United States v. Elizabeth Marie Morse Thompson

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 1, 2005
No. 04-12218 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-00024-CR-FTM-29-DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELIZABETH MARIE MORSE THOMPSON,
JOSEPH JAMES STRATTON,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Middle District of Florida
_________________________

(September 1, 2005)

Before TJOFLAT, PRYOR and ALARCÓN*, Circuit Judges.

*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
ALARCÓN, Circuit Judge:

Joseph James Stratton appeals from the judgment entered following his

conviction for conspiracy to possess with the intent to distribute cocaine and

cocaine base in violation of 21 U.S.C. § 846. He contends that the evidence was

insufficient to support the judgment. He also maintains that the District Court

committed reversible error in denying his motion for a severance, and in refusing

to grant his motion for a new trial.

Elizabeth Marie Morse Thompson seeks reversal of the judgment entered

following her conviction for conspiracy to possess cocaine and cocaine base in

violation of 21 U.S.C. §846, and two counts of possession with intent to distribute

cocaine base in violation of 21U.S.C. § 841. She contends that the District Court

erred in denying her motion to suppress her confession and her motion for a

mistrial based upon the alleged misconduct of the prosecutor in arguing to the jury

that she had the right not to testify.

We affirm Mr. Stratton’s judgment of conviction because we conclude that

the evidence was sufficient to sustain it. We also determine that the District Court

did not abuse its discretion in denying Mr. Stratton’s motion for a severance and

his motion for a new trial. We also affirm the judgment of conviction entered

against Ms. Thompson because we conclude that the District Court did not err in

2
denying the motion to suppress her confession, and rejecting her motion for a

mistrial, or a curative instruction.

We vacate the District Court’s sentencing decisions regarding each

Appellant. The Government has correctly and forthrightly conceded the sentencing

decision error based on the subsequent decision of the Supreme Court in United

States v. Booker,125 S. Ct. 738 (2005), and this Court’s decision in United States

v. Shelton, 400 F.3d 1325, 1332-33 (11th Cir. 2005).

I

Ms. Thompson’s and Mr. Stratton’s criminal activities came to the attention

of law enforcement through a telephone call to Margarita Nelson, a Vice Narcotics

Investigator of the Collier County Sheriff’s Office. At that time, she was assigned

to a Drug Enforcement Administration (“DEA”) Task Force. Sometime during

September of 2002, Timothy McNulty told Officer Nelson that Ms. Thompson and

Mr. Stratton were involved in distributing cocaine and crack cocaine. He informed

Officer Nelson that Ms. Thompson was selling drugs out of her apartment in the

Bermuda Isle subdivision in Naples, Florida. Officer Nelson was given similar

information from Gary Bloom in December of the same year. Mr. McNulty and

Mr. Bloom provided the information in an attempt to help their mutual paramour,

Anita Choquette, who was in jail on unrelated charges, to receive a lesser

3
sentence.

As a result of these tips, Officer Nelson initiated an investigation. Members

of the DEA Task Force intermittently surveilled the Bermuda Isle apartment from

October of 2002 to March of 2003. They observed several individuals entering the

apartment and leaving after only a short period – activity that, in Officer Nelson’s

experience, was consistent with her informants’ reports that drug sales were taking

place at the apartment. Officers also observed Mr. Stratton in the vicinity of the

apartment on three occasions.

In early 2003, the DEA Task Force carried out controlled purchases of

cocaine from Ms. Thompson using Mr. Bloom as a purchaser. Mr. Bloom

telephoned Mr. Stratton’s home several times but was unable to reach him. On

February 14, 2003, Mr. Bloom successfully contacted Ms. Thompson by

telephone. He told her that he had had a “hard day.” Mr. Bloom testified that a

“hard day” was a coded request for crack cocaine. Ms. Thompson told Mr. Bloom

to come over to her apartment later that day.

The officers outfitted Mr. Bloom with two electronic recording devices. He

went to Ms. Thompson’s apartment. William Ingersoll, who was staying with Ms.

Thompson, answered the door and let Mr. Bloom enter the apartment. Inside, Mr.

Bloom encountered Ms. Thompson. He told her that he needed $400 worth of

4
crack cocaine. Mr. Bloom waited while Ms. Thompson cooked some powder

cocaine into crack. Upon paying for the crack cocaine, Mr. Bloom left the

apartment and turned the drugs over to Officer Nelson.

On February 25, 2003, Mr. Bloom made a second controlled purchase of

crack cocaine from Ms. Thompson at the Bermuda Isle apartment. Mr. Bloom was

wearing an electronic monitoring device. Mr. Bloom purchased $625 worth of

crack cocaine from her.1 After purchasing the crack cocaine, Mr. Bloom left the

apartment and gave the controlled substance to Officer Nelson.

Members of the DEA Task Force executed a search warrant on the Bermuda

Isle apartment on March 6, 2003. When the officers entered the apartment, they

encountered Mr. Ingersoll and Ms. Thompson. The officers searched the

apartment. They discovered a small amount of crack cocaine,2 three digital scales,

and various items of drug paraphernalia. The officers also seized several

documents, including jewelry sales receipts, cellular phone bills in Mr. Stratton’s

name in care of Ms. Thompson, and a “caller id” list that included Mr. Stratton’s

number.

1
Mr. Bloom testified that he purchased $400 of crack cocaine with cash provided by
officers. Ms. Thompson gave him an additional $250 of crack as payment for work Mr. Bloom
had performed on Ms. Thompson’s brother’s house.
2
Officer Nelson testified that the net weight of the crack was 88 milligrams.

5
 At the conclusion of the search, officers arrested Mr. Ingersoll on state

charges of possessing drug paraphernalia and took him to Collier County jail. The

officers took Ms. Thompson to the DEA office in Naples. At the DEA office, the

officers read Ms. Thompson her Miranda rights. She signed a written waiver of

those rights. Ms. Thompson told the officers that she had used cocaine since 1996.

She admitted that she started selling cocaine in 1999. She said that she would sell

up to a half ounce of cocaine daily and that she received two to three shipments of

cocaine from her supplier, whom she identified as Mr. Stratton.

On March 20, 2003, officers arrested Mr. Stratton. The officers searched

Mr. Stratton and found a cell phone, a pager, two checks, two pieces of paper that

appeared to contain a record of financial transactions, and a monthly statement

from a self-storage facility in Ms. Thompson’s name.3 The officers did not find

any drugs on Mr. Stratton’s person or in his car. They also did not search Mr.

Stratton’s home.

Ms. Thompson and Mr. Stratton were charged with conspiracy to possess

with intent to distribute cocaine and crack cocaine. Ms. Thompson was also

3
Officer Nelson testified at trial that the two pieces of paper seized on Mr. Stratton
reflected drug transactions. Mr. Stratton testified that the figures on one piece of paper recorded
the amounts of freon he had removed and replaced in automotive air conditioning units at his
work. He testified that he had made the notations on another piece paper when helping Deanna
Prince calculate payroll figures at her job.

6
charged with two counts of possession with intent to distribute and distribution of

crack cocaine. Ms. Thompson and Mr. Stratton were tried jointly before a jury.

