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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 1:94-cr-01009-MP-AK

ALBERT THOMAS MADRID,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 972, motion to vacate, and Doc. 1029, motion to

amend, filed by Albert Thomas Madrid. He has also filed a notice of joinder in grounds raised

by the co-defendant Knock. Doc. 992. He is represented by counsel. The Government has filed

its responses to the motions, Docs.1003 and 1033, and a notice of supplemental authority, Doc.

1020, and Madrid has filed a reply to the Government’s § 2255 response and to the its response

to the motion to amend. Docs. 1015 & 1038. This cause is therefore in a posture for decision. 

Having carefully considered the matter, the Court recommends that the motion to vacate be

denied.

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1

Duboc pled guilty in 1994, and was sentenced to life imprisonment. Doc. 387.

2

Darmon, a French citizen, was never apprehended and died in Corsica in 2001. Doc.

1022, Ex. The charges against him were dismissed on April 27, 2006. Doc. 1023

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BACKGROUND

On March 10, 1994, John Richard Knock, Claude Louis Duboc,1 and Roger Darmon2

were indicted for drug and money laundering offenses. Doc. 2. In Count I, the Government

charged that “from a date unknown but at least by January 1, 1982, and continuing up to and

including the date of this indictment, in the Northern District of Florida and elsewhere,” the

defendants conspired to possess with intent to distribute marijuana in violation of 21 U.S.C. § §

841 and 846. In Count II, the Government charged that during this same time period and in the

same locale, the defendants conspired to import marijuana into the United States “from a place

outside thereof” in violation of 21 U.S.C. § § 952, 960, and 963. Id. In Count III, the

Government reiterated the time period and location, charging the defendants with conspiracy to

“transport funds from a place in the United States to a place outside the United States, which

activity was to be conducted with the intent to promote carrying on of a specified unlawful

activity,” in violation of 18 U.S.C. § 1956. Id. Count IV sought the criminal forfeiture of

illegally derived property. Id.

Knock was arrested by French officials in Paris, France, on April 17, 1996. Presentence

Report for John Richard Knock at ¶ 35. After a lengthy extradition process, he was returned to

the United States in January, 1999. Id. On February 17, 1999, a Superseding Indictment was

filed. Doc. 414. The Superseding Indictment added the instant defendant, Albert Thomas

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3

Madrid was arrested on May 10, 1996 in Mexico on Canadian warrants. Knock PSR at

¶ 36. He was extradited to Canada, where he pled guilty to possession with intent to distribute

hashish and was sentenced to six years imprisonment. Id. After serving four years, Canadian

authorities turned him over to the United States. Id.

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Madrid,3 clarified the dates of the charges to “from a date unknown but at least by January 1,

1982, and continuing up to and including April 17, 1996,” and specified the overt acts in the

money laundering count, Count III. Id. Knock was represented by Michael Kennedy; Madrid,

by Randolph Daar.

In August, 1999, the Government moved to disqualify Mr. Kennedy from further

representation of Mr. Knock. Doc. 510. After hearing, the Court denied the motion to

disqualify, and at a subsequent Garcia hearing, Knock waived any conflicts. Docs. 529 & 550.

Trial finally commenced on May 2, 2000, against Knock and Madrid. 

On the fifth day of trial, the day opened with a discussion regarding a plea agreement

between the co-defendant Madrid and Canadian authorities. Madrid’s attorney objected to its

introduction because it contained “a prejudicial statement of facts that the government prepared

and attached as an addendum to the plea agreement.” Doc. 878 at 6. Kennedy objected on

Knock’s behalf on hearsay grounds and also argued that introduction of the agreement deprived

him of “any right of confrontation even if they attribute those statements to Mr. Madrid.” Id. He

also pointed out that the statements were “made post-conspiracy by Mr. Duboc and by other

people who have already been arrested and therefore cannot be in furtherance of the conspiracy.” 

Id. In response, the Government argued that as to Madrid, the plea agreement qualified as a

statement of a party opponent, admissible as an exception to the hearsay rules. Id. at 7-8; see

Fed. R. Evid. 801(d)(2) (statements which are not hearsay include admission by party-opponent).

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The Government also cited Fed. R. Evid. 410 for the proposition that statements made during

plea negotiations which actually result in a guilty plea are admissible at trial. Id. at 7. As to

Knock, the Government agreed that redaction would be necessary to cure any possible Bruton

problems. Id. at 8. Mr. Kennedy then requested additional time so that he and Mr. Daar could 

“do a little research” but agreed that “in terms of the Bruton problems, [the Government] is

absolutely right.” Id. at 8.

