[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 30, 2003
No. 02-12765 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00106 CR-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINDA WILLIAMSON,
a.k.a. Linda West,
DWIGHT FAULK, et al.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Alabama
_________________________
(July 30, 2003)
Before DUBINA and FAY, Circuit Judges, and DOWD *, District Judge.
PER CURIAM:
*
Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.
On June 27, 2001, a federal grand jury returned a thirty-one count indictment
against Defendants-Appellants Dwight Faulk (“Faulk”), Linda Williamson
(“Williamson”), and Brian and Jennifer McKee for conspiracy to commit mail fraud
in violation of 18 U.S.C. § 371 (Count 1), mail fraud in violation of 18 U.S.C. § 1341
(Counts 2-18), conspiracy to commit money laundering in violation of 18 U.S.C. §
1956(h) (Count 19), and money laundering in violation of 18 U.S.C. §
1956(a)(1)(A)(i) (Counts 20-31). Following a joint jury trial, Faulk, Williamson and
Brian McKee were found guilty on all charges. Jennifer McKee was found guilty for
violation of 18 U.S.C. § 371, conspiracy to commit mail fraud. The Appellants timely
appealed their convictions.
In this appeal, the Appellants challenge the sufficiency of the evidence against
them, and challenge the District Court’s admission of non-testifying codefendant
Brian McKee’s inculpatory statements to law enforcement personnel pursuant to
Bruton v. United States, 391 U.S. 123 (1968).1 After consideration of the parties’
briefs and oral argument as well as an independent review of the entire record of trial,
we conclude that there exists a sufficient legal basis for a reasonable jury to have
1
The Appellants raise a host of additional issues for our consideration. Based on a
thorough review of the record and consideration of oral argument, we find those issues to be
without merit and, therefore, affirm the district court without extended analysis.
2
convicted the Appellants, and that the district court did not err in admitting Brian
McKee’s statements.
I. BACKGROUND
The Etowah Solid Waste Disposal Authority (“ESWDA”) was established by
the Etowah County Commission in September 1993 for the purpose of operating an
inert landfill in Etowah County, Alabama. The ESWDA consisted of a five-member
Board of Directors tasked by the Etowah County Commission with the responsibility
of overseeing the operation of the landfill.
Because the Etowah County landfill did not meet certain federal and state
guidelines, it only accepted disposal of non-putrescible waste such as construction
and demolition (“C&D”) materials and other inert, non-hazardous items. Putrescible
waste such as household garbage was diverted from the Etowah County landfill to an
Etowah County transfer station where, at considerable expense to the ESWDA, it was
hauled to an adjacent county for disposal in a landfill that met the pertinent
guidelines.
As it turns out, the Etowah County landfill was an extremely profitable venture
for the ESWDA. However, the ESWDA was losing significant revenue through the
transfer station as a result of having to separate and haul putrescible waste.
Accordingly, the ESWDA sought to reduce the amount of putrescible waste entering
3
the transfer station and to maximize the non-putrescible waste entering the Etowah
County landfill. To meet this objective, in March 1995, the ESWDA passed two
resolutions drafted and presented by Brian McKee, the Solid Waste Administrator for
the ESWDA. The first resolution provided for a fifty percent reduction in the
dumping fee at the Etowah County landfill to recycling companies located in Etowah
County. 2 The second resolution allowed commercial haulers to take advantage of the
lower municipal rate provided that a minimum of 2,750 tons of waste were disposed
of per month and that the hauler’s account with the ESWDA was not past due. In
August 1995, Brian McKee introduced and the ESWDA passed a third resolution
which altered the 2,570 tons per month requirement for a commercial hauler to
receive the municipal dumping rate. The new dumping requirement for a commercial
hauler to qualify for the municipal rate was 100 tons per day. Finally, in August 1997
a fourth resolution was passed by the ESWDA concerning the minimum required
dumping amount enabling a commercial hauler to qualify for the municipal rate. The
2
At the time of the passage of the first resolution, commercial haulers of waste were
required to pay a dumping fee of $20.00 per ton for use of the Etowah County landfill. The
$20.00 per ton commercial dumping rate was in effect until September 1995, at which time the
rate increased to $25.50 per ton. In addition to the commercial hauler rate, there existed a special
municipal rate of $17.50 per ton. The municipal rate was also in effect at the time of the passage
of the first resolution and at all times pertinent to this case.
4
fourth resolution provided that a commercial hauler was entitled to receive the
municipal rate if 500 tons of C&D waste were dumped.3
Seven days following the passage of the first two resolutions, Faulk, Probate
Judge of Crenshaw County, Alabama and Williamson, County Administrator for
Crenshaw County, Alabama formed a company called Big Wheel Recycling, Inc.
