U.S. v. Thomas

• Decision Date: 29 January 2010
• Docket Number: No. 08-3946.,08-3946.
• Citation: 593 F.3d 752
• Parties: UNITED STATES of America, Appellee, v. Dwight A. THOMAS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

593 F.3d 752

UNITED STATES of America, Appellee, v. Dwight A. THOMAS, Appellant.

No. 08-3946.

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2009.

Filed: January 29, 2010.

Kent E. Gipson, Law Office of Kent Gipson, LLC, Kansas City, MO, argued, for appellant.

Dwight A. Thomas, Terre Haute, IN, pro se.

Justin G. Davids, Spec. Asst. U.S. Atty., Kansas City, MO, argued (Matt J. Whitowrth, Acting U.S. Atty., Catherine A. Connelly, Asst. U.S. Atty., on the brief), for appellee.

Before MURPHY, HANSEN, and BYE, Circuit Judges.

HANSEN, Circuit Judge.

Dwight A. Thomas appeals a judgment entered on a jury verdict finding him guilty of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and possessing with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and § 851. Thomas challenges the district court's¹ decision to admit evidence surrounding a subsequent arrest, as well as the sufficiency of the evidence adduced at trial to convict him. We affirm.

I.

On April 1, 2004, after conferring with a confidential informant, Kansas City Police Department Detective Luis Ortiz commenced an investigation of suspected crack cocaine trafficking near the 6100 block of Olive Street in Kansas City. On April 2, Detective Ortiz met with the confidential informant to observe the informant arrange to purchase crack cocaine from a suspected drug dealer. Detective Ortiz watched the informant dial phone number xxx-xxx-9980, and the detective listened as the informant arranged to purchase one hundred dollars' worth of crack cocaine.

Detective Ortiz then prepared the informant to purchase the drugs from the suspect. The detective equipped the informant with a transmitting device. Detective Ortiz searched the informant for drugs or weapons. Finding none, he provided the informant with five twenty dollar bills, which the detective had previously photocopied to record the serial numbers. The detective instructed the informant to purchase one hundred dollars' worth of crack cocaine—as arranged in the earlier telephone call—and to arrange a future purchase of two additional ounces of crack cocaine.

At approximately 12:20 p.m. that same day, Detective Ortiz drove the informant to the 6100 block of Olive Street. The detective watched the informant knock on the front door of the residence located at 6142 Olive Street. A man whom Detective Ortiz identified as the defendant, Dwight Thomas, answered the door and ushered the informant inside. The informant was inside for no more than five minutes. Detective Ortiz monitored the transmissions from the transmitting device during those five minutes. He listened to the informant arrange for the purchase of two additional ounces of crack cocaine, to occur later that day. During the course of that conversation, Detective Ortiz heard only two voices.

Detective Ortiz observed the informant exit 6142 Olive Street and walk directly to the detective's car. In the car, the informant gave Detective Ortiz approximately an eighth of an ounce of crack cocaine. The detective again searched the informant and found the informant no longer possessed the prerecorded "buy money." Soon thereafter, Thomas exited the house and drove off in a green 1995 Jeep that had been parked in front of 6142 Olive Street during the informant's drug purchase. The Jeep returned about three minutes later, and Thomas exited the Jeep and used keys to unlock and enter the front door of 6142 Olive Street.

After Thomas reentered the house, Detective Ortiz departed to obtain a warrant to search the Olive Street residence. After he obtained the search warrant, Detective Ortiz directed the informant to schedule the purchase of an additional two ounces of crack cocaine for that same day. The informant again dialed xxx-xxx-9980, and Detective Ortiz again monitored the phone call. As a result of that phone call, Detective Ortiz coordinated with a number of other police officers to execute the search warrant.

At about 3:45 p.m. the same day, officers secured the perimeter of 6142 Olive Street in preparation for executing the search warrant. Detective Ortiz observed Thomas standing on the front porch. Just as the officers were about to execute the warrant, a previously unknown individual arrived at 6142 Olive Street by car. When the individual was out of his car and contacting Thomas, police executed the search warrant. Both individuals were secured, and Thomas accurately identified himself to police. A search of Thomas's person yielded a cellular telephone and over one thousand dollars in cash, including the five photocopied twenty dollar bills given to the informant prior to the drug transaction earlier that day. The other individual possessed an amount of crack cocaine consistent with personal use.

