian McKee
(3)
wife;
on his concern for his
based
accompanied by counsel for the inter-
was
investigating
of
because of the attitude
25,
14,
February
2000 and March
views of
(4)
defendant;
officers toward the
because
government’s
re-
investigating offi-
promises
by
made
sponse ignored
allegations of a coerced
(5)
defendant;
because the
cers to
statement.
by
investigating
defendant was coerced
response
evidentiary hearing
The
making
officers into
these statements.
suppress
his
Brian McKee’s motion
A
motion was also filed on Au-
second
on November
statements was conducted
3,
part
gust
2001 and stated
as follows:
19,
magistrate
judge.
2001 before a
involuntary
were
be-
5. The statements
promised
McKee testified that he had been
made to the de-
cause
statements
investiga-
if
with
cooperated
by
investigating
officers
fendant
tion,
prosecuted.
wife
not be
would
intentionally
were
false and mislead-
present any testi-
did not
con-
ing regarding their intentions
mony to
the McKee claim of an
rebut
cerning the interview.
involuntary admission.
That all statements and interviews
Report
Magistrate Judge Walker’s
promises
were made because of
14,
on
Recommendation filed
December
investigating
made
officers to
regarding
the defendant
their inten-
2001 addressed the issue
voluntariness
Williamson,
government only
indicates that the
appellants,
1. The other
the record
McKee,
"illegality” against
opposed
all
the admis-
used the
Bri-
and Jennifer
admission
Moreover,
prop-
testimony
the district court
that Brian
an McKee.
sion of Baker's
McKee
erly
jury’s
limited the
consideration of the
Baker that McKee
what he was
told
knew
had
government's
against
case
doing
illegal
admission
violation of Bruton
States,
Brian McKee.
U.S.
88 S.Ct.
(1968).
my
L.Ed.2d 476
I concur with
breth-
Arizona,
McKee’s
2. Miranda v.
86 S.Ct.
ren that the admission of Brian
testi-
(1966).
mony
My review of
3. The
purpose
Recommendation was filed
ber 14.
for the
of this
Friday,
dissent,
on
December
2001. McKee's
objections
I conclude that the
of De-
Gadsden,
counsel is located in
Alabama. He
timely
cember 27 were
filed.
objections
filed the
on December 27. No
objections
claim was advanced that the
were
ruling,
Supreme
In so
Court reversed
untimely.
filed
The record is inconclusive as
contrary
decision in United States v. Rad
to whether Brian McKee’s counsel received
datz,
(7th
1979).
Respondent filed made, required rendering its report. Magistrate’s 636(b)(1)(C). Furthermore, the absence § decision, that it stated the District Court *13 a de novo determina- any suggestion of of hearing transcript of the considered the where, pointed in a tion comes situation on the motion to Magistrate before contrary to the magistrate and by out proposed findings suppress, parties’ in setting Rad- conflicting testimony of law, fact, support- of and of conclusions datz, bother government did not even memoranda, it read the and ing testimony to the testimo- rebutting to offer Magistrate of the recommendation ny of Brian McKee. of Find- argument oral counsel. heard out- circumstances as above Under the given ing “that the three statements lined, teachings of Rad- accepting sup- sought to be the defendant and datz, process my it view that the due is voluntarily,” made the Dis- pressed were violated in of Brian McKee were rights accepted the recommenda- trict Court hold otherwise would be the this case.5 To and denied the Magistrate tion Article improperly delegating equivalent of suppress. motion III powers.6 672, 100 447 at S.Ct. 2406. U.S. I the con- hand, Consequently, would reverse the district court
In the case McKee, stated, objections to the of Brian vacate sen- response to the viction report applied tence, as it magistrate’s and remand for a new trial. objections Brian McKee’s defendant suppress, simply of the motion to
denial independent review of
that he made “an review, and, denied
the file” based on Raddatz, there is Contrary
the motion. district court had suggestion
no
that the
Estelle,
up
support
612
a new standard of review based on
I find
Martinez
(5th Cir.1980),
180
in which the
length
experience
judge.
F.2d
of
district
found,
citing
after
Jackson v.
Fifth Circuit
Denno, that "the record before us does not
636(b)(1)(B) permits
§
a
Although
clarity’
with ‘unmistakable
that the
establish
judge
suppress
to refer a motion to
judge reliably
voluntari-
trial
determined the
magistrate judge
for recommendations re-
Jackson v. Denno has
ness of
confession.
636(b)(1)(C)
§
garding disposition,
"meticu-
Jeffrey
not been satisfied.” See also
S. v. State
lously
procedure.”
sets
a de novo review
forth
Georgia,
State
Board
Education
States,
858, 874,
v. United
Gomez
(11th Cir.1990) (criticizing
fail-
F.2d
(1989) (hold-