United States v. Thomas

• Decision Date: 29 April 2014
• Docket Number: No. 13–3046.,13–3046.
• Citation: 749 F.3d 1302
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Terry Allen THOMAS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

749 F.3d 1302

UNITED STATES of America, Plaintiff–Appellee,

v.Terry Allen THOMAS, Defendant–Appellant.

No. 13–3046.

United States Court of Appeals,Tenth Circuit.

April 29, 2014.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, on the brief), District of Kansas, Topeka, KS, for Plaintiff–Appellee.

Thomas D. Haney, Stevens & Brand, L.L.P., Topeka, KS, for Defendant–Appellant.

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. Terry Thomas was charged in federal court with selling crack cocaine and maintaining a place to manufacture, distribute, or use a controlled substance. He went to trial 146 days after his arraignment. At the trial, an informant (“L.H.”) testified that she had bought crack cocaine three times from Mr. Thomas. The jury apparently believed L.H. and found Mr. Thomas guilty on: (1) three counts of possession of crack cocaine with intent to distribute, and (2) two counts of using or maintaining a place for the manufacture or distribution of crack cocaine. With this finding, the court convicted Mr. Thomas and sentenced him to five concurrent prison terms of 130 months. In deciding on the sentence, the court attributed 26.91 grams of cocaine base to Mr. Thomas, assigned him a criminal-history score of 12, and enhanced the sentences for each drug offense based on the possession of a firearm.

In this appeal, we address nine issues:

• Speedy Trial. The first issue is whether the pretrial delay violated the Speedy Trial Act, 18 U.S.C. §§ 3161–3174 (2012). This statute would ordinarily require the court to begin the trial within 70 days of the filing of the indictment, and here the trial started 146 days later. But the Speedy Trial Act excludes time when pretrial motions were pending. With these exclusions, the delay was less than 70 days; thus, no statutory violation took place.

• Admissibility of L.H.'s Testimony. The second issue is whether the district court committed plain error by allowing L.H. to testify without corroboration. L.H. was impeached, but her testimony was relevant and no obvious grounds existed for exclusion; thus, the district court did not commit plain error in allowing L.H. to testify.

• Admissibility of Drug Evidence. The third issue is whether the district court erred in allowing introduction into evidence of cocaine base that L.H. said she had bought from Mr. Thomas. For introduction of the evidence, the government had to establish a chain of custody that rendered tampering improbable. Though L.H. was impeached, as stated above, the district court could reasonably determine that tampering was improbable for the cocaine base ultimately presented in court. Thus, the district court acted within its discretion in admitting the cocaine base into evidence.

• Jury Instructions. The fourth issue is whether the district court erred in instructing the jury. The indictment alleged that Mr. Thomas had used and maintained a place to manufacture or distribute cocaine base. But the district court told the jury that Mr. Thomas could be convicted if he used or maintained a place to manufacture or distribute cocaine base. Mr. Thomas challenges the instructions based on their use of the word “or” and failure to define the word “used.” Use of the word “or” was permissible even though the word “and” had been used in the indictment. And, the judge did not need to define “used,” as it is an easily understood term. Thus, the court did not err in instructing the jury.

• Sufficiency of the Evidence. The fifth issue is whether the evidence would have been insufficient to support the guilty verdict if the disputed evidence had been excluded. Because we uphold the district court's evidentiary rulings, we conclude that Mr. Thomas's sufficiency argument rests on a false premise. The district court did not err in allowing L.H. to testify and overruling Mr. Thomas's objections to the drug exhibits. This evidence, combined with the other trial evidence, was sufficient for a finding of guilt.

• Cumulative Error. The sixth issue is whether two or more of the alleged errors require reversal of the conviction based on cumulative error. As discussed elsewhere, however, the district court did not commit two or more errors related to the conviction; thus, the court did not commit cumulative error.

• Sentencing Based on Unproven Convictions. The seventh issue is whether the district court erred in sentencing Mr. Thomas based on convictions that the government had failed to prove. On this issue, we agree with Mr. Thomas that the court erred. This error stems from the sentencing guidelines, which require consideration of criminal history. Reviewing this history, the probation officer relied on convictions in 2002, 2003, 2004, 2005, 2010, and 2012. Only one of these convictions was addressed in the government's evidence. Nonetheless, the district court applied a harsher guideline range based on six of the convictions. The government concedes error, and we agree that the district court erred by relying on convictions that had not been proven.