(“BWRI”).4 BWRI was formed by Faulk and Williamson in an attempt to take
advantage of the discounted dumping rate available to commercial recycling
companies located in Etowah County. 5 To this end, Faulk entered into contracts with
four mobile home manufacturers located in Marshall County, Alabama to haul their
C&D waste. Because of the discounted dumping rate at the Etowah County landfill,
Faulk could offer the mobile home manufacturers significantly reduced hauling rates
for their C&D waste and still earn a substantial profit for BWRI. In order to qualify
for the discounted dumping rate, however, BWRI would have to meet certain criteria.
3
The resolution did not specify the time period over which the minimum dumping
requirement must be met in order to qualify for the municipal rate. However, witnesses testified
and the government all but conceded at trial that the 500 ton requirement was monthly.
4
Williamson owned 998 of the outstanding 1000 shares of BWRI’s stock and served as
President of the corporation. Faulk was the Chief Executive Officer of BWRI and controlled the
day-to-day activities of the corporation.
5
The government alleges that BWRI was formed as part of the conspiracy that existed
between the Appellants wherein they sought to impermissibly receive discounted dumping rates
at the Etowah County landfill through the assistance of Brian McKee.
5
Yet, as the government alleges, BWRI knowing and fraudulently received an $8.756
per ton dumping rate despite not meeting the criteria as established through the
various ESWDA resolutions.
II. DISCUSSION
A. Sufficiency of the Evidence
The government contends that the Appellants engaged in an elaborate scheme
to defraud the ESWDA through a pattern of mail fraud and money laundering in order
to impermissibly take advantage of the $8.75 per ton discounted dumping rate
available at the Etowah County landfill. Simply explained, the government contends
that Brian McKee directed employees of the ESWDA to give BWRI an $8.75 per ton
dumping rate knowing that BWRI was not a recycling company located in Etowah
County nor had met the minimum dumping requirements. As payoff for knowingly
and impermissibly being given the $8.75 per ton dumping rate, according to the
government, BWRI would funnel profits earned from the four mobile home
manufacturers back to Brian McKee through his wife Jennifer, an employee of BWRI
who ran an office for BWRI out of her Etowah County home. In total, the
government contends that BWRI defrauded the ESWDA of approximately $1.4
million.
6
The $8.75 per ton rate is the result of a fifty percent discount from the municipal rate of
$17.50.
6
Appellants contend that there is insufficient evidence to sustain their
convictions for mail fraud and conspiracy to commit mail fraud. Appellants’
contention that there is insufficient evidence to sustain their convictions is an issue
we decide de novo. United States v. Miles, 290 F.3d 1341, 1355 (11th Cir. 2002).
We review the evidence to determine whether “a reasonable jury, viewing the
evidence and all reasonable inferences therefrom in the light most favorable to the
government could find the defendants guilty as charged beyond a reasonable doubt.”
United States v. Navarro-Ordas, 770 F.2d 959, 966 (11th Cir. 1985) (internal
citations omitted). A jury’s verdict will be affirmed if the court determines that a
“jury was rationally able to find that every element of the charged crimes was
established by the government beyond a reasonable doubt.” See United States v.
McCarrick, 294 F.3d 1286, 1289-90 (11th Cir. 2002).
1. Mail Fraud
The government presented evidence that could lead a reasonable jury to
conclude that the Appellants knowingly and willfully defrauded the ESWDA by
receiving a discounted dumping rate of $8.75 per ton to which BWRI was not
entitled. Whether BWRI was entitled to an $8.75 per ton dumping rate, at the most
7
basic level and as was hotly litigated at trial, concerns whether BWRI was a recycling
company located in Etowah County.7
The Appellants argue that BWRI was a recycling company because it engaged
in what they term “source separation” which, as described by the Appellants, entails
providing the means for separation and segregation of putrescible waste from non-
putrescible waste. Appellants presented evidence at trial from both experts and lay
witnesses which they argue proves that BWRI was engaged in source separation and
that source separation is part of the recycling process. On this point, the evidence at
trial shows that BWRI provided large trash containers known as pans to the various
mobile home manufacturers so that the putrescible waste of the manufacturers could
be disposed of separately from the non-putrescible waste. Thereafter, BWRI would
pick up the pans of non-putrescible waste and haul them to the Etowah County
7
Appellants concede that BWRI never met the minimum dumping requirements needed
to qualify for the municipal rate. The evidence further demonstrates that BWRI’s account with
the ESWDA was not paid and up-to-date. Appellants argue, however, that the first resolution is
independent of the other resolutions and, although silent on this point, is intended to give a fifty
percent discount from the municipal rate to those recycling companies located in Etowah County.
