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                                                             [DO NOT PUBLISH]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

                         __________________________

                                No. 12-12989
                            Non-Argument Calendar
                         __________________________

                    D.C. Docket No. 0:11-cr-60224-DTKH-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

TYRONE CROSS,

                                                              Defendant-Appellant.

                         __________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                        __________________________
                                (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.
              Case: 12-12989     Date Filed: 10/03/2013    Page: 2 of 4


§ 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, 

, 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, 

, 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, 

, 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, 

, 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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