U.S. v. Thompson

• Citation: 422 F.3d 1285
• Decision Date: 01 September 2005
• Docket Number: No. 04-12218.,04-12218.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth Marie Morse THOMPSON, Joseph James Stratton, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

422 F.3d 1285

UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth Marie Morse THOMPSON, Joseph James Stratton, Defendants-Appellants.

No. 04-12218.

United States Court of Appeals, Eleventh Circuit.

September 1, 2005.

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Charles M. Harris (Court-Appointed), Atty. at Law, Ft. Myers, FL, Charles A. Murray, Atty. at Law, Naples, FL, for Defendants-Appellants.

Karin B. Hoppmann, Tampa, FL, for Plaintiff-Appellee.

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

Before TJOFLAT, PRYOR and ALARCÓN^*, Circuit Judges.

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 21 U.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 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,___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 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 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.

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 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.

II

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.

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. Calhoon, 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-Tosta, 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 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...