In opposition, the government argues that the first resolution simply grants a fifty percent
reduction from whichever rate would ordinarily apply and that in order to qualify for the $8.75
per ton rate, BWRI would have to be a recycling company located in Etowah County that had an
up-to-date account with the ESWDA and met the minimum per month dumping requirement.
While we need not resolve this issue, suffice it to say, a reasonable jury, based on all the
evidence, could conclude that absent meeting the minimum dumping requirements and having an
up-to-date account with the ESWDA, at best, a commercial recycling company located in Etowah
County would qualify for a fifty percent discount from the commercial rate rather than from the
municipal rate. Furthermore, BWRI’s repeated failure to meet such criteria despite receiving the
$8.75 per ton dumping rate is circumstantial evidence of the Appellants’ intent to defraud the
ESWDA and provides further support for the jury’s verdict.
8
landfill for dumping. The putrescible household garbage would also be picked up by
BWRI, however, such waste was directed to a proper dump site. Thus, as Appellants
argue, source separation is certainly the beginning of the recycling process.
The government presented evidence at trial showing that outside of the limited
cardboard recycling that occurred in 1995, BWRI did not act as a recycling company.
The government argued at trial and now argues on appeal that BWRI is, in reality,
nothing more than a regular commercial hauler of waste. Evidence in support of this
position shows that the non-putrescible waste removed from the mobile home
manufacturer facilities was simply transported to and dumped at the Etowah County
landfill where it was covered in dirt.8 Thus, as the government contends and as the
evidence demonstrates, the non-putrescible waste hauled by BWRI was not part of
the recycling process because it was not destined for a recycling facility nor was it
being recycled by BWRI. We conclude, therefore, that although “source separation”
may begin the recycling process in some instances, a reasonable jury could conclude
that BWRI was not recycling because it simply transported the non-putrescible waste
from the mobile home manufacturers to the Etowah County landfill to be dumped
without hope of ever being recycled for further use.9
8
Walter Nichols, a defense recycling expert, even testified that simply hauling non-
putrescible waste to be dumped with no further expectation of that waste being converted and put
to use is not recycling. This conclusion was supported by the government’s recycling experts.
9
The government showed that on many occasions putrescible waste from the mobile
home manufacturers was not separated from the non-putrescible waste. Thus, on those
9
In further support of their position, Appellants argue that the evidence
presented at trial shows that upon dumping of the non-putrescible waste at the
Etowah County landfill, BWRI employees would sift through the rubble and would
remove useable items such as carpet, wood, salvageable appliances, and copper wire
for both personal use and resale. We simply conclude that a reasonable jury could
have concluded that such activity does not qualify BWRI as a recycling company.
The evidence shows that such activity, if it occurred, was sporadic at best. Further,
the credibility of the main BWRI employee engaged in this practice, Bill Faulk, was
significantly undermined as the government elicited from the witness that he would
personally haul, dump, and look through four to five loads of waste per day weighing
anywhere from four to six tons and, thereafter, would remove any salvageable items
from the rubble and transport those items to his house for storage.10
Finally, the government presented the testimony of Larry Nobel, a driver for
BWRI, who indicated that BWRI was not engaged in any recycling. This testimony
is consistent with statements Faulk himself made to law enforcement officials and
introduced into evidence wherein he indicated that BWRI was not engaged in
occasions, BWRI was illegally dumping putrescible waste at the Etowah County landfill.
10
To describe this testimony as incredulous would be an understatement. As one witness
during the trial described, this practice, if it occurred, amounted to nothing more than “pilfering.”
We conclude that a reasonable jury could have determined that this practice does not constitute
recycling.
10
recycling activities.11 Furthermore, statements from Brian McKee to law enforcement
officials were introduced into evidence wherein he indicated that he knew what he
was doing was illegal.12 Thus, we conclude that a reasonable jury could conclude that
BWRI was not a recycling company.13 Therefore, we affirm Appellants’ mail fraud
convictions.14
2. Money Laundering
Appellants Faulk, Williamson, and Brian McKee contend that the evidence is
insufficient to sustain their convictions for money laundering and conspiracy to
commit money laundering. To obtain a conviction on a substantive Section
11
Out of concern for a possible Bruton violation, the district court instructed the jury on
two separate occasions that Faulk’s statements were to be considered solely against him.
12
Appellants Faulk, Williamson, and Jennifer McKee appeal the introduction of Brian
McKee’s statements to law enforcement as being admitted into evidence in violation of Bruton.
The district court instructed the jury on two separate occasions that Brian McKee’s statements
were to be considered solely against him. As discussed below, we affirm the district court’s
admission of Brian McKee’s statements into evidence.