Daar pointed out that Madrid did not sign Appendix A, and while he agreed that “the

government can introduce the fact that my client pled guilty and was sentenced [in Canada],” he

argued that it could not “introduce through my client the statement against interest which is

made by the government and submitted as an appendix to the plea agreement.” Id. at 10. In

response, the Government argued that Madrid “clearly adopted Appendix A by signing the plea

agreement.” Id. at 11. Daar disputed this contention. Id. In light of questions from the Court,

Daar continued:

I’m not certain...from this document whether or not [Madrid’s Canadian] attorney

did agree to what is in Appendix A.

Secondly, I do not believe that the attorney can bind Mr. Madrid into a statement

by this first paragraph.

Thirdly, I think it would be an incident of double hearsay at this point.

Id. at 12.

 The following day, the arguments continued after the Government proffered the

agreement outside the presence of the jury. At that time, Daar focused on the language of the

documents to conclude that it could not be presumed that Madrid had signed Appendix A

through his attorney and that Appendix A was not a statement made by Madrid but was a

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statement created by the prosecution “full of information that Mr. Madrid could not have given

them and could not have known whether it’s true or not, information about what the government

did, what other people did and so forth.” Id. at 59-62. He also argued that the statement should

not be admitted because of collusion between Canadian and United States prosecutors. Id. at 63. 

He then points out that although the Government knew ahead of trial that the plea agreement

would be an issue, it did not tell him about its intentions until the “last minute” when it showed

him “20 boxes in a room and said anything in that room can be introduced....” Id. at 64-65. Mr.

Daar then asked for a hearing “to talk to the government lawyers, to law enforcement and find

out if [there] was any coercion” because he only “found out about it yesterday” and because

there was “pressure on us to finish....” Id. at 65. He pointed out that this was a Canadian plea,

and he needed time to investigate and research the issues:

Was a statement made voluntarily? What are the laws in Canada? What did Mr.

Madrid’s counsel advise him?

* * *

I think I would be entitled to a hearing with Mr. Givens who was the attorney in

Canada to find out actually what Mr. Madrid was told with respect to this

statement, whether he adopted it or not.

Id. Daar then turned his argument to whether the probative value of the plea agreement

document itself, particularly Appendix A, outweighed the danger of unfair prejudice. Id.; see

also Fed. R. Evid. 403. More particularly, he stated:

[I]f this document gets in and the government succeeds in drawing the inference

that they want, which is that: Gee, all of this is true, because Madrid signed it, it

puts me in a terrible position.

I think it’s a very prejudicial document. It contains so many things outside of my

personal knowledge, including things that the government did. The government

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4

There are numerous spellings of counsel’s name throughout the record, and therefore,

for consistency, the Court has chosen the spelling which appears most frequently, “Givens.”

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has ample proof of everything that is in here.

We’ve heard ad nauseam proof about Vancouver. They get the plea in, what is

the...probative value of the appendix?

Id. at 66.

In response, the Government explained that it had told counsel in August, 1999, that it

would be offering the Canadian agreement into evidence. Id. at 67. It then argued that Daar’s

arguments “go to the weight of the evidence, not its admissibility.” Id. 

Kennedy also continued to press his arguments against admissibility of the plea

agreement, pointing out as well that the factual statement was not a statement by Madrid but

instead “a conglomeration and synthesis of a tremendous amount of very prejudicial

information.” Doc. 879 at 72. He also argued that the statement of facts was “not made in

furtherance of the conspiracy” but was a “narrative discussion of past events made by people

who have already made deals.” Id. He also argued that the probative value of the plea

agreement was limited “because there is very little...in here that hasn’t already been attested to

by other Mounties or by other witnesses here. Whereas the prejudicial value is extremely great.” 

Id.

Later, Mr. Daar proffered the following:

[I]f Mr. Madrid’s [Canadian] lawyer, David [Givens]4

 was subpoenaed to this

court, that he’d testify that he told Mr. Madrid that the Appendix statement A

could not and would not be attributed to him in any proceeding based on his

understanding of the law at the time that this agreement was signed.

Id. at 80. In response, the Court told Daar to “[h]ave him here Tuesday morning or put your

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client on the stand.” Id. Mr. Daar advised the Court that he would try to obtain counsel’s

appearance to “provide the Court with...credible authority...that it was not an adoption....” Id. at

81.

