U.S. v. Thomas
| Decision Date | 11 August 1998 |
| Docket Number | No. 97-3456,97-3456 |
| Citation | 155 F.3d 833 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anthony THOMAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Frances C. Hulin, Stephen A. Kubiatowski (argued), Gregory M. Gilmore, Office of United States Attorney, Springfield, IL, for Plaintiff-Appellee.
David B. Mote, Thomas W. Patton (argued), Office of Federal Public Defender, Springfield, IL, for Defendant-Appellant.
Before CUMMINGS, CUDAHY, and RIPPLE, Circuit Judges.
Between October 1992 and September 1994, Anthony Thomas sent five death threats to Carol Evans Walker, an Illinois Assistant State's Attorney who successfully prosecuted him for armed robbery. Thomas was eventually charged with and convicted of two counts of mailing threatening communications, in violation of 18 U.S.C. § 876. The district judge sentenced Thomas to 60 months on each count, to be served consecutively after Thomas' release from the Illinois Department of Corrections (IDOC). The district judge also sentenced Thomas to three years of supervised release and a $100 special assessment. On appeal, Thomas challenges the admission of certain evidence, the imposition of a six-level increase in his base offense level pursuant to United States Sentencing Guideline (U.S.S.G.) § 2A6.1(b)(1) and the refusal to group his counts under U.S.S.G. § 3D1.2. We affirm Thomas' conviction, but remand for reconsideration of his sentence.
Jack Rivera, an IDOC correction counselor, testified at trial about a disciplinary hearing that was held to determine whether Thomas was responsible for the letter sent to Walker in October 1992. This same letter formed the basis of Count 1 of the indictment. On direct examination, Rivera read a paragraph of the summary he prepared after the IDOC hearing:
Records of proceedings. Report read. [Anthony Thomas] admits he told investigator that he allowed his brother ... to use [Anthony Thomas'] name and [prisoner] number on a letter that his brother wrote. [Anthony Thomas] admits he made admission to investigator "if he saw Carol Evans Walker on the street, he would catch a battery case on her" but states he was referring to his brother's feelings. [Anthony Thomas] states Carol Walker prosecuted his brother not him.
Tr. 52-53. On cross, the defense emphasized that Thomas had denied writing the letter:
Defense: Officer Rivera, based on the fact that your report says that Anthony Thomas told you someone else wrote the letter, Anthony Thomas denied writing the letter?
Rivera: You could draw that conclusion.
Defense: Now, Anthony Thomas does have brothers, correct?
Rivera: I don't know.
Defense: You didn't feel that was important to even find out?
Rivera: At this--today, I don't know what his family status is.
Tr. 55. On redirect, the government clarified that the IDOC was interested in whether Thomas was the mastermind behind the letter, not whether Thomas had actually put pen to paper and written the letter himself:
Gov't: Based on what you have in your report, in the summary, you were interested in determining whether the Defendant was responsible for sending this threatening letter, not who wrote it; is that a fair statement?
Rivera: Correct.
Gov't: And you determined that Defendant was responsible for this threatening letter?
Defense: Your Honor, I object to what the conclusions were drawn by a disciplinary panel at the Department of Corrections.
Court: No, if it has to do with this matter, I think it's relevant. I'll allow it. Overruled.
Rivera: Could you repeat the question please?
Gov't: Sure. Did you determine that the Defendant was responsible for mailing a threatening communication to Carol Walker?
Rivera: Correct.
Tr. 56-57. On appeal, Thomas argues that the jury may have reasoned that because the IDOC determined that Thomas was responsible for the October 1992 letter, he was guilty of the crimes charged in the indictment. Therefore, Thomas asserts, the probative value of Rivera's testimony was substantially outweighed by the danger of unfair prejudice, and the district court should have excluded Rivera's testimony pursuant to Federal Rule of Evidence 403. Although we afford a significant amount of deference to a district court's Rule 403 determination, see United States v. Smith, 80 F.3d 1188, 1193 (7th Cir.1996), we agree with Thomas that the district court abused its discretion in permitting testimony about the result of the IDOC hearing.