13
Because we conclude that a reasonable jury could conclude that BWRI was not a
legitimate recycling company, we need not address in detail the evidence concerning whether
BWRI was located within Etowah County. In summary, however, we conclude that a reasonable
jury could conclude, as the government argues, that BWRI’s attempt to run an office out of
Jennifer McKee’s Etowah County house was a sham, was part of the conspiracy to defraud the
ESWDA, and is further evidence of the Appellants’ knowing and willful attempt to receive an
$8.75 per ton dumping rate for which BWRI did not legitimately qualify.
14
Unlike her codefendants, Jennifer McKee testified in her own defense. Thus, per our
circuit precedent, the jury was free to disbelieve her and use her testimony as substantive
evidence proving her guilt. See United States v. Cotton, 770 F.2d 940, 945 (11th Cir 1985)
(“When a defendant takes the stand in a criminal case . . . the jury is free to disbelieve him and
reject his explanation as a complete fabrication.”); United States v. Goggin, 853 F.2d 843 (11th
Cir. 1988) (same); see also, United States v. Allison, 908 F.2d 1531 (11th Cir. 1990) (“The jury
may view the defendant’s false explanatory statement as substantive evidence proving guilt.”).
11
1956(a)(1)(A)(i) promotional money laundering charge, the government bears the
burden of proving beyond a reasonable doubt that: (1) the defendant conducted or
attempted to conduct a financial transaction; (2) the defendant knew the property
involved in the transaction represented the proceeds of unlawful activity; (3) the
property involved was in fact the proceeds of the specified unlawful activity; and (4)
the defendant conducted the financial transaction “with the intent to promote the
carrying on of [the] specified unlawful activity.” 18 U.S.C. § 1956(a)(1)(A)(i). We
find that all of these required elements have been satisfied.15
The evidence amply demonstrates, as the government contends, that bank
deposits of proceeds of the fraudulent activity were made by Appellants and that such
deposits were designed to convert the checks received from the mobile home
manufacturers into cash in order to capitalize on the fraud perpetrated upon the
ESWDA. Thus, the depositing and cashing of checks that represented the proceeds
of the mail fraud promoted not only the Appellants’ prior unlawful activity, but also
15
In their briefs, Appellants argue that the evidence is insufficient to constitute
concealment and that the books and records of BWRI including all bank accounts were open,
clean, and clear. However, concealment or an intent to conceal the nature or sources of the
proceeds has no bearing in this case as it is not a required element of the offense for which
Appellants were charged. Section 1956(a)(1) defines two separate money laundering offenses:
those committed with the “intent to promote the carrying on of a specified unlawful activity,” 18
U.S.C. § 1956(a)(1)(A)(i); and those committed with the intent “to conceal or disguise the nature,
location, the source, the ownership, or the control of the proceeds of the specified unlawful
activity,” 18 U.S.C. § 1956 (a)(1)(B)(i). While Count 19 alleges both money laundering
offenses, at some point the government appeared to abandon the concealment charge and focus
exclusively on the promotional charge. Thus, in effect, Count 19 is in line with Counts 20-31
which allege only promotional money laundering.
12
their ongoing and future unlawful activity. Such evidence is sufficient to sustain a
conviction for promotional money laundering. See, e.g., United States v. Haun, 90
F.3d 1096, 1100-01 (6th Cir. 1996). Further, since the ultimate object of the
conspiracy was to transfer the unearned dumping rate into cash, the financial
transactions were in furtherance of the ongoing conspiracy offense and are sufficient
to sustain Appellants’ convictions. See United States v. Carcione, 272 F.3d 1297
(11th Cir. 2001).
B. Bruton
Despite the efforts of defense counsel, government counsel, and the district
court, Faulk, Williamson, and Jennifer McKee contend that the admission of
statements of Brian McKee, even in their redacted form, violate Bruton v. United
States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). At trial, the
government introduced through the testimony of Special Agent Keith Baker
admissions of nontestifying codefendant Brian McKee wherein he indicated that “he
was being paid because of his having gotten the recycling resolution passed and for
giving Big Wheel the discounted rate of $8.75 a ton for dumping debris at the Etowah
Solid Waste Disposal Authority.” Faulk and Williamson argue that Brian McKee’s
statement facially implicates BWRI thus necessarily implicating them in violation of
Bruton. Additionally, Special Agent Baker testified that Brian McKee stated that
“money that came through Jennifer was his.” Jennifer McKee argues that this facially
13
implicates her in violation of Bruton. For the following reasons we disagree and
affirm the district court.
