United States v. Elizabeth Marie Morse Thompson

422 F.3d 1285, 2005 U.S. App. LEXIS 18985, 2005 WL 2099784
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 1, 2005
Docket04-12218
StatusPublished
Cited by189 cases

This text of 422 F.3d 1285 (United States v. Elizabeth Marie Morse Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Elizabeth Marie Morse Thompson, 422 F.3d 1285, 2005 U.S. App. LEXIS 18985, 2005 WL 2099784 (11th Cir. 2005).

Opinions

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 [1288]*1288her 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 Sheriffs 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.

[1289]*1289On 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. Strat-ton 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. Strat-ton 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.

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Cite This Page — Counsel Stack

Bluebook (online)
422 F.3d 1285, 2005 U.S. App. LEXIS 18985, 2005 WL 2099784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-elizabeth-marie-morse-thompson-ca11-2005.