United States v. Thomas

• Decision Date: 28 July 2014
• Docket Number: No. 13–2650.,13–2650.
• Citation: 760 F.3d 879
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Dion THOMAS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

760 F.3d 879

UNITED STATES of America, Plaintiff–Appellee

v.Dion THOMAS, Defendant–Appellant.

No. 13–2650.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2014.

Filed: July 28, 2014.

Lisa C. Williams, AUSA, argued, Cedar Rapids, IA, for Plaintiff–Appellee.

Raphael M. Scheetz, argued, Cedar Rapids, IA, for Defendant–Appellant.

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.

SMITH, Circuit Judge.

A jury convicted Dion Thomas of two heroin-related offenses. The district court ¹ sentenced him to 240 months' imprisonment and eight years of supervised release. On appeal, he challenges the district court's (1) grant of the government's motion in limine over his Federal Rule of Evidence 404(b) objection, which allowed witnesses to testify about Thomas's alleged crack distribution, and denial of Thomas's objection to testimony about money laundering; (2) denial of Thomas's motions for new counsel; (3) calculation of Thomas's offense level by considering uncharged, crack-distribution conduct; and (4) calculation of Thomas's criminal history score that contemplated Thomas's state-court conviction for cocaine possession. We affirm.

I. Background

Thomas, a resident of Chicago, Illinois, began visiting relatives periodically in Waterloo, Iowa, as early as the fall of 2009. He visited two of his mother's siblings—Katina McKenzie Jackson (“Katina”) and Essex McKenzie (“Essex”). During these visits, Thomas supplied Katina and Essex with crack and heroin for their personal use as well as for redistribution. Katina and Essex introduced Thomas to some of their drug acquaintances. They identified Thomas to these acquaintances as their drug source. Thomas began supplying one of these individuals, Arthur Scott, with up to 250 grams of heroin each month. The government intercepted phone conversations between Thomas and Scott, several of which involved heroin transactions.

Thomas also “fronted” ² heroin to several other individuals in Waterloo who then redistributed to customers. Some of these customers knew Thomas because they observed Thomas distribute large quantities of heroin to redistributors like Scott, Katina, or Essex. Additionally, law enforcement purchased 0.54 grams of heroin from Thomas during a controlled buy. The purchaser's hidden audio transmitter failed to capture the contents of the conversation between Thomas and the purchaser. However, law enforcement observed Thomas actually consummate the transfer of the heroin.

Other evidence against Thomas included a jailhouse informant who testified that Thomas told him of the controlled heroin purchase. Thomas told the informant that Thomas hoped that the controlled purchase would be useless as evidence against him because of the failed audio recording. The informant also testified that Thomas informed him about Katina's and Essex's involvement, as well as the typical prices and quantities at which Thomas sold heroin. Thomas also told the informant about Thomas's heroin purchases in Chicago.

In December 2011, a federal grand jury indicted Thomas and five others with heroin-related offenses. Thomas was charged with one count of conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851, and one count of distribution of 0.54 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851. Authorities arrested Thomas in March 2012. He pleaded not guilty to the charges and was appointed counsel. He proceeded to trial in August 2012.

A jury convicted Thomas of both of the charged counts. The presentence report (PSR) calculated Thomas's base offense level as 34 and his criminal history category as IV. The PSR enhanced Thomas's offense level by three levels because he was a manager or supervisor of the conspiracy. Thus, with an offense level of 37 and a criminal history category of IV, the Guidelines range was 292–365 months' imprisonment. The district court granted Thomas's motion for downward variance and sentenced him to concurrent 240–month sentences with eight years of supervised release.

II. Discussion

On appeal, Thomas challenges the district court's (1) grant of the government's motion in limine over his Rule 404(b) objection, which allowed witnesses to testify about Thomas's alleged crack distribution, and denial of Thomas's objection to testimony about money laundering; (2) denial of Thomas's motions for new counsel; (3) consideration of Thomas's uncharged, crack-distribution conduct in calculating Thomas's offense level; and (4) including Thomas's state-court conviction for cocaine possession in calculating Thomas's criminal history score.