The Supreme Court held in Bruton that post-arrest statements made by
nontestifying codefendants that facially incriminate other defendants are inadmissible
into evidence because such statements violate the other defendants’ Sixth
Amendment rights to confront and cross-examine adverse witnesses. The Supreme
Court concluded that “where the powerfully incriminating extra-judicial statements
of a codefendant, who stands accused side-by-side with the defendant, are
deliberately spread before the jury in a joint trial,” limiting instructions by the court
will not suffice to eliminate the prejudicial effect of the introduction of such
statements. Bruton, 391 U.S. at 135-36. In Richardson v. Marsh, 481 U.S. 200, 107
S. Ct. 1702, 95 L. Ed. 2d 176 (1987), however, the Supreme Court had occasion to
consider whether the confession of a nontestifying codefendant admitted during a
joint trial that had been redacted to omit the names of all codefendants violated the
rule established in Bruton. In that instance, the Court refused to apply Bruton and
concluded that “the Confrontation Clause is not violated by the admission of a
nontestifying codefendant’s confession with the proper limiting instruction when . .
. the confession is redacted to eliminate not only the defendant’s name, but any
reference to his or her existence.” Richardson, 481 U.S. at 211. The Court concluded
14
that in such a situation, the confession is not so “powerfully incriminating” that a
limiting instruction given by the district court could not effectively eliminate any
prejudicial effect to the codefendants. Id. at 208. The Richardson Court, however,
“expressed no opinion on the admissibility of a confession in which the defendant’s
name has been replaced with a symbol or neutral pronoun.” Id. at 211 n.5. That was
an issue subsequently addressed by the Supreme Court in Gray v. Maryland, 523 U.S.
185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998).
In Gray, a confession written by a codefendant that explicitly referred to the
defendant was redacted to eliminate any reference to the defendant. However, the
defendant’s name was replaced with the word “deleted” or was simply left as a blank
space. Gray, 523 U.S. at 188. When the government’s law enforcement witness read
the codefendant’s confession into evidence, he said “deleted” wherever the
defendant’s name had been redacted. The witness then testified that following the
receipt of the codefendant’s confession, he arrested the defendant. The Supreme
Court concluded that the “obviously redacted confession” violated Bruton because
it “pointed directly to the defendant.” Id. at 194. Thus, the Court concluded that the
redacted confession “facially incriminated” the defendant and “involved inferences
that a jury ordinarily could make immediately, even were the confession the very first
item introduced at trial.” Id. In reaching this conclusion, the Court distinguished its
15
decision in Richardson where the redacted confession “became incriminating ‘only
when linked with evidence introduced later at trial.’” Id. at 196 (quoting Richardson,
481 U.S. at 208).
We find that the Bruton question raised in this case is covered by Richardson.
In Richardson, the Supreme Court clearly authorized the admission of a nontestifying
codefendant’s confession where such confession omitted reference to the defendant
and was coupled with a limiting instruction. We fail to see how the statement of
Brian McKee implicates, directly or otherwise, Faulk or Williamson. Faulk’s and
Williamson’s arguments to the contrary are unavailing. Brian McKee’s statement
reflects only that he was paid to pass the recycling resolution and give BWRI a
discounted dumping rate. The statement, as quoted above, does not facially implicate
Faulk or Williamson as was the case with the confession the Supreme Court
addressed in Bruton, nor was the statement “obviously redacted” as was the case in
Gray. The statement itself is silent as to who paid Brian McKee. Furthermore, even
assuming that it is self-evident that BWRI was paying Brian McKee for passing the
resolution and giving the discounted rate, naming BWRI does not facially implicate
either Faulk or Williamson. In order to make that inferential link, additional,
independent evidence is needed. Simply because the government provided the jurors
with the independent evidence needed to make that link does not create a Bruton
16
violation.16 What the government accomplished in this case is what the Supreme
Court specifically authorized in Richardson.
Brian McKee’s statement concerning Jennifer McKee, however, does directly
implicate her. However, Special Agent Baker’s testimony on this point was a product
of defense cross-examination wherein counsel for Faulk and Williamson asked
Special Agent Baker:
Q. Rather than claiming that Big Wheel paid him money,
wasn’t he really just saying that any money that Jennifer,
his wife, got from Big Wheel, he claimed was his money?
Isn’t that basically the gist of what he was saying?
A. He said money that came through Jennifer was his.
Because defense counsel received the very answer seemingly solicited, we are
hard-pressed to conclude that a Bruton violation exists. Furthermore, counsel for
Jennifer McKee did not object to the question or to the answer.17 Because a timely
objection was not interposed, we review the district court’s admission of this
evidence for plain error. United States v. Foree, 43 F.3d 1572 (11th Cir. 1995).
16
By our conclusion, we do not mean to suggest that Brian McKee’s statement did not
potentially inculpate Faulk or Williamson. Rather, consistent with the Supreme Court’s decision
in Richardson, we simply conclude that the jury could follow the court’s limiting instructions and
limit the use of such statements to the proper defendant.