Unsurprisingly, the government does not argue that Rivera's statement is the sort of evidence that is ordinarily admissible. The probative value of the testimony was limited at best, since the sole purpose of the hearing was to determine whether Thomas should be disciplined under IDOC policies, not whether Thomas had violated federal criminal law. Cf. United States v. Hanahan, 798 F.2d 187, 189 (7th Cir.1986). And the risk of unfair prejudice was substantial. The jury was unaware that Thomas was not given the procedural protections that exist in federal court, see Lenea v. Lane, 882 F.2d 1171, 1174 (7th Cir.1989), or that the IDOC did not have to decide whether Thomas was guilty beyond a reasonable doubt. From the jury's vantage point, the IDOC had resolved one of the issues in the criminal trial--whether Thomas caused the October 1992 letter to be sent to Walker. See Indictment, Count 1; 18 U.S.C. § 876.
The government relies on the principle that if a party opens the door to evidence that would ordinarily be inadmissible, he cannot complain about the admission of the evidence on appeal. See United States v. Moore, 115 F.3d 1348, 1358 (7th Cir.1997); United States v. Wynn, 845 F.2d 1439, 1443 (7th Cir.1988). As the government sees it, defense counsel misled the jury by creating the inference that the purpose of the IDOC hearing was to determine who actually wrote the letter, not who was responsible for it. As a result of this trial tactic, the IDOC appeared to have conducted a shoddy investigation. But we fail to see how this opens the door to testimony about the result of the disciplinary proceeding. On re-direct, the government needed to clarify the nature of IDOC's inquiry. It did so by asking Rivera to confirm that the IDOC was only "interested in determining whether the Defendant was responsible for sending this threatening letter, not who wrote it." Tr. 56. The government simply went one step too far when it inquired about the outcome of the hearing. Accordingly, the district court should have upheld Thomas' objection pursuant to Rule 403.
Thomas is not entitled to a new trial, however, because the error was harmless. See Fed. R.Crim. P. 52(a); Moore, 115 F.3d at 1358. After review of the trial transcript, we are convinced that the jury would have found Thomas guilty even if it had been unaware of the result of the disciplinary proceeding. The evidence against Thomas was overwhelming. For instance, an IDOC investigator testified that Thomas said he could not be charged with respect to the December 1992 letter because he had instructed another inmate to write it. Tr. 61. When Thomas was incarcerated in Joliet, Illinois, Walker received letters with a Joliet postmark; when Thomas was transferred to Pontiac, Illinois, Walker received letters with a Pontiac postmark. Tr. 62-65. The jury also heard evidence of Thomas' animosity toward Walker, such as his statement to an IDOC investigator that if he saw Walker on the street he would "take a battery charge." Tr. 61-62. Moreover, Thomas' primary defense was that he could not read, and that therefore he had been unable to ascertain what his fellow inmates had written on his behalf. Tr. 68. But the jury was unlikely to believe this after they heard evidence that Thomas looked up information about Walker in a book. Tr. 82. Thomas also provided FBI agents with handwriting samples of words that appeared in the letters Walker received--like "dead" and "kill." And Thomas composed (not copied) sentences such as, Tr. 109. In light of all the evidence pointing to Thomas' guilt, there is not "a reasonable possibility" that testimony about the outcome of the IDOC proceeding "had a prejudicial effect upon the jury's verdict." United States v. Berry, 92 F.3d 597, 600 (7th Cir.1996). Accordingly, there is no need for a new trial or to reverse the district court.
The district court increased Thomas' base offense level pursuant to U.S.S.G. § 2A6.1(b)(1), which mandates a six-level increase "[i]f the offense involved any conduct evidencing an intent to carry out" the threat. The district court explained:
In the instant case, the Court finds that the § 2A6.1 enhancement is valid. Defendant's letters to Carol Evans Walker were of a very violent nature. Furthermore, Defendant's own statements, including his statement that he would "take a battery charge if he saw Carol Evans Walker on the street," show that he had the intent to carry out his threats. Defendant is a violent man who wrote violent letters, and in the Court's opinion, fully intended to carry out his threats.
Order of 9/15/97 at 3 (citations omitted). Thomas argues that the district court considered impermissible evidence in concluding that the six-level enhancement was appropriate and, in the alternative, that the district court misconstrued the evidence presented to it. To the extent that Thomas' argument requires us to interpret § 2A6.1, our review is de novo. See United States v. Wilson, 98 F.3d 281, 282 (7th Cir.1996). Our review of the district court's factual determination is for clear error. See United States v. Sullivan, 75 F.3d 297, 302 (7th Cir.1996).
While this appeal was pending, the Sentencing Commission issued an application note which addressed a circuit conflict regarding "whether or not conduct which...
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