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Jurisdiction: Alabama Middle District Court
Decision Date: 11/2/2017

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States v. Elmore United States v. Elmore (M.D. Ala., 2017)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES OF AMERICA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MARSHA DIANE ELMORE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CR. NO. 2: 11-cr-157-WHA (WO)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 2, 2017

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES OF AMERICA v. MARSHA DIANE ELMORE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CR. NO. 2: 11-cr-157-WHA (WO)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 2, 2017

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RECOMMENDATION OF THE MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On November 15, 2011, Marsha Diane Elmore ("Elmore") entered a plea of guilty pursuant to a plea agreement. (Doc. # 32). At the conclusion of the change of plea hearing, the undersigned accepted Elmore's guilty plea and adjudged her guilty on counts 1, 17 and 25 of the indictment. For reasons not relevant to the current proceeding, on March 15, 2016, Elmore's judgment was vacated and set aside and a new judgment was entered against her. (Docs. # 51 & 52).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On March 18, 2016, Elmore appealed her conviction. (Doc. # 54). On August 30, 2016, the court reporter assigned to this matter informed the Eleventh Circuit Court of Appeals that no recording of the change-of-plea hearing on November 5, 2011 was found and thus, there was no transcript. (Doc. # 66). On December 7, 2016, the Eleventh Circuit, on its own motion, remanded this matter to this court "on a limited basis . . . for the purpose of investigating and preparing, if possible, a certified record of the November 15, 2011, change-of-plea hearing. " (Doc. # 67).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On April 12, 2017, at the request of the United States, the court entered an order referring this case to the undersigned "for the purpose of holding a hearing and entering an order on reconstruction of the change of plea hearing held . . . on November 15, 2011. " (Doc. # 70). On May 10, 2017, the court held a conference with counsel concerning the referral. The law of this Circuit establishes that testimony, recollections and other relevant records may establish a fair and accurate portrait of what transpired during Elmore's plea colloquy. See e. g United States v. Cashwell 950 F.2d 699 704 (11th Cir. 1992). For that purpose, on June 23, 2017, the court held a hearing to allow the parties an opportunity to present evidence about the plea colloquy and whether Elmore's plea and waiver of appeal was knowing and voluntary. At the conclusion of the hearing, the court directed the parties to file briefs addressing the reconstruction of the change of plea hearing previously held in this case. (Doc. # 81). The parties have briefed the issue of reconstruction, and presented evidence related to the issue of reconstruction.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The court must follow the mandate of the Eleventh Circuit and determine whether it is possible to reconstruct the record of the change-of-plea hearing or state why the record cannot be reconstructed. There is no dispute that on

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 15, 2011, Elmore participated in a change of plea hearing before the undersigned. Elmore entered a guilty plea pursuant to a plea agreement. Elmore agreed to plead guilty to counts 1, 17 and 25 of the indictment and the government agreed to dismiss at sentencing the remaining counts of 2-16, 18-24 and 26-32. (Doc. # 32). The plea agreement also contained a waiver of appeal and collateral attack provision. (Id. ). Although the parties agree that the change-of-plea hearing occurred, none of the involved parties have any independent or specific recollection of the proceeding.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The government argues that the district court can attempt to reconstruct the missing change-of-plea hearing. See Cashwell 950 F.2d at 703-04; United States v. Rodger 521 F. App'x 824, 833 (11 Cir. 2013); United States v. Gil 581 F. App'x 766, 769 (11 Cir. 2014). Relying on habit and standard practice, the government asserts that personal recollection is not necessary. See Doc. # 85. The defendant argues, on the other hand, that in the absence of "an audio recording, transcript, or personal recollection, a certified record of . . . the proceeding cannot be prepared. " (Doc. # 83). Relying on Cashwell Rodgers and Dasher v. Attorney General Fla 574 F. 3d 1310 (11 Cir. 2009), Elmore argues that unlike the instant case, in each of those cases there were specific recollections about the proceedings. Elmore contends that because no participant in her guilty plea colloquy has any relevant recollection, there can be no reconstruction based on mere habit or routine

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        practice. The court disagrees. None of those cases require that habit or routine evidence be supported by recollection. That is not surprising because Federal Rule of Evidence 406 provides