17
We recognize that Jennifer McKee joined in Faulk’s and Williamson’s objections to the
government’s introduction of Brian McKee’s statement. However, the material covered in this
question and answer had not been presented by the government.
17
As we held in Foree, to satisfy the plain error standard, “a party must
demonstrate: (i) that there was an error in the lower court's action, (ii) that such error
was plain, clear, or obvious, and (iii) that the error affected substantial rights, i.e. that
it was prejudicial and not ‘harmless.’” Foree, 43 F.3d at 1578 (citing United States
v. Olano, 507 U.S. 725, 732-37, 113 S. Ct. 1770, 1777-79, 123 L. Ed. 2d 508 (1993)).
The defendant bears the burden of proving prejudice. Id. Finally, “even if all three
of these prerequisites are fulfilled, the Courts of Appeals should correct such errors
only when they "seriously affect the fairness, integrity or public reputation of judicial
proceedings." Id. (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct.
391, 392, 80 L. Ed. 555 (1936)).
We conclude that none of the Foree plain error prongs have been satisfied.
Simply put, the statement concerning Jennifer McKee was the product of defense
cross-examination, the answer provided be Special Agent Baker was specifically
tailored to the question asked, and the district court did not err in failing to intervene
as counsel failed to object or in any way bring the alleged error to the attention of the
district court. Thus, it is readily observable that any error, even if we were to
presume its existence, was not plain, clear, or obvious. Finally, we conclude that
Jennifer McKee failed to prove that the error was not harmless. First, the two limiting
instructions given by the district court dissipated any prejudice to Jennifer McKee.
18
Secondly, Jennifer McKee’s testimony, with nothing more, clearly supports the jury’s
conclusion as to her guilt. Therefore, when the prejudicial effect of the admission of
the statement is compared to the properly admitted evidence of Jennifer McKee’s
guilt, it appears clear that there is no reasonable probability that the improper
statement contributed to the conviction. Schneble v. Florida, 405 U.S. 427, 432, 92
S. Ct. 1056, 1060, 31 L. Ed. 2d 340 (1967).
III. CONCLUSION
After a thorough review of the record and consideration of the parties’ briefs
and oral argument, we conclude that there is sufficient evidence to sustain the
convictions of Faulk, Williamson, and Brian and Jennifer McKee. Furthermore, we
conclude that the district court did not err in admitting Brian McKee’s statements.
Rather, we commend the district court for taking the time to conduct an extensive
Bruton hearing and for tailoring the admission of Brian McKee’s statements so as to
ensure a fair trial for all Defendants.18
AFFIRMED.
18
The dissent would find a violation of due process as to Brian McKee. We respectfully
disagree. This very experienced district judge stated in his order of January 4, 2002, that he had
considered the recommendation of the United States Magistrate Judge and the objections filed by
the defendant Brian McKee. He also stated that he made an independent review of the file and
then made his rulings. We believe that he did exactly what he says he did. In our opinion, this is
in accord with United States v. Raddatz, 447 U.S. 667 (1980). We do not believe that there is
any meaningful difference between the words “de novo determination” and “an independent
review of the file.” The ultimate decision was made by the district judge after reviewing the
entire file. This meets the due process requirements according to Raddatz.
19
DOWD, District Judge, concurring in part and dissenting in part:
Initially, I concur in the affirmance of the convictions and sentences of the
appellants Dwight Faulk, Linda Williamson and Jennifer McKee. I respectfully
dissent as to the affirmance with respect to appellant Brian McKee.
The centerpiece of the government’s case against Brian McKee was the
recitation of his oral admission as offered by FBI Special Agent Keith Baker. Simply
put, Agent Baker stated that Brian McKee told him “that he knew what he was doing
was illegal” in the following testimony:
Q. Sir, did you have an opportunity to conduct an interview of Brian
McKee?
A. Yes, I did.
Q. Did Mr. McKee tell you that his address is 400 Bachelor Chapel
Road, Gadsden, Alabama?
A. He did.
Q. Did he tell you that Big Wheel Recycling was formed in 1995 and
it is a corporation?
A. What year did you say, sir?
Q. Formed in 1995.
A. That’s correct.
Q. Did McKee tell you that he brought forward the resolution to
allow recyclers to get a discounted rate at the Etowah Solid Waste
Disposal Authority?
20
A. Yes, he did.
Q. Did McKee claim that he was being paid because of his having
gotten the recycling resolution passed and for giving Big Wheel
the discounted rate of $8.75 a ton for dumping debris at the
Etowah Solid Waste Disposal Authority?
A. Yes, he did.
Q. When he was asked if the board members knew of the $8.75 a ton
rate, did he tell you that he was never questioned about it by any
of them?