On the tenth day of trial, the Government offered the plea agreement with appendices

into evidence as GX-135. Doc. 883 at 8. It had been “redacted to remove reference to Mr.

Knock.” Id. While Kennedy agreed that with the redaction, there were no further Bruton

problems with the agreement, he did not “waive [the] fundamental objection to its admissibility.” 

Id. Mr. Daar advised the Court that he could not secure Canadian counsel’s presence “absent

some need for the Court to have him here.” Id. at 9. He then addressed contentions made by a

Government declarant regarding Appendix A:

[T]he one thing unaddressed by the Government’s declaration, which I know is

important in the Court’s reasoning, is the agency principle by which Mr. Madrid’s

attorney signed the agreement. The Court brought that up at the first hearing on

this. And in the declaration of Mr. Givens, I believe that he clearly states that he

had, in essence, a conditional agency from Mr. Madrid.

And that it was...Mr. Madrid’s understanding that his signature would not bind

Mr. Madrid to the agreement as to the government’s statement of facts, which I

think removes any admission based on the agency, since the agency was limited

and conditional.

* * *

Lastly, I would offer to the Court that the government attorney says that it was her

understanding that Givens and Madrid agreed to these submitted facts. There is

no affirmative statement in that that she discussed specifically this issue with Mr.

Givens, or that Mr. Givens said to her: I have authority to sign this. I have

authority to accept this statement of facts.

If Mr. Givens had said such a thing to her, she would have said, rather than–it’s

my understanding she would say: I recall that Mr. Givens represented to me that

he had authority to accept these facts on behalf of Mr. Madrid.

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Id. at 9-10. He continued:

[Mr. Givens] says: I assured Mr. Madrid, prior to receiving authority to sign the

agreement, that my signature would not constitute an admission. That would be

an affirmative statement rather than just it was assumed between Mr. Madrid and

I.

So I think there is an uncontradicted affirmative statement before this Court as to

the limitations on the agency and as to both Mr. Givens’s and Mr. Madrid’s

understanding that the signature would not bind Mr. Madrid to that statement of

facts.

Lastly....I don’t believe [Appendix A] adds anything of significant evidentiary

value.

* * *

[T]here really isn’t significant new evidence that this jury hasn’t heard in one

form or another from a hundred or so witnesses and 260 exhibits. It tends to be

cumulative, repetitive and a summary almost.

And, hence its evidentiary value is very limited. Unfortunately, it contains

numerous statements about facts which Mr. Madrid could not possibly have

knowledge about. And I think it’s highly prejudicial for this jury to...believe that

Mr. Madrid adopted those statements which he had no information about while he

was in Mexico through his attorney in a limited agency situation.

I think it’s very, very prejudicial. And I would urge the Court to reconsider its

initial feelings on the matter.

Id. at 10-11.

The Court then admitted the plea agreement, finding that the “redacted version cures

Bruton.” Id. at 16. 

 While drafting jury instructions, the Court became concerned about “the legal soundness”

of Knock’s defense offered in opening statements. Doc. 609. In particular, the Court was

concerned about Count I, because neither § 841 nor § 846 specified a “locus delicti,” and it was

considering giving an instruction to the effect “that, if the evidence shows beyond a reasonable

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doubt that Defendants conspired to possess marijuana with the intent to distribute, then the jury

may find Defendants guilty–regardless of the location of the conspiracy.” Id. The Court

therefore sought the parties’ input on this issue, as well as on the questions of venue and

improper amendment of the Superseding Indictment. Id.

Over Defendants’ objections, the jury was charged in part that “venue may exist in the

district where any co-conspirator is arrested or first brought,” if it found that the charged

conspiracy and the overt acts of that conspiracy “occurred entirely or almost entirely outside of

territory of the United States....” Doc. 642. The Court later memorialized its reasoning with

respect to the giving of this instruction. Doc. 667. The Court also instructed the jury that the

defendants had raised a statute of limitations defense, and it instructed the jury that

thecontrolling statute of limitations was five years. Doc. 642. It then calculated the limitations

period as to Knock from the date of the initial Indictment, March 10, 1994, extending back to

March 19, 1989. Id. 

On May 30, 2000, the jury, after specifically finding venue properly lay in this District on

all counts as to both Defendants, convicted Knock on Counts I, II, and III and Madrid only on

Count I. Docs. 644 & 646. On the following day, the jury found that Knock had obtained $438

million and Madrid had obtained $8.8 million “from [their] illegal drug activity during and in

furtherance of the conspiracy.” Doc. 655.

