United States v. Thomas
| Decision Date | 06 May 2014 |
| Docket Number | Crim. No. PJM 13-0458 |
| Parties | UNITED STATES OF AMERICA v. JAMES WESLEY THOMAS Defendant |
| Court | U.S. District Court — District of Maryland |
James Wesley Thomas appeals Magistrate Judge (MJ) Thomas DiGirolamo's April 30. 2013 decision finding him guilty of fleeing to elude the police (Count 2), driving a motor vehicle in wanton and wilful disregard for the safety of persons and property (Count 3). and operating a vehicle in excess of the speed limit (Count 4), all Class B misdemeanors. He was sentenced to 6 months imprisonment as to Count 2. 6 months consecutive imprisonment as to Count 3, and 6 months concurrent imprisonment as to Count 4.
For the reasons that follow, the Court AFFIRMS Judge DiGirolamo's decision.
I.
By Criminal Complaint filed on July 12, 2012, Thomas was charged with assaulting a federal officer in violation of 18 U.S.C. §111(a)(1), a Class A misdemeanor carrying a maximum penalty of one year imprisonment (Count 1) and the three Class B misdemeanors recited above (Count 2-4). On the basis of the Class A misdemeanor charge, he requested a jury trial before a district judge. On November 19, 2012, on the Motion of the Government, MJ DiGirolamo signed an Order amending the Complaint to reduce Count 1 to a Class B misdemeanor so that the case would remain with the MJ as opposed to the District Court. On April 29, 2013, the day of trial, but immediately prior to its commencement before the MJ, the Government dismissedCount 1 altogether, and proceeded only on the three remaining misdemeanor counts: fleeing to elude the police, reckless driving, and speeding.
At trial the Government called two officers with the United States Park Police. The first, Officer Gogarty, testified that he was driving south on the Baltimore-Washington ("B-W") Parkway at approximately 10:45 p.m. on July 11, 2012 when he observed a Mercedes Benz in front of him in the left lane. The Mercedes abruptly changed into the right lane, went off the road onto the right shoulder, then took off at a high rate of speed, passing two vehicles ahead of him. Based on his own speedometer and moving radar, Gogarty determined that, at the point of Good Luck Road, the Mercedes was travelling at a speed of approximately 104 miles per hour. The posted speed at that juncture was 55 miles per hour. Gogarty thereupon radioed to Officer Ferreyra, who was at a position south of Gogarty's location. Ferreyra testified that he waited on the right shoulder of the B-W Parkway at the junction of Route 410 until the Mercedes approached. As the Mercedes with Gogarty in pursuit approached Route 410, Gogarty activated his emergency lights and his siren. The Mercedes accelerated. Ferreyra then activated his emergency equipment and began to enter the right lane from the right shoulder in front of the oncoming Mercedes. Both officers testified that, as it approached Ferreyra's vehicle, the Mercedes shifted from the left lane to the right lane, and headed directly toward the rear of Ferreyra's cruiser. Ferreyra. who had the impression the vehicle seemed to be trying "to run me Off the road", Apr. 29 Tr 16:8, was compelled to move sharply to the right shoulder of the road to avoid being hit. and momentarily lost control of his vehicle. The Mercedes meanwhile jerked back into the left lane.
Ferreyra testified that, as he tried to initiate his own pursuit of the Mercedes, he observed that the driver of the vehicle was "a man in a convertible with his left arm up . . . on the doorsill." April 29 Tr. 17:24 - 18:7. Gogarty stated that the Mercedes in question was not in fact a convertible, as he originally thought, Id. at 67:7-13.
Gogarty continued to race after the Mercedes southbound on the B-W Parkway. As the vehicles passed Route 202, according to Gogarty's radar the Mercedes was clocked at 134 m.p.h.
After both Gogarty and the Mercedes entered the ramp indicating the exit to Kenilworth Avenue, Gogarty managed to pull alongside the vehicle, and shined a spotlight into the car, where he was able to get "a clear look at the driver's face", Id. at 53:1. Gogarty testified that he saw that the driver was wearing a light colored, collared shirt and noted the tag number of the vehicle. Gogarty said he observed the driver's left arm on the door frame, with his right hand on the steering wheel.
