United States v. Powell
UNITED STATES of America, Plaintiff-Appellee, v. Christopher POWELL, A.K.A. Pistol Peete, Abram Thompson, Defendants-Appellants
Attorneys
T. Federico Bower, OâBrien Bower PA, Tampa, FL, Brent Davis Armstrong (CourL-Appointed), Law Office of Brent D. Armstrong, Clearwater, FL, for Defendants-Appellants., Susan Hollis Rothstein-Youakim, Linda Julin McNamara, Tampa, FL, for Plaintiff-Appellee.
Full Opinion (html_with_citations)
This case presents two consolidated appeals of convictions for participation in drug crimes, including a criminal conspiracy to possess and distribute cocaine and marijuana. Christopher Powell and Abram Thompson were convicted following a jury trial and appeal many issues from their trial, convictions, and sentences. We affirm Thompsonâs conviction and sentence; we vacate Powellâs conviction and sentence and remand for further proceedings.
I. BACKGROUND
Before trial, Powell moved to suppress statements that he made following his arrest. Powell argued that he was not read his Miranda rights before interrogation and that interrogation continued after he requested counsel. The District Court referred the suppression motion to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) to hold an evidentiary hearing and to issue a report and recommendation.
At the hearing before the magistrate judge, two law enforcement officers testified on behalf of the government. Powell and his stepfather testified on Powellâs behalf. After hearing the witnessesâ testimony, the magistrate judge stated that âinconsistenciesâ existed in the officersâ testimony; he determined that their testimony was âunconvincing.â But the magistrate judge credited the stepfatherâs account. 1 On the basis of these determinations, the magistrate judge concluded that Powell had been impermissibly interrogated following a request for counsel. The magistrate judge recommended granting the motion to suppress Powellâs statements.
The government objected to the magistrate judgeâs determination that the officersâ testimony was not convincing. In considering the governmentâs objection, the District Court reviewed the hearing transcript and listened to a recording of the testimony. The District Court did not hold a new hearing, however. The District Court declined to adopt the magistrate judgeâs recommendation and instead determined that Powell had not unequivocally requested counsel. 2 In a pre-trial written order, the District Court denied Powellâs motion to suppress.
Later at trial, Powell moved to set aside the order denying the motion to suppress. The District Court denied the motion. But then the District Court gave the government the opportunity to present additional testimony, apparently for the purpose of developing a record for appellate review. The government accepted the District Courtâs offer and presented additional witness testimony.
A jury found Defendants guilty on all counts. 3 The District Court denied their *1256 motions for acquittal, and this appeal resulted.
II. DISCUSSION
Defendant Powell argues that the District Court erred by rejecting the magistrate judgeâs credibility determinations without first holding a new hearing: a hearing to see as well as to hear the pertinent witnesses. We agree.
We review denial of a motion to suppress as a mixed question of law and fact. United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.2007). Questions of law are reviewed de novo, while determinations of fact are reviewed for clear error. Id. âWhether the district court may wholly reject a magistrate judgeâs credibility findings without rehearing witness testimony is an issue of law which we review de novo.â United States v. Cofield, 272 F.3d 1303, 1305 (11th Cir.2001).
28 U.S.C. § 636(b)(1) allows a district court to refer certain motions, including a motion to suppress, to a magistrate judge to hear evidence and to make a recommendation for the motionâs disposition to the district court. In ruling on the motion, the district court may adopt, reject, or modify the magistrate judgeâs findings and recommendation. 4 The district court must make a de novo determination of any disputed portions of the magistrate judgeâs report or recommendation.
The constitutionality of § 636(b)(1) was challenged and upheld in United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), where the Supreme Court concluded that a litigantâs due process rights were not violated where a district court judge adopted the magistrate judgeâs findings of fact without holding a new hearing. 100 S.Ct. at 2415. In reaching its conclusion, the Supreme Court said that it âassume[d] it [was] unlikely that a district judge would reject a magistrateâs proposed findings on credibility when those findings are dispositive and substitute the judgeâs own appraisal; to do so without seeing and hearing the witness or witnesses whose credibility is in question could well give rise to serious questions which we do not reach.â Id. at 2415 n. 7.
The old Fifth Circuit considered the question left open by Raddatz â whether, consistent with due process, a district court judge could reject a magistrate judgeâs credibility determinations and substitute its own without first holding a new hearing to rehear disputed testimony â and answered âno.â See Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir.1980). 5 The Court concluded that a criminal defendantâs due process rights were violated where a district court judge âenter[s] an order inconsistent with the credibility choices made by the magistrate without personally hearing the live testimony of the witnesses whose testimony is determinative.â Id. 6
More recent, we wrote in Amlong & Amlong, P.A. v. Dennyâs, Inc., 500 F.3d 1230 (11th Cir.2007), that a district court abuses its discretion when it âsquarely rejects] the magistrate judgeâs findings of fact and credibility determinations and substitute^] its own, without hearing so *1257 much as a single witness.â 500 F.3d at 1251. 7
If a suspect clearly and unambiguously requests counsel at any time during an interview with law enforcement, âhe is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation.â Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 2354-55, 129 L.Ed.2d 362 (1994); see also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Because witnesses in this case gave conflicting accounts of the events following Powellâs arrest, determining whether Powell satisfied this standard by clearly and unambiguously invoking his right to counsel turns squarely on the credibility of the witnesses.