• Sentencing Based on Conduct that Was Not Involved in the Conviction. The eighth issue is whether the district court erred in sentencing Mr. Thomas based on drug quantities and a firearm that did not factor into the conviction. In sentencing, however, the district court can rely on conduct that did not result in a conviction. Thus, the sentencing was not tainted.

• Minor Participant. The ninth issue is whether the district court should have calculated a lower guideline range based on status as a minor participant. But, this issue was inadequately briefed. Thus, we decline to address the issue.

Based on these conclusions, we uphold the conviction, but reverse and remand for resentencing.

I. Speedy Trial

In part, Mr. Thomas challenges his conviction under the Speedy Trial Act. Appellant's Opening Br. at 21–23. This statute ordinarily requires a defendant's trial to begin within 70 days of the arraignment. 18 U.S.C. § 3161(c)(1) (2012). Though Mr. Thomas's trial started 146 days after his arraignment, the district court denied his motion to dismiss. In reviewing this decision, we engage in:

• de novo review regarding compliance with the Speedy Trial Act and

• review for abuse of discretion over denial of the motion to dismiss.

United States v. Vogl, 374 F.3d 976, 983–84 (10th Cir.2004).

Without any exclusions, the 146–day period between Mr. Thomas's arraignment and the beginning of trial would violate the Speedy Trial Act. But the Act excludes certain blocks of time from the 70–day period, and four time periods are excludable here: ¹

• June 12, 2012, to June 21, 2012 (9 days);

• August 21, 2012, to October 30, 2012 (70 days);

• October 30, 2012, to November 1, 2012 (2 days); and

• November 1, 2012, to November 5, 2012 (4 days).

Thus, the Speedy Trial Act excludes 85 of the 146 days between Mr. Thomas's arraignment and the beginning of his trial, leaving 61 days. Because the 61–day period did not exceed 70 days, the delay did not violate the Speedy Trial Act.

First, the 9–day period of June 12, 2012, to June 21, 2012, was excludable. During this period, the last of Mr. Thomas's codefendants had not yet been arraigned. Though Mr. Thomas had been arraigned on June 12, 2012, the Speedy Trial Act excludes reasonable periods of delay when defendants are joined for trial and does not start until the last defendant is arraigned. See id. § 3161(h)(6); United States v. Young, 45 F.3d 1405, 1410 n. 5 (10th Cir.1995). In Mr. Thomas's case, the last codefendant (Ms. Janaya Stewart) was arraigned on June 21, 2012, so the 70–day period began on June 21 rather than June 12.

Second, the statutory period does not include the 70 days from August 21, 2012, to October 30, 2012. This period is excluded under 18 U.S.C. § 3161(h)(6) (2012), which allows “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” When the delay is reasonable, “[a]n exclusion for delay ‘attributable to one defendant is applicable to all co-defendants.’ ” United States v. Vogl, 374 F.3d 976, 983–84 (10th Cir.2004)² (quoting United States v. Mobile Materials, Inc., 871 F.2d 902, 915 (10th Cir.1989)).

The 70–day delay was reasonable here. We require courts applying the reasonableness standard to examine “all relevant circumstances.” Id. at 984. Three factors are pertinent: “(1) whether the defendant is free on bond, (2) whether the defendant zealously pursued a speedy trial, and (3) whether the circumstances further the purpose behind the exclusion to ‘accommodate the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial.’ ” Id. (quoting United States v. Olivo, 69 F.3d 1057, 1061–62 (10th Cir.1995)).

The district court examined all relevant circumstances and correctly applied the three factors. I R. at 87. The first factor weighed against tolling the speedy trial clock because Mr. Thomas was not free on bond, but the other two factors supported tolling. Id. Mr. Thomas did not zealously pursue a speedy trial and trying the defendants separately would have required the government to prove the same facts in different trials. Id. We agree with the district court that the delay was reasonable and conclude that this 70–day period was excludable from Mr. Thomas's speedy trial calculation.

Third, the 2–day period from October 30, 2012, to November 1, 2012, is excludable under 18 U.S.C. § 3161(h)(1)(D) (2012). This provision excludes the period in which any pretrial motion is pending. 18 U.S.C. § 3161(h)(1)(D) (2012). The exclusion applies because Mr. Thomas filed a motion to dismiss that was pending on October 31 and November 1. I R. at 58–59, 85–90.

Fourth, the 4–day period from November 1, 2012, to November 5, 2012, is excluded under 18 U.S.C. § 3161(h)(1)(D) (2012). This section...