Mr. Stratton testified in his own defense. Ms. Thompson did not testify. Following

a five-day trial, the jury found Ms. Thompson and Mr. Stratton guilty on all

counts.

The District Court sentenced Mr. Stratton to 292 months in prison to be

followed by four years of supervised release. Ms. Thompson was sentenced to 360

months in prison on each of her three convictions, to be served concurrently, and

was given eight years of supervised release. This timely appeal followed.

I

Mr. Stratton attacks the sufficiency of the Government’s evidence to

support his conspiracy conviction in two respects. First, Mr. Stratton protests that

the only evidence the Government presented against him consisted of the

testimony of “convicted drug dealers, drug addicts, liars, cheats, and thugs who

were cooperating for their own personal interests.” Second, Mr. Stratton contends

that, even if the testimony of the Government’s witnesses were credited, the

Government established at most that Mr. Stratton had a buyer-seller relationship

with Ms. Thompson and others, which is insufficient to support a finding of a

conspiracy to distribute drugs.

7
 We review a challenge to the sufficiency of the evidence de novo. United

States v. Majors, 196 F.3d 1206, 1210 (11th Cir. 1999). “When a jury verdict is

challenged on the ground of sufficiency of the evidence, the reviewing court must

view the evidence in the light most favorable to the government and determine

whether the jury could have found the defendant guilty beyond a reasonable

doubt.” United States v. Young, 39 F.3d 1561, 1565 (11th Cir. 1994). In

conducting this review, we “accept[] all reasonable inferences and credibility

choices made in the government’s favor, to determine whether a reasonable trier of

fact could find that the evidence establishes guilt beyond a reasonable doubt.”

United States v. Calhoun, 97 F.3d 518, 523 (11th Cir. 1996). “For the evidence to

support a conviction, it need not ‘exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except that of guilt,

provided that a reasonable trier of fact could find that the evidence establishes

guilt beyond a reasonable doubt.’” United States v. Perez-Costa, 36 F.3d 1552,

1556-57 (11th Cir. 1994) (quoting United States v. Bell, 678 F.2d 547, 549 (5th

Cir. Unit B 1982)).

After reviewing the record, we conclude that the evidence presented at trial

was sufficient to support Mr. Stratton’s conviction. To sustain Mr. Stratton’s

conviction for conspiracy to possess cocaine and crack cocaine with intent to

8
distribute, the Government was required to “prove beyond a reasonable doubt (1)

that a conspiracy existed; (2) that the defendant knew of it; and (3) that the

defendant, with knowledge, voluntarily joined it.” United States v. Lopez-Ramirez,

68 F.3d 438, 440 (11th Cir. 1995). “The existence of a conspiracy may be proved

by circumstantial evidence and may be inferred from concert of action.” United

States v. Guerre, 293 F.3d 1279, 1285 (11th Cir. 2002).

A parade of Government witnesses testified to Mr. Stratton’s involvement

in cocaine distribution. Gary Bloom testified that beginning in 2000, he regularly

purchased small quantities of cocaine from Mr. Stratton and Ms. Thompson for his

personal use and sale. Chris Kahlmorgan, an admitted drug dealer, testified that he

met Mr. Stratton about October of 2000, at which point Mr. Stratton was already

involved in the distribution of cocaine. According to Mr. Kahlmorgan, Mr.

Stratton had a reputation in Collier County of supplying high quality cocaine.

From November of 2000 to February of 2002, Mr. Kahlmorgan purchased cocaine

from Mr. Stratton on a regular basis, which he converted to crack for his personal

use or sale.4 On several occasions, Mr. Kahlmorgan converted powder cocaine to

crack in Mr. Stratton’s presence. Mr. Kahlmorgan further testified that he twice

4
Mr. Kahlmorgan testified that his business with Mr. Stratton was “very steady” and
estimated that he purchased about seven kilograms of cocaine from Mr. Stratton from November
of 2000 to February of 2002.

9
delivered cocaine to Ms. Thompson on behalf of either Mr. Stratton or Mr.

Stratton’s live-in girlfriend, Deanna Prince.5

Rene Benitez, Mr. Kahlmorgan’s girlfriend, corroborated Mr. Kahlmorgan’s

testimony. She testified that starting around Thanksgiving of 2000, she and Mr.

Kahlmorgan would purchase cocaine from Mr. Stratton on nearly a daily basis.

She said that she and Mr. Kahlmorgan would use some of this cocaine and

convert the rest to crack and sell it.

Anthony Alphonse, a drug dealer and friend of Mr. Kahlmorgan, testified

that he accompanied Mr. Kahlmorgan to Mr. Stratton’s house to purchase cocaine

on four occasions, though he did not personally witness these transactions.

Ronald Watson testified that he purchased about one or two grams of

cocaine from both Mr. Stratton and Ms. Thompson “a couple of times a month”

over a period of two years.

Timothy McNulty testified that he lived with Ms. Thompson from about

June to August of 2002. During this period, Mr. McNulty served as Ms.

Thompson’s “do boy,” which Mr. McNulty explained meant that he delivered

cocaine on Ms. Thompson’s behalf. Mr. McNulty testified that he would pick up

5
Mr. Kahlmorgan testified that Mr. Stratton and Ms. Prince worked together distributing
cocaine, although in his view Ms. Prince’s role was a minor one.

10
powder cocaine from Mr. Stratton, and deliver the cocaine to Ms. Thompson. He

picked up cocaine from Mr. Stratton on average six or seven times a week. He and

Ms. Thompson would then convert the powder cocaine to crack. Mr. McNulty

delivered most of this crack to Ms. Thompson’s customers. He and Ms. Thompson

smoked the rest. Mr. McNulty testified that Ms. Thompson’s drug distribution

business was active “[e]very single day, 24 hours a day,” and that Ms. Thompson

maintained a running tab with Mr. Stratton.

Viewed in the light most favorable to the Government, this evidence

supports the jury’s finding that Mr. Stratton and Ms. Thompson conspired to

distribute substantial amounts of cocaine in the Collier County area. The evidence

demonstrates that Mr. Stratton’s role in the conspiracy was to supply Ms.

Thompson, a professional drug dealer, a steady source of high-quality powder

cocaine, most of which she converted into crack cocaine and sold. Mr. Stratton

occupied a similar role with respect to several other drug dealers.

Mr. Stratton contends that the Government’s evidence was insufficient

because it depended on the testimony of a series of unsavory characters. While

acknowledging that credibility determination are generally the exclusive province

of the jury, Mr. Stratton argues that the testimony of the Government’s witnesses

was “unbelievable on its face and incredible as a matter of law.” We disagree.

11
 “The fact that [a witness] has consistently lied in the past, engaged in

various criminal activities, [and] thought that his testimony would benefit him . . .

does not make his testimony incredible.” United States v. Cravero, 530 F.2d 666,

670 (5th Cir. 1976). For testimony to be considered incredible as a matter of law,

“it must be unbelievable on its face, i.e., testimony as to facts that [the witness]

could not have possibly observed or events that could not have occurred under the

laws of nature.” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)

(quotation marks omitted) (alteration in original).