Before sentencing, Madrid submitted a sentencing memorandum challenging the

probation officer’s recommendation of a 324-405 month sentence and an upward departure

because the “drug quantity is at least ten times the minimum quantity required for Level 38,”

arguing that because the Superseding Indictment did not contain a drug quantity, under

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Apprendi, which had been decided less than a month after the jury’s verdict, he could not be

sentenced based on drug quantities that were not proven and found by the jury beyond a

reasonable doubt. Doc. 674. He argued, instead, that he should be sentenced under 21 U.S.C. §

841(b)(1)(D), with a maximum sentence of five years, and that no upward departure was

warranted. Id. Alternatively, he requested that the Court sentence him to a term of 235 months. 

Id. 

In response, the Government pointed out that Madrid “did not object to the court’s jury

instruction regarding the elements of the offense...or to the court’s verdict form,” and thus, he

could not now raise the issue unless he made a showing of plain error. Doc. 676. The

Government argued that the evidence “was overwhelming that the defendants were responsible

for over 1,000 kilograms of marijuana,” and thus, Madrid could not show plain error. Id.

Subsequently, the Court issued an Order directing the parties to answer a series of

questions related to Apprendi, including, inter alia: (1) whether the Superseding Indictment was

defective and if so whether the defect was jurisdictional, (2) whether the Court had the discretion

to empanel a second jury solely to determine drug quantity, (3) whether the harmless error

standard applied, and (4) whether the defendants waived any objections to the allegedly

defective indictment. Doc. 682.

Following briefing, the Court, relying on United States v. Nealy, 232 F.3d 825 (11th Cir.

2000), found no Apprendi error with regard to Count III and though there was error regarding the

Court’s failure to instruct the jury regarding drug quantities with regard to Counts I and II, the

error was harmless since, based on the overwhelming evidence presented, “no reasonable jury

could have rationally concluded that Defendants were guilty of the substantive

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offenses–conspiracy to possess with intent to distribute marijuana or conspiracy to import

marijuana–without also concluding that the amount of marijuana possessed was more than 1000

kilograms.” Doc. 702.

Madrid was subsequently sentenced to life imprisonment on Count I, the only count for

which he was convicted. Docs. 718 & 728. Madrid appealed, and Daar continued to represent

him. See Doc. 724.

On appeal, Madrid raised several errors. He first complained that the Court

constructively amended the Superseding Indictment or, alternatively, that there was insufficient

evidence to support the jury’s verdict “that there was an overt act in furtherance of the

conspiracy in the Northern District of Florida.” Doc. 935. The court found that the allegation

that the conspiracy occurred in this District “and elsewhere” was sufficient, but it also concluded

that the evidence supported a finding that an overt act occurred in this District, pointing to

testimony that Nicholas Grenhagen, “an individual who worked for the charged drug

organization” met with the DEA agent in Gainesville, Florida, and that several unindicted coconspirators made phone calls to the agent in Gainesville as well. Id. Thus, there was no error. 

Id. See also United States v. Grenhagen, GCR 93-1043-MMP (N.D. Fla.); United States v.

Duboc, 1:94cr1009-MMP (N.D. Fla.) at Doc. 349 (rejecting challenge to venue in original

Indictment in this case, finding it to be triable issue of fact, and citing testimony from Grenhagen

trial regarding series of meetings and correspondence between various members of conspiracy

during which they discussed plans to off-load, into United States, large quantity of marijuana

with at least one of these meetings taking place in Northern District of Florida).

Second, Madrid contested the introduction of his Canadian plea agreement, arguing that

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“his Canadian attorney did not have authority to sign the plea agreement if the facts alleged in

Appendix A were intended to have been deemed admitted.” Id. “The facts stated in Appendix A

summarized the plea to the Canadian drug conspiracy and was prepared by Canadian prosecutors

relying upon reports gathered by Royal Canadian Mounted Police Officers.” Id. Furthermore,

Madrid contended that the fact that Appendix A was the only appendix he himself did not sign

showed that it was not intended to be a part of the plea agreement. Id. The Eleventh Circuit

found that the Court did not abuse its discretion in admitting the plea agreement. Id. It found

that the evidence supported a finding that Appendix A was an essential part of the plea

agreement, including testimony from twenty-two Canadian officers regarding the facts in

Appendix A. Id. The court also found that if there was error in admitting the agreement, it was

harmless given the “overwhelming evidence presented in the lengthy criminal trial against

Madrid....” Id. 

