U.S. v. Thomas

• Decision Date: 21 August 1996
• Docket Number: No. 95-3940,95-3940
• Citation: 93 F.3d 479
• Parties: UNITED STATES of America, Appellee, v. Shaun THOMAS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 479

93 F.3d 479

UNITED STATES of America, Appellee, v. Shaun THOMAS, Appellant.

No. 95-3940.

United States Court of Appeals Eighth Circuit.

Submitted April 9, 1996.

Decided Aug. 21, 1996.

Lorraine Snead Ingels, argued, Cedar Rapids, IA, for appellant.

Richard Louis Murphy, Asst. U.S. Atty., argued, Cedar Rapids, IA, for appellee.

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

MAGILL, Circuit Judge.

Shaun Thomas appeals his conviction of possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (1994), and of using and carrying a firearm during and in relation to a felony drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1994). Because there was insufficient evidence to establish that Thomas violated 18 U.S.C. § 924(c), we vacate his conviction on that count and remand for resentencing. With respect to Thomas's other challenges, we affirm the district court. ¹

I.

On March 25, 1994, the Waterloo, Iowa, Police Department received information from a motel employee that several people from Chicago had checked into the Rodeway Inn in the early hours of the morning. According to the motel employee, the guests had made numerous telephone calls early in the day and appeared to be conducting drug transactions from their room and their automobile, a white Oldsmobile Delta 88. The room was registered to Charmane Powells and the automobile to Shaun R. Thomas. Based on this information, the police ran a check on Powells and Thomas and discovered that both had suspended Illinois driver's licenses.

At a police department meeting before the 3-11 p.m. shift, officers were directed to "attempt to locate" the white Oldsmobile Delta 88. Suppression Tr. at 5-7. The officers were informed that the occupants of this vehicle were suspected of trafficking drugs at the Rodeway Inn and that their licenses had been suspended by the State of Illinois.

At approximately 8:30 p.m., Officer Frank Krogh observed Thomas's automobile parked outside the West Coast Connection, a bar on the north end of Waterloo that had been the site of frequent drug deals. I Trial Tr. at 267. It was described by police officers as the hot spot for crack cocaine dealing in Waterloo in March 1994. Suppression Tr. at 6, 59.

Krogh set up surveillance on the white Oldsmobile from a distance. During this time, he observed Thomas going back and forth between the automobile and the bar. Shortly after 9 p.m., Thomas and Steve Marshall left the West Coast Connection, entered Thomas's Delta 88, and drove away with Thomas behind the steering wheel. Krogh followed.

While following the defendants, Krogh observed that neither Thomas nor Marshall was wearing a safety belt, a violation of Iowa law. Krogh followed the vehicle for a short distance and then stopped the defendants in a well-lit area. Krogh approached the driver's side of the vehicle and asked Thomas for his driver's license. Thomas produced an Arkansas driver's license. The passenger identified himself as Steven Dixon.

Krogh took Thomas's Arkansas driver's license and called the dispatcher to run a check on the defendant's driving status in Illinois and Arkansas. By this time, Officer Mark Meyer had arrived at the scene. Krogh asked Thomas whether he had any guns, drugs, or things of that nature in the automobile. Thomas said that he did not.

Krogh then asked Thomas if he could search the automobile. Thomas responded in the affirmative by stating either that he did not mind or that he did not care. I Trial Tr. at 276; Suppression Tr. at 45-46. Thomas was told to get out of the car, and Krogh did a pat-down search of the defendant for weapons. A search of the automobile revealed a white napkin between the front seats. Inside the white napkin, Krogh found 0.29 grams of crack cocaine. A further search of Thomas's person revealed additional crack cocaine concealed under his baseball cap. Police arrested Thomas and Marshall.

After placing Thomas and Marshall in custody, officers obtained a search warrant for the Rodeway Inn motel room. The room search uncovered 39.65 grams of crack cocaine hidden between the mattress and the box spring of one of the two beds in the room. There were two packages of cocaine--one containing loose crack cocaine and the other containing numerous, individually packaged pieces of crack cocaine. The police found a loaded 9mm semi-automatic handgun concealed under a pillow. The room also contained plastic bags used to package crack cocaine and a piece of luggage containing Thomas's clothing.