Mr. Stratton cites instances in which the testimony of certain Government

witnesses was inconsistent with the testimony of witnesses who testified on his

behalf. As this argument represents nothing more than an invitation to this Court

to revisit the credibility determinations of the jury, we reject Mr. Stratton’s

argument that the testimony of the Government’s witnesses was incredible as a

matter of law. “It is well-established that ‘[c]redibility determinations are the

exclusive province of the jury.’” United States v. Calderon, 127 F.3d 1314, 1325

(11th Cir. 1997) (quoting United States v. Parrado, 911 F.2d 1567, 1571 (11th

Cir. 1990)) (alteration in original).

Mr. Stratton contends that, even if the testimony of the Government’s

witnesses were credited, the evidence establishes at most the existence of a buyer-

12
seller relationship between himself and Ms. Thompson. We disagree. While “the

existence of a simple buyer-seller relationship alone does not furnish the requisite

evidence of a conspiratorial agreement,” United States v. Bascaro, 742 F.2d 1335,

1359 (11th Cir. 1984), an agreement to distribute drugs “may be inferred when the

evidence shows a continuing relationship that results in the repeated transfer of

illegal drugs to [a] purchaser.” United States v. Johnson, 889 F.2d 1032, 1035-6

(11th Cir. 1989).

The Government established at trial the existence of a continuing

relationship between Mr. Stratton and Ms. Thompson in which Mr. Stratton would

supply Ms. Thompson cocaine, the bulk of which she would distribute to

customers in Collier County. From this evidence, a jury could find beyond a

reasonable doubt that Mr. Stratton agreed with Ms. Thompson to distribute

cocaine and crack. See, e.g., United States v. Burroughs, 830 F.2d 1574, 1581

(11th Cir. 1987) (rejecting the defendant’s argument that he was a “mere supplier”

of cocaine where evidence showed that the defendant knew his purchasers were

couriers from Jacksonville, he maintained a “continued interest in the drugs up to

and beyond their sale in Jacksonville,” and he sometimes sold to his purchasers on

credit).

II

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 Mr. Stratton argues that the District Court erred in denying his motion to

sever his trial from Ms. Thompson’s. “[B]ecause of the ‘well-settled principled

that it is preferred that persons who are charged together should also be tried

together,’ particularly in conspiracy cases, the denial of a motion for severance

will be reversed only for abuse of discretion.” United States v. Smith, 918 F.2d

1551, 1559 (11th Cir. 1990) (quoting United States v. Morales, 868 F.2d 1562,

1571 (11th Cir. 1989)). To demonstrate that the District Court abused its

discretion in denying his severance motion, Mr. Stratton must establish “that he

was somehow prejudiced by a joint trial” and that severance was the appropriate

“remedy for that prejudice.” United States v. Blankenship, 382 F.3d 1110, 1122

(11th Cir. 2004). Severance is mandatory only if (1) “there is a serious risk that a

joint trial would compromise a specific trial right of one of the defendants,” or (2)

if a joint trial would “prevent the jury from making a reliable judgment about guilt

or innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993).

“The first scenario for mandatory severance (or mistrial) described by the

[Supreme] Court exists only where a joint trial leads to the denial of a

constitutional right.” Blankenship, 382 F.3d at 1123. As for the second scenario,

this Court has explained that a joint trial may prevent a jury from reliably

assessing guilt where “compelling evidence that is not admissible against one or

14
more of the co-defendants is to be introduced against another co-defendant.” Id.

Mr. Stratton argues that the District Court abused its discretion in denying

his motion for severance for two reasons. First, Mr. Stratton maintains that

severance was required because the District Court admitted Ms. Thompson’s post-

arrest statements implicating him as her supplier of narcotics. Because Ms.

Thompson did not testify, Mr. Stratton argues that the admission of this evidence

violated his Sixth Amendment right of confrontation as construed in Bruton v.

United States, 391 U.S. 123 (1963).

We reject this argument because the admission of Ms. Thompson’s post-

arrest statements did not result in a Bruton violation. Following her arrest, Ms.

Thompson admitted to officers that she had been addicted to cocaine since 1996.

She told officers that her addiction gradually increased and that in 1999 she began

selling cocaine. Ms. Thompson identified Mr. Stratton as her cocaine supplier. The

Government introduced Ms. Thompson’s confession at trial through the testimony

of Officer Nelson. Officer Nelson’s testimony did not contain any reference to Mr.

Stratton or to Ms. Thompson’s “source of supply.”6 The district court also gave the

jury an appropriate limiting instruction, admonishing it that testimony concerning

6
While Mr. Stratton asserts that Officer Nelson indirectly referred to Mr. Stratton by
referring to Ms. Thompson’s source of supply, this assertion finds no support in the record.

15
a defendant’s post-arrest statement “should not be considered in any way whatever

as evidence with respect to any other defendant on trial.”7 Accordingly, the

admission of Ms. Thompson’s post-arrest statements did not violate Mr. Stratton’s

right of confrontation. See Richardson v. Marsh, 481 U.S. 200, 211 (1987)

(holding that “the Confrontation Clause is not violated by the admission of a

nontestifying codefendant’s confession with a proper limiting instruction when . . .

the confession is redacted to eliminate not only the defendant’s name, but any

reference to his or her existence”); See United States v. Williamson, 339 F.3d

1295, 1303 (11th Cir. 2003) (“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.”).

Mr. Stratton’s second argument for severance is that while there was

overwhelming evidence that Ms. Thompson was involved in drug trafficking, the

evidence against him consisted only of the self-serving testimony of “criminals,

drug addicts, liars, cheats and thugs.” Mr. Stratton maintains that “it is probable

7
The District Court charged the jury that “the case of each defendant should be considered
separately and individually. The fact that you may find any one of the defendants guilty or not
guilty of any of the offenses charged should not effect [sic] your verdict as to the other offense or
any other defendant.”

16
that the overwhelming evidence produced against Thompson spilled over to” him.

Mr. Stratton’s conclusory assertion that he was prejudiced by the “spillover

effect” of the evidence admitted against Ms. Thompson falls well short of

satisfying his burden to establish that he suffered “specific and compelling

prejudice to the conduct of his defense” as a result of the joint trial. United States

v. Liss, 265 F.3d 1220, 1227 (11th Cir. 2001). Evidence of the controlled buys of

drugs from Ms. Thompson as well as the drugs and drug paraphernalia seized at

her apartment would have been admissible at a separate trial of Mr. Stratton to

prove that Mr. Stratton had more than a buyer-seller relationship with Ms.

Thompson. While the evidence of Ms. Thompson’s post-arrest statement would

not have been admissible in a separate trial of Mr. Stratton, “[t]he mere fact that

there may be an ‘enormous disparity in the evidence admissible against [one

defendant] compared to the other defendants’ is not a sufficient basis for reversal.”

United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997).

Because Mr. Stratton has failed to demonstrate that he suffered prejudice

from his joint trial with Ms. Thompson, we conclude that the District Court did not

abuse its discretion in denying Mr. Stratton’s motion for severance.

III

Mr. Stratton’s third claim of error is that the District Court abused its

17
discretion in denying his motion for a new trial. Following his conviction, Mr.