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Elmore's argument about the necessity of recollection evidence effectively would abrogate Federal Rule of Evidence 406 which requires only evidence of routine or habit. The court finds it may rely and does rely on its own knowledge of its routine and habit in the conduct of guilty plea proceedings.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In attempting to "adequately reconstruct" the plea hearing proceeding, the court set forth its standard practice of conducting the change of plea hearing using "the outline contained in the Federal Judicial Center's Benchbook for U.S. District Judges. " (Doc. # 68, Att. A). The undersigned also stated at the hearing that it was his standard practice to "actually repeat twice to the defendant that the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        defendant is giving up the right to appeal with certain exceptions. " (Doc. # 82 at 5). Assistant United States Attorney Gray Borden provided a statement that it was his general practice "to confirm during any change-of-plea hearing that the Magistrate Judge advised the defendant in open court of both the defendant's right to appeal any sentence imposed and the impact of any appeal-waiver provision contained in the defendant's plea agreement. " (Doc. # 84, Gov't Ex. 4). The minute entry for the change-of-plea hearing indicate the proceeding began at 9: 30 a. m. and was completed at 9: 49 a. m. (Doc. # 33).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                During her sentencing on January 24, 2012, the court specifically reminded Elmore of the appeal waiver contained in the plea agreement. (Doc. # 44 at 4). After imposing sentence, the court again advised Elmore that she had waived her appeal rights.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Id. at 21).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Elmore's acceptance of the court's explanations of the appeal waiver in her plea agreement at sentencing is a further indicia that nothing untoward happened at the change-of-plea hearing.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Under FED. R. CRIM. P. 11, before a court can accept a guilty plea, it must inform the defendant of: (1) the right to plead not guilty; (2) the right to a jury trial; (3) the right to be represented by counsel at every stage of the proceedings; (4) the right to confront and cross-examine adverse witnesses; (5) the right to testify and compel the attendance of witnesses; (6) the right against compelled self-incrimination; (7) the nature of each charge to which the defendant is pleading guilty; (8) the maximum and minimum penalties possible by law, including fines, supervised release, and special assessments; (9) the possibility of restitution and any applicable forfeiture; and (10) the court's obligation to calculate the guideline range and consider any possible departures under the Sentencing Guidelines. See FED. R. CRIM. P. 11(b)(1)(B)-(E), (G)-(M). The district court must also explain that a guilty plea waives the defendant's trial rights. FED. R. CRIM. P. 11(b)(1)(F). Before entering a judgment on a guilty plea, the district court must first "determine that there is a factual basis for the plea. " FED. R. CRIM. P. 11(b)(3). Based on the court's routine

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 7

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        and habit in the conduct of FED. R. CRIM. P. 11 proceedings, the written plea agreement which Elmore signed and which fully advises her of all of her rights under that Rule as well as the Constitution, the sentencing proceedings and the evidence presented at the hearing on June 23, 2017, the undersigned is confident that the change of plea proceedings conducted in Elmore's case fully met all the FED. R. CRIM. P. 11 requirements.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the court certify that the record reflect that during the FED. R. CRIM. P. 11 change of plea proceeding held on November 15, 2011, Elmore was advised

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 8

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                It further the RECOMMENDATION of the Magistrate Judge that the court certify that the record reflect that during the plea proceeding, the court determined that Elmore's entry of her guilty plea was a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offenses to which she plead guilty, FED. R. CRIM. P. 11(b)(3), and that Elmore understood the plea agreement and that even if the court did not accept the agreement she could not withdraw her guilty plea. It is further

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ORDERED that on or before November 16, 2017, the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised this Recommendation is not a final order; therefore, it is not appealable.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities Inc 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Done this 2 day of November, 2017.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/Charles S. Coody        CHARLES S. COODY        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 A trial court must strictly comply with an appellate court's mandate, "implementing both the letter and the spirit of the mandate taking into account the appellate court's opinion, and the circumstances it embraces. " Piambino v. Bailey 757 F.2d 1112 1119 (11th Cir. 1985).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Although "it is permissible for a court to rely on habit evidence of a lawyer's usual practice in reconstructing events, " there must be some evidence of the attorney's usual practice. See Carrion v. Smith 549 F. 3d 583, 585 (2nd Cir. 2008). Elmore's attorney, Jim Debardelan had no independent recollection of the change of plea hearing, and remembered no details from the proceeding. Although he testified that he handled other criminal cases, he had no usual practice of handling criminal cases in federal court. In fact, this was his first criminal case in this court. Thus, the court declines to rely on the testimony of Elmore's attorney to reconstruct the change-of-plea hearing.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Former Assistant United States Attorney Gray Borden is now a United States Magistrate Judge for this district.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The court's docket shows that the court accepted the plea agreement on January 24, 2012

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 A trial court must strictly comply with an appellate court's mandate, "implementing both the letter and the spirit of the mandate taking into account the appellate court's opinion, and the circumstances it embraces. " Piambino v. Bailey 757 F.2d 1112 1119 (11th Cir. 1985).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Although "it is permissible for a court to rely on habit evidence of a lawyer's usual practice in reconstructing events, " there must be some evidence of the attorney's usual practice. See Carrion v. Smith 549 F. 3d 583, 585 (2nd Cir. 2008). Elmore's attorney, Jim Debardelan had no independent recollection of the change of plea hearing, and remembered no details from the proceeding. Although he testified that he handled other criminal cases, he had no usual practice of handling criminal cases in federal court. In fact, this was his first criminal case in this court. Thus, the court declines to rely on the testimony of Elmore's attorney to reconstruct the change-of-plea hearing.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Former Assistant United States Attorney Gray Borden is now a United States Magistrate Judge for this district.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The court's docket shows that the court accepted the plea agreement on January 24, 2012

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Nettles v. Wainwright, 677 F.2d 404 (5th Cir., 1982)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1982-05-17 Citations: 15
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
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