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United States v. Elmore

United States District Court, M.D. Alabama, Northern Division

November 2, 2017

UNITED STATES OF AMERICA
v.
MARSHA DIANE ELMORE CR.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES 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).

         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.[1] 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.

         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 (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.[2] 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.

         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 defendant is giving up the right to appeal with certain exceptions.” (Doc. # 82 at 5). Assistant United States Attorney Gray Borden[3] 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.

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.

         Do you ...


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