A. Rule 404(b)

Thomas contends that the district court violated Federal Rule of Evidence 404(b) by allowing testimony regarding Thomas's alleged crack distribution and alleged money laundering. “We review the admissibility of evidence under Rule 404(b) for abuse of discretion.” United States v. Katz, 445 F.3d 1023, 1029 (8th Cir.2006) (quotation and citations omitted). District courts have “broad discretion in admitting such evidence and will be reversed only if such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts.” Id. (quotations and citations omitted).

Rule 404(b) states that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” However, such evidence may be admitted “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2) (emphases added). We have recognized that “Rule 404(b) is a rule of inclusion, prohibiting only evidence that tends solely to prove the defendant's criminal disposition.” United States v. Young, 753 F.3d 757, 768 (8th Cir.2014) (quotation and citation omitted). Thus, Rule 404(b) does not exclude evidence of prior bad acts that are probative of the charged crime. United States v. Heidebur, 122 F.3d 577, 579 (8th Cir.1997).

We recently explained in Young:

Rule 404(b) applies only to extrinsic, not intrinsic, evidence. United States v. Johnson, 463 F.3d 803, 808 (8th Cir.2006). “Evidence of other wrongful conduct is considered intrinsic when it is offered for the purpose of providing the context in which the charged crime occurred.” Id. “Such evidence is admitted because the other crime evidence ‘completes the story’ or provides a ‘total picture’ of the charged crime.” Id. (citation omitted).... Intrinsic evidence may help to fill the gaps in the jury's understanding of the crime charged. See [ United States v.] Hall, 604 F.3d [539,] 543–44 [ (8th Cir.2010) ].Id. at 770. Additionally, “[a] jury is entitled to know the circumstances and background of a criminal charge. It cannot be expected to make its decision in a void—without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.” United States v. Fleck, 413 F.3d 883, 890 (8th Cir.2005) (quotation and citation omitted).

[W]hen evidence of other crimes is so blended or connected, with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged, it is admissible as an integral part of the immediate context of the crime charged.

Id. (quotation and citation omitted). Thus, intrinsic, or res gestae, evidence may implicate the defendant in other acts or crimes. United States v. LaDue, 561 F.3d 855, 858 (8th Cir.2009).

1. Crack–Distribution Testimony

Prior to trial, the government filed a motion in limine asking the district court to “enter a pretrial order admitting into evidence testimony regarding defendant's crack cocaine distribution.” The government argued:

The evidence as to the defendant's distribution of, and transport of, crack cocaine along with heroin, is part and parcel of the crime with the charged crime of conspiracy to distribute heroin. The United States anticipates that several witnesses will testify that they received both crack cocaine and heroin from the defendant, and that the defendant brought both crack cocaine and heroin with him to Waterloo from Chicago. The United States anticipates that an additional witness will testify that he received large quantities of crack cocaine from the defendant. These activities occurred during the same time period as the charged conspiracy, involved the same group of people, and trips from Chicago to Waterloo. The evidence, therefore, is appropriate evidence of the activities of the charged conspiracy.

The district court granted the motion, finding that such evidence was admissible as intrinsic evidence and admissible under Rule 404(b).

The crack-distribution evidence presented at trial was consistent with the government's pretrial characterization of that evidence. For example, Essex introduced crack customers to Thomas, who even redistributed crack in Waterloo. Also, Katina bought crack for personal use and redistribution, much like she did with heroin. Scott also purchased crack from Thomas. Several heroin coconspirators knew that Thomas distributed crack as well as heroin to other coconspirators.

On appeal, Thomas contends that crack distribution evidence was not “part and parcel” of the heroin conspiracy. As proof, Thomas highlights that one witness who knew of his crack distribution knew nothing of Thomas's heroin distribution. He further avers that the crack distribution evidence violated Rule 404(b) because it was immaterial, was not similar in kind to the heroin evidence, and produced a prejudicial effect that substantially outweighed its probative value.

Upon review, we hold that the district court correctly concluded that the crack-distribution evidence constituted...