U.S. v. Thomas, No. 95-3023

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtRANDOLPH; We think the only misunderstanding is on Thomas's part. The district court, Flannery
Citation97 F.3d 1499
Decision Date18 October 1996
Docket NumberNo. 95-3023
PartiesUNITED STATES of America, Appellee, v. Joseph THOMAS, Sr., Appellant.

Page 1499

97 F.3d 1499
321 U.S.App.D.C. 165
UNITED STATES of America, Appellee,
v.
Joseph THOMAS, Sr., Appellant.
No. 95-3023.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 12, 1996.
Decided Oct. 18, 1996.

Page 1500

[321 U.S.App.D.C. 166] Appeal from the United States District Court for the District of Columbia (94cr00124-01).

Santha Sonenberg, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Gregg A. Maisel, Assistant United States Attorney, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., United States Attorney, John R. Fisher, Thomas C. Black and Michael L. Volkov, Assistant United States Attorneys.

Before: RANDOLPH, ROGERS, and TATEL, Circuit Judges.

RANDOLPH, Circuit Judge:

A jury found Joseph L. Thomas, Sr. guilty of four counts of unlawfully distributing heroin, one count of unlawfully possessing the drug with intent to distribute it, and one count of possessing an unregistered firearm. The district court sentenced him to concurrent terms of imprisonment of 84 months on each count, to be followed by concurrent terms of three years supervised probation on each count.

Thomas was caught red-handed. He sold the heroin to two individuals working for the Drug Enforcement Administration, one a confidential informant, the other an undercover agent. His defense to the distribution charges was entrapment. Now he asks us to set his convictions aside and order a new trial, or to remand for resentencing. There is a bit of tension between the alternative dispositions he proposes. On the one hand, Thomas wants to relitigate the question of his guilt. On the other hand, he wants his sentence reduced because he accepted the responsibility for his crimes. We will discuss his sentencing challenge first, thus reversing the usual sequence. That is the only thing we reverse.

I

In order to grant the two-point reduction in offense level allowed by U.S.S.G. § 3E1.1(a), the defendant must "clearly demonstrate[ ]" acceptance of responsibility for his offense. Defendants who, like Thomas, force the government to trial are not ordinarily entitled to the benefit of U.S.S.G. § 3E1.1. See id., commentary note 2; United States v. Reid, 997 F.2d 1576, 1580 (D.C.Cir.1993). "Conviction by trial, however"--the Commentary adds--"does not automatically preclude a defendant from consideration for such a reduction." U.S.S.G. § 3E1.1, commentary note 2. Some defendants, the Commentary predicts, will go to trial to preserve issues not dealing with their "factual guilt." Id. And we suppose that between the time of conviction and sentencing, a defendant

Page 1501

[321 U.S.App.D.C. 167] could experience a conversion as sudden as the famous one on the Damascus road. See United States v. DeJesus-Gaul, 73 F.3d 395, 397 (D.C.Cir.1996). At the moment of his conviction, therefore, Thomas was not theoretically ineligible for the acceptance-of-responsibility adjustment. Thomas says the district court misunderstood this point and viewed his assertion of an entrapment defense at trial as an absolute bar to his receiving the benefit of U.S.S.G. § 3E1.1.

We think the only misunderstanding is on Thomas's part. The district court, Flannery, J., filed a careful and thorough sentencing memorandum, pointing out that Thomas persisted in his entrapment claim from trial through sentencing, as indeed he did. Thomas said this to the court:

What can I say? This is our justice system, and I respect it, and I respect this court. I just pray that this court would take certain things into consideration. As one of them, the fact that I worked for 42 years, served in the Army for three years, spent my entire life crime free up until what I thought was truly an entrapment that unfortunately the court didn't see it as such.

The Court: The jury didn't see it.

The Defendant: The jury didn't see it as such.

About his heroin offenses, Thomas offered not one word of remorse, of culpability, of human error. He did not apologize or exhibit any shame. He insisted that he was "truly" entrapped, in other words, that the government made him do it. Yes, he admitted selling the heroin. The evidence against him was undeniable. But there is a difference between "admitting the acts and accepting responsibility for the crimes." United States v. Cutchin, 956 F.2d 1216, 1219 (D.C.Cir.1992). To say "It's not my fault, but I accept the responsibility," is to engage in self-refutation. See United States v. Demes, 941 F.2d 220, 222 (3d Cir.1991). Judge Flannery knew this as well as we do.