Stratton moved for a new trial pursuant to Rule 33 of the Federal Rules of

Criminal Procedure8 on the basis of newly discovered evidence. Mr. Stratton

argued that he had unearthed evidence that Jason Osceola and Government

witnesses, Chris Kahlmorgan and Anthony Alphonse, had conspired to frame Mr.

Stratton in order to protect Anthony Alphonse’s father, Ron Alphonse, who was

the actual source of their cocaine.

Mr. Stratton’s alleged newly discovered evidence consisted of an affidavit

from Tracy Cure who attested that in 2002, she was living in Naples, Florida with

her boyfriend, Mr. Osceola. Ms. Cure stated that in 2002 Mr. Osceola was selling

cocaine that he obtained from Mr. Anthony Alphonse. Mr. Alphonse’s source of

supply, in turn, was his father, Ron Alphonse. Ms. Cure alleged that she was told

by Mr. Anthony Alphonse, Mr. Kahlmorgan, and Mr. Osceola that in the event

8
Rule 33 of the Federal Rules of Criminal Procedure provides in relevant part:
(a) Defendant’s Motion. Upon the defendant’s motion, the court may
vacate any judgment and grant a new trial if the interest of justice so
requires. If the case was tried without a jury, the court may take
additional testimony and enter a new judgment.
(b) Time to File
(1) Newly Discovered Evidence. Any motion for a new trial
grounded on newly discovered evidence must be filed within 3 years
after the verdict of finding of guilty. If an appeal is pending, the court
may not grant a motion for a new trial until the appellate court
remands the case.

18
they were arrested, they would tell the police that Mr. Stratton was their cocaine

supplier. She asserted that she recalled a party at which she overheard Mr.

Anthony Alphonse and Mr. Kahlmorgan discussing setting up Mr. Stratton. She

also overheard Mr. Anthony Alphonse state that his father was not going to “go

down” and that they were going to “take Joe Stratton down.”

“When a defendant discovers new evidence after trial that was unknown to

the government at the time of trial, a new trial is warranted only if: ‘(1) the

evidence was in fact discovered after trial; (2) the defendant exercised due care to

discover the evidence; (3) the evidence was not merely cumulative or impeaching;

(4) the evidence was material; and (5) the evidence was of such a nature that a new

trial would probably produce a different result.’” United States v. Starrett, 55 F.3d

1525, 1554 (11th Cir. 1995) (quoting United States v. Garcia, 13 F.3d 1464, 1472

(11th Cir. 1994)). “The failure to satisfy any one of these elements is fatal to a

motion for a new trial.” United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995).

The District Court denied Mr. Stratton’s motion for a new trial, ruling that Mr.

Stratton failed to establish the last four elements. We review this ruling for an

abuse of discretion. Starrett, 55 F.3d at 1554.

The District Court did not abuse its discretion in denying Mr. Stratton’s

motion for a new trial. The record shows that Mr. Stratton was aware of Ms.

19
Cure’s existence and of her involvement in drugs before his trial began. Indeed,

Ms. Cure states in her affidavit that Mr. Stratton “encouraged [her] to get off drugs

and relocate away from Naples so that [she] would not be around the people that

were using drugs.” The only reasons Mr. Stratton offers for the failure to interview

Ms. Cure before his trial was that she lived in North Carolina and that no one

knew that she had information relevant to his case.

We agree with the Government that a defendant does not demonstrate due

diligence by showing that he failed to interview a potential witness because he or

she lived in another state. While Mr. Stratton asserts that he was not aware that

Ms. Cure had useful information, he was aware of her involvement in drug

activities. The District Court did not abuse its discretion in determining that the

new evidence Mr. Stratton presented was not of such nature that it would probably

produce a different result at a new trial. Mr. McNulty’s testimony provided

compelling evidence of a conspiracy between Mr. Stratton and Ms. Thompson to

distribute cocaine. Mr. McNulty was subjected to extensive cross-examination at

trial which revealed his motivation for cooperating with authorities. Testimony

that Mr. Kahlmorgan and Mr. Anthony Alphonse had conspired to frame Mr.

Stratton would not impeach Mr. McNulty’s testimony. Further, we find it

implausible that a jury would accept Mr. Stratton’s contention that Mr.

20
Kahlmorgan was covering for Ron Alphonse when Mr. Kahlmorgan testified at

trial that Mr. Anthony Alphonse had a reputation among drug dealers in Collier

County for supplying excellent cocaine.

Because Mr. Stratton has not demonstrated two of the five requirements for

a new trial based on newly discovered evidence, we conclude that the District

Court did not abuse its discretion in denying his motion for a new trial.

IV

Ms. Thompson asserts that her confession was involuntary because the

officers who interrogated her denied her request for Lorcet, a prescription narcotic

drug that was removed from her home, until after she made an inculpatory

statement. This Court reviews a district court’s factual findings supporting the

denial of a motion to suppress for clear error, and in the light most favorable to the

Government. The application of the law to the facts is reviewed de novo. United

States v. Holloway, 290 F.3d 1331, 134 (11th Cir. 2002).

The Fifth Amendment prohibits the use of an involuntary confession against

a defendant in a criminal trial. Bram v. United States, 168 U.S. 532, 542 (1897);

United States v. Vera, 701 F.2d 1349, 1365 (11th Cir. 1983). We focus our

voluntariness inquiry “on whether the defendant was coerced by the government

into making the statement: ‘The relinquishment of the right must have been

21
voluntary in the sense that it was the product of a free and deliberate choice rather

than intimidation, coercion or deception.’” United States v. Mendoza-Cecelia, 963

F.2d 1467, 1475 (11th Cir. 1992) (quoting Colorado v. Connelly, 479 U.S. 157,

170 (1986)). “The district court must consider the totality of the circumstances in

assessing whether police conduct was ‘causally related’ to the confession.” Id.

(quoting Miller v. Dugger, 838 F.2d 1530, 1536 (11th Cir. 1988)). “Sufficiently

coercive conduct normally involves subjecting the accused to an exhaustingly long

interrogation, the application of physical force or the threat to do so, or the making

of a promise that induces a confession.” Id. Government coercion is a necessary

predicate to a finding of involuntariness under the Fifth Amendment. “Absent

police conduct causally related to the confession, there is . . . no basis for

concluding that any state actor has deprived a criminal defendant of due process of

law.” Colorado v. Connelly, 479 U.S. 157, 164 (1986).

At the suppression hearing, Officer Nelson and Ms. Thompson testified

about the raid on Ms. Thompson’s apartment, her arrest, and her subsequent

statements to police. Officer Nelson testified that when officers executed the

warrant on March 6, 2003, Ms. Thompson and Mr. Ingersoll were present in the

apartment. Both were detained while officers conducted a search, which lasted

about two hours. Officers read Ms. Thompson her Miranda rights. Neither Ms.

22
Thompson nor Mr. Ingersoll invoked these rights. Toward the end of the search,

Ms. Thompson stated that she was having back pain. Officers then took Ms.

Thompson to the DEA office for questioning. Officers brought Ms. Thompson’s

Lorcet pills with them to the DEA office because they thought that the jail would

want to know what medication Ms. Thompson was taking.