A. He did.
Q. Did he tell you that he left the $17.50 per ton rate on the weight
scale bills so the manufactured housing companies would not
know about the $8.75 a ton rate?
A. He did.
Q. Did he tell you that CEI also got the $8.75 a ton rate, and they
were not entitled to it?
A. That is correct.
Q. Did he tell you that Sue Rogers did not know about the Big
Wheel Recycling -- did not know about Big Wheel Recycling
when the 50 percent discount resolution was passed?
A. That is correct.
Q. Did Mr. McKee tell you that he knew what he was doing was
illegal?
21
A. Yes, he did.1
Tr., Vol. 20 of 29 at 154-55.
In advance of trial, on August 3, 2001, Brian McKee filed a motion to suppress
his statements “of any nature obtained...by any and all investigative officers.” In
addition to raising a Miranda claim, 2 Brian McKee alleged that the statements “were
involuntary” for several reasons: (1) because statements made by the investigating
officers to the defendant were intentionally false and misleading; (2) because the
defendant was exhausted due to the late hour and the fact that the interrogation was
so long in duration, causing him to suffer from shock and emotional trauma based on
his concern for his wife; (3) because of the attitude of the investigating officers
toward the defendant; (4) because of promises made by the investigating officers to
the defendant; and (5) because the defendant was coerced by the investigating officers
into making these statements.
A second motion was also filed on August 3, 2001 and stated in part as follows:
1
The other appellants, Faulk, Williamson, and Jennifer McKee, all opposed the admission
of Baker’s testimony that Brian McKee had told Baker that McKee knew what he was doing was
illegal as a violation of Bruton v. United States, 391 U.S. 123 (1968). I concur with my brethern
that the admission of Brian McKee’s testimony did not violate Bruton. My review of the record
indicates that the government only used the admission of “illegality” against Brian McKee.
Moreover, the district court properly limited the jury’s consideration of the admission to the
government’s case against Brian McKee.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
22
5. The statements were involuntary because of statements made to
the defendant by the investigating officers were intentionally false
and misleading regarding their intentions concerning the
interview.
6. That all statements and interviews were made because of
promises made by the investigating officers to the defendant
regarding their intentions to bring charges against this defendant
and the wife of this defendant. That the statements were
involuntary in that the government did not live up to their
promises and therefore coerced the defendant into making these
statements in hopes of gaining the reward which he was
promised.
R.E. at 6 (emphasis added).
The government filed a response on August 24, 2001 and replied to McKee’s
contention that the teachings of Miranda had been violated by demonstrating that
McKee was never in custody during any of the three questioning sessions conducted
on February 17, 2000, February 25, 2000, and March 14, 2001. Additionally, the
government pointed out that Brian McKee was accompanied by counsel for the
interviews of February 25, 2000 and March 14, 2001. However, the government’s
response ignored the allegations of a coerced statement.
The evidentiary hearing in response to Brian McKee’s motion to suppress his
statements was conducted on November 19, 2001 before a magistrate judge. McKee
testified that he had been promised that if he cooperated with the investigation, his
23
wife would not be prosecuted. The government did not present any testimony to
rebut the McKee claim of an involuntary admission.
Magistrate Judge Walker’s Report and Recommendation filed on December 14,
2001 addressed the issue of voluntariness as raised by Brian McKee and
recommended a denial of his motion to suppress.
On December 27, 2001, Brian McKee’s counsel filed very thorough objections3
to the Report and Recommendation of Magistrate Judge Walker.
On January 4, 2002, the district court, after stating that “he engaged in an
independent review of the file,” denied the objections of Brian McKee entered on
December 27, 2001.
The watershed case of Jackson v. Denno, 378 U.S. 368 (1964), settled the
dispute as to whether a judge should submit the issue of voluntariness of a confession
to the jury with instructions to ignore the confession if the jury found the confession
to be involuntary. The Court held that the issue of voluntariness was to be decided
in a pre-trial setting by the judge. If the confession was deemed involuntary, it was
not to be submitted to the jury.
3
The Report and Recommendation was filed on Friday, December 14, 2001. McKee’s
counsel is located in Gadsden, Alabama. He filed the objections on December 27. No claim was
advanced that the objections were filed untimely. The record is inconclusive as to whether Brian
McKee’s counsel received the Report and Recommendation on December 14. Consequently, for
the purpose of this dissent, I conclude that the objections of December 27 were timely filed.
24
In this case, Brian McKee offered testimony on the issue of voluntariness. His
testimony was not rebutted. In her recommendation, Magistrate Judge Walker opined
that McKee’s testimony was not credible and thus excused the lack of rebuttal by the
government.