But the Mercedes continued to flee down Route 295 (which is essentially Kenilworth Avenue in the District of Columbia), traveling up to 126 m.p.h. as measured by Gogarty's radar and speedometer. According to Gogarty, the chase proceeded from Route 295 to the Capital Beltway onto Route 50, at which point the driver of the Mercedes "really was able to accelerate and open it up." Id. at 56:3-4. At the exit for Route 424, Gogarty terminated his pursuit.
Three hours later, having checked the motor vehicle records, Gogarty went to the home of the registered owner of the Mercedes, at which time, as it happened, Thomas drove up in the Mercedes. Gogarty identified Thomas at that time, just as he did at trial, as the same person he had observed driving the Mercedes during the July 2012 pursuit.
After Oogarty testified that he had tested his radar the evening of July 11, 2012 to ensure it was working properly, the Government, over Thomas' objections, moved into evidence under the business records exception a certification of the accuracy of Gogarty's radar unit.
Thomas called four witnesses on his behalf.
Dr. Potolicchio, a practicing neurologist, testified that he treated Thomas in July 2010, a year after Thomas was hit by a truck while riding a motorcycle, and saw him again in January 2012. Dr. Potolicchio testified that Thomas was unable to pick up his right arm. or move the arm from side to side, and showed little strength in his right hand muscles and limited mobility in his left elbow. Dr. Potolicchio therefore testified that "I don't see how he could operate a motor vehicle with just his right arm."
Thomas' second witness. Paul Koch, a private investigator, testified that he performed a simulation in a parking lot that showed the difficulty of identifying the Mercedes or its driver in the dark. A third defense witness. Officer Cameron Easier, testified that he delivered Thomas' case file to the Office of the Attorney General. The final defense witness. Alexander Ewings, a friend of Thomas, testified that Thomas drives with his left arm and lets people borrow his Mercedes.
MJ DiGirolamo found Thomas guilty of fleeing and eluding, reckless driving and traveling 134 mp.h. in a 55 m.p.h. zone. On August 7, 2013, he sentenced Thomas to six months imprisonment as to Count 2, six months imprisonment as to Count 3 consecutive to Count 2, and six months imprisonment as to Count 4, concurrent with Count 3, a total of twelve months in custody. Thomas has been serving his sentence pending this appeal.
III.
Federal Rule of Criminal Procedure 58(g)(2)(D) provides that the scope of an appeal from a magistrate judge's judgment "is the same as in an appeal to the court of appeal from a judgment entered by a district judge." Accordingly, in reviewing a judgment of conviction entered by a magistrate judge, the "district court utilizes the same standards of review applied by a court of appeals in assessing a district court conviction," rather than conducting a "trial de novo." United States v. Bursey, 416 F.3d 301, 305 (4th Cir. 2005). Findings of fact are reviewed for clear error, and issues of law are reviewed de novo. Id. (citing United States v. Leftenant, 341 F.3d 338, 342-43 (4th Cir. 2003)).
IV.
Thomas raises several issues on appeal.
lie argues first that Judge DiGirolamo committed factual error in finding that he was the driver of the Mercedes in question because the Judge did not take into account Thomas' alleged impairment, accepting Officer Gogarty's testimony that the driver of the Mercedes had his left arm on the door and right arm on the steering wheel over Dr. Potolicchio's testimony that Thomas would not have been able to drive with his right arm alone. This argument is without merit.
"A defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden." United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation omitted). In reviewing the sufficiency of such evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). "Our review is limited to determining whether substantial evidence supports the conviction." United States v. Burgos, 94 F.3d 849, 853 (4th Cir. 1996).
MJ DiGirolamo made a factual determination that Thomas was able to drive the Mercedes as described by Officer Gogarty. He also concluded that Thomas was the registered owner of the vehicle Gogarty had chased and that Gogarty clearly recognized Thomas as the driver of the vehicle, both on the night of the incident and again at trial. The MJ observed Officer Gogarty and Dr. Potolicchio during their testimony and ultimately concluded that Thomas was the driver of the vehicle. The Court finds no clear error in MJ DiGirolamo's credibility determinations. There was substantial evidence to support his conclusion that Thomas was the driver.
Thomas next argues that MJ DiGirolamo implicitly shifted the burden of proof to him to disprove the Government's evidence that he was the driver of the Mercedes. The MJ, he argues, was "fixated" on Thomas' failure to provide an alibi or any...
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