At the DEA office, Officer Nelson again read Ms. Thompson her Miranda

rights. Ms. Thompson signed a written waiver of these rights. Officer Nelson

testified that at the beginning of the interview, Ms. Thompson was visibly upset

and nervous but did not appear to be under the influence of drugs or alcohol. Ms.

Thompson gave coherent answers to the officers’ questions. She also attempted to

reach Mr. Stratton by phone to set up a controlled purchase of cocaine. Officer

Nelson said that officers gave Ms. Thompson some Lorcet at the end of the

interview when Ms. Thompson was about to be taken to jail. Asked why she gave

Ms. Thompson the medication, Officer Nelson testified that Ms. Thompson “stated

that she had back pain, that it was past due for her medication.” Officer Nelson

denied that the medication was withheld from Ms. Thompson to coerce her

cooperation, or that the medication was given to Ms. Thompson as a reward for

her statements.

Ms. Thompson testified that she was prescribed Lorcet by a podiatrist to

23
treat pain in her back, leg, and ankle. She said that she asked agents to get her pills

as they were leaving the apartment. She also stated that the agents placed her pills

directly in front of her during the interrogation. She stated that she made several

requests for her medication while at the DEA office but in each case, the officers

told her to wait. She further testified that the officers did not give a reason for

denying her the pills. Ms. Thompson stated that, although the officers did not

expressly condition her receipt of her medication on providing a statement, she

inferred from the officers’ actions that she would need to cooperate if she wanted

her medication.

Ms. Thompson also testified that she had taken some Lorcet shortly before

officers executed the search warrant but that at the time of her interview she was

no longer under the influence of the drug. She stated that, depending on the

dosage, Lorcet could diminish her comprehension of what was going on around

her. Ms. Thompson also said that she was under the influence of cocaine during

the interview. Upon further questioning, however, she testified that she could not

specifically recall whether she was under the influence of cocaine during the

interview and that she probably was not under the influence.

In his Report and Recommendation, the magistrate judge found that agents

did not induce Ms. Thompson to make a statement by withholding her pain

24
medication. This finding is supported by the record. The only evidence that

officers withheld Ms. Thompson’s medication in an effort to coerce a statement

from her consists of Ms. Thompson’s vague testimony that the officers’ behavior –

namely, their alleged “rude gestures” and laughter in response to her request for

her medicine – implied such a quid pro quo arrangement. Ms. Thompson’s

testimony was contradicted by that of Officer Nelson, who denied that the Lorcet

was given to Ms. Thompson in exchange for her cooperation.

The district court adopted the magistrate judge’s credibility determination

regarding the conflicting testimony on the voluntariness question. United States v.

Kreczmer, 636 F.2d 108, 110 (5th Cir. Unit B 1981). See United States v. Raddatz,

447 U.S. 667, 680-81 (1980) (holding that a district court may adopt as the

credibility findings contained in a magistrate judge’s report and recommendation

regarding the voluntariness of a confession without rehearing the testimony of the

witnesses who testified at a suppression hearing before the magistrate judge).

“Absent any evidence of psychological or physical coercion on the part of the

agents, there is no basis for declaring [a defendant’s] statements and consent to

search involuntary.” United States v. Barbour, 70 F.3d 580, 585 (11th Cir. 1995).

The District Court did not err in denying Ms. Thompson’s motion to suppress her

post-arrest statements.

25
 V

Ms. Thompson contends that the prosecutor’s comments to the jury

regarding her right not to testify violated her Fifth Amendment right to remain

silent at trial. This Court review’s a district court’s denial of a motion for a mistrial

based on a prosecutor’s statements during closing argument for abuse of

discretion. United States v. Brooks, 670 F.2d 148, 152 (11th Cir. 1982). To

determine that a prosecutor committed misconduct in his or her argument to a jury

“(1) the remarks must be improper, and (2) the remarks must prejudicially affect

the substantial rights of the defendant.” United States v. Gonzales, 122 F.3d 1383,

1389 (11th Cir. 1997) (quotation marks omitted).

Mr. Stratton testified in his defense. Ms. Thompson chose to remain silent.

During his argument to the jury, Mr. Stratton’s lawyer commented as follows:

By the way, Mr. Stratton testified under oath before you,
just like every other witness and subjected himself to cross-
examination just like every other witness.
....
Joseph Stratton took the stand and told you he did not do
what he is accused of. Does he have a personal interest in
the outcome of the case? Absolutely. The government is
going to tell you that he has a reason not to tell the truth.
But if he’s innocent, telling the truth works, too.
....
He took the stand and testified in his own defense that he
didn’t do this. It’s all you can do in a trial. They don’t do
trial by combat anymore. [H]e took the stand, subjected

26
 himself to cross-examination and told you what his, his
side of the story is.

In his rebuttal argument, the prosecutor responded to these comments as

follows:

And don’t reward the defendant for testifying in this
case. While he has a right, she has a right to testify or not
testify. There should be no reward for the fact that someone
does take the stand. You’re to assess the credibility of the
defendant just as you are to assess the credibility of any
other witnesses. The fact that they’re willing to subject
themselves to cross-examination, no reward for that.

Ms. Thompson’s counsel immediately objected. He argued that the

prosecutor’s argument represented an impermissible comment on her decision not

to testify. Ms. Thompson moved for a mistrial or, in the alternative, an instruction

to the jury to disregard the prosecutor’s remarks. The District Court denied both

motions. Ms. Thompson renews this argument on appeal. We conclude that the

prosecutor’s remarks did not violate Ms. Thompson’s Fifth Amendment right

against self-incrimination.

In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court declared

that the Fifth Amendment “forbids either comment by the prosecution on the

accused’s silence or instructions by the court that such silence is evidence of

guilt.” Id. at 615. “Although Griffin can be read to prohibit any direct reference to

27
a defendant’s failure to testify,” in subsequent decisions the Supreme Court

“declined to adopt such a broad reading of Griffin.” United States v. Wing, 104

F.3d 986, 990 (7th Cir. 1990).

In Lakeside v. Oregon, 435 U.S. 333 (1978), the defendant argued that his

Fifth Amendment right against compulsory self-incrimination was violated when

the trial court instructed the jury, over defense counsel’s objection, that it could

not draw an adverse inference from the defendant’s refusal to testify. Id. at 336-38.

Rejecting this argument, the Court explained that Griffin was “concerned only

with adverse comment, whether by the prosecutor or the trial judge – ‘comment by

the prosecution on the accused’s silence or instructions by the court that such

silence is evidence of guilt.’” Id. at 338-39 (quoting Griffin, 380 U.S. at 615).

Because the trial court had not asked the jury to draw an adverse inference from

the defendant’s failure to take the witness stand, the Court concluded that the

defendant’s privilege against compulsory self-incrimination was not violated. Id.

at 339-341

The Supreme Court again declined to read Griffin broadly in United States

v. Robinson, 485 U.S. 25, 31-32 (1987). In Robinson, the defendant’s counsel

complained to the jury in his closing argument that the Government had not given

his client an opportunity to explain his actions. Id. at 28. On rebuttal, the

28
prosecutor responded that the defendant “could have taken the stand and explained

it to you, anything he wanted to. The United States of America has given him,

throughout, the opportunity to explain.” Id. at 29. Concluding that the prosecutor’s

argument “was a clear violation of the defendant’s constitutional right not to

testify,” the Sixth Circuit reversed the defendant’s conviction. United States v.