Police officers searched 6142 Olive Street. No one was present inside the residence. Detective Ortiz entered the house and observed a scale with white residue in the kitchen. Just inches away were baggies containing a white substance; the substance was later tested and determined to be 55.61 grams of crack cocaine. Also in the kitchen, police found two cell phone bills directed to the attention of Dwight Thomas and reflecting services provided to phone number xxx-xxx-9980. One of the bills was dated March 26, 2004. The keys found on Thomas's person operated the locks on the doors to 6142 Olive Street.

Officers also searched the green 1995 Jeep. They found another cell phone bill and Western Union receipts, both in Thomas's name and both listing the xxx-xxx9980 phone number. Thomas admitted that xxx-xxx-9980 was his telephone number.

In addition to evidence gathered during the April 2004 investigation, the Government gave notice of its intent to introduce evidence of Thomas's involvement in subsequent drug trafficking. The district court held a pretrial hearing regarding this evidence, where Thomas challenged its admissibility under Federal Rule of Evidence 404(b). Over Thomas's objection, evidence tending to prove the following was admitted:

In early January 2008, a confidential informant contacted Kansas City Police Department Detective Don Stanze regarding suspected drug trafficking. The informant indicated a man driving a red SUV, known to the informant as "Ed," was dealing drugs at a residence located at 5216 Wabash Avenue, in Kansas City. When Detective Stanze commenced an investigation of the suspected drug trafficking at that address, he discovered the utilities were registered to Dwight Thomas. Detective Stanze had been involved in the 2004 investigation of Thomas and consequently recognized his name. On numerous occasions, Detective Stanze observed Thomas driving the red SUV to and from 5216 Wabash Avenue. On one occasion, Detective Stanze witnessed the red SUV depart from 5216 Wabash Avenue, and he attempted to follow it. When the detective lost sight of the vehicle, he requested that other officers assist him to track the vehicle. A fellow officer located the red SUV at 4930 Wabash Avenue.

On February 19, 2008, Detective Stanze contacted the confidential informant to arrange a controlled buy of crack cocaine from the man known to the informant as Ed. In Detective Stanze's presence and using a speaker phone, the informant dialed xxx-xxx-1926 and arranged to purchase crack cocaine. During that conversation, the recipient of the call advised the informant that the recipient was at his "cook house." As a result of the conversation, Detective Stanze advised the informant he would follow him to 4930 Wabash Avenue in approximately one hour.

Detective Stanze met the informant at a covert location, searched the informant and his automobile, equipped him with a transmitting device, and provided him with $450 of prerecorded buy money. The detective and the informant then drove in separate automobiles to 4930 Wabash Avenue. Detective Stanze watched as the informant entered the house, and he listened as the transaction was completed. The red SUV was parked at 4930 Wabash Avenue at that time. After the transaction, Detective Stanze maintained visual contact with the informant until the two again met at the agreed upon covert location. When they met, the informant provided Detective Stanze with 14.1 grams of crack cocaine. At the conclusion of the meeting, Detective Stanze concluded Thomas was selling and storing drugs at 4930 Wabash Avenue. Consequently, Detective Stanze obtained search warrants for two residences: 4930 Wabash Avenue and 5216 Wabash Avenue.

Detective Stanze employed the confidential informant to arrange a second controlled purchase of drugs, to coincide with the execution of the search warrants. Again, on February 20, Detective Stanze watched as the informant dialed xxx-xxx1926 and listened on the speakerphone as the informant arranged to purchase 7 grams of crack cocaine for $225. Later the same day, the detective again met with the informant, searched him, equipped him with a transmitting device, and provided him with prerecorded "buy money." He watched as the informant entered the house at 4930 Wabash Avenue, and he listened to a drug transaction via the hidden transmitting device. Detective Stanze recognized the informant's voice as well as the same voice from the previous phone calls and previous transaction. After the informant exited 4930 Wabash Avenue, Detective Stanze followed him to a covert location. There, the informant gave Detective Stanze crack cocaine.

After debriefing the informant, Detective Stanze returned to 4930 Wabash Avenue, where a police tactical unit was executing the search warrant. Police detained five people in the residence, including Thomas. Detective Stanze recognized Thomas's voice from monitoring the informant's phone calls and drug transactions. At that time, Thomas possessed $4298, including the $225 in prerecorded buy money. Police also found multiple bags of crack cocaine...