The ruling in United States v. Raddatz, 447 U.S. 667 (1980), with respect to the
use of magistrate judges to conduct suppression hearings in criminal cases in United
States District Court proceedings, merits discussion. By a 5-4 vote, the Supreme
Court determined that the district court did not have to hear anew the conflicting
testimony heard by the assigned magistrate judge who conducted the suppression
hearing.4 The defendant testified that he had made incriminating statements at a
meeting with government agents only after “obtaining confirmation” from the agents
of their earlier promise that the indictment against him would be dismissed if he
cooperated. The agents testified at the suppression hearing and denied making the
promise. Confronted with an issue of credibility, the magistrate judge filed a report
which recommended that the defendant’s motion be denied after stating: “I find the
testimony of the Alcohol, Tobacco and Firearm Agents more credible. . . ; I find that
Federal agents never advised [respondent] that charges against him would be
dismissed, if he cooperated.” The Seventh Circuit had ruled that Raddatz had been
4
In so ruling, the Supreme Court reversed the contrary decision in United States v.
Raddatz, 592 F.2d 976 (7th Cir. 1979).
25
deprived of due process by the procedure used and by the failure of the district court
to rehear the testimony before accepting the recommendation of the magistrate judge.
Nonetheless, the Supreme Court ruled that the due process rights of the defendant
were protected by the Federal Magistrates Act because the district court acts as the
ultimate decision maker on the defendant’s suppression motion with broad discretion
to accept, reject or modify the magistrate judge’s proposed findings which include the
discretion to hear the witnesses to resolve conflicting credibility claims. The majority
held that the de novo determination of contested credibility assessments without
personally rehearing the live testimony did not violate due process.
In the Raddatz decision, the majority opinion written by Chief Justice Burger
described the actions of the district court after it received the magistrate’s report as
follows:
Respondent filed objections to the Magistrate’s report. In
rendering its decision, the District Court stated that it considered the
transcript of the hearing before the Magistrate on the motion to suppress,
the parties’ proposed findings of fact, conclusions of law, and
supporting memoranda, and that it read the recommendation of the
Magistrate and heard oral argument of counsel. Finding “that the three
statements given by the defendant and sought to be suppressed were
made voluntarily,” the District Court accepted the recommendation of
the Magistrate and denied the motion to suppress.
447 U.S. at 672.
26
In the case at hand, the district court stated, in response to the objections to the
magistrate’s report as it applied to the defendant Brian McKee’s objections to the
denial of the motion to suppress, simply that he made “an independent review of the
file” and, based on that review, denied the motion. Contrary to Raddatz, there is no
suggestion that the district court had considered the transcript of the testimony; there
is no suggestion of a “de novo determination” of those portions of the magistrate’s
report, findings or recommendations to which the objections had been made, as
required by 28 U.S.C. § 636(b)(1)(C). Furthermore, the absence of any suggestion
of a de novo determination comes in a situation where, as pointed out by the
magistrate and contrary to the conflicting testimony of the setting in Raddatz, the
government did not even bother to offer rebutting testimony to the testimony of Brian
McKee.
Under the circumstances as above outlined, and accepting the teachings of
Raddatz, it is my view that the due process rights of Brian McKee were violated in
27
this case.5 To hold otherwise would be the equivalent of improperly delegating
Article III powers.6
Consequently, I would reverse the conviction of Brian McKee, vacate his
sentence, and remand for a new trial.
5
I find support in Martinez v. Estelle, 612 F.2d 173, 180 (5th Cir. 1980), in which the
Fifth Circuit found, after citing Jackson v. Denno, that “the record before us does not establish
with ‘unmistakable clarity’ that the trial judge reliably determined the voluntariness of the
confession. Jackson v. Denno has not been satisfied.” See also Jeffrey S. v. State Board of
Education of State of Georgia, 896 F.2d 507, 513 (11th Cir. 1990) (criticizing failure to conduct
the requisite de novo review where the district court “relied heavily upon the magistrate’s
assessment of the evidence and his judgment in drawing reasonable inferences therefrom.”);
Stokes v. Singletary, 952 F.2d 1567, 1576 (11th Cir. 1992) (criticizing district court’s failure “to
accord a de novo review of the magistrate’s factual findings”). The majority here seems to be
setting up a new standard of review based on the length of experience of the district judge.
6
Although 28 U.S.C. § 636(b)(1)(B) permits a district judge to refer a motion to suppress
to a magistrate judge for recommendations regarding disposition, § 636(b)(1)(C) “meticulously
sets forth a de novo review procedure.” Gomez v. United States, 490 U.S. 858, 874 (1989)
(holding that allowing a magistrate judge to conduct the voir dire for jury selection in a felony
case was not harmless error, especially because it was “without any meaningful review by a
district judge”). I doubt that the Gomez Court would find “meaningful” the cursory and
unexplained “review of the file” conducted by the district court in the instant case.
28