United States v. Tyrone Cross , 542 F. App'x 762 ( 2013 )

Case: 12-12989 Date Filed: 10/03/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12989
Non-Argument Calendar
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D.C. Docket No. 0:11-cr-60224-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRONE CROSS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 3, 2013)
Before WILSON, ANDERSON, and COX, Circuit Judges.
PER CURIAM:
Tyrone Cross appeals his convictions and 97-month sentence for two counts
of being a felon in possession of firearms and ammunition in violation of 18 U.S.C.
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§ 922(g)(1). On appeal, Cross raises four issues: first, that because the evidence
does not support his convictions the district court erred in denying his motions for
judgment of acquittal; second, that the district court should have granted his
motion to suppress evidence found in a wooden box in the trunk of a car because
the search was not a legitimate inventory search; third, that the district court should
have granted his motion to suppress evidence found in a safe because his detention
and arrest that led to its discovery were illegal; and fourth, that the district court
judge should have recused himself from the sentencing phase of the trial due to
bias or prejudice and improper judicial involvement in plea negotiations dealing
with uncharged criminal conduct. The Government contends that all four of
Cross’s contentions are meritless.
After a careful review of the briefs and the record, we conclude that Cross’s
first three contentions lack merit. While his first three contentions do not merit
further consideration, Cross’s fourth contention regarding the district court’s
alleged improper involvement in potential plea negotiations is sufficiently unusual
to merit some discussion.
We review the denial of a motion for recusal for an abuse of discretion.
United States v. Amedeo, 487 F.3d 823, 828 (11th Cir. 2007). When employing
the abuse of discretion standard of review, a court of appeals must affirm the
district court’s ruling unless it finds that the district court made a clear error of
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judgment. United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004). Rule
11(c)(1) of the Federal Rules of Criminal Procedure provides that the government
and the defendant “may discuss and reach a plea agreement,” but that “[t]he court
must not participate in these discussions.” Fed. R. Crim. P. 11(c)(1). We have
broadly interpreted Rule 11(c)(1)’s prohibition on judicial involvement in plea
negotiations, stating that Rule 11(c)(1) establishes a “bright line rule . . . .” United
States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996). Going further, we have said
that “simply put, district courts should not offer any comments touching upon this
subject.” United States v. Tobin, 676 F.3d 1264, 1307 (11th Cir. 2012).
But, we have also held that certain actions by district courts do not violate
this broad prohibition. Johnson, 89 F.3d at 783-84. One such action is when a
district court simply informs the defendant of his right to choose between two
courses of action while explicitly leaving the choice to the defendant, in
consultation with his attorney. Id. In this case, the district court did precisely this.
Specifically, the court stated:
I know you are [an] intelligent and thoughtful person, and, as I said
before, I think these are tough decisions, but I want you to hear it from me, I
would welcome the flexibility that would give me if you found yourself in
[the situation to assist the government in other uncharged crimes]. If you
feel you shouldn’t do that, you can’t do that, you are not able to do that, I
understand that. That is a decision you need to make yourself also seeking
[your attorney’s] advice and help in that regard.
(R.5-91 at 760-62.)
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No plea discussions were ongoing at the time of the district court’s
statement, and Cross had been convicted. Rule 11(c)(1) broadly serves: (1) to
avoid the coercion that inevitably occurs when the court involves itself in plea
negotiations or potential plea negotiations; (2) to protect the integrity of the
judicial process; and (3) to protect the judge’s impartiality. Johnson at 782-83.
Thus, Rule 11(c)(1) could apply even though no plea negotiations are currently
underway. However, in this instance, the district court’s statement did not
undermine the rule’s purposes. We conclude that the district court did not abuse its
discretion in denying Mr. Cross’s request for recusal.
We affirm Cross’s convictions and sentence.
AFFIRMED.
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