USA v. Bobby Ricky Madison

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14541
Non-Argument Calendar
________________________
D.C. Docket No. 0:11-cr-60285-RSR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY RICKY MADISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 22, 2016)
Before JORDAN, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:
Case: 13-14541 Date Filed: 02/22/2016 Page: 1 of 6

-- 1 of 6 --

2
Bobby Ricky Madison appeals his conviction and sentence for conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); attempted Hobbs
Act robbery, in violation of 18 U.S.C. §§ 2 and 1951(a); and carrying and using a
firearm during and in relation to a crime of violence, and possessing a firearm in
furtherance of such a crime, in violation of 18 U.S.C. § 924(c)(1)(A). In support of
his request that we vacate his conviction, Madison argues that the district court
erred in denying his motion to suppress his cellphone records and that the district
court abused its discretion in refusing to give the jury a limiting instruction
regarding a co-conspirator’s statement. In support of his request that we vacate his
sentence, Madison argues that the district court abused its discretion in denying
Madison’s motion for recusal and reassignment to another judge for sentencing,
that the district court improperly relied upon acquitted and uncharged conduct to
enhance Madison’s offense level under the Sentencing Guidelines, and that
Madison’s sentence is substantively unreasonable. After review,1 we affirm
Madison’s conviction but vacate Madison’s sentence and remand for resentencing.
1 When considering the denial of a motion to suppress, we review for clear error the
district court’s factual findings, construing all facts in the light most favorable to the prevailing
party below, and review de novo the district court’s application of the law to the facts. United
States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008).
We review for abuse of discretion both the district court’s refusal to give a requested jury
instruction, United States v. Morris, 20 F.3d 1111, 1114 (11th Cir. 1994), and the district court’s
denial of a motion for recusal, United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999).
Case: 13-14541 Date Filed: 02/22/2016 Page: 2 of 6

-- 2 of 6 --

3
As Madison concedes in his reply brief, a recent decision of this Court
forecloses Madison’s Fourth Amendment argument. See United States v. Davis,
785 F.3d 498, 513 (11th Cir. 2015) (en banc) (holding that the Government’s
obtaining cellphone tower records from a provider under the SCA does not
constitute a search under the Fourth Amendment). Madison urges this Court to
nevertheless find error in the district court’s refusal to suppress Madison’s
cellphone tower records based upon the Government’s alleged failure to meet the
threshold requirements of the Stored Communications Act (SCA), 18 U.S.C.
§ 2701 et seq. Even if the Government failed to meet the SCA’s requirements,
exclusion would not be an available remedy. Unless the statute at issue provides
for exclusion, we do not apply the exclusionary rule to non-constitutional
violations of law. United States v. Thompson, 936 F.2d 1249, 1251 (11th Cir.
1991). Under the SCA, a victim of improper data collection has several remedies
available, but suppression of evidence is not among them. See 18 U.S.C. §§ 2707,
2708, 2712. Therefore, the district court did not err in denying Madison’s motion
to suppress his cellphone records.
At trial, Madison objected not to the admissibility of his alleged co-
conspirator’s post-arrest statement to police but to the district court’s refusal to
give a limiting instruction similar to that in Bruton v. United States, 391 U.S. 123
(1968). Madison asked that the district court instruct the jury as follows:
Case: 13-14541 Date Filed: 02/22/2016 Page: 3 of 6

-- 3 of 6 --

4
If the Government offers evidence that this Defendant made a
statement or admission to someone, or that an alleged Participant
made a statement or admission to someone after being arrested or
detained, you must consider that evidence with caution and great care.
You must decide for yourself (1) whether the Defendant or alleged
Participant made the statement, and (2) if so, how much weight to
give to it. To make these decisions, you must consider all the
evidence about the statement – including the circumstances under
which it was made.
Any such statement of an alleged Participant is not evidence about
this Defendant.
Invoking Bruton, Madison urges this Court to find error in the district court’s
refusal to give the instruction.
Madison’s argument lacks merit. First, this proposed instruction makes little
sense in the context of a lone defendant. If the statement of Madison’s co-
conspirator is not evidence about Madison, then the statement should never have
been admitted. Madison conceded admissibility and therefore conceded that the
statement is “evidence about this Defendant.” See United States v. Silverman, 745
F.2d 1386, 1399 (11th Cir. 1984) (“A court need not grant a requested instruction
that does not concern issues properly before the jury or would tend to confuse it.”).
Second, to the extent Madison attempts to raise a Confrontation Clause issue,
Madison’s argument is foreclosed by his insistence that the co-conspirator’s
statement was not hearsay because it was not offered for the truth of the matter
asserted. See United States v. Jiminez, 564 F.3d 1280, 1286–87 (11th Cir. 2009)
Case: 13-14541 Date Filed: 02/22/2016 Page: 4 of 6

-- 4 of 6 --

5
(emphasis in original) (“There can be no doubt that the Confrontation Clause
prohibits only statements that constitute impermissible hearsay.”). Therefore, the
district court did not abuse its discretion in declining to give Madison’s proposed
instruction.
Although we affirm Madison’s conviction, we vacate Madison’s sentence
and remand for resentencing. After his conviction and under the protection of a
proffer agreement, Madison met with representatives of the Government to provide
the Government with potentially valuable information. Under the proffer
agreement, the Government was not permitted to use Madison’s post-conviction
statements in determining Madison’s sentence. The Government concedes that it
inadvertently breached the proffer agreement by including references to Madison’s
post-conviction statements in sentencing-related filings to the district court. Upon
Madison’s motion to strike and for recusal, the district judge agreed to strike the
Government’s filings but declined to recuse herself, reasoning that she could
disregard the inadvertently disclosed information. This was an abuse of discretion.
See United States v. Foster, 889 F.2d 1049, 1056 (11th Cir. 1989) (citing
Santobello v. New York, 404 U.S. 257, 262 (1971)) (“[I]t makes no difference
whether the judge was (or was not) influenced by information divulged through the
government’s breach . . . . Under these circumstances, the only available and
sufficient remedy is to require specific performance of the agreement, which
Case: 13-14541 Date Filed: 02/22/2016 Page: 5 of 6

-- 5 of 6 --

6
means that [the defendant] must be resentenced by a different judge.”). On
remand, Madison is to be sentenced by a district judge who lacks knowledge of
Madison’s post-conviction statements. Because we vacate and remand for
resentencing on this basis, we do not address Madison’s challenges to the
procedural2 and substantive reasonableness of his sentence.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
2 Madison argues, among other things, that the district court erred by determining the
particular object offenses Madison conspired to commit under the preponderance of the evidence
standard. See United States v. McKinley, 995 F.2d 1020, 1026 (11th Cir. 1993) (“The sentencing
court makes this determination as if ‘it were sitting as a trier of fact,’ which is to say that the
court must find beyond a reasonable doubt that the defendant conspired to commit the particular
object offense.”).
Case: 13-14541 Date Filed: 02/22/2016 Page: 6 of 6

-- 6 of 6 --