II

The only other contention meriting discussion goes to the validity of Thomas's conviction and deals with the Jencks Act, 18 U.S.C. § 3500, the statute entitling criminal defendants to the "statement" of a government witness after the witness has testified on direct examination. "Statement" has several statutory meanings. The one that concerns us here is "a written statement made by said witness and signed or otherwise adopted or approved by him," 18 U.S.C. § 3500(e)(1). We suggested in United States v. Bryant, 439 F.2d 642, 651-52 (D.C.Cir.1971), and held in United States v. Bundy, 472 F.2d 1266 (D.C.Cir.1972) (per curiam), that the duty of the government to produce such Jencks Act statements operates as a duty to preserve the...

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7 practice notes
  • United States v. Vega, No. 10-3083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 24, 2016
    ...“the continuing vitality of Bryant in its original context regarding claims under the Jencks Act”). But see United States v. Thomas , 97 F.3d 1499, 1503 (D.C. Cir. 1996) (noting that “the actual holding in [Bryant ] did not rest on the Jencks Act” since “the court did not decide that the mi......
  • Applications, hearings, determinations, etc.: Branex, Inc.,
    • United States
    • Federal Register February 25, 2004
    • February 25, 2004
    ...v. U.S., 528 U.S. 1176 (2000); Humberto Martin v. United States, 109 F.3d 1177, 1178 (7th Cir. 1996); United States v. Joseph Thomas, Sr., 97 F.3d 1499, 1502 (D.C. Cir. 1996); United States v. Lam Kwong-Wah, 924 F.2d 298, 310 (DC Cir. 1991); John K. Lincoln v. Franklin Y.K. Sunn, 807 F.2d 8......
  • U.S. v. Davis, No. CRIM.A. 03-348(RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 22, 2005
    ...a statement to produce. Even assuming a Jencks violation occurred, a new trial is not an automatic remedy. See United States v. Thomas, 97 F.3d 1499, 1502 (D.C.Cir.1996) (stating that "there is no fixed rule regarding what must be done if the government violates the [Jencks] Act"). Instead,......
  • U.S. v. Dozier, No. 97-3060
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 11, 1998
    ...of nolo contendere than of contrition. It is not enough to demonstrate acceptance of responsibility. See United States v. Thomas, 97 F.3d 1499, 1501 (D.C.Cir.1996) ("There is a difference between admitting the acts and accepting responsibility for the crimes."); United States v. Cutchin, 95......
  • Request a trial to view additional results
6 cases
  • United States v. Vega, No. 10-3083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 24, 2016
    ...“the continuing vitality of Bryant in its original context regarding claims under the Jencks Act”). But see United States v. Thomas , 97 F.3d 1499, 1503 (D.C. Cir. 1996) (noting that “the actual holding in [Bryant ] did not rest on the Jencks Act” since “the court did not decide that the mi......
  • U.S. v. Davis, No. CRIM.A. 03-348(RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 22, 2005
    ...a statement to produce. Even assuming a Jencks violation occurred, a new trial is not an automatic remedy. See United States v. Thomas, 97 F.3d 1499, 1502 (D.C.Cir.1996) (stating that "there is no fixed rule regarding what must be done if the government violates the [Jencks] Act"). Instead,......
  • U.S. v. Dozier, No. 97-3060
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 11, 1998
    ...of nolo contendere than of contrition. It is not enough to demonstrate acceptance of responsibility. See United States v. Thomas, 97 F.3d 1499, 1501 (D.C.Cir.1996) ("There is a difference between admitting the acts and accepting responsibility for the crimes."); United States v. Cutchin, 95......
  • U.S. v. Daniels, No. CRIM.A. 01-40002-01-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • March 7, 2002
    ...[the report] in final, signifying his approval only when he affixes his signature to the completed document." United States v. Thomas, 97 F.3d 1499, 1502 (D.C.Cir. 1996); see United States v. Hinton, 719 F.2d 711, 722 (4th Cir.1983) ("investigative notes of a government agent, made in the c......
  • Request a trial to view additional results

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