Following the execution of the search warrant at the Rodeway Inn, officers returned to the police station and interviewed Thomas and Marshall after advising them of their Miranda rights. Both individuals denied any knowledge of crack cocaine at the hotel room. Indeed, both denied staying at the hotel room even though their clothing had been found scattered about the room.

During the interview, Thomas admitted coming to Waterloo with a third person named Charmane Powells, whom he knew by the nickname of "Shoe." Marshall likewise confirmed that he had come to Waterloo with the defendant and Powells. However, Marshall stated that he and Powells had stayed at a house located on the west side of Waterloo the previous evening, while the defendant had stayed at the motel. Later, on the morning of March 26, 1995, Marshall was taken from the jail to identify the house at 1116 West Fifth Street, Waterloo, Iowa, as the house where he and Charmane Powells had spent the previous evening.

Based on information provided by Marshall and information law enforcement officials had received from other sources, officers applied for a search warrant for the residence of Keisha Morris, 1116 West Fifth Street in Waterloo. Pursuant to a warrant officers searched the residence and located a large quantity of crack cocaine in three separate locations in the house along with a large quantity of money, plastic bags used to package crack cocaine, and other drug paraphernalia. ²

On June 24, 1994, Thomas, Marshall, and Powells were indicted on one count of possession with intent to distribute fifty grams or more of cocaine base. Three months later, a superseding indictment was filed against the three defendants, substituting a charge for possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B)(iii), and for using and carrying a firearm during and in relation to a felony drug trafficking offense, in violation of 18 U.S.C. § 924(c). Thomas filed a motion to suppress the evidence seized as a result of the traffic stop made by Krogh, which the court denied.

Powells subsequently entered into a plea agreement with the government and testified against Thomas at trial. Powells testified that he observed Thomas with a small package which contained crack cocaine. Thomas placed this package in the bedroom in the upstairs of the Morris residence. Police seized this package during the execution of the warrant at the Morris residence.

Powells also testified that he had observed Thomas coming out of the Rodeway Inn carrying a brown paper bag. Powells testified that the brown paper bag which the defendant was carrying was very similar to the one which was government's exhibit 13. Government exhibit 13 was the brown paper bag which contained the large quantity of controlled substances found at the motel room.

Thomas also testified at trial. The defendant admitted that he stayed in Room 207 at the Rodeway Inn and slept in the bed where the drugs and gun were found. Thomas acknowledged that he had gone to the West Coast Connection with Marshall and that he had been stopped while driving his car after leaving the West Coast Connection. Thomas contended that he had purchased the crack cocaine found in his hat at the West Coast Connection. He admitted that he lied to the officers when he denied that he had ever been in the motel room. Thomas admitted that his luggage and clothing were in the motel room, although he denied any knowledge of the drugs, firearm, or drug paraphernalia located in the room or the crack found between the car seats.

On cross-examination, the prosecutor tried to establish that Thomas had given trial testimony inconsistent with testimony he had given at prior hearings held in the case, including a suppression hearing. At the beginning of cross-examination, the prosecutor asked the defendant whether he had ever lied under oath in a court proceeding and Thomas answered "no." II Trial Tr. at 598. The prosecutor then inquired as to whether the defendant had been under oath when he "previously testified in August of 1994" and whether he had been honest at that time. II Trial Tr. at 600. The defendant responded that "yes" he had been under oath and that, as far as he knew, he had been honest on that occasion. Later, the prosecution questioned Thomas about several inconsistent statements he had made, including statements previously made under oath. In the course of trying to pin down the defendant on testimony which appeared inconsistent to previous testimony, the prosecutor asked the following question:

And do you recall testifying at the suppression hearing--excuse me--at the previous hearing in this matter concerning how long you had been at that hotel or what you had been at that hotel for?

II Trial Tr. at 608. After cross-examination continued for several more minutes, the court adjourned trial for the day. At the time court was recessed, defendant's counsel moved for a mistrial based upon the prosecutor's withdrawn mention of the word "suppression" in reference to a prior hearing while cross-examining the defendant. The court denied the motion for mistrial, but agreed to give a curative instruction.

Thomas was subsequently convicted. He moved for a new trial, which the district court denied. At sentencing, the district court found that Thomas had...