Madrid also challenged the Court’s exclusion of testimony during trial from Madrid’s

mother. Id. The Court rejected this argument. Id. Finally, Madrid challenged his sentence on

Apprendi grounds, which the court of appeals rejected, holding:

In view of the overwhelming record evidence of the massive drug conspiracy

alleged in this case, no reasonable juror could have found the defendants guilty of

conspiracy to possess with the intent to distribute marijuana from 1982 and 1996

without finding the minimum 1,000 kilograms threshold to impose a life sentnece

under 21 U.S.C. §§ 841(b)(1)(A)(vii), 846.

Id.

The instant motion to vacate followed. On this occasion, Madrid presents claims related

to (1) Booker/Blakely/Apprendi and (2) the introduction of Madrid’s plea agreement. Doc. 972. 

He also joins Knock’s arguments regarding counsel’s failure to object to or request a limiting

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instruction regarding evidence of foreign drug imports and Booker. Doc. 992. Over 14 months

after the Government filed its response to the motion to vacate, Madrid sought leave to amend

after he secured new counsel. Doc. 1029. In the proposed amended motion, he adds three

claims: (1) that Mr. Daar had a conflict of interest in representing Madrid because he could have

testified as a witness regarding Madrid’s “withdrawal from marijuana related activities in 1993,”

(2) that Daar had a conflict of interest in representing Madrid because he could have testified as

a witness regarding his own advice to Madrid “regarding the consequences of the [Canadian]

plea...and that the plea will not constitute an admission, adoptive or otherwise, to the Canadian

prosecutor’s factual summary identified as Appendix A,” and (3) that the Court erroneously

instructed the jury regarding withdrawal from a conspiracy and counsel was ineffective in failing

to object to the instruction and to raise the issue on appeal. Doc. 1031.

DISCUSSION

The Court begins with the question of the proposed amendment. It obviously has been

filed after the expiration of the usual one-year statute of limitations for seeking § 2255 relief, see

28 U.S.C. § 2255(1) (one-year limitations period for seeking § 2255 relief runs from the date on

which judgment of conviction becomes final), and Defendant does not argue that the claims are

timely under any other subsection of the statute. Thus, because the proposed claims are facially

untimely, they are barred unless they “relate back” to the original filing pursuant to Fed. R. Civ.

P. 15(c). Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000). The new claims

“will relate back and be considered timely if they ‘arose out of the conduct, transaction, or

occurrence’ set forth in his original § 2255 motion.” Davenport, 217 F.3d at 1344. For relation

back to apply, the untimely claim must “have more in common with the timely filed claim than

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the mere fact that they arose out of the same trial and sentencing proceeding.” Id. Rather, the

untimely claim “must have arisen from the ‘same set of facts’ as the timely filed claim, not from

separate conduct or a separate occurrence in ‘both time and type.’” Id. Rule 15(c) is not “so

broad as to allow an amended pleading to add an entirely new claim based on a different set of

facts.” Pruitt v. United States, 274 F.3d 1315, 1318 (11th Cir. 2001). Thus, while the rule

“contemplates that parties may correct technical deficiencies or expand facts alleged in the

original pleading, it does not permit an entirely different transaction to be alleged by

amendment.” Pruitt, 274 F.3d at 1318.

Indisputably, any claim that the Court erred in its instructions to the jury is a substantive

claim which is time-barred. It is a totally new claim unrelated to any others pled in the original §

2255 motion, and thus, it does not relate back to the original pleading. As to the related claim

that counsel was ineffective for failing to object to the allegedly erroneous instruction, it too is a

totally new claim. Though Madrid has joined Knock’s claim that counsel ineffectively failed to

object to the admission of evidence of foreign importations or to request a limiting instruction in

that regard, this limited reference to the Court’s instructions to the jury is insufficient, in this

Court’s view, to show that it arose from the same set of facts so that it should relate back to any

timely pled claim.

Regarding the other two ineffective assistance claims, both of which deal with whether

Mr. Daar represented Defendant while he labored under a conflict of interest, they too are timebarred and do not relate back to any of the previously filed claims. While Madrid has raised the

issue of counsel’s effectiveness with regard to his handling of Appendix A, these proposed

conflict of interest claims are totally new claims of ineffectiveness and have nothing in common

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with the timely filed claim except that they involve Mr. Daar and his representation during the

trial of this case. In short, they involve matters which represent separate conduct both in time

and type, and thus, they do not relate back.