Robinson, 794 F.2d 1132, 1134-37 (6th Cir. 1986).

The Supreme Court reversed, holding that the prosecutor’s comments did

not violate the Fifth Amendment. Robinson, 485 U.S. at 31-32. The Court rejected

the argument that “any ‘direct’ reference by the prosecutor to the failure of the

defendant to testify violates the Fifth Amendment as construed in Griffin.” Id. at

31. Rather, the Court instructed that the Griffin rule only “prohibits the judge and

prosecutor from suggesting to the jury that it may treat the defendant’s silence as

substantive evidence of guilt.” Id. at 32 (quotation marks omitted). The Court

stressed that whether a prosecutor’s comment on a defendant’s refusal to testify

violates the defendant’s Fifth Amendment right against compulsory self-

incrimination can be determined only by examining the context in which the

statement was made. Id. at 31-33.9

9
In United States v. Frazier, 944 F.2d 820 (11th Cir. 1991), this Court recognized that
“the Supreme Court has limited the prohibitions placed upon the prosecutor’s use of a
(continued...)

29
 This Circuit applies the following standard in reviewing claims that a

prosecutor’s comments violated a defendant’s Fifth Amendment right against

compulsory self-incrimination:

A prosecutor’s statement violates the defendant’s right to
remain silent if either (1) the statement was manifestly
intended to be a comment on the defendant’s failure to
testify; or (2) the statement was of such a character that a
jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify.

United States v. Knowles, 66 F.3d 1146, 1162-63 (11th Cir. 1995) (quotation

marks and citations omitted). Although this Court adopted this test in United

States v. Stuart-Cabellero, 686 F.2d 890, 892 (11th Cir. 1982), before Robinson

was decided, the standard is still appropriate, if read in light of the limitation in

Robinson on the Supreme Court’s holding in Griffin. Thus, in applying the Stuart-

Cabellero test, we must determine whether a prosecutor’s remarks were manifestly

intended to urge the jury to draw an inference from the defendant’s silence that he

or she is guilty, or whether a jury would naturally and necessarily construe the

prosecutor’s remarks as inviting such an impermissible inference.

Ms. Thompson argues that the prosecutor indirectly invited the jury to draw

an inference of guilt from her silence when he advised the jury that Mr. Stratton

9
(...continued)
defendant’s silence at trial” in Robinson. Id. at 826.

30
should not be rewarded for testifying. She claims that in offering such direction to

the jury, the prosecutor implied that there would be cases in which a defendant

should be rewarded for testifying and thereby encouraged the jury to punish her

for not testifying.

We disagree. The prosecutor in this case did not directly or indirectly

encourage the jury to consider Ms. Thompson’s decision to remain silent as

evidence of her guilt. Rather, in response to the argument of Mr. Stratton’s defense

counsel, the prosecutor correctly informed the jury that a defendant should not be

rewarded simply because he testifies and that a testifying defendant is not entitled

to special credence as a witness simply because he subjected himself to cross-

examination. The prosecutor’s argument was clearly responsive to the argument of

Mr. Stratton’s counsel and was not intended in any respect to comment adversely

on Ms. Thompson’s decision to remain silent.

Nor did the prosecutor violate Ms. Thompson’s constitutional rights by

pointing out to the jury that Ms. Thompson had a right not to testify. The

prosecutor’s comment was made in the context of rebutting the argument of Mr.

Stratton’s attorney that his client should be given credit for testifying. Viewed in

this context, we think that it is plain that the prosecutor did not intend to draw an

adverse inference from Ms. Thompson’s silence. Rather, the prosecutor was

31
discouraging the jury from drawing a positive inference in Mr. Stratton’s favor

simply because Mr. Stratton testified.

Finally, we note that the prosecutor’s remarks in his closing argument were

both legally correct and consistent with the District Court’s jury instructions. The

jury was instructed that a defendant has a right not to testify and that it could not

draw an adverse inference from a defendant’s failure to testify. The Court also

admonished the jury that if a defendant does testify, it should assess his or her

credibility in the same way that it did any other witness. Counsel for both

defendants informed the court that they did not have any objections to this

instruction.

Because the prosecutor’s closing argument did not directly or indirectly

encourage the jury to consider Ms. Thompson’s silence as evidence of her guilt,

Ms. Thompson’s right against compulsory self-incrimination as construed in

Griffin and Robinson was not violated. Accordingly, the District Court did not

abuse its discretion in denying Ms. Thompson’s motion for a mistrial or a curative

instruction.

VI

Ms. Thompson and Mr. Stratton argued in their opening briefs to this Court

that, in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), the District Court

32
committed reversible constitutional error by imposing sentences that had been

enhanced on the basis of facts which they did not admit and which were not

reflected in the jury’s verdicts. After the appellants submitted their briefs, the

Supreme Court decided United States v. Booker, 125 S. Ct. 738 (2005). In Booker,

the Supreme Court

held that Blakely applies to the federal Sentencing
Guidelines and reaffirmed its Apprendi holding that, “[a]ny
fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”

United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005)

(quotation marks omitted) (alteration in original). The Supreme Court in Booker

redressed the Sentencing Guidelines’ constitutional infirmity by excising those

portions of the Sentencing Reform Act making the Guidelines mandatory. Booker,

125 S. Ct. at 764-68.

Because appellants did not raise a Sixth Amendment objection below, we

review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005); Booker, 125 S. Ct. at 125; Fed. R. Crim. P. 52(b). “An appellate court may

not correct an error the defendant failed to raise in the district court unless there is:

(1) error, (2) that is plain, and (3) that affects substantial rights.” Rodriguez, 398

33
F.3d at 1298 (quotation marks omitted). “If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (quotation marks omitted). The Government concedes,

and we agree, that both Appellants can show plain error in this case.

The jury convicted Ms. Thompson of conspiracy to possess with intent to

distribute 500 grams or more of cocaine and 5 grams or more of cocaine base and

two counts of possession with intent to distribute a detectable amount of cocaine

base. Over Ms. Thompson’s objection, the District Court found that Ms.

Thompson was responsible for 500 grams of crack cocaine, which gave her a base

offense level of 36. U.S.S.G. § 2D1.1(c)(2). The district court applied a two-level

upward adjustment after finding – again, over Ms. Thompson’s objection – that

Ms. Thompson was an organizer, leader, manager, or supervisor under U.S.S.G.

§ 3B1.1(c). With Ms. Thompson’s criminal history category of V, this resulted in a

guideline range of 360 months to life. Absent the District Court’s extra-verdict

enhancements, the guideline range for Ms. Thompson’s offenses would have been

110-137 months.