â[T]o adequately determine the credibility of a witness ... the fact finder must observe the witness.â Louis, 630 F.2d at 1110. This requirement is satisfied âeither by the district judge accepting the determination of the magistrate after reading the record, or by rejecting the magistrateâs decision and coming to an independent decision after hearing the testimony and viewing the witnesses.â Id.
The District Court erred by rejecting the magistrate judgeâs credibility determinations without first rehearing â live, not pre-recorded â the disputed testimony. 8 The District Courtâs later taking of additional evidence at trial was insufficient. This evidence followed a final ruling on the motion. The process appears to have been for the purpose of allowing the government to bolster the evidence in the record in preparation for appellate review. That the District Court later heard evidence that might support its earlier ruling did not remedy the due process violation that was based on its already-announced decision to deny the motion to suppress. See United States v. Marshall, 609 F.2d 152, 154 (5th Cir.1980) (stating that hearing additional testimony at trial did not provide a proper basis for a judgeâs earlier decision on a motion to suppress).
This matter must be remanded to the District Court for further proceedings to determine whether Powell requested counsel and, if so, the related issues. 9
*1258 III CONCLUSION
Defendant Powellâs conviction and sentence are vacated; his case is remanded for further proceedings in accordance with this opinion. We express no opinion on the merits of his motion to suppress. On remand, the District Court remains free to reject the magistrate judgeâs determinations in whole or in part after holding a new hearing at which the disputed testimony may be reheard.
Defendant Thompsonâs conviction and sentence are affirmed.
AFFIRMED in part, VACATED and REMANDED in part.
. At the evidentiary hearing before the magistrate judge, Powell's stepfather testified that he heard Powell ask to call his attorney three times. In contrast, one law enforcement officer testified that the most Powell did was ask whether the officers thought he needed to call his attorney; another recalled Powell and an officer having a "general conversationâ about Powellâs lawyer.
. The District Court adopted the magistrate judgeâs determination that Powell had been read his Miranda rights.
. Powell was sentenced to concurrent terms of life imprisonment, 240 months' imprisonment, and 120 months' imprisonment, followed by a period of supervised release. Thompson was sentenced to two concurrent terms of 360 monthsâ imprisonment, followed by a period of supervised release.
. The statute also allows the district court judge to "receive further evidence or recommit the matter to the magistrate judge with instructions.â 28 U.S.C. § 636(b)(1).
. The Eleventh Circuit has adopted as binding precedent all Fifth Circuit cases handed down before 30 September 1981. Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
. Testimony and demeanor are important. The Louis Court stressed the need for the fact-finder to hear and observe the witnesses personally before making credibility determinations. Louis, 630 F.2d at 1109.
. A narrow exception to the general rule might allow a district court to reject a magistrate judgeâs determinations where they contradict the record. Briefly stated, this exception might apply "when there is an 'articulable basis for rejecting the magistrate's original resolution of credibility.â â Amlong, 500 F.3d at 1250 (quoting United States v. Marshall, 609 F.2d 152, 155 (5th Cir.1980)). No such exception applies here, and no one has argued that it does.
. We note that the District Court expressly stated that it was not disputing the magistrateâs credibility findings. But it credited the view of witnesses whom the magistrate found unconvincing and drew different inferences than the magistrate judge on the basis of that testimony. Therefore, the District Court, by necessary implication, rejected the magistrate judge's credibility determination. See Louis, 630 F.2d at 1107-08; see also Amlong & Amlong, P.A., 500 F.3d at 1249 (stating that where a district court and magistrate judgeâs factual interpretations were "impossible to reconcile,ââ the district courtâs "analysis necessarily and expressly rejected the magistrate judgeâs credibility findingsââ).
. Powell raises several other claims in his appeal, but they do not amount to reversible error: whether sufficient evidence supported his conviction; whether the jury composition violated Powellâs constitutional rights; whether the District Court erred by dismissing Powellâs motion for a mistrial; whether the District Court erred in estimating the quantity of drugs; and whether Powell was properly sentenced.
Thompson's claims do not demonstrate reversible error; his conviction and sentence are affirmed. Thompson's claims raise these issues: whether the District Court erred in its evidentiary rulings at trial; whether the District Court erred by denying Thompson's motion to suppress; whether there was cumulative error affecting Thompsonâs trial; whether the District Court erred by denying Thomp *1258 son's motion to acquit; whether the District Court properly calculated and applied the sentencing guidelines; and whether Thompsonâs sentence was reasonable.