The motion to amend should therefore be denied, and the Court turns to the issues raised

in the motion to vacate.

1. Booker/Blakely/Apprendi.

Defendant claims that he is entitled to be resentenced pursuant to Booker, Blakely, and

Apprendi. Defendant presented an Apprendi argument on appeal, which the Eleventh Circuit

rejected. It will not be reconsidered here. United States v. Nyhuis, 211 F.3d 1340, 1343 (11th

Cir. 2000), cert. denied, 531 U.S. 1131 (2001). Furthermore, the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220, 244 (2005), is not retroactively applicable to cases on

collateral review, as “Booker’s constitutional rule falls squarely under the category of new rules

of criminal procedure that do not apply retroactively to § 2255 cases on collateral review.” 

Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005). 

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 2. Canadian plea agreement.

In this claim, Madrid charges that Mr. Daar rendered ineffective assistance by failing at

trial and on appeal “to investigate, research, and present factual information and controlling legal

authority which would have excluded Appendix A of the Canadian agreement from evidence,

and the admission of Appendix A into evidence prejudiced [him].” In support of this claim, he

submits the declaration of Ian Donaldson, Queen’s Counsel, who practices criminal law in

British Columbia. According to Donaldson, the declaration from Defendant’s Canadian attorney

submitted by Mr. Daar to the Court during trial was a correct interpretation of the effect of

Appendix A: “[A]s a matter of Canadian law, under the Plea Agreement...Mr. Madrid agreed to

the terms of the agreement itself through his counsel, but neither Mr. Madrid nor his counsel

agreed to nor adopted the ‘statement of facts’ attached to the agreement as ‘Appendix A.’” Doc.

972, Attach. 2. In his opinion, the declaration from the Government’s declarant was “wrong”

and “inaccurate” and “grossly overstate[d] the law in Canada.” Id.

In this Court’s view, Donaldson’s affidavit, rather than supporting a claim of

ineffectiveness, actually shows that Mr. Daar acted effectively in his attack on Appendix A. At

most, he has shown that neither this Court nor the Eleventh Circuit should have given any credit

to the Government’s witness. This, however, is a far cry from showing that Mr. Daar acted

ineffectively. Assuming Mr. Donaldson is correct, the Court erred, not Mr. Daar, and counsel

cannot be found ineffective merely because the Court rejects his arguments and rules against

him.

Furthermore, as the Eleventh Circuit found, even if the Court erred in admitting the

document, and even if the undersigned assumes that counsel acted deficiently in his attack on

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Appendix A, Defendant was not prejudiced thereby because, in the words of the court of appeals,

there was “overwhelming evidence presented in the lengthy criminal trial against Madrid....” 

3. Failure of counsel to object to admission of evidence of foreign importations or to

request limiting instruction.

During trial, the Government presented evidence not only of drug importations into the

United but also of importations into Australia, Canada, and Holland. According to Defendant, as

more fully set forth in Knock’s motion to vacate, counsel should have objected to this evidence

or, at the very least, have requested a limiting instruction. This claim is without merit, as the

evidence of the foreign importations was useful to the defense that there were multiple drug

conspiracies involving various players and different locales and time periods and that Defendant

had withdrawn from any conspiracy to import drugs into the United States. If counsel had

objected to the evidence, he would have been cutting off that line of defense completely, and in

light of the overwhelming evidence of Defendant’s guilt, no reasonable attorney would have

wanted to cut off any conceivable manner of securing acquittal for his client. Even so, the

evidence was admissible, at the very least, to “complete the story of the crime,” United States v.

Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995), and counsel’s objection to it would have been

overruled.

4. Booker.

Madrid adopted only the second part of Defendant’s Booker claim, but as set forth

previously, the claim is not well taken. Apprendi arguments were made and rejected on appeal,

and Booker is not retroactively applicable to cases on collateral review.

Case 1:94-cr-01009-MP-GRJ Document 1048 Filed 02/22/08 Page 17 of 18
Page 18 of 18

Case No: 1:94-cr-01009-MP-AK

CONCLUSION

As none of Defendant’s claims have merit, the Court respectfully RECOMMENDS:

That the motion to amend, Doc. 1029, be DENIED;

That the motion to vacate, Doc. 972, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 22nd day of February, 2008.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

Case 1:94-cr-01009-MP-GRJ Document 1048 Filed 02/22/08 Page 18 of 18