Because the District Court enhanced Ms. Thompson’s sentence under a

mandatory guideline system on the basis of factual findings not made by a jury or

34
admitted by Ms. Thompson, Ms. Thompson’s Sixth Amendment rights were

violated. Rodriguez, 398 F.3d at 1298. The error was plain because we apply the

law as it exists “at the time of appellate consideration.” Johnson v. United States,

520 U.S. 461, 468 (1997).

Mr. Stratton was convicted of conspiracy to distribute 500 grams or more of

cocaine and five grams or more of cocaine base. The Presentence Report (“PSR”)

charged that Mr. Stratton was responsible for at least 1.5 kilograms of cocaine

base, which would give Mr. Stratton a base offense level of 38. U.S.S.G §

2D1.1(c)(1). Over Mr. Stratton’s objection, the District Court accepted the PSR’s

drug quantity determination. After applying a two-level upward adjustment for

obstruction of justice, the District Court determined that Mr. Stratton’s adjusted

offense level was 40. Since Mr. Stratton did not have a criminal history, his

guideline range was 292-365 months. If the District Court had not made extra-

verdict enhancements, Mr. Stratton’s guideline range would have been 63-78

months. For the same reasons we discussed with regard to Ms. Thompson’s

sentence, Mr. Stratton’s sentence violated his Sixth Amendment rights, and the

error was plain.

We also conclude that both Appellants have met their heavy burden of

demonstrating that these sentencing errors affected their substantial rights in the

35
sense that the errors “affected the outcome of the district court proceedings.”

United States v. Cotton, 535 U.S. 625, 632 (2002) (quotation marks omitted). At

several points the District Court expressed its dissatisfaction with the sentence it

was imposing on Ms. Thompson, noting that the sentence was “severe” and asking

“whether this is really the kind of defendant Congress intended to be look at 360

months as a minimum.” At the conclusion of Ms. Thompson’s sentencing hearing,

the District Court stated:

The sentence I am going to impose is not a fair sentence in
my view. The sentence that I have imposed already and
will reduce on government’s motion will make it even less
fair. I think Ms. Thompson deserves to be in prison. I don’t
think she deserves to be imprisoned for 360 months. That’s
a choice Congress and the government has taken away
from the Court.

When sentencing Mr. Stratton, the District Court expressed similar sentiments,

announcing that it “continue[d] to have [the] same concerns or similar concerns

with regard to the length of a sentence for a first offender.” The District Court also

stated that although the sentence it would impose would be substantial, it had

“decided long ago not to fudge with the guidelines just to find a result that I find

more palatable.” Further, the District Court sentenced both Appellants to the low

end of their respective guideline ranges. We are thus satisfied that “there is a

reasonable probability” that both Appellants would have received a different

36
sentence “if the guidelines had been applied in an advisory instead of a binding

fashion by the sentencing judge in this case.” Rodriguez, 398 F.3d at 1301.

We also conclude that the sentencing errors in this case “seriously affected

the fairness, integrity or public reputation of judicial proceedings.” United States

v. Shelton, 400 F.3d 1325, 1333 (11th Cir. 2005) (quotation marks omitted). As

the excerpts quoted above make clear, the District Court expressed its desire to

impose a more lenient sentence on both Appellants than it was permitted under a

mandatory guideline regime. Accordingly, the fourth prong of the plain error

standard is satisfied in this case. Id. at 1334.

CONCLUSION

We AFFIRM each judgment of conviction. We VACATE and REMAND

both Appellants’ sentences and remand to the District Court for resentencing.

37
TJOFLAT, specially concurring:

I.

I concur in the court’s judgment. I write separately because I disagree with

the court’s rationale for vacating appellants’ sentences. The court vacates the

sentences because, in the language of Rodriguez, “‘there is a reasonable

probability’ that both Appellants would have received a different sentence ‘if the

guidelines had been applied in an advisory instead of binding fashion by the

sentencing judge in this case.’” Ante at ____ (quoting Rodriguez, 395 F.3d at

1301). In other words, the court is satisfied that appellants have satisfied the third

element of the plain-error test; they have established prejudice—that the error

“affects their substantial rights.’” Ante at ____ (quoting Rodriguez, 398 F.3d at

1298) (internal quotation marks omitted).

I do not fault the court for having required appellants to show such

prejudice because Rodriguez is the law of this circuit. I submit that Rodriguez

was wrong when decided and continues to be bad law. See United States v.

Rodriguez, 406 F.3d 1261, 1281 (11th Cir. 2005) (Tjoflat, J. dissenting from the

denial of rehearing en banc). As I have explained, “Booker constitutional error is

38
structural error.” Id. at 1291.1 As such, it is “not subject to substantial-rights

analysis....” Id. at 1292.

In deciding whether to vacate a defendant’s sentence in a case of

constitutional error, as we have here, Rodriguez and its progeny require us to

examine the record (created, of course, under the pre-Booker sentencing model)

for some indication that the district court would have imposed a lesser sentence

had the law permitted it to treat the guidelines as advisory rather than mandatory.

We look to what the court said prior to or in the course of imposing sentence. We

look for what I call “magic words.” In this case, the court finds them. It

discovered that “[a]t several points [during the sentencing hearing] the District

Court expressed its dissatisfaction with the sentence it was imposing on Ms.

Thompson, noting that the sentence was ‘severe’ and asking ‘whether this is really

the kind of defendant Congress intended to be look[ing] at 360 months as a

minimum.” Ante at ___. The District Court continued, “I don’t think she deserves

to be imprisoned for 360 months.” Ante at ___ (internal quotation marks omitted).

1
Booker established a new sentencing model, markedly and structurally different from
the pre-Booker model under which appellants were sentenced. I explained the difference
between the two models in considerable detail in dissenting from the court’s refusal to rehear
Rodriguez en banc. Rodriguez, 406 F.3d at 1286-91 (Tjoflat, J., dissenting from the denial of
rehearing en banc). Because the Booker model is materially different from the previous model,
the effects of Booker error “are necessarily unquantifiable and indeterminate.” Id. at 1298
(quoting Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S. Ct. 2078, 2083, 124 L. Ed. 2d 182
(1993)) (internal quotation marks omitted).

39
Subsequently, “[w]hen sentencing Mr. Stratton, the District Court expressed

similar sentiments, announcing that it ‘continue[d] to have [the] same concerns or

similar concerns with regard to the length of a sentence of a first offender.’ The

District Court also stated that, although the sentence it would impose would be

substantial, it had ‘decided long ago not to fudge with the guidelines just to find a

result that I find more palatable.’” Ante at ___. And so, finding these magic

words, the court vacates appellants’ sentences and remands the case for

resentencing under the new Booker model.

II.

The court’s opinion illustrates one of many problems with the Rodriguez

standard or, as I coin it, the “magic words” approach to plain-error review. Under

Rodriguez, we do not generally reverse a sentence unless the district court has

stated on the record that the guideline sentence is too high—and, by implication,

unfair and unjust—that it would select a lower sentence if the law allowed it to do

so, and that it is in general dissatisfied with the punishment provided for by

democratically empowered lawmakers. That is, we vacate a sentence only where

the judge has spoken some combination of these “magic words.” Thus, at oral

argument, if defense counsel begins a plain-error Booker argument, I immediately

ask whether we will find any “magic words” in the record; if the answer is “no,”

40
then there is no reason for counsel to pursue the issue further.

A district judge who makes such comments may do so in the sincere belief

that over time he or she, along with other like-minded judges, will persuade the

Sentencing Commission or Congress to revise severe mandatory sentences. The

judge may also think he or she is simply giving the defendant or his family a bit of

encouragement. See, e.g., United States v. Ameline, 409 F.3d 1073, 1082 (9th Cir.

2005) (en banc) (“District court judges often make remarks at sentencing for

purposes other than fact-finding. A district court judge may choose to say some

encouraging words for the benefit of the defendant’s family . . . .”). Or the judge

may simply hope that the defendant will not hold a lengthy sentence against the

judge personally. The least charitable view, however, is that the judge is just

shooting the breeze and, in the process, doing the defendant and society a great

disservice.

When a judge tells a defendant that his sentence is unjust and unfair, the

defendant is inclined to believe him. The defendant is, therefore, unlikely to

accept the justice of his punishment and “‘enter the correctional system in a frame

of mind that affords hope for success in rehabilitation over a shorter period of time

than might otherwise be necessary.’” McKune v. Lile, 536 U.S. 24, 36-37, 122 S.

Ct. 2017, 2026, 153 L. Ed. 2d 47 (2002) (quoting Brady v. United States, 397 U.S.

41
742, 753, 90 S. Ct. 1463, 1471, 25 L. Ed. 2d 747 (1970)); see also 18 U.S.C. §

3553(a)(2)(D) (“The court, in determining the particular sentence to be imposed,

shall consider the need for the sentence imposed to provide the defendant with

needed [rehabilitation] in the most effective manner . . . .”). The judge may also

unwittingly encourage the defendant to persist in attacking his sentence on direct

appeal and collateral review, notwithstanding that its substance and the manner of

its imposition are legally correct. After all, why shouldn’t the defendant appeal a

sentence that even the judge criticized as too severe? Finally, by openly

disparaging the defendant’s sentence, the judge fosters disrespect for the rule of

law. See 18 U.S.C. § 3553(a)(2)(A) (“The court, in determining the particular

sentence to be imposed, shall consider the need for the sentence imposed to...

promote respect for the law . . . .”). If the judge does not respect the law that he

applies, then why should society at large? A judge’s role is to apply the law as it

is written, not to offer his or her own opinions of its wisdom or fairness. By his

oath of office, the judge has sworn to uphold the law, including laws imposing

mandatory sentences.2

2
Such comments are quintessentially political statements. I do not suggest that there is
never a time or place for them. The time and place for them, however, is outside the judicial
role, in letters or testimony to the Sentencing Commission or Congress. When a judge makes
such statements in specific cases and to specific defendants, the judge’s potential for positive
influence is not only greatly diminished, but is in fact far outweighed by the disservice done to
(continued...)

42
 The Rodriguez rule encourages judges to continue opining on the record as

to the fairness of sentences they impose in individual cases. Post-Booker, of

course, there is no reason for judges to continue doing so in this precise context

because the Guidelines are now advisory—if the judge thinks a guideline sentence

is unfair, then he or she presumably will exercise the prerogative to not impose it.

But Supreme Court precedents upholding mandatory minimums based on extra-

verdict judicial findings and extra-verdict enhancements based on prior

convictions are now thought by some to be in doubt. See Harris v. United States,

536 U.S. 545, 567-68, 122 S. Ct. 2406, 2419-20, 153 L. Ed. 2d 524 (2002)

(mandatory minimums) (5-4 decision); Almendarez-Torres v. United States, 523

U.S. 224, 226-27, 118 S. Ct. 1219, 1222, 140 L. Ed. 2d 350 (1998) (5-4 decision).3

Judges who are required to impose what they deem to be unfair or unjust sentences

as the result of such laws are encouraged by Rodriguez to state their criticisms on

2
(...continued)
rule-of-law values, to the criminal justice system in general, and to the defendant in particular.
3
In Shepard v. United States, U.S. , 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005),
Justice Thomas, a member of the majority in the 5-4 Almendarez-Torres decision, wrote that
“Almendarez-Torres . . . has been eroded by [the] Court’s subsequent Sixth Amendment
jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly
decided.” Shepard, U.S. , 125 S. Ct. at 1264 (Thomas, J., concurring) (citing, inter alia,
Apprendi v. New Jersey, 530 U.S. 466, 520-21, 120 S. Ct. 2348, 2379, 147 L. Ed. 2d 435 (2000)
(Thomas, J., concurring)). He further suggested that, “in an appropriate case, [the] Court should
consider Almendarez-Torres’ continuing viability” because “[i]nnumerable criminal defendants
have been unconstitutionally sentenced under [its] flawed rule....” Shepard, U.S. ,125 S. Ct.
at 1264 (Thomas, J., concurring).

43
the record. Moreover, beyond these immediate issues, there will always be a

possibility that some unanticipated ruling will, post-sentencing, call into question

a sentence on a ground not advanced in the district court, thereby triggering

Rodriguez’s “magic words” requirement. Thus, any time a judge is required to

impose an “unjust” sentence, he should, according to Rodriguez, tell the defendant

all about the injustice being done to him so that the defendant can receive the

benefit of any subsequent appellate decisions. Finally, even putting aside

Rodriguez’s impact on future sentencing hearings, I find it troubling that our

decisions applying its standard appear to give past comments of this sort the

imprimatur of this court. The logical implication of our cases is that such

statements are at least harmless—if not desirable—because we reward the

defendant based on their presence in the record.

I add these additional thoughts on the Rodriguez standard after listening to a

series of oral arguments in which the Booker/Rodriguez debate has consisted

entirely of defense counsel arguing that the record does indeed contain some

“magic words” and the Assistant U.S. Attorney responding that the words just

aren’t magical enough. This process is as arbitrary as it is absurd. A defendant is

rewarded with a new sentencing hearing only if the sentencing judge took the

entirely inappropriate step of publicly criticizing the law that required him to

44
impose the sentence. In contrast, a defendant whose sentence was imposed

without gratuitous comment by the sentencing judge is denied a new hearing. “It

[is] a mistake to infer from a district court’s silence that the district court would

not have made a different decision under a different sentencing scheme.”

Ameline, 409 F.3d at 1082. Silence often means nothing more than that an

experienced judge understands his or her proper role in the criminal justice

system. Thus, the judge’s comments or silence inevitably turns out to be poor

circumstantial evidence of what the judge would do if freed from the constraints

imposed by the Guidelines.4

4
As the Ninth Circuit observed,
District court judges often make remarks at sentencing for purposes other than
fact-finding. A district court judge may choose to say some encouraging words
for the benefit of the defendant’s family; a district court judge may decide to
lecture the defendant with a warning. District court judges have also been known
to make stray comments about the Guidelines during sentencing, without
necessarily intending for them to be interpreted as meaning that a different
sentence would have been imposed under a discretionary sentencing scheme. It
would be a mistake for us to attribute fresh meaning to comments made in an
entirely different context. It would also be a mistake to infer from a district
court’s silence that the district court would not have made a different decision
under a different sentencing scheme. In sum, in this unusual context, our ability
to assess plain error based on the cold record is significantly impaired.
Ameline, 409 F.3d at 1082.

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