United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
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).
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).
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.
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 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.
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 (11th Cir.
2013); United States v. Gil, 581 F. App'x 766,
769 (11th 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 (11th
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
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
Evidence of a person's habit or an organization's
routine practice may be admitted to prove that on a
particular occasion the person or organization acted in
accordance with the habit or routine practice. The court may
admit this evidence regardless of whether it is corroborated
or whether there was an eyewitness.
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.
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.
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
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. #
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
Pursuant to the Plea Agreement, you have waived your
some, if not all of your rights regarding your ability to
appeal this sentence. Such waivers are generally enforceable,
but if you believe for whatever reason that your waver (sic)
is not enforceable, I encourage you to present that theory to
the appropriate appellate court. I am not encouraging you to
appeal or not to appeal, Ms. Elmore. I'm merely informing
